M.R. SHAH, J.

1. ADMIT. Shri Nirav Sanghavi, learned Advocate waives service of notice of Admission on behalf of the respondent herein – original defendant. In the facts and circumstances of the case and as the Record & Proceedings of the case is available and the learned Advocate appearing on behalf of the appellant has placed on record the paper book, the present First Appeal is taken up for final hearing today.

2. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 24.07.2017 passed by the learned Judge, Commercial Court, Vadodara (hereinafter referred to as “learned Judge”) in Commercial Civil Suit No.9/2016, by which the learned Judge has dismissed the said suit, the original plaintiff has preferred the present First Appeal.

3. The facts leading to the present First Appeal in nutshell are as under:

3.1 That the appellant herein – original plaintiff instituted Special Civil Suit No.421/1993 in the Court of learned Civil Judge (Senior Division), Vadodara against the respondent herein – original defendant for a decree of Rs.5,05,85,532.43 paise. It was the case of the plaintiff that a contract was executed on 21.12.1984 between the plaintiff and defendant for the supply of natural gas at the manufacturing plant of the defendant. The terms and conditions for the supply, along with the definitions and its interpretation of the words were mentioned in the said contract. The said contract was for a period of five years, commencing from 01.04.1985 to 31.03.1990 and the plaintiff had agreed to sell and deliver the gas from its Ankleshwar, Dahej and Gandhar fields as per the defendant's requirement subject to a maximum of 10,000 standard M3 per day. A minimum guaranteed off take as provided in Clause 5.01 (ii) was fixed and the defendant was required to pay the price for that minimum quantity of gas for each day even if they could not utilize the said quantities.

3.2 It was further the case of the plaintiff that on 28.05.1985 another agreement was executed between the plaintiff and defendant amending some of the Clauses of the original contract dated 21.12.1984 and as per the new agreement Clause Nos. 2.01, 5.01, 5.02(i)(ii)(iii), 5.03 and 5.04 were deleted and fresh Clauses were substituted and added. As per this agreement, the contract had come into force from 01.06.1985 till 31.03.1990 and the minimum guaranteed offtake was fixed at 7200 Standard M3 and maximum at 8000 Standard M3 par day was fixed. It was further the case of the plaintiff that the price of 1000 standard M3 of natural gas delivered was fixed as per Annexure II of the agreement and the said price was inclusive of royalty, but exclusive of Sales tax any other tax, duties, levies, cess, fees, etc. as applicable at that time or in future by the Central Government, State Government, Municipality or any other local body or bodies. It was further the case of the plaintiff that as per Annexure-II, the price of 1000 standard M3 of gas was fixed at Rs.2503.03 Paise, and the said price of natural gas was fixed equivalent to Ex. Refinery price of furnace oil per Kg/Ltr, and it was also provided to adjust and revise it on prorate basis from the date of Ex. Refinery price of furnace oil for non-fertilizer use, changes. It was further the case of the plaintiff that some of the gas consuming industries of Gujarat have challenged the right of the plaintiff to charge price of gas equivalent to furnace oil price and therefore, Civil Appeal Nos.8530/1983 to 8540/1983 were filed by the plaintiff against the Association of Natural Gas Consuming Industries of Gujarat. It was further the case of the plaintiff that on the date of entering into the contract the said Civil Appeals were pending before this Court and therefore in Annexure II of the agreement, it was also provided that the price agreed in the said contract is subject to revision in accor