IMPORTANT POINT
Vadodara is not justified in holding that in view of Clause 6 of Supply/Purchase Agreement, Commercial Court, Vadodara lacks total jurisdiction.

M.R. Shah, J.

1. As common question of law and facts arise in the present First Appeal and the Appeal From Order and as such are interconnected, both these First Appeal and Appeal From Order are decided and disposed of by this common judgment and order.

2. Feeling aggrieved and dissatisfied with the impugned order dated 05.12.2016 passed by the learned Judge, Commercial Court, Vadodara (hereinafter referred to as "Commercial Court, Vadodara") below Exh. 1 in Commercial Civil Suit No. 288/2016, by which the Commercial Court, Vadodara has dismissed the said suit on the finding recorded by the Commercial Court, Vadodara while disposing of the application Exh. 5 that the Commercial Court, Vadodara has no territorial jurisdiction, the original plaintiff has preferred the present First Appeal No. 2897/2016.

2.1 Feeling aggrieved and dissatisfied with the impugned order dated 05.12.2016 passed below Exh. 5 in Commercial Civil Suit No. 288/2016, by which the Commercial Court, Vadodara has dismissed the said application Exh. 5 solely and mainly on the ground that the Commercial Court, Vadodara has no territorial jurisdiction, the original plaintiff has preferred the present Appeal From Order.

3. For the sake of convenience, facts in Appeal From Order arising out of the order passed below Exh. 5 are narrated and considered, which in nut-shell are as under:

3.1 That the original plaintiff is a company registered under the Companies Act, 1956 and is engaged in the business of manufacturing of Thermostats and Thermoplastic Lined equipment and pipe and fittings. That the original defendant No. 1 is a company incorporated under the Laws of Republic of Indonesia and is engaged in the manufacturing of Pulp Paper and Tissue Paper. The original defendant No. 2 is a public sector Bank.

3.2 It appears that original defendant No. 1 was desirous of building a pulp mill in Ogan Komering Llir, South Sumatra, Republic of Indonesia. That for the said the original defendant No. 1 decided to secure services of the plaintiff and awarded a contract for the supervision and installation of the said material to the original plaintiff. That two contracts were executed between original plaintiff and the original defendant No. 1 on 10.07.2015, viz. the supply contract and the installation contract. Both the contracts were amended vide Amendment Agreement No. 1 dated 14.09.2016 respectively. It appears that as per clause 4.2 of the Supply Contract Amendment Agreement No. 1, the original plaintiff was supposed to issue a Bank Guarantee upon the original defendant No. 1 for a sum of 10% of the due price of the balance equal to USD 6,92,58,390. That in an irrevocable and unconditional bank guarantee bearing No. 074915 FGPER0002 was issued by the original defendant No. 2 Bank to the original defendant No. 1 for sum of USD 6,92,58,390 towards the performance of the supply contract and the supply contract Amendment Agreement No. 1. It appears that the supply contract was further amended vide Amendment Agreement No. 2 dated 10.11.2015. The scope of the supply was increased and the aggregate value of the supply contract subsequently amounted to USD 83,24,132. That the installation contract was further amended vide Amendment Agreement No. 2 dated 10.11.2015. Pursuant to clause 4.1 of the supply contract of Amendment Agreement No. 2, the Bank Guarantee was to be increased by 10% of the additional goods amounting to USD 1,39,82,930. That Bank Guarantee was amended and the value of the original Bank Guarantee was increased from USD 6,92,58,390 for 10% of the total value of the supply contract including the Amendment Agreements. Dispute arose between the parties. That thereafter the original defendant No. 1 issued letter to the original defendant No. 2 Bank invoking Bank Guarantee and directing the original defendant No. 2 to pay the same USD 8,32,41,320. That thereafter the plaintiff instituted the Commercial Civil Suit No. 288/2016 in the Commercial Court, Vadodara seeking