- (1.) The plaintiff had claimed, inter alia, decree for Rs.1,10,33,207/-. The plaint was amended thrice pursuant to orders dated 13th September, 2001, 31st July, 2007 and 19th February, 2008. The first two amendments were with regard to the name of the defendant no.1. By the third amendment the defendant no.2 was added. Trial of suit was commenced with the following issues being framed by another Learned Judge of this Court as recorded in order dated 27th February, 2014:- "1. Is the plaintiff entitled to invoke two bank guarantees being no.1001/83/108/G dated 16th February, 1983 and G/1001/84/608 dated 29th August, 1984 2. Is the plaintiff entitled to a decree for Rs.1,10,33,207/- against the defendant no.1 3. Is the defendant no.1 entitled to challenge the validity of the invocation of the two bank guarantees 4. Is the plaintiff entitled to a decree for further interest pendente lite and interest upon judgment as claimed 5. What relief, if any, the plaintiff is entitled to -
(2.) The documents in suit were tendered upon formal proof being dispensed with. The plaintiff adduced oral evidence through one witness who was examined. The defendants did not adduce oral evidence. The plaintiff's claim is on account of invocation of the two bank guarantees. The defendant no.1, hereinafter referred to as the bank, sought to resist the claim of the plaintiff on the ground that the invocation of the said guarantees was not in terms. The guarantees furnished were in respect of advance payments against the supply of plant and equipment, made by the plaintiff to the defendant no.2, supplier. The guarantees were furnished at the instance of the defendant no.2 to secure its due performance as stated in the guarantees.
(3.) The two guarantees are respectively dated 16th February 1983 and 29th August 1984 being Exhibits 'D' and 'E' in suit. The two guarantees carry similar clauses, the difference being in the dates and amounts. By Exhibit 'D' a sum of Rs.71,35,100/- was guaranteed to be paid to the beneficiary being the plaintiff and by Exhibit 'E' the sum of Rs.20,32,500. It would be sufficient to set out clauses 1 and 2 of Exhibit 'D'. "1. In consideration of Messrs HEAVY ENGINEERING CORPORATION LIMITED a Government of India Enterprise, a Company registered under the Companies Act (hereinafter called the CORPORATION) having agreed to accept a Bank Guarantee from Messrs Simon Carves India Limited Simon House, Transport Depot Boad, Calcutta 700 027 (hereinafter called the SUPPLIER) on account of Advance Payment of a sum of Rs.71,35,100/- (RUPEES SEVENTY ONE LAKHS THIRTY FIVE THOUSAND AND ONE HUNDRED ONLY) as advance against Supply of Plant and Equipment by the CORPORATION to Messrs SIMON CARVES INDIA LIMITED in terms of Letter of Intent No. HEC/CS/1502/81 dated 19.05.1981. 2. We GRINDLAYS BANK P.L.C., 19 Netaji Subhas Road, Calcutta 700001 undertake the Indemnify and keep the CORPORATION indemnified to the extent of Rs.71,35,100/- (RUPEES SEVENTY ONE LAKHS THIRTY FIVE THOUSAND AND ONE HUNDRED ONLY) against any loss or damage caused to or suffered by the CORPORATION by reason or any breach or failure by the said SUPPLIER, in due performance of the aforesaid contract, we shall forthwith on demand pay to the CORPORATION any sum, or sums not exceeding Rs.71,35,100/- (RUPEES SEVENTY ONE LAKHS THIRTY FIVE THOUSAND AND ONE HUNDRED ONLY) without making any prior reference to the said SUPPLIER with and exclusion of any action in Court by SUPPLIER.";