- (1.) This is an interlocutory application in aid of the above suit instituted in this Court by the plaintiff against the defendants. This suit is marked as C.S. 77 of 2011. Before considering this application the claims in the plaint must be examined. They are as follows: .. (a) Mandatory injunction directing the defendant No. 2 to forthwith execute Fuel Supply Agreement with the plaintiff in furtherance of the Letter of Assurance dated 10th September 2008 being Annexure 1 hereto and thereafter in discharging their obligations thereunder; (b) The notice dated 22nd March 2011 being Annexure HH hereto and the letter dated 26th March 2011 being Annexure EE hereto be adjudged void, delivered up and cancelled; (c) Perpetual injunction restraining the defendant Nos. 1 and 2 from taking any step or further step in pursuance or furtherance of the notice dated 22nd March 2011 being Annexure HH hereto or any similar notice; (d) Perpetual injunction restraining the defendant No.2 from giving any effect or further effect to the notice of invocation of Bank Guarantee dated 26th March 2011 being Annexure EE hereto or any other similar notice and/or from receiving any payment against the bank guarantee No. 02860007208 for Rs. 4,06,80,000/-; (e) Perpetual injunction restraining the defendant No.3 from making any payment against the bank guarantee No. 02860007208 for Rs. 4,06,80,000/- to the defendant No.1 or defendant No.2; (f) Cost; 3 (g) Any other or further relief which the plaintiff is entitled to.
(2.) The cause of action arises in this way. The plaintiff is in the process of building an integrated steel and power plant in Jamuria in district Burdwan in West Bengal. There, they are setting up a captive power plant. They needed coal and approached the first and second defendants. The second defendant wrote to them on 10th September, 2008. The description of this letter is very important. It is described as the Letter of Assurance , in short LOA. The letter noted that the plaintiff required 4,52,000 tons of grade E coal per annum for their 3 * 30 MW captive power plant to be located in the above place. There were many terms and conditions in this LOA contained in an annexure to that letter, which had to be fulfilled by the plaintiff within two years of signing of this agreement. They were described as the milestones . These milestones were subsequently modified. Then, they would be required to sign a fuel supply agreement with the second defendant within three months of the above period. After signing of this agreement they would be supplied the above quantity of coal by the second defendant.
(3.) Before further discussing this application it is very essential to ascertain what is the legal status of the LOA. Is it a contract Or does it contain statements or representations made by the second defendant;