A.K.Banerjee, J. - (1.) After hearing the parties it appears to me that moot question which falls for adjudication is whether a non-party to a suit can apply for vacating of an interim order and whether, in any event, such interim order can bind him when he is not a party to this suit.
(2.) The facts are briefly narrated hereinafter. The plaintiff through its banker being defendant No.1 opened a letter of credit. The dispute arose when according to the applicant being the negotiating banker, made a claim on the basis of the said letter of credit to the defendant No.1 on the ground that it had already made payment to the corresponding party being the defendant No. 3 under the said letter of credit. The defendant No. 1 refused payment on the ground that the papers were not in order. Plaintiff, in the meantime, approached this Court by filing the above suit and obtained an order of injunction in terms of prayer (a) and (c) of the interim application which are quoted below: (a) An injunction do issue restraining the defendant No. 1 and/or its servants and agents from remitting any money under or pursuant to the said letter of credit bearing No. 0312 FLC 045599 dated 10.9.1999 to the defendant No.1 or its banker; (b) An injunction do issue restraining the defendant No. 3, its servants, agents and assignees from making demand or receiving any payment of money under the said letter of credit No. 0312 FLC 045599 dated 10.9.1999. After coming to know of the said order, the applicant made the instant application being G.A.No. 5070 of 1999 inter alia praying for the following reliefs: (a) The orders dated November 5, 1999 and November 26, 1999 in so far as it restrains payments being released by the defendant No. 1 to the applicant in the subject letter of credit be vacated and/or suitably varied and/or modified and/or stayed; (b) If necessary, leave be given to the applicant to intervene in the plaintiff's interlocutory application in the instant suit being G.A. No. … of 1999;
(3.) The application was moved upon notice to the parties to the suit. The defendant No. 1 had chosen not to oppose this application by filing any affidavit. Today, at the concluding stage of hearing the learned counsel for the defendant No. 1 appeared and made his submissions which are recorded hereinafter at the appropriate place.;