Decided on December 18,1991



V.K.MEHROTRA, J. - (1.) Shree Digvijay Cement Company Ltd., Digvijayagram, Gujarat (for short, "the Company") has assailed in this Letters patent appeal the judgment and order of a learned single Judge (Justice Ms. Kamlesh Sharma) in O. M P. No 93 of 1991 in civil suit No. 112 of 1990 instituted by Chamera Hydro -Electric Project, Banikhet District Chamba. (briefly, "the Chamera Project"), against it in this Court. The third defendant in the suit is the Regional Commissioner for Cement Industry, Government of India, New Delhi.
(2.) The suit seeks recovery of a sum of Rs. 58.39,711,51, under Order VII Rule 1 read with section 26 of the Code of Civil Procedure along with interest from the date of the filing of the suit till the date of payment at the rate of 17 -1/2% per annum from the Company. Summons of the suit was issued to the Company on November 20, 1990 for March 4, 1991 The Company appeared before the Court in protest and made an application purporting to be under Order VII Rule 11 read with sections 21, 148 and 151 of the Code of Civil Procedure. On the facts mentioned in this application, the Company prayed that the suit be dismissed as having been instituted before a Court which had no territorial jurisdiction to try it and that pending the disposal of the application time for filing the written statement may be suitably enlarged. The matter was heard by the learned single Judge, after plaintiff Chamera Project filed a reply to the application of the defendant Company, at some length. By the order under challenge the learned Judge rejected the application and directed the defendants to file their written statements. So far, no written statement has been filed by the defendant -Company in view of an order passed by this Court on September 4, 1991 in this appeal saying that the Company shall not be required to file its written statement during the pendency of the present appeal.
(3.) According to the allegations contained in the plaint, Chamera Project approached Proforma defendant No. 3, Regional Development Commissioner, Cement Industry, (North Region) Government of India for allocation of quota of cement to ensure observance of the time schedule for the construction activities of the gigantic and prestigeous Chamera Project. By an authorisation dated December 31, 1985, a release order of 4,00u MT of cement was issued in favour of Chamera Project which was to be supplied by the defendant -Company. Following it, an order was placed by the Chamera Project through its letter dated January 15, 1986 with the defendant -Company for supply of 4,000 MT of portland cement within the validity period. The defendant Company forwarded a proforma invoice dated January 20, 1986 to the Chamera Project towards the value of 4,000 MT of cement of receipt whereof plaintiff Chamera Project remitted 100% advance of Rs. 35,12,329.60 to the defendant -Company. The amount was paid through a bank draft dated February 18, 1986 which was sent to the defendant -Company through registered post on February 20, 1986. The Company did not supply even a single metric tonne of cement inspite of having received 100% advance payment for the supply as cost price;

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