M.R. Shah, J. - (1.) Admit. Shri Nirav Sanghavi, learned Advocate waives service of notice of Admission on behalf of the respondent herein original defendant. In the facts and circumstances of the case and as the Record & Proceedings of the case is available and the learned Advocate appearing on behalf of the appellant has placed on record the paper book, the present First Appeal is taken up for final hearing today.
(2.) Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 24.07.2017 passed by the learned Judge, Commercial Court, Vadodara (hereinafter referred to as "learned Judge") in Commercial Civil Suit No.9/2016, by which the learned Judge has dismissed the said suit, the original plaintiff has preferred the present First Appeal.
(3.) The facts leading to the present First Appeal in nutshell are as under: [3.1] That the appellant herein original plaintiff instituated Special Civil Suit No.421/1993 in the Court of learned Civil Judge (Senior Division), Vadodara against the respondent herein original defendant for a decree of Rs.5,05,85,532.43 paise. It was the case of the plaintiff that a contract was executed on 21.12.1984 between the plaintiff and defendant for the supply of natural gas at the manufacturing plant of the defendant. The terms and conditions for the supply, along with the definitions and its interpretation of the words were mentioned in the said contract. The said contract was for a period of five years, commencing from 01.04.1985 to 31.03.1990 and the plaintiff had agreed to sell and deliver the gas from its Ankleshwar, Dahej and Gandhar fields as per the defendant's requirement subject to a maximum of 10,000 standard M3 per day. A minimum guaranteed offtake as provided in Clause 5.01 (ii) was fixed and the defendant was required to pay the price for that minimum quantity of gas for each day even if they could not utilize the said quantities. [3.2] It was further the case of the plaintiff that on 28.05.1985 another agreement was executed between the plaintiff and defendant amending some of the Clauses of the original contract dated 21.12.1984 and as per the new agreement Clause Nos. 2.01, 5.01, 5.02(i)(ii)(iii), 5.03 and 5.04 were deleted and fresh Clauses were substituted and added. As per this agreement, the contract had come into force from 01.06.1985 till 31.03.1990 and the minimum guaranteed offtake was fixed at 7200 Standard M3 and maximum at 8000 Standard M3 par day was fixed. It was further the case of the plaintiff that the price of 1000 standard M3 of natural gas delivered was fixed as per Annexure II of the agreement and the said price was inclusive of royalty, but exclusive of Sales tax any other tax, duties, levies, cess, fees, etc. as applicable at that time or in future by the Central Government, State Government, Municipality or any other local body or bodies. It was further the case of the plaintiff that as per AnnexureII, the price of 1000 standard M3 of gas was fixed at Rs.2503.03 Paise, and the said price of natural gas was fixed equivalent to Ex. Refinery price of furnace oil per Kg/Ltr, and it was also provided to adjust and revise it on prorate basis from the date of Ex. Refinery price of furnace oil for nonfertilizer use, changes. It was further the case of the plaintiff that some of the gas consuming industries of Gujarat have challenged the right of the plaintiff to charge price of gas equivalent to furnace oil price and therefore, Civil Appeal Nos.8530/1983 to 8540/1983 were filed by the plaintiff against the Association of Natural Gas Consuming Industries of Gujarat. It was further the case of the plaintiff that on the date of entering into the contract the said Civil Appeals were pending before this Court and therefore in Annexure II of the agreement, it was also provided that the price agreed in the said contract is subject to revision in accordance with the price as may be laid down by the Hon'ble Supreme Court in the aforesaid matters. It was the case of the plaintiff that as per Clause 12 of the contract the plaintiff had to issue the invoices covering total quantities of gas delivered by the plaintiff in accordance with the relevant provisions of the contract during each fortnight and the defendant was required to make full payment within 10 days of the receipt of the such invoices. It was further the case of the plaintiff that after executing the agreement and fully knowing the price of the gas which is to be charged, the defendant filed a suit in the Court of Civil Judge (SD) at Baroda and had asked for injunction restraining the plaintiff from charging the contractual rate and had also obtained an interim order to pay Rs.1000/ per 1000 M3. Subsequently, the said injunction was vacated and appeal preferred by the defendant was also dismissed but during that period the defendant had paid only Rs. 1000/ per 1000 M3. [3.3] It was the case of the plaintiff that the Government of India, Ministry of Petroleum and Natural Gas by its notification dated 30.01.1987 fixed the price of the gas at Rs.1400/ per 1000 M3 for gas at landfall points and the said price was exclusive of royalty, taxes, duties and other statutory levies. In the said notification, it was also provided that for unexpired contract between the ONGC and the consumers, with specified price, the said contract will have to run their course and the price fixed by the said notification will apply only after the contract period expires. Despite this clear provision for unexpired contracts, the defendant, instead of paying at the contractual rate, was paying the price of the gas somewhat equivalent to the price fixed by the notification dated 30.01.1987. It was further the case of the plaintiff that the commission was raising the bills for the supply of gas at the contractual rate but the defendant was not paying the same at the said rate and was also taking shelter of Clause No.3 of Annexure II of the agreement. It was further the case of the plaintiff that it was agreed between the parties that the price fixed in the said agreement were subject to revision in accordance with the principle as may be laiddown by the Hon'ble Apex Court in Civil Appeal No.8530/1983 therefore, till the verdict plaintiff had not taken any action of cutting of the supply of the gas for nonpayment of price of the gas at the agreed rate. It was further the case of the plaintiff that the Hon'ble Apex Court gave its judgment on 04.05.1990 and upheld the right of the plaintiff to fix the price of natural gas therefore, the price fixed by the plaintiff and agreed by the defendant in the contract, has been upheld and therefore, the plaintiff is entitled to recover the price of the gas at the rate mentioned in the agreement. It was the case of the plaintiff that in the notification it is clearly provided for the unexpired contract, to charge at the contractual price, till the contract period is over and therefore, defendant is liable to pay the price of gas as mentioned in the contract. It was further the case of the plaintiff that the plaintiff served a notice to the defendant through its advocate on 01.04.1993 demanding the outstanding amount. The defendant had replied the said notice on 15.04.1993 contending that they are not liable to pay the price of the gas at the contractual rate. It was also contended that from 30.01.1987 onwards, they are only liable to make the payment at the Government rate as fixed by the government. It was further the case of the plaintiff that the Government of India in its notification dated 30.01.1987 clearly laid down the provision for the unexpired contracts between the ONGC and the consumers and therefore, the defendant cannot escape from the liability of paying at the contractual rate for the period up to the expiration of the contract. [3.4] With the aforesaid case the plaintiff prayed for decree of Rs.5,05,85,532.42 paise.;