- (1.) The aforesaid three applications are heard together as there is identity in issue, as regard fact and law though separate suits are filed. The aforesaid three applications have been taken out by Arab Bank for Investment and Foreign Trade who is the second defendant in all these three suits, for vacating and/or discharge of interim orders granted by this Court on interlocutory applications made in the three suits separately. The short fact of the case for which the aforesaid three suits were filed and consequently the application for vacating interim order of injunction was made, are stated hereunder :
(2.) The plaintiffs in all the three suits being the suppliers and exporters of diverse kinds of agro-commodities, in course of their business sold and supplied to defendant No. 1 under several agreements certain quantities of chickpeas, coffee, natural Indian white rice and rice. In terms of the said agreement the first defendant in all these three suits for due payment of price of the above goods furnished irrevocable letter of credit in favour of all the plaintiffs. The plaintiffs in all these suits also furnished bank guarantee in the amount of 10 per cent of the amounts of the letter of credits. Each of the bank guarantees was furnished as above through their banker, namely M/s. Bank of Baroda the defendant No. 3, who in its turn requested the defendant No. 2 to furnish bank guarantee in favour of National Commercial Bank, Tripoli (defendant No. 5) which in its turn promised to honour the bank guarantee furnished it to the defendant No. 1. There has been no dispute as regard realization of the sale price upon invocation of the letter of credit. The disputes relate to and/or concern with the invocation of the performance bank guarantee furnished by the plaintiffs above named. The suits were filed originally against National Supply Corporation being the ultimate beneficiary of the guarantee and buyer of the goods, Arab Bank for investment and foreign trade being intermediary bank (defendant No. 2) being the applicants. Bank of Baroda being the Banker of the plaintiff who furnished the guarantee on behalf of all the plaintiffs, for declaratory reliefs that the plaintiffs and each of them stood discharged from the obligation arising out of the aforesaid three bank guarantees upon performance of the contract, decree for perpetual injunction restraining the defendant No. 3 from making payment in terms of the bank guarantee in connection with the original contract. It is true in all these three suits transactions are different and separate, naturally contracts and bank guarantees are also different and separate but as I already observed the nature of the transactions are identical and similar.
(3.) In all the plaints of the suits, so also in the interlocutory applications it is said identically that the plaintiffs in each case have duly discharged their contractual obligations and delivered the goods to the buyer and accordingly received payment under the said letters of credit. There was no complaint, lodged by defendant No. 1. Thus plaintiffs and each of them discharged their obligations to the satisfaction of the party. The defendant No. 1 had consumed the said goods and till date no complaint has been received by the plaintiffs regarding the quality thereof. Thereafter despite repeated request the defendant No. 1 failed to cancel the respective guarantees given by the respective plaintiffs. The plaintiffs and each of them have been apprehending invocation of the said guarantees. In connection with the aforesaid three suits three separate interlocutory applications of the plaintiffs were moved upon notice to the defendant No. 3. On August 14, 2000 an order was passed by Hon'ble Justice Ronojit Kumar Mitra (as his Lordship then was) restraining Bank of Baroda from making any payment on the basis of the said bank guarantee until further order of this Hon'ble Court. The said interim order was ultimately affirmed on 15th May 2001 when none was present on behalf of the Arab Bank despite service. Thus the earlier interim order of August 14, 2000 had merged with the final order passed on 15th May 2001 when the aforesaid three applications were disposed of finally. This final order confirming earlier interim order was also communicated by the learned Advocates of the respective plaintiffs to the defendants. On or about January 2003 instant three applications have been made by the defendant No. 2 asking for vacating interim order of injunction passed on 14th August 2000 and consequently direction upon the Bank of Baroda to immediately make payment to the defendant No. 2 against the said bank guarantees. Subsequently all these applications for vacating interim order were amended by an order so far their prayer portion is concerned and to the extent that date of the orders sought to be vacated should be read as 15th May, 2001 in place of August, 2000. It Is stated that in spite of the aforesaid order of amendment changing the date of the order In the prayer portion no step has been taken for carrying out the same.;