BIMAL CHANDRA BASAK, J. - (1.) This appeal arises out of an order passed by the Trial Court in an application of the applicant Allied Resins Chemicals Ltd., for inter alia, (a) an injunction restraining the defendant No. 1 whether by itself or its servant or agent or otherwise howsoever from receiving or purporting to receive or demanding or purporting to demand any payment or acting in pursuance of the said guarantee dated 20th July, 1979, the said extension dated 14th December 1979 and the said demands dated 23rd July and 26th July, 1980 or any of them in any way. (b) An injunction restraining the defendant No. 2 whether by itself or its servant or agent or otherwise howsoever from making or purporting to make any payment or acting in pursuance of the said guarantee dated 20 July 1979, the said extension dated 14th Dec. 1979 and the said demands dated 23rd July and 26th July 1980 or any of them in any way.
(2.) The plaintiff-appellant carries on business under the name and style of R. Sen and Company, Metal Division, as sole proprietor thereof. The defendant respondent No.1 is a Government of India undertaking which acts as the canalising agent in respect of the imports of chemicals and products used by the plaintiff appellant. The plaintiff appellant in the said business proposed to import through the defendant No.1 a quantity of 11 metric tonnes, molyoride. Regarding the said import a bank guarantee dated 20th July 1979 was furnished by the defendant No.2 United Industrial Bank Ltd. in favour of the defendant No.1. The said Bank guarantee is set out herein :- "Bank Guarantee No. 40/54 dated 20-7-79. The Minerals and Metals Trading Corp. of India Ltd. New Delhi- 110002. In consideration of your having agreed to import for M/s. R. Sen and Co. Metal Division, 13, Camac Street, Calcutta-17 a quantity of 11 M/T Moly Oxide and to be sold to them on high seas/ex-jetty/ex-godown basis at the sale price to be fixed by you at the request of said M/s. R. Sen and Co. - Metal Division. United Industrial Bank Ltd. having registered office at 7, Red Cross Place Calcutta-1, hereby irrevocably undertake and promise to pay you/your successors or assigns on demand without demur equivocation dispute or delay and without reference to the said M/s. R. Sen and Co. Metal Division all or any sums of money up to a maximum of Rs. 10,00,000/- in case M/s. R. Sen and Co. - Metal Division cancel the contract in full or in part after you have placed orders on your foreign seller or fail to take delivery of the materials in full or in part when offered by you. 2. We further agree that the guarantee herein contained shall remain in force and effect for a period of one year or till such time as you certify that the said M/s. R. Sen and Co. Metal Division, have fulfilled all the conditions laid down above whichever is earlier and that you shall have a right to enforce your claim with the Bank under this guarantee for a further period of six months from the expiry of the guarantee we undertake not to revoke this guarantee during its currency without your written consent.
(3.) We further agree that you shall have the fullest liberty. Without affecting in any manner our obligations hereunder to extend the time during which M/s. R. Sen and Co. Metal Division, have to take delivery of the material and we shall not be released from our liability under this guarantee by reasons of any such authorization or extension being granted to the said M/s. R. Sen and Co. - Metal Division - or for any forbearance on your part to said M/s. R. Sen and Co., Metal Division; we further agree that your decision as to whether the said M/s. R. Sen and Co., Metal Division failed to carry out their obligation shall be final and binding on us.;