- (1.) The Court : The plaintiff has filed a suit praying, inter alia for a declaration that the bank guarantee furnished by the defendant no.1 dated 26th March, 2015 in favour of the defendant no.4 at the instance of the plaintiff be declared void or alternatively cease to be enforceable or binding.
(2.) The basis of the said declaration appears to be a written agreement between the parties dated 18th February, 2015 by which the plaintiff agreed to supply galvanized towers to the defendant no.3 which is located at Ukraine. Prima facie, it appears that the plaintiff had supplied sufficient quantities of towers and at a much belated stage, the defendant no.4 had raised an issue with regard to the quality of the materials supplied by the plaintiff and terminated the contract by an e-mail dated 10th March, 2016. The letter of termination is subsequent to the date of filing of the suit and subsequent to an interim order passed on 14th January, 2016. The defendant does not say or possibly could contend that the alleged defective materials were returned to the plaintiff. Apparently, those materials were consumed and the plaintiff could have a case on account of conversion if the defendant had failed to account for the said materials. On 14th January, 2016 Justice Arijit Banerjee passed an ex parte ad-interim order of injunction after being satisfied that the plaintiff was able to make out a prima facie case. The consideration appears to be substantial compliance of the contract coupled with the defendant no. 4's stand that the said defendant no. 4 was not in a position to secure the plaintiff's claim in relation to future supplies by reason of its parent company applying for voluntary liquidation. The plaintiff was apprehensive that the substratum of agreement between the plaintiff and defendant no. 4 had gone and it would be impossible for the defendant no. 4 to perform its reciprocal obligation.
(3.) During the pendency of the injunction application, the defendant no. 4 had filed an application for revocation of leave under Clause 12 of the Letters Patent on the basis of Article 25 and 26 of the written agreement which apparently contains the forum selection clause.;