Ghose and Hazra, J. - (1.) This appeal is directed against the judgement and order dated January 17, 1974 passed by Ramendra Mohan Datta, J. The appellant is a merchant carrying on business of cloth or garments including lungies of diverse description. The Respondent No. 1 is a body corporate framed under the appropriate laws of Bangladesh. By and under a contract bearing No. T.C.B/IMP 522/78 dated April 10, 1978 executed by the respondent No. 1 and the appellant, the appellant agreed to sell and export to Bangladesh and deliver to the respondent No. 1 staple lungis fully described in the above mentioned contract on the terms and conditions mentioned in the said contract.
(2.) By and under the said contract the respondent No. 1 was to pay to the appellant 3.39,97460 dollars through a confirmed irrevocable and transferable Letter of Credit to be opened by the respondent No. 1 in favour of the appellant intimation whereof would be given to the appellant through its Bankers by the opening Bank. The Letter of Credit would be opened by the respondent No. 1 within the 2 weeks from the date of receipt of performance guarantee to be furnished by the appellant within 7 days from the date of signing the contract. By and under the said contract the appellant agreed to telegraphically inform the respondent No. 1 and the inspection Agency mentioned in the contract 10 days before such inspection about the readiness of the stores and the place of inspection and the quantity to be inspected.
(3.) For the due performance of the obligation under the said contract the appellant agreed to furnish a performance guarantee in the form of Bank Guarantee in favour of the respondent No. 1 equivalent to 3% of the total C and F value of the goods within 2 days of the signing of the contract. As per the instruction of the appellant the respondent No. 3 executed a Bank Guarantee for the sum of Rs. 77,796/- in favour of the respondent No. 2 the Banker of the respondent No. 1.;