- (1.) WE have heard the Counsel for the appellant at length. Undoubtedly, the guarantee executed by the appellant is unconditional in nature. We may make a reference here to the bank guarantee in which the bank has unconditionally agreed to honour the same. The said bank guarantee reads as under: "we Central Bank of India, Kolkata Main Office, 33, Netaji Subhas Raod, kolkata-700001, registered under the laws of Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (hereinafter called the Bank which expression shall include its successors and assigns) hereby undertake to pay the Corporation in rupees forthwith on first demand in writing and without protest or demur or proof or condition any and all moneys anywise claimed by the Corporation from the Contractor under, in respect of or in connection with the said contract as specified in any notice of demand made by the Corporation on the bank with reference to this undertaking upto an aggregate limit of Rs. 11,73,000 (Rupees eleven lakhs seventy-three thousand only)".
(2.) THIS clause, in our opinion, makes it abundantly clear that the bank guarantee is unconditional in nature. It has also now become apparent that in terms of the bank guarantee, letter of invocation was duly served upon the bank on 24th of March, 2008. The letter of invocation is not dated 31st of march, 2008 as was pleaded by the appellant. The photostat copy of the letter that has been produced before this Court today clearly shows that the letter was received by the Bank on 24th of March, 2008. It was emphatically stated In the stay application and the affidavit attached thereto that the representative of the appellant was permitted to inspect the aforesaid letter but was not permitted to have a copy thereof.
(3.) WE are of the considered opinion that on inspection of the aforesaid letter, the representative of the appellant could not possibly have failed to notice that the letter dated 21st March, 2008 had been received by the Bank on 24th of March, 2008. In spite of such being the position, an averment has been made in the stay application as also in the affidavit sworn in support thereto that the letter had actually been dated 31st of March, 2008.;