Sabyasachi Mukharji, J. - (1.) THIS is an application by the Rajasthan State Mines and Minerals Ltd. defendant No. 2 in this suit, asking that the plaint in the above suit should be rejected and/or be taken off the file and further that the said suit be stayed. In order to appreciate the contentions raised in this case, it would be relevant to refer to certain facts.
(2.) ON 6th April, 1976, the petitioner, i.e., the said defendant No. 2 in this suit, published in the Statesman a tender notice inviting tenders for the transport of gypsum from the gypsum deposit of respondent No. 2 at Mahila Mines in Sri Ganganagar to Hanumangarh Town Railway sidings on the Northern Railway, both in the State of Rajasthan. ON 20th April, 1976, respondent No. 1, i.e., the plaintiff in this case, in response to the said tender notice, submitted a tender at Bikaner in the State of Rajasthan along with a deposit of earnest money of Rs. 20,000 as stipulated in the said notice. After prolonged discussions between the petitioner and respondent No. 1, i.e., the plaintiff in this case, during the period between May, 1976, and November, 1976, according to the petitioner, both at the office of the petitioner at Calcutta as well as at Udaipur in the State of Rajasthan, the petitioner duly accepted the said tender on or about 13th November, 1976, at its said office at Calcutta. As a condition precedent to the terms and conditions of the said acceptance of the tender the plaintiff through defendant No. 1, the Bank of Rajasthan Ltd., furnished two separate bank guarantees both dated 22nd January, 1977, for Rs. 2 00,000 and Rs. 21,00,000, respectively. The first of the said bank guarantees was furnished against the contract for transportation of gypsum and the second bank guarantee was issued for the payment of the purchase price of 9 Beaver Haulage Trucks which the plaintiff wanted to purchase from the petitioner for the transportation of the said gypsum. Apart from the said bank guarantee for Rs. 21,00,000 respondent No. 1 also acccepted 50 separate hundies of usance bills drawn up by the petitioner. Out of the said usance bills, 48 usance bills were guaranteed by respondent No. 2 in respect of the said bank guarantee for Rs. 21,00,000.
(3.) ON the 31st January, 1977, two separate contracts in writing were entered into by and between respondent No. 1 and the petitioner, one being called Carriage Agreement No. 1 and the other being called Purchase Agreement No. 1. It may be proper at this stage to refer to certain clauses of the said two agreements.;