SUBHRO KAMAL MUKHERJEE, J. - (1.) THIS is an appeal against judgment and order dated May 11, 2011 passed by the learned Civil Judge (Senior Division), Fourth Court at Alipore, District-South 24 Paraganas, in Title Suit No. 1317 of 2011.
(2.) BY the order impugned, the learned trial judge declined to pass an ad-interim order of injunction ex parte against the defendants. This appeal arises out of a suit, inter alia, for declaration and injunction.
(3.) THE plaintiff alleged that the plaintiff and the defendant no.5 had entered into a memorandum of understanding on September 15, 2005, by which the defendant no.5 was to execute several civil works on the Birahi Ganga Hydro Power Project being set up by the plaintiff. In pursuance of the said memorandum of understanding, a formal agreement was executed between the plaintiff and the defendant no.1 on October 18, 2005. The defendant no.5 delayed execution of works. It engaged a sub-contractor for execution of the works and the defendant no.5 did not maintain minimum supervision over the works of the sub-contractor. The plaintiff, therefore, suffered substantial loss for delayed execution of the work by the defendant no.1. Still, the defendant no.1 claimed some amount for the works allegedly executed by it. Negotiations followed between the plaintiff and the defendant no.5. The defendant no.5 represented that certain claims on account of risk insurance policy taken by the defendant no. 5 would be released by the National Insurance Company Limited. The amount that would be received from the National Insurance Company would be made over by the defendant no. 5 to the plaintiff towards compensation of the plaintiff for the loss and damages, which the plaintiff suffered from the breach of the said agreement dated October 18, 2005. The negotiations resulted in a fresh contract. The parties entered into a new agreement in the form of a settlement deed on March 25, 2009 in supersession and novation of the said earlier agreement. The plaintiff claimed that the said agreement dated October 18, 2005 stood finally concluded in terms of the said settlement deed. There was complete and immediate abrogation of the said agreement. Because of execution of the fresh agreement in the nature of deed of settlement, the plaintiff withdrew the notice of invocation of the bank guarantee. However, the National Insurance Company rejected the claim of the defendant no.5 against the said risk insurance policy. In those circumstances, the defendant no.5 was liable to pay Rs.2,68,03,762/- (Rupees two crores sixty eight lakh three thousand seven hundred sixty two only) to the plaintiff. Although, the said agreement dated October 18, 2005 contained an arbitration clause, but the said agreement was superseded by the settlement deed executed on March 25, 2009. Therefore, the defendant no.5 was not entitled to invoke the arbitration clause in the said agreement dated October 18, 2005. Nevertheless, on December 8, 2010 the defendant no. 5 purportedly invoked the arbitration clause by nominating an arbitrator. The defendant no.1 was the appointing authority as per the extinguished arbitration clause. The plaintiff objected to such constitution of arbitration tribunal. The plaintiff contended that the arbitral tribunal had no jurisdiction to act upon any claim made by the defendant no.5 against the plaintiff under the said agreement on October 18, 2005.;