SOUMEN SEN,J. - (1.) The defendant No.3 has filed this application for revocation of leave under Clause 12 of the Letters Patent. In the alternative, a prayer is made for referring the dispute forming the subject matter of the suit to arbitration in accordance with the Arbitration Agreement between the parties.
(2.) The plaintiff has filed a suit in this Court after obtaining leave under Clause 12 of the Letters Patent. In the suit, the plaintiff has essentially prayed for delivery up and cancellation of four bank guarantees issued by the defendant No.2 in favour of the defendant No.1.
(3.) The plaintiff contends that the plaintiff and the defendant No.2 entered into a Memorandum of Understanding (MOU) dated 15th October, 1999 to collaborate for preparation and submission of a tender in response to a notice issued by the National Highway Authorities of India, the defendant No.4, for "Four Laning of KM.156.000 to KM 163.895 of Gauwahati Bypass section of N.H. -37 in the State of Assam (contract Package No.SW/7-(AS)" on the basis of the distribution of work in 40:60 approximately. Pursuant to such MOU, the defendant No.3 had submitted their tender to the defendant No.4 and the work was ultimately allotted to the defendant No.3. Subsequent to acceptance of the offer by the defendant No.4, the plaintiff and the defendant No.1 entered into a new agreement on 25th April, 2000 superseding the earlier MOU. The said agreement was executed outside the jurisdiction of this Court. Under the agreement dated 25th April, 2000, the plaintiff was to work as a sub-contractor under the defendant No.3 subject to getting permission from the defendant No.4. The plaintiff obtained a mobilization advance of Rs.1.82 crores from the defendant No.3 against the submission of four bank guarantees. Such four bank guarantees of Rs.45.50 lakhs each were issued by the defendant No.1 being the bankers of the plaintiff from the office of the defendant at Park Street within the jurisdiction of this Court to the defendant No.2, the banker of the defendant No.3 of such jurisdiction of this Court. The defendant No.4 by letters dated 19th September, 2000 and October 3, 2000 directed the defendant No.3 not to give any portion of the work awarded under any sub- contract. In respect of the specific request relating to the plaintiff it is alleged that the defendant No.4 was of the opinion that the plaintiff does not have the requisite experience in the field of High Way engineering. In view of the failure on the part of the defendant No.3 to obtain permission from the defendant No.4 to allow the plaintiff to act as sub-contractor, the four bank guarantees had become null and void. The defendant Nos.1 and 2 are aware of the terms of the agreement and the circumstances under which the said bank guarantees have now become unenforceable. Notwithstanding the same, the defendant No.3 has not discharged the said bank guarantees and the said defendant Nos.1, 2 and 3 and each of them are threatening to encash the said four bank guarantees. In view of the cancellation of the said agreement by the defendant No.3 by its letter dated 30th November, 2000, the plaintiff is entitled to treat the said four bank guarantees issued at the instance of the plaintiff by the defendant No.1 as void and unenforceable by the defendant Nos.2 or defendant No.s3 against the plaintiff in any manner whatsoever. In Paragraph 32 of the plaint, the plaintiff has made the necessary averments to show that a part of the cause of action has arisen from within the jurisdiction of this Court and, accordingly, has prayed for revocation of leave under Clause 12 of the Letters Patent.;