- (1.) The petitioner original defendant No.1, namely, Wires and Cables India Pvt. Ltd., has filed this petition under Article-227 of the Constitution of India, praying for quashing and setting aside the judgment and order passed by the learned Joint District Judge & Additional Sessions Judge, Fast Track Court No.11, Vadodara in Civil Misc. Appeal No.130 of 2003 dated 25.2.2005 reversing the judgment and order passed by the learned 2nd Joint Civil Judge (S.D.) Vadodara below an application Ex.5 in Regular Civil Suit No.305 of 2003.
(2.) It is the case of the petitioner that the respondent No.1 herein i.e. Voltamp Transformers Pvt. Ltd., has filed Regular Civil Suit No.305 of 2003 before the learned Civil Judge (S.D.) Vadodara for declaration and permanent injunction against the petitioner and respondent No.2 i.e. Bank of Baroda. In the said suit, the main contentions of the respondent No.1 are that the petitioner had placed the letter of Intent (LOI) No.LOI/WCIPL/AVP (O) P.NGR/VAT/LOI5200 dated 25.4.2002 for the supply of two numbers 16/20 MVS, 16/11 KV, Power Transformers and as per the terms and conditions, 20% advance bank guarantee was given by the respondent No.1 to the petitioner and accordingly the respondent No.2 has also given bank guarantee agreement in favour of the petitioner. There was novation in the contract and the time of bank guarantee was already expired and the petitioner was required to return the bank guarantee as there was a breach of the contract. The petitioner has played fraud and the petitioner was not ready and willing to perform his part of contract and on the contrary, the respondent No.1 was ready and willing to perform his part of the contract. In short, the respondent No.1 in the suit has contended that the petitioner was trying to encash bank guarantee after its validity period, and therefore, he has filed the said suit for declaration and permanent injunction praying that the petitioner has no right, authority and power to invoke/encash the Advance Bank Guarantee No.57/222 dated 15.7.2002 and 57/217 dated 10.7.2002. The respondent No.1 has further prayed that the petitioner be restrained from encashing/invoking the Advance Bank Guarantee No.57/222 dated 15.7.2002 and 57/217 dated 10.7.2002.
(3.) The respondent No.1 herein had also filed an application Ex.5 on similar contentions and in paragraph-14 of the said application, the respondent No.1 has specifically contended that if injunction as prayed for was not granted, the respondent No.1 would suffer irreparable injury as their huge investment would be blocked and would suffer huge monetary loss. In the said application, the respondent No.1 has also contended that the petitioner was bound to obey the contractual terms, pay the consideration and lift the transformers and if the injunction as prayed for was not granted, the same would lead to multiplicity of litigation. Therefore, the respondent No.1 in the said application has prayed pending and final disposal of the suit the petitioner be restrained from encashing/invoking the Advance Bank Guarantee No.57/222 dated 15.7.2002 and 57/217 dated 10.7.2002.;