- (1.) The aforesaid two applications have been taken out by plaintiff as far as the first mentioned application is concerned by the first defendant so far the second application is concerned in connection with the said suit which has been filed by the plaintiff for the following reliefs: "(a) A decree for perpetual injunction restraining the defendant No. 1 and its men. servants, agents, officers, employees and/or assigns from relying upon or enforcing or referring the disputes between the parties to the defendant No. 2 in terms of Article 14.2 of the Licence Agreement as stated in the said letters dated 6th May. 2009 being annexures "R", "S". ''T'' and "U''; (b) A decree for perpetual injunction restraining the defendant No. 2 from entering into any reference or giving any decision in respect of the matters purported to have been referred to him by the said letters dated 6th May, 2009, being annexures "R", "S", ''T'' and ''U" hereof; (c) A decree of perpetual injunction restraining the defendants and/or each of them, their men, servants, agents, officers, employees and/or assigns from in any way or manner giving any effect or further effect to or acting pursuant to the said letters dated 6th May, 2009 being annexures "R", "S", ''T'' and "U" hereof and/or otherwise; (d) A decree of perpetual injunction restraining the defendants and/or each of them, their men, servants, agents, officers, employees and/or assigns from in any way or manner referring any dispute between the parties for settlement by the defendant No. 2; (e) A decree of perpetual injunction restraining the defendants and/or each of them, their men, servants, agents, officers, employees and/or assigns from in any way or manner seeking replenishment, substitution or submission of a fresh performance bank guarantee for RS. 10 crores, as demanded by the said letters dated 9th April, 2009 and 21st April. 2009, being annexures "M" and "N" hereof and/or otherwise; (f) Delivery up and cancellation of the said letters dated 9th April, 2009. 21st April, 2009 and the said four letters dated 6th May, 2009 being annexures "M", "N", "R", "S" ''T" and "U'' hereof; (g) Injunction: (h) Receiver; (i) Attachment, (j) Costs and; (k) Such further and other reliefs as this Hon'ble Court may deem fit and proper." Pursuant to open tender followed by submission of bid by the plaintiff and followed by acceptance thereof an agreement in writing being a Licence Agreement dated 14th May, 2002 was executed by the first defendant and the plaintiff and/or its predecessor-in-interest for amongst others construction of operation, management and maintenance of multi purpose Berth No. 4A at Haldia Dock Complex and also to collect the revenue therefrom for a period of 30 years on various terms and conditions contained therein. In terms of the said Licence Agreement the plaintiff was obliged to make payment of the following to the defendants No. 1. (a) One time upfront fee of RS. 10,75,32,000/-, (b) Monthly royalty on cargo and handling charges at an increasing rate subject to a maximum of 61.04% as fixed by the defendant, (c) Monthly lease rent of RS. 22,40,250/- with annual escalation at the rate of 5.1 % of the rent payable in preceding year. The plaintiff was required to make payment of royalty charges, power and water charges to the defendant No. 1,
(2.) Pursuant to and in terms of the said agreement the plaintiff made payment of one time upfront fee of RS. 10,75,32,000/- to the defendant No. 1, (a) furnish a bond by way of bank guarantee dated 28th November. 2003 for a sum of RS. 10 crores in accordance with Clause 7.1(cc) of the License Agreement, (b) furnished a bank guarantee dated 21st August, 2003 for a sum of RS. 8,06.49,000/- in accordance with Clause 5.2 (v) of the License Agreement to secure payment of the lease rent, (c) built a fully mechanized cargo handling Berth No. 4A with a capacity of 3 millions tonnes per annum in accordance with the terms of the lease agreement. The said berth was completed within the stipulated time. The plaintiff also developed various other facilities in accordance with the terms and conditions of the licence agreement at expenditure in excess of RS. 1025 crores to the satisfaction of the defendant No. 1, (d) made and continued to make payment of royalty on cargo handling charges at the stipulated rate and the said monthly lease rent in accordance with the terms of the License Agreement. Between the period 7th December 2002 and 31st March. 2009 the plaintiff has made payment of the sum in excess of RS. 21,50,98,045/- on account of the lease rent and a sum in excess of RS. 74,33,8,307/- on account of royalty on the goodwill revenue earned from cargo handling charges as passed to the minimum guarantee royalty of RS. 33,45,450/-. The said royalty was based on 16.05 million metric tons of cargo handled at the said Berth during the said period, well in excess of 7.50 million metric tons of minimum guaranteed quantity of cargo required to be handled during the said period, (e) made all necessary payments within the stipulated time. Payments as aforesaid were duly received without any dispute or demur by the defendant No. 1. The calculation of the royalty and the payment of the said sum were duly certified by the independent Auditor nominated and/or selected by the defendant No. 1 up to the period of May, 2007. The said Auditor also inter alia certified that no amount remained outstanding from the plaintiff to the defendant No. 1 as on 13th May, 2007. Such report of the independent Auditors were also duly accepted by the defendant No. 1 without demur or dispute. The plaintiff has since thereafter also made payments of the lease rental and royalty on the basis of License Agreement. Thereafter disputes arose between the first defendant and the plaintiff regarding date of commencement of the commercial operation and royalty payment as per the License Agreement. This disputes and claim of the applicant has already been referred to Arbitration and the Arbitral Tribunal has been constituted.
(3.) The first defendant thereafter from time to time has raised various other bills and demands of the plaintiff for payment by several letters dated 20th January, 2009, 12th February 2009, 19th February 2009 23rd February 2009 and 25th March 2009 on various heads namely as follows: (i) Special rate (ii) Double and Triple Banking charges (iii) Royalty on total revenue (iv) Royalty on Berth Hire Charges (v) Royalty on Storage Charge/Demurrage (vi) Interest on the above.;