- (1.) This is the petition under Section 9 of the Arbitration and Conciliation Act, 1996 whereby the petitioner seeks an injunction to restrain the respondent No. 1 (hereinafter "the respondent") from invoking the Bank Guarantee for Euro 2,835,000 and which Bank Guarantee was given to secure the advance payment given by the respondent to the petitioner. The petitioner as the contractor and the respondent as an owner entered into a contract by virtue of the Letter of Intents dated 20.2.2008 whereby the petitioner was to design, engineer, manufacture, supply and sell the cement plants to the respondents for its sites at Belgaum; Karnataka, Gulbarga-I; Karnataka, Gulbarga-II; Karnataka and Meghalaya. The subject contract is dated 17.3.08.
(2.) In terms of the contract, the respondent gave an advance payment and which advance payment was secured by the petitioner by giving to the respondent the subject Bank Guarantee. The original contract contained a Clause called as Section 26.2 which reads as under: 26.2 Consequences If the Contract is terminated as per Section 26 - Termination for Convenience, the Seller shall determine: (i) the cost of material and goods ordered for the purposes of the Contract or for use in connection with supply of the Equipment which have been delivered to the Seller or for which the Seller is legally liable to pay or accept delivery. Such materials and goods shall become the property of and be at the risk of the Buyer when paid for by the Buyer and the Seller shall place the same at the Buyer's disposal; and (ii) the amount of any other reasonable expenditure incurred by the Seller in the expectation of completing the whole of the supply of the Equipment as well as cancellation charges as applicable on submission of proofs; and (iii) the costs for removal of Equipment from the Site and the return of these items to the Seller's and/or Subcontractors' workshops as well as the costs of repatriation of the Seller's and/or Subcontractors personnel; and (iv) a reasonable amount in respect of loss of profit not exceeding 10% of the total amount due under the Contract to the extent that such profit has not already been paid to the Seller in sums already invoiced; And shall issue an accumulated invoice certified by the auditor of the Seller payable by means of the Letter of Credit as specified in Annex 11 (Forms of Securities).
(3.) Pursuant to the fresh discussion and negotiations between the parties, the contract was novated on 5.9.2008 and these novations are as under: Amendment No. 3 to Contract between Dalmia Cement Ventures Ltd. and Humboldt Wedag GmbH made on March 17, 2008 Contract No. DV-MGH-DLH-PUO-002-00 ...Following amendments have been agreed between DCVL &HWG for Plant No. 3 (Gulbarga II) and Plant 4 (Meghalaya). 1) The contract value for plant No. 3 and 4 remains EURO 10,253,500.00. 2) HW Germany confirms placing order of the following items. JUDGEMENT_3470_ILRDLH20_2010_1.html;