- (1.) The dispute brought before this Court by means of instant appeal relates to refusal to allow amendment of the plaint, in the suit for money decree filed by the appellant against the respondents in Delhi High Court, which, later on has been transferred to the Debt Recovery Tribunal, Delhi.
(2.) The main contesting respondent is Indian Bank and respondent No. 2, M/s. Indo-Europ Foods Ltd. has been impleaded as pro forma respondent in this appeal. The reference of respondent wherever made in the judgment is for respondent No. 1 - Indian Bank and wherever the word USD has been used it stands for U. S. Dollars.
(3.) As a brief background, to better understand the controversy involved, it may only be indicated that a contract was entered into between Oswal Agro Mills Limited and Indo-Europe Foods Limited of United Kingdom. An amount of USD 6.00 million was advanced to Oswal Agro by Indo-Europe which was liable to be adjusted against bills of Oswal Agro on export of agro products by Oswal Agro to Indo-Europe. Oswal Agro furnished a Bank guarantee of Indian Bank to the extent of USD 6.00 million, in favour of Indo-Europe to cover the advance made by Indo-Europe. The Bank guarantee dated February 3, 1983 was executed by Indian Bank in favour of Indo-Europe Foods Limited, who is the beneficiary of the guarantee. A few relevant clauses of the Bank guarantee are quoted below: "GUARANTEE (A) In consideration of the beneficiary entering into the contract and making the advance payment, the guarantor hereby irrevocably and unconditionally guarantees to the beneficiary the due and punctual repayment, whether at stated maturity or acceleration or otherwise of the advance payment of OAML under or pursuant to the contract in accordance with its terms and agrees that if and whenever OAML shall fail to pay any part of such sum when due, as stated above, the guarantor shall forthwith on written demand by the beneficiary pay an amount equal to such sum to the beneficiary in the currency and in the manner required of OAML by the contract in respect of such sum. xxx xxx xxx xxx xxx (G) The maximum contingent liability of the guarantor hereunder shall not exceed USD 6,000,000 (United States Dollars Six million only) xxx xxx xxx xxx xxx GENERAL xxx xxx xxx xxx xxx (C) The United States Dollar is the currency of the account and payment for each and every sum at any time due from the guarantor hereunder. (D) On each date on which an amount is due from the guarantor hereunder the guarantor shall make the same available to the beneficiary by payment in dollars in immediately available and freely transferable funds to the beneficiary's account No. 36020 with Punjab National Bank, Moor House, 119 London Wall, London B024-5HJ, (U.K.). xxx xxx xxx xxx xxx".;