- (1.) D. C. Srivastava, J. This revision is directed against the order dated 18th November, 1995 of Shri Shiv Sharma, III A. C. J. M. /civil Judge, Senior Division, Muzaffarnagar, rejecting the two applications moved under Section 41-B of the Arbitration Act.
(2.) THE brief facts are that an application under Section 20 of the Ar bitration Act was moved by the revisionist in the court below seeking prayer that an Arbitrator be appointed and reference of dispute between the parties be made to him for adjudication. In brief the factual allegations are that a modernisation plant of Rohana Kalan Sugar Mill in district Muzaffarnagar was undertaken and the revisionist, to be called as seller, entered into an agree ment with the opposite-party, U. P. State Sugar Corporation, to be called as purchaser, on 20th August, 1989 for a sum of Rs. 17 crores, 80 lacs 1780 lacs. According to the terms of the agreement the purchaser was to advance the amount. As per agreement three instalments of advance of Rs. 89 lacs, 178 lacs and 89 lacs were advanced. THE work was to be completed by 15th November, 1990. THE first bank guarantee No. 9/47 dated 10th August, 1989 was executed in favour of the purchaser and the first advance of Rs. 89 lacs was given in two' instalments, one Rs. 39 lacs on 10th August, 1989 and Rs. 50 lacs on 19th August, 1989. Under the terms of the agreement utilisation certificate with proof thereof was to be submitted by the seller to the pur chaser and only thereafter the second instalment was to be advanced. After submitting the utilisation certificate the seller obtained the second advance through bank guarantee No. 9/64 dated 20th November, 1989 for Rs. 178 lacs in two instalments of Rs. 50 lacs on 23rd November, 1989 and Rs. 128 lacs on 4th December, 1989. THE utilisation certificate of this advance was also submitted by the seller to the purchaser whereafter third advance of Rs. 89 lacs was given through bank guarantee No. 9/70 dated 6th January, 1990. In addition to this a third guarantee known as 'delivery guarantee' was also ob tained and the fourth guarantee known as 'performance guarantee' was also obtained. Delivery guarantee No. 12/28, dated 13th November, 1990 was for Rs. 29 lacs and Performance guarantee No. 9/32, dated 26th November, 1990 was for Rs. 89 lacs. It was alleged that for various reasons the plant could not be completed in time for which the purchaser was at fault because there was delay in acquisition of land, etc. THE seller supplied the machinery and as per agreement and Rs. 46 lacs of advance was adjusted. Subsequently under the policy of the State Government the modernisation plan was abandoned and the seller was informed to stop the work forthwith. THEreafter three ad vance guarantees and delivery guarantee were invoked. This was done during the pendency of petition under Section 20 of the Arbitration Act. THE conten tion of the revisionist has been that there was no breack on the part of the seller and that the time was not the essence of the contract and that since the contract was abandoned by the purchaser there was fraud in invoking the bank guarantee which has caused irretrievable injustice to the seller. It was also the case of the seller that delivery guarantee could not be invoked be cause the agreement was abandoned by the purchaser. This was also one of the allegation of fraud. The petition was contested in the court below. Initially prayer was made for maintaining status quo regarding supply of machineries and construc tion made at the site, which was granted ex parte by the court below vide its order dated 11th October, 1995. In the meantime since the bank guarantees numbering four were invoked, the revisionist again applied to the court below for restraint order restraining the purchaser from invoking the four guarantees.
(3.) BOTH the applications were contested by the opposite party on various grounds and ultimately the two applications were rejected by the lower court through the impugned order. It is, therefore, this revision.;