Plaint returned by court for being presented before proper court.

This revision is under Art.227 of the Constitution of India filed by the first defendant in O.S.No.140 of 1998, on the file of 18th Assistant City Civil Court, Madras.

2. First respondent herein, as plaintiff, filed the suit for declaration declaring that the first defendant is not entitled to invoke Bank Guarantee Nos.362/91-92 and 363/91 -92, dated 3. 1992 and extended from time to time upto 112. 1997 with claim period upto 11. 1998, and also for an order of ad interim injunction restraining the second defendant and bank from paying any sum covered under the said Bank Guarantee.

.3. It is alleged in the plaint that the plaintiff and first defendant entered into a contract on 4. 1992 as supplier and purchaser wherein plaintiff agreed to supply plant and equipment and mandatory spares therefor and incidental services like supervision of erection, startup, commissioning, conducting performance trails and demonstration of guaranteed performance, training of personnel, etc., under I.C.B. package No.03 particularly consisting of raw material drying and grinding, cement meal continuous blending and kiln feed, clinker manufacturing fuel (Coal) drying and grinding, slag drying and grinding, cement grinding, cement and also mixing and cement storage and packing plants and mandatory spare parts for modernisation/substantial expansion of cement project of the first defendant. Pursuant to the agreement and in terms therefore plaintiff has executed two performance security guarantees through second defendant-Bank, one for Rs. 1,18,01,455 and another for Rs. 1,24,08,535. It is further stated in the plaint that the Bank guarantees given towards performance security are to be discharged by the first defendant not later than 30 days following the date of completion of the plaintiffs performance trials which is to be completed within 6 months of commissioning of the plant of 18 months from the date of receipt of last equipment at the site. It is said that the first defendant, under the relevant clause of the agreement is entitled to adjust for all the claims of the first defendant due to failure to complete the obligations by the plaintiff in respect of the following three items: (i) Liquidated damages due to delay in delivery of documents and/or technical date as specified in clause 8 of social conditions of Contract; (ii) Liquidated damages due to delay in delivery of goods and services; and (iii) compensation due to non shortfall in performance of equipment in terms of capacities, etc.

.4. It is the case of the plaintiff that for a shortfall in performance of slag grinding and packing operation of the plant, plaintiff had paid a compensation to 1st defendant in a sum of Rs.1,35,34,610. It is further said that for packer’s non-performance, it was agreed between the parties that plaintiff will bear the replacement cost of the packing machine, the screen and ancillary equipment, if required to be selected jointly, and in consequence thereof, first defendant was compensated in a sum of Rs. 1,15,50,610 for non-performance of the slag grinding, it was further agreed between the parties that the plaintiff will pay to the first defendant a sum of Rs. 19,84,000 as compensation. Likewise, the first defendant had agreed that a sum of Rs.28,48,747 due by them to the plaintiff may be educational and a sum of Rs. 1,06,85,863 alone need by paid to the first defendant under the above heads, which amount was also paid by the plaintiff. In view of the above settlement or agreement between the parties, it is the case of the plaintiff that the first defendant is bound to return the bank guarantees which were valid upto 111. 1997 having a claim period upto 112. 1997. But, instead of returning the Bank guarantees, first defendant insisted by letter dated 12. 1997 that the bank guarantees must be extended and even without waiting for extension by plaintiff, on the same day, first defendant clandestinely wrote to the second defendant-Bank invoking the