- (1.) Present revision petition under Article 227 of the Constitution of India for setting aside order dated 29.04.2016 [Annexure P/6] passed by Additional District Judge, Amritsar whereby order dated 23.03.2015 passed by Civil Judge [Senior Division] was reversed.
(2.) Learned counsel for the petitioner while assailing the findings of the the Court of first Appeal recorded in impugned order dated 29.4.2016 [Annexure P/6], submitted that the petitioner filed a suit for permanent injunction restraining Punjab National Bank [defendant No.1] from invoking Bank Guarantee dated 23.1.2012 for Rs.6.00 Crores and extension letters dated 16.2.2013, 25.4.2013, 18.7.2013, 22.10.2013, 21.1.2014 and 9.7.2014 valid upto 22.1.2015 and also restraining the respondent-bank from remitting the said amount of Rs.5,66,00,246/- in favour of defendant No.2 by invoking the said bank guarantee in any manner. An application was also filed by the petitioner for ad interim injunction under Order XXXIX Rules 1 and 2 CPC which was allowed by Civil Judge [Senior Division], Amritsar vide order dated 23.3.2015 and the said order was set-aside by Additional District Judge, Amritsar without any reason.
(3.) Learned senior counsel for the petitioner further submitted that the first Appellate Court failed to appreciate that there was no termination of agreement. The bank guarantee was given just to prove a sense of security to the person in whose favour the same has been furnished. The bank guarantee is always to be encashed subject to two exceptions, i.e., fraud in connection with the bank guarantee or where the encashment could cause irretrievable harm or injury. The petitioner has been able to make out a case of fraud because respondent No.2 itself sent cars to the petitioner three days prior to the termination of agreement, then there was no cause for termination of the agreement. More so, the agreement has been terminated as per Article 24 Clause [5] without issuance of notice. The fact that respondent No.2 had delivered cars to the petitioner on 24.11.2014 i.e., three days prior to the said termination and no such circumstance was forthcoming so as to warrant such action on the part of respondent No.2 clearly proves the mala fides on the part of respondent No.2. The petitioner has been able to make out a case that he was going to suffer irretrievable harm, injury and damage, but the Court of first Appeal ignored this fact. So, the impugned order be set-aside.;