JUDGMENT : 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. 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 accordance with the price as may be laid down by the Hon'ble Supreme Court in the aforesaid matters. It was the case of the plaintiff that as per Clause 12 of the contract the plaintiff had to issue the invoices covering total quantities of gas delivered by the plaintiff in accordance with the relevant provisions of the contract during each fortnight and the defendant was required to make full payment within 10 days of the receipt of the such invoices. It was further the case of the plaintiff that after executing the agreement and fully knowing the price of the gas which is to be charged, the defendant filed a suit in the Court of Civil Judge (SD) at Baroda and had asked for injunction restraining the plaintiff from charging the contractual rate and had also obtained an interim order to pay Rs.1000/per 1000 M3. Subsequently, the said injunction was vacated and appeal preferred by the defendant was also dismissed but during that period the defendant had paid only Rs. 1000/per 1000 M3. 3.3 It was the case of the plaintiff that the Government of India, Ministry of Petroleum and Natural Gas by its notification dated 30.01.1987 fixed the price of the gas at Rs.1400/per 1000 M3 for gas at landfall points and the said price was exclusive of royalty, taxes, duties and other statutory levies. In the said notification, it was also provided that for unexpired contract between the ONGC and the consumers, with specified price, the said contract will have to run their course and the price fixed by the said notification will apply only after the contract period expires. Despite this clear provision for unexpired contracts, the defendant, instead of paying at the contractual rate, was paying the price of the gas somewhat equivalent to the price fixed by the notification dated 30.01.1987. It was further the case of the plaintiff that the commission was raising the bills for the supply of gas at the contractual rate but the defendant was not paying the same at the said rate and was also taking shelter of Clause No.3 of Annexure II of the agreement. It was further the case of the plaintiff that the commission was raising the bills for the supply of gas at the contractual rate but the defendant was not paying the same at the said rate and was also taking shelter of Clause No.3 of Annexure II of the agreement. It was further the case of the plaintiff that it was agreed between the parties that the price fixed in the said agreement were subject to revision in accordance with the principle as may be laiddown by the Hon'ble Apex Court in Civil Appeal No.8530/1983 therefore, till the verdict plaintiff had not taken any action of cutting of the supply of the gas for nonpayment of price of the gas at the agreed rate. It was further the case of the plaintiff that the Hon'ble Apex Court gave its judgment on 04.05.1990 and upheld the right of the plaintiff to fix the price of natural gas therefore, the price fixed by the plaintiff and agreed by the defendant in the contract, has been upheld and therefore, the plaintiff is entitled to recover the price of the gas at the rate mentioned in the agreement. It was the case of the plaintiff that in the notification it is clearly provided for the unexpired contract, to charge at the contractual price, till the contract period is over and therefore, defendant is liable to pay the price of gas as mentioned in the contract. It was further the case of the plaintiff that the plaintiff served a notice to the defendant through its advocate on 01.04.1993 demanding the outstanding amount. The defendant had replied the said notice on 15.04.1993 contending that they are not liable to pay the price of the gas at the contractual rate. It was also contended that from 30.01.1987 onwards, they are only liable to make the payment at the Government rate as fixed by the government. It was further the case of the plaintiff that the Government of India in its notification dated 30.01.1987 clearly laid down the provision for the unexpired contracts between the ONGC and the consumers and therefore, the defendant cannot escape from the liability of paying at the contractual rate for the period up to the expiration of the contract. 3.4 With the aforesaid case the plaintiff prayed for decree of Rs.5,05,85,532.42 paise. 4. 3.4 With the aforesaid case the plaintiff prayed for decree of Rs.5,05,85,532.42 paise. 4. The suit was resisted by the defendant by filing the written statement cum counter claim at Exh.50. The defendant denied all the allegations made in the suit. It was contended on behalf of the defendant that the agreement was valid upto 31.03.1990 and the suit was filed by the plaintiff in May 1993 and therefore, the suit of the plaintiff is barred by limitation. It was also specifically denied that the plaintiff is entitled to recover the price of the gas at the rate mentioned in the agreement since Hon'ble Supreme Court approved price on alternative fuel basis only till the date of Government notification and from notification date only notified price could have been charged and since the notification dated 30.01.1987 of the Central Government fixed up the price of the gas much lower than the contractual price and therefore, the plaintiff is entitled to the amount as claimed in the suit. It was also further contended that the plaintiff after filing of the suit settled the claim with the defendant and agreed to an amount of approximately Rs.52 lakh in June, 1993 and the said amount has since been paid by the defendant as confirmed by the plaintiff's letter dated 05.04.1995 and the matter has been settled already, it was requested to dismiss the suit. 4.1 The learned Judge initially framed the issues at Exh.51. However, thereafter, reframed/recast the issues at Exh.67. That the learned Judge framed the following issues. 1. Whether the plaintiff proves that the plaintiff is entitled for recovery of sum of Rs. 5,05,85,552.42 ps from the defendant ? 2. Whether the plaintiff proves that the plaintiff is entitled for interest ? If yes, at what rate and since when ? 3. Whether the defendant proves that the suit of the plaintiff is barred by limitation ? 4. Whether the defendant proves that the plaintiff is not entitled for recovery of any amount on account of estoppel, waiver and acquiescence ? 5. Whether the defendant proves that the defendant is entitled to make payment in accordance to the Notification of the Central Government ? 6. Whether the defendant proves that the Central Government is necessary party in the suit, therefore the suit is bad for non-joinder of necessary party ? 7. 5. Whether the defendant proves that the defendant is entitled to make payment in accordance to the Notification of the Central Government ? 6. Whether the defendant proves that the Central Government is necessary party in the suit, therefore the suit is bad for non-joinder of necessary party ? 7. Whether the defendant proves that the Agreement/Contract dated 21/12/1984 executed between the parties is not enforceable ? 8. What order, judgment and decree ? 4.2 That the plaintiff led the following oral as well as documentary evidences. : ORAL EVIDENCE: Exh. Evidence 61 Deposition in form of affidavit in lieu of Examination in Chief under Order 18 Rule 4 of CPC tendered by Mr. K.N. Venkatesh Chief Manager (Marketing) and his Cross examination. DOCUMENTARY EVIDENCE: Exh. Documents 73 Copy of agreement dated 21/12/1984 executed between the plaintiff and defendant for supply of gas. 74 Copy of agreement dated 28/05/1985 executed between the plaintiff and defendant. 75 Copy of reply of notice dated 15/04/1993 of plaintiff's advocate given by defendant. 76 Copy of Notification of Government of India dated 30/01/1987 fixing the price of gas 78 Office copy of Regd. Notice dated 01/04/1993 addressed to the defendant by plaintiff's advocate. 79 Office copy of Regd. Letter dated 02/04/1993 along with statement addressed to the defendant by plaintiff's advocate. 80 Postal acknowledgment of notice dated 01/04/1993. 81 Postal acknowledgment of notice dated 02/04/1993 82 Xerox copy of the reply of notice dated 15/04/1993 from defendant 83 Certified copy of RCS No. 603/1986 filed in the Court of Civil Judge (SD), by the defendant against the plaintiff. 84 Certified copy of the application Exh.5 filed by the defendant and the copy of order passed below application Exh. 5. 85 Certified copy of the written statement and objection against the suit and interim application. 86 Office copy of the bill for the month of June, 1985. 84 Certified copy of the application Exh.5 filed by the defendant and the copy of order passed below application Exh. 5. 85 Certified copy of the written statement and objection against the suit and interim application. 86 Office copy of the bill for the month of June, 1985. 87 Office copy of the bill for the month of July, 1985 88 Office copy of the bill for the month of August, 1985 89 Office copy of the bill for the month of September, 1985 90 Office copy of the bill for the month of October, 1985 91 Office copy of the bill for the month of November, 1985 92 Office copy of the bill for the month of December, 1985 93 Office copy of the bill for the month of January, 1986 94 Office copy of the bill for the month of February, 1986 95 Office copy of the bill for the month of March, 1986 96 Office copy of the bill for for the month of April, 1986 97 Office copy of the bill for for the month of May, 1986 98 Office copy of the bill for for the month of June, 1986 99 Office copy of the bill for the month of July, 1986 100 Office copy of the bill for the month of August, 1986 101 Office copy of the bill for the month of September, 1986 102 Office copy of the bill for the month of October, 1986 103 Office copy of the bill for the month of November, 1986 104 Office copy of the bill for for the month of December, 1986 105 Office copy of the bill for for the month of January, 1987 106 Office copy of the bill for the month of February, 1987 107 Office copy of the bill for the month of March, 1987 108 Office copy of the bill for the month of April, 1987 109 Office copy of the bill for the month of May, 1987 110 Office copy of the bill for the month of June, 1987 111 Office copy of the bill for the month of July, 1987 112 Office copy of the bill for the month of August, 1987 113 Office copy of the bill for the month of September, 1987 114 Office copy of the bill for the month of October, 1987 115 Office copy of the bill for the month of November, 1987 116 Office copy of the bill for for the month of December, 1987 117 Office copy of the bill for for the month of January, 1988 118 Office copy of the bill for the month of February, 1988 119 Office copy of the bill for the month of March, 1988 120 Office copy of the bill for the month of April, 1988 121 Office copy of the bill for the month of May, 1988 122 Office copy of the bill for the month of June, 1988 123 Office copy of the bill for the month of July, 1988 124 Office copy of the bill for the month of August, 1988 125 Office copy of the bill for the month of September, 1988 126 Office copy of the bill for the month of October, 1988 127 Office copy of the bill for the month of November, 1988 128 Office copy of the bill for the month of December, 1988 129 Office copy of the bill for the month of January, 1989 130 Office copy of the bill for the month of February, 1989 131 Office copy of the bill for the month of March, 1989 132 Office copy of the bill for the month of April, 1989 133 Office copy of the bill for the month of May, 1989 134 Office copy of the bill for the month of June, 1989 135 Office copy of the bill for the month of July, 1989 136 Office copy of the bill for the month of August, 1989 137 Office copy of the bill for the month of September, 1989 138 Office copy of the bill for the month of October, 1989 139 Office copy of the bill for the month of November, 1989 140 Office copy of the bill for for the month of December, 1989 141 Office copy of the bill for for the month of January, 1990 142 Office copy of the bill for the month of February, 1990 143 Office copy of the bill for the month of March, 1990 144 Statement showing supply of gas and arrears from July, 1985 to March, 1990. 145 Copy of statement of rate of interest charged by State Bank of India on the CC loan of ONGC account dated 14/03/2013. That on behalf of the defendant, the defendant led oral evidence at Exh.147. No other documentary evidence was led by the defendant. 4.3 That thereafter on establishment of the Commercial Court, at Vadodara and as the claim in the suit was above Rs.1 Crore, the suit came to be transferred to the Commercial Court, Vadodara which was numbered as Commercial Civil Suit No.9/2016. That on appreciation of evidence the learned Judge held that the suit is not barred by limitation. That the learned Judge held the issue Nos.4, 5, 6 and 7 in negative. However, solely on the basis of considering the concise statement showing supply of gas and arrears from July 1985 to March 1990 produced at Exh.144 and without considering other documentary evidences produced at Exhs.86 to 143, the learned Judge has dismissed the suit by holding that the plaintiff has failed to prove the amount due and payable mentioned in the concise statement at Exh.144 and also by observing that the concise statement produced at Exh.144 is not duly proved as per section 65B of the Indian Evidence Act. The learned Judge has observed and held that the plaintiff has failed to prove how much amount is due and outstanding against the defendant. Consequently, the learned Judge has dismissed the suit by observing that the plaintiff has failed to prove that a sum of Rs.5,05,85,532.42 paise is due and outstanding against the defendant. 4.4 Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Judge dismissing the suit, the original plaintiff has preferred the present First Appeal. 5. We have heard the learned Advocates appearing for respective parties at length. We have reappreciated the entire evidence on record. We have also considered the finding recorded by the learned Judge while deciding the issue No.1. 6. 5. We have heard the learned Advocates appearing for respective parties at length. We have reappreciated the entire evidence on record. We have also considered the finding recorded by the learned Judge while deciding the issue No.1. 6. Having heard learned Advocates appearing for respective parties and considering the findings recorded by the learned Judge on issue No.1, it appears that the learned Judge has solely concentrated on Exh.144 which was the concise statement of accounts for the period between July 1985 to March 1990 and the learned Judge has dismissed the suit by observing that as per the statement of accounts at Exh.144, according to the plaintiff a sum of Rs.5,05,85,532.42 paise was due and payable / outstanding against the defendant and that the plaintiff has failed to prove that Rs.5,05,85,532.42 paise is outstanding against the defendant. As per Exh.144, the plaintiff is not entitled to reliefs claimed in the suit. However, the learned Judge has not at all considered the documentary evidences produced at Exhs.86 to 143. If the learned Judge would have considered the amount outstanding by the defendant as per copies of the bill produced at Exhs.86 to 143, in that case, probably the learned Judge would have passed the decree against the defendant considering the amount due and payable against the bills produced at Exhs.86 to 143. From the discussion on issue No.1, it appears that the learned Judge has specifically observed and held that the defendant is liable to make the payment in accordance to the agreed rates as agreed between the plaintiff and the defendant by executing the agreement of supply of gas at Exh.73 and addendum at Exh.74. However, thereafter, the learned Judge has observed that as the defendant paid sum of Rs.51,87,226/, which was after filing of the suit and also released the Bank Guarantee furnished by the defendant and the same is not reflected in the statement of account at Exh.144, the learned Judge has doubted the amount outstanding as per Exh.144. However, it is required to be noted that even according to the plaintiff, aforesaid amount of Rs.51,87,226/was paid after the filing of the suit and even the Bank Guarantee was encashed subsequently, naturally the same would not reflect in the statement of account at Exh.144. However, it is required to be noted that even according to the plaintiff, aforesaid amount of Rs.51,87,226/was paid after the filing of the suit and even the Bank Guarantee was encashed subsequently, naturally the same would not reflect in the statement of account at Exh.144. Assuming that in the statement of account at Exh.144, same is not reflected, in that case also, after considering the evidence on record more particularly the bills produced at Exhs.83 to 143 whatever amount is found to be due and payable and/or outstanding against the defendant, the amount which might have been paid is required to be given credit and thereafter the decree is required to be passed with respect to remaining outstanding amount. The learned Judge has failed to appreciate the aforesaid facts and has failed to do the aforesaid exercise. 6.1 That the learned Judge has also doubted the concise statement of account produced at Exh.144 produced by the plaintiff by observing that on 24.03.1986 a sum of Rs.28,20,843.44 paise was due and outstanding against the defendant, considering the reply at Exh.84, however in the statement of account at Exh.144 filed by the plaintiff in the suit, the plaintiff has shown total outstanding as on March 1986 is Rs.5,05,85,532.42 paise. Thus, according to the learned Judge the statement of account does not corroborate the version of the plaintiff. However, it is required to be noted that the learned Judge has not properly appreciated and/or considered and/or read the concise statement of account at Exh.144. As per Exh.144 and as per the say of the plaintiff a total sum of Rs.5,05,85,532.42 paise was due and payable and was outstanding against the defendant as on March 1990 and not as on March 1986 as observed by the learned Judge. Thus, the learned Judge has absolutely misread the document produced at Exh.144. 6.2 The learned Judge has dismissed the suit by observing that the statement of account produced at Exh.144 is not authenticated and/or signed by the parties and the same is not proved as per section 65B of the Indian Evidence Act. However, it is required to be noted that as such the plaintiff produced other documentary evidences / bills, which are outstanding as per Exhs.83 to 143 and Exh.144 was only the concise statement of account. However, it is required to be noted that as such the plaintiff produced other documentary evidences / bills, which are outstanding as per Exhs.83 to 143 and Exh.144 was only the concise statement of account. Therefore, even if Exh.144 would not have been there, the learned Judge was required to consider other material / evidence on record which were in the form of bills produced at Exhs.83 to 143. The learned Judge has failed to appreciate the aforesaid facts and has failed to take into consideration the documentary evidences produced at Exhs.83 to 143. 7. In view of the above and for the reasons stated above, the impugned judgment and decree passed by the learned Judge dismissing the suit deserves to be quashed and set aside and the matter is required to be remanded to the learned Judge for fresh consideration in accordance with law and on its own merits and on the basis of evidence already on record more particularly considering the bills produced at Exhs.83 to 143. However, the remand would be only qua issue Nos.1 and 2 as, against the findings recorded by the learned Judge on issue Nos.3 to 6 which held against the defendant, the defendant has not preferred appeal and those findings have attained finality. At this stage Shri Sanghavi, learned Advocate appearing on behalf of the defendant has requested to make suitable observations that all the contentions and defences which may be available to the parties are kept open to be considered by the learned Judge on remand. 8. In view of the above and for the reasons stated above, present First Appeal succeeds in part. Impugned judgment and decree dated 24.07.2017 passed by the learned Judge, Commercial Court, Vadodara in Commercial Civil Suit No.9/2016 dismissing the suit is hereby quashed and set aside and the matter is remitted to the learned Judge, Commercial Court, Vadodara to decide the issue Nos.1 and 2 afresh in accordance with law and on its own merit and on the basis of the evidence already led and in light of the observations made hereinabove. All the contentions and defences which may be available to the respective parties with respect to issue Nos.1 and 2 are kept open to be considered by the learned Judge in accordance with law and on its own merit and on the basis of the evidences already led. All the contentions and defences which may be available to the respective parties with respect to issue Nos.1 and 2 are kept open to be considered by the learned Judge in accordance with law and on its own merit and on the basis of the evidences already led. As the suit is of the year 1993, learned Judge, Commercial Court, Vadodara is directed to decide and dispose of the suit on remand at the earliest but not later than six months from the date of receipt of the present order. Registry is directed to return the Record & Proceedings of the case to the learned Judge, Commercial Court, Vadodara forthwith.