ORDER :

1. The defendant no.1 has filed the instant application being G.A. No. 2 of 2020 in C.S. No. 258 of 2019 praying for revocation of Leave granted to the plaintiff under Clause 12 of the Letters Patent, 1865 and for return of plaint on the ground that this Court has no jurisdiction to entertain the suit filed by the plaintiff.

2. The plaintiff has filed the suit against the defendants praying for the following reliefs:

“2. The plaintiff has filed the above suit seeking leave under Order II Rule 2 of the Code of Civil Procedure, 1908, and, under Clause 12 of the Letters Patent, 1865, and has claimed the following reliefs :

a) Decree against the defendant no. 1 for a sum of Euro 35,26,864 equivalent as on date to Rs. 27,92,21,822.28 as pleaded in paragraph 25 above;

b) Decree for interest for a sum of Euro 11,63,865.12 equivalent to Rs. 9,21,43,201.55 as pleaded in paragraph 26 above;

c) Decree against the defendant no. 1 for damages of Rs. 58,98,57,300/-as pleaded in paragraph 27 hereinabove;

d) Alternatively, an enquiry into the loss and damage suffered by the plaintiff consequent on the breaches and defaults committed by the defendant no. 1 and a decree against the said defendant for such sum as may be found due and payable on such enquiry;”

3. On negotiation between the defendant no. 1 and defendant no. 2, on 21st September, 2016, defendant no. 1 had issued a purchase order to the defendant no. 2 for manufacture and supply of 100 flat wagons with metric track bodies destined for container transportation on the Railway network of SITARAIL, linking d’ Ivoire with Burkina Faso in Africa. On receipt of the purchase order, the defendant no. 2 had issued a back to back purchase order dated 07.12.2016 to the plaintiff for manufacture and supply of 100 containers carrying wagons at a total consideration of 43,920.80 Euro per wagon, aggregating 43,92080 Euro, deliverable FOB, Kolkata by shipment after inspection at the workplace of the plaintiff.

4. The purchase order dated 21.09.2016 issued by the defendant no. 1 was amended by a document dated 22.06.2017 wherein the delivery schedule was re-fixed and again on 23.10.2017 further amended by re-fixing the delivery schedule which are as follows :

“a. First batch of 30 wagons to be delivered FOB Calcutta by 31.10.2017, the reception Ex Words whereof to be before 23rd October, 2017;

b. Second batch of 30 wagons to be delivered FOB Calcutta by 31.10.2017, the reception Ex Works to be before 21st November, 2017;

c. Third batch of 40 wagons to be manufactured before 30.12.2017 and to be received by the defendant no. 1 FOB Calcutta on a date to be intimated to the defendant no. 2 60 days in advance and latest by 22.06.2019.

Copies of the said amendments dated 22nd June, 2017 and 23rd October, 2017 along with transaction thereof are annexed hereto and marked “C” and “D” respectively.”

5. The purchase order dated 07.12.2016 issued by the defendant no. 2 to the plaintiff was also amended firstly on 06.02.2017 and subsequently on 17.11.2017 by extending the delivery schedule originally fixed in the purchase order dated 07.12.2016.

6. As per the purchase order, the plaintiff had completed the manufacture of wagons and duly notified to the defendant no. 2. The defendant no. 2 engaged one Bureau Veritas an internationally reputed inspecting agency for inspection of the wagons and accordingly the wagons were inspected at Hind Motor, District -Hooghly, West Bengal and on inspection, it was certified that the same has been manufactured in terms of the specification contained in the purchase order dated 07.12.2016. The plaintiff had raised invoices against the defendant no. 2 after adjusting the advance of Euro 8784.16 received by the plaintiff from the defendant no. 2. During the course of preparation of transportation of the wagons to the port, the defendant no. 2 intimated the plaintiff that the defendant no. 1 intends further checks to be carried out on the wagons. As there was no such provision for furth