- (1.) The defendant No.1 is the applicant. The defendant No.1 has filed this application for rejection of the plaint and in the alternative for presentation of the plaint before the appropriate Court having jurisdiction.
(2.) The plaintiff has filed the suit praying, inter alia, for a decree for perpetual injunction restraining the defendants their men, agents and servants from giving any effect or further effect to the expired performance guarantee being Bank Guarantee No.4044IFIB G070015 issued by the defendant No.2 in favour of the defendant No.1. The plaintiff states that under the letter of award dated 5th October, 2007 followed by a formal contract agreement dated 27th May, 2008. The plaintiff was required to carry out design, engineering, manufacture, supply, erection, testing and commissioning of an Ash handling system with all accessories for New Parli Thermal Project. The plaintiff in terms of the said agreement furnished a bank guarantee dated 14th November, 2007 issued by the defendant No.2 for a sum of Rs.3,83,11,400/-. The said bank guarantee was valid upto 5th of July, 2010 with a claim period of six months post such guarantee period. The said bank guarantee, inter alia, provided that the defendant No.2 undertake to pay amounts due and payable under the guarantee on a demand received from the defendant No.1 stating that the amount claimed is due by way of loss or damage caused. The said performance guarantee in terms of Clause 9 of the General Conditions of the contract was to be kept valid upto 90 days beyond the guarantee period. The guarantee period is provided in Clause 40 of the General Conditions of the Contract which, inter alia, is a period of 12 calendar months commencing immediately upon satisfactory completion of the performance guarantee or acceptance tests. The plaintiff from time to time had carried out their obligations under the contract with the defendant No.1 and as a matter of fact the performance guarantee test was carried out in the month of July, 2010 and completion of such performance guarantee test was confirmed in a meeting held on 31st July, 2010 as would be evident from the minutes of the meeting dated 31st July, 2010. Accordingly the bank guarantee was only liable to be extended till a period of 15 months from 31st July, 2010. The said period expired on or about October, 2011.
(3.) The minutes of the meeting would show that the defendant No.1 was satisfied with the performance of the plaintiff. Subsequently, the plaintiff was requested to extend the bank guarantee and the plaintiff without understanding the true purport of the agreement between the parties had kept on extending the bank guarantee. On 15th of July, 2013, an extension of the bank guarantee for a period upto 30th September, 2013 was issued by the defendant No.2 in favour of the defendant No.1. The bank guarantee stood expired on 30th September, 2013. The claim period also stood expired on 31st March, 2014. Within the aforesaid period, the defendant No.1 did not make any demand upon the defendant No.2 for encashment of such bank guarantee. However, on 18th June, 2014 the plaintiff received certain documents from the defendant No.2 wherefrom it transpired that by a letter dated 28th May, 2014 had been issued to the Branch Manager of the defendant No.2 by the defendant No.1 alleging that they had requested the plaintiff to extend the validity of the bank guarantee. The defendant No.1 had referred to a letter dated 9th May, 2014 by which such request was made for extension of the bank guarantee. The plaintiff contends that without conceding the factum that the said letter of 9th May, 2014 had not been received by the plaintiff and without conceding that the validity of the bank guarantee had expired by that time, the said letter is not a notice of encashment of the bank guarantee in terms of the conditions provided in such bank guarantee. There has not been any letter of demand issued by the defendant No.1 on the defendant No.2 which could have led to encashment of the bank guarantee in question which had expired and is liable to be released and returned to the plaintiff and no demand can be made under the bank guarantee, the defendant No.1 has invoked the bank guarantee and is attempting to give effect to such invocation in connivance and conspiracy with the defendant No.2. In Paragraph 34 of the Plaint, the plaintiff alleged that the defendants in collusion and conspiracy with each other have perpetrated fraud on the plaintiff. It is alleged that the defendant No.2 is acting in collusion with the defendant No.1 by aiding and abetting such illegal action of the defendant No.1 by attempting to give effect to the letter dated 28th May, 2014 of the defendant No.1. The defendant No.2 is fraudulently attempting to encash the bank guarantee which has already been expired and make over the proceeds thereof to the defendant No.1 in respect of such bank guarantee. Fraud has been perpetrated by the defendants on the plaintiff at the plaintiff's registered office at 4, Mangoe Lane, Kolkata 700 001 within the aforesaid jurisdiction. On the basis of such allegations, the suit was filed in this Court after obtaining leave under Order 2 Rule 2 of the Code of Civil Procedure, 1908 and leave under Clause 12 of the Letters Patent, 1861.;