PATHERYA J. - (1.) IN a suit filed for a money decree return of the original Bank Guarantees dated 6th March, 2009 and 25th March, 2009 after cancellation thereof is also sought.
(2.) THIS application has been filed for an order of injunction restraining the respondent No.1 from claiming or receiving any sums under the Bank Guarantees dated 6th March, 2009 and 25th March, 2009. The case of the petitioner is that two Bank Guarantees were furnished by its bankers in favour of the respondent No.1 on 6th March, 2009 and 25th March, 2009 for the sums mentioned therein. The said Bank Guarantee dated 25th March, 2009 was invoked by letter dated 30th July, 2009 for non-payment of Rs.1.68 crores as the petitioner had failed to perform its obligations. Upon such invocation and after holding discussion a sum of Rs.60 lacs was paid on account of the goods supplied by the petitioner to the respondent No.1 and on receipt of such payment, the letter dated 30th July, 2009 was withdrawn by letter dated 31st July, 2009. Subsequent thereto on 21st August, 2009 once again the respondent No.1 sought to invoke the Bank Guarantee dated 25th March, 2009 for failure on the part of the petitioner to perform its obligations for the sum of Rs.1.80 crores. On getting intimation of such invocation the petitioner informed that the Bank Guarantee being conditional and as no notice of breach caused had been given the question of any payment did not arise. On the same date the instant suit was filed and order passed staying the letter dated 21st August, 2009 and such order is continuing. A third invocation was made in respect of which the bank refused to make payment to the respondent No.1. The respondent No.1 also invoked the Bank Guarantee dated 6th March, 2009 out of which a sum of Rs.12 lacs has been paid to the respondent No.1. The invocation is not in terms of the Bank Guarantee. Out of an initial claim of Rs.1.68 crores on negotiation a sum of Rs.60 lacs was accepted by the respondent No.1 in full and final settlement which will be reflected from the letter dated 31st July, 2009 wherein it has been stated that all outstanding dues has been cleared and therefore, the first letter of invocation was withdrawn by the said letter. The second invocation was made on 21st August, 2009 which has been stayed by order dated 24th August, 2009. In fact on 19th September, 2009 i.e., during the pendency of the suit the Bank Guarantee dated 6th March, 2009 was sought to be invoked for the sum of Rs.12,04,127.00. The said sum has been encashed by the respondent No.1. In respect of the Bank Guarantee dated 25th March, 2009 once again the respondent No.1 sought to invoke the same for the sum of Rs.83,43,060.00 on 19th September, 2009 which the respondent No.2 has refused to honour. Therefore, no sum is due and payable to the respondent No.1 on date as the underlying contract has been fully performed in satisfaction of its dues. In view of the aforesaid the Bank Guarantee comes to an end and a certificate of accord and satisfaction ought to be issued by the respondent No.1 in favour of the petitioner.
(3.) THE invocation of the Bank Guarantee dated 25th March, 2009 is contrary to the terms and conditions of the Bank Guarantee. In the affidavit filed by the respondent No.1 it has been categorically stated that a sum of Rs.83,43,060.00 as on 19th September, 2009 was due and payable. The Bank Guarantee dated 6th March, 2009 for Rs.20 lacs was invoked for a lesser amount and in paragraph No.36 of the petition it has been categorically pleaded that no subsequent event had arisen after the letter dated 31st July, 2009 as thereafter no supply was made and the said has been accepted by the respondent No.1 in its affidavit but the amount which it was entitled to receive has not been specified. As the invocation is not in terms of the Bank Guarantee, the orders dated 24th August, 2009 and 9th September, 2009 be confirmed. Reliance has been placed on AIR 1996 SC 334 and AIR (1999) SC 3710 for the proposition that in case the invocation is not in terms of the Bank Guarantee the invocation is bad. AIR 1953 Calcutta 642 was relied on for recording of accord and satisfaction as no sums were due and payable. In view of 1994 (4) SCC 541 and ILR 1973 (2) Calcutta 704 no further invocation was possible. Therefore, an order be passed in terms of prayer (d) of the Notice of Motion. On a reading of letter dated 19th September, 2009 it will appear that the respondent No.1 seeks to correct the letter dated 21st August, 2009 which cannot;