K.A.PUJ - (1.) This Appeal From Order is filed against an order of an ex-parte ad-interim injunction, passed by the learned City Civil Judge, Ahmedabad below an application Exh.5 in Civil Suit No. 1076 of 2004 on 08.04.2004 whereby the Trial Court has granted ad-interim injunction in terms of para 7 (a) & (b) of the application till 16.04.2004. The Trial Court has observed that Exh.3/7 shows that the default is by the defendant No.3 and it does not speak about plaintiff. It is further observed that the bank guarantee is given by the plaintiff to defendant No.1 and hence, the bank can not honour the guarantee. The Trial Court has also observed that if injunction is not granted, it will defeat purpose of the suit and hence, the order regarding ad-interim injunction was passed.
(2.) The brief facts giving rise to the present Appeal From Order are that the appellant - original defendant No.1 had entered into a Contract bearing No. MM/SS/IMP/25216/0/2003 dated 24.12.2003 with M/s. Adani Global Pte. Ltd., Singapore, defendant No.3 herein, for supply of quantity of non-coking coal to defendant No.1 in terms of the said contract. For due performance of the said contract by the defendant No.3, M/s. Adani Exports Limited, the plaintiff agreed to furnish a performance bank guarantee bearing No. 4042-ITG 00 1803 dated 29.12.2003 in the sum of Rs.1,60,00,000.00 (Rupees One Crore Sixty Lacs Only) and the said bank guarantee was drawn by M/s. Punjab National Bank, International Banking Branch, Ahmedabad, defendant No.2 in favour of the present appellant.
(3.) It is the case of the appellant that the defendant No.3 has failed to supply the material as per the contract and hence, the appellant vide its letter dated 06.04.2004 addressed to the defendant No.2 sought invocation of Bank guarantee in terms of the said bank guarantee. Though the appellant had invoked the Bank Guarantee in terms of the said irrevocable First Demand Letter of Guarantee, the defendant No.2 Bank vide its letter dated 08.04.2004 did not permit invocation of the Bank Guarantee and requested the appellant to submit a fresh Letter of Invocation as indicated in the letter dated 08.04.2004. The appellant thereafter, on 09.04.2004 approached the defendant No.2 with a request for invocation of bank guarantee as per the format desired by the defendant No.2 bank vide its letter dated 09.04.2004. However, the appellant was told that an injunction order has been issued by the City Civil Court, Ahmedabad restraining defendant No.2 from allowing the invocation of the said bank guarantee till 16.04.2004.;