JUDGMENT :

J.B. Pardiwala, J.

1. Rule returnable forthwith. Mr. S. P. Majmudar, the learned counsel waives service of notice of rule for and on behalf of the respondent.

2. This is an application under Article 227 of the Constitution of India at the instance of the original plaintiff and is directed against the order passed by the Commercial Court at Vadodara dated 17th December 2018 below Exhibit : 109 in the Commercial Civil Suit No.29 of 2016.

3. The facts giving rise to this application may be summarised as under:

3.1 For the sake of convenience, the petitioner herein shall be referred to as 'the plaintiff' and the respondent herein shall be referred to as 'the 'defendant'.

3.2 The plaintiff instituted the Commercial Civil Suit No.29 of 2016 in the Commercial Court at Vadodara for recovery of Rs.2,03,47,500/-( Rupees Two Crore Three Lakh Forty Seven Thousand Five Hundred only) with running interest at the rate of 18% from the defendant.

3.3 In the said commercial suit instituted by the plaintiff, the Commercial Court has framed the following issues:

“1 Whether plaintiff proves that the velocity of the wind and other natural incidence and circumstances has direct nexus with electric generation from WEG?

2 Whether the plaintiff proves that the plaintiff had satisfactorily completed its obligation i.e. supply and commissioning of the w WEGs?

3 Whether the Plaintiff Is entitled to recover the sum of Rs. 2,03,47,500?

4 Whether the plaintiff proves that the plaintiff is entitled for interest? If yes, at what rate and for what period?

5 Whether the defendant proves that the plaintiff had guaranteed to the defendant trouble free running of optimum output for period of 24 months from the date of commissioning and also performance of WTGs irrespective of natural circumstances as on site?

6 Whether the defendant proves that guaranteed power quality at Prausla and Lamba locations was of 441000/596000 KW/HR/SET/YEAR with 100% grid availability?

7 Whether the defendant proves that the performance of WEG supplied and commissioned by the plaintiff were not as per contractual and guaranteed performance?

8 Whether the plaintiff proves that the performance of the WEGs were not site specific ?

9 Whether the defendant proves that the wind regime of 2 sites and grid availability factor had been taken into consideration at the time of accepting orders?

10 Whether the defendant proves that the operation and maintenance of the machines and wind farms were clearly within the responsibility of plaintiff during last 2 years of operation farm after commissioning?

11 Whether the defendant proves that the defendant has suffered any loss on account of actions attributable to plaintiff?

12 Whether defendant proves that he Is entitled to recover sum of Rs. 16,31,22,000/-from plaintiff?

13 Whether the plaintiff proves that the plaintiff is entitled for interest? If yes, at what rate and for what period?

14 Whether the defendant proves that the suit of the plaintiff is barred by limitation?”

3.4 In the meantime, the plaintiff preferred an application under Order 16 Rule 2 of the Code of Civil Procedure, 1908 (for short, 'the CPC'). The application reads thus:

“Application under Order 16 Rule 2 of Code of Civil Procedure, 1908

1 The plaintiff herein most humbly submits as under: 1. That the plaintiff upon settlement of issued vide Exhibit 73 has filed a list of witnesses proposed to be examined by the plaintiff and as a part of the same the plaintiff herein had mentioned that the plaintiff intends to examine the Officer holding custody of the documents pertaining to electricity generated by wind farm from the state load dispatch centre, GETCO Vadodara.

2 It is most humbly submitted that in view of the completely false and illegal written statement which has been filed by the defendant, the defendant herein has attempted to raise an alleged dispute about the performance of the WEGs. It is most humbly submitted that in view of the said fact it is crucial and cardinal in the interest of