MAJMUDAR, J. - (1.) THIS first appeal is directed against the judgment and decree passed by Additional District Judge No. 3, Jaipur City, Jaipur dated 10. 12. 1990 by which the learned trial Judge has decreed the suit filed by the present respondent- Rajasthan State Electricity Board, Jaipur (for short `rseb' ).
(2.) THE respondent RSEB instituted a suit being Civil Suit No. 72/86 for recovery of Rs. 4,27,500/- with interest from the present appellant, original defendant in the said suit. According to the plaintiff, an order was placed with M/s. U. P. Cables Co. Pvt. Ltd. , New Delhi (hereinafter referred to as `the Contractor') to supply 500 km. of particular type of wire. According to the plaintiff, the delivery was to commence from 22. 10. 1979 and the contractor was to supply entire goods within ten months from 22. 10. 1979. For performance of the said work, the plaintiff insisted upon the security from the contractor and the defendant (present appellant) furnished a security guarantee No. 12/108 for an amount of Rs. 1,90,000/- on 29. 7. 1980. As per the guarantee, it was agreed between plaintiff and the defendant that in case the contractor fails to supply the goods, the Bank will make payment of aforesaid guarantee amount of Rs. 1,90,000/- on demand to the plaintiff-RSEB. As per the stipulation in the agreement, the guarantee was to remain in force upto 30. 6. 1981. It is also the case of the plaintiff that the defendant- State Bank of India further executed a performance guarantee No. 12/115 on 23. 8. 1980. According to this guarantee, it was agreed that in terms of contract between RSEB and contractor, the contractor should furnish bank guarantee of 5% of the total contract value by way of security for supplying free of costs any material that may be required to be supplied due to defects arising from faulty material, design and workmanship. At the request of contractor, the Bank agreed to execute performance guarantee. It is the case of the plaintiff that the contractor did not supply the total quantity of goods but he supplied only 163. 65 Km. on 4. 7. 1980 and thereby failed to perform the contract. It is the case of the plaintiff that vide a telegram dated 28. 9. 1981, the plaintiff asked the Bank to remit the amount of security guarantee i. e. Rs. 1,90,000/- and a letter of confirmation was also sent to Bank on the same day i. e. 28. 9. 1981. It is also the case of the plaintiff that the contractor failed to perform the contract, therefore, the plaintiff sent another telegram on 28. 12. 1981 to the defendant Bank to remit the amount of Rs. 2,37,500/- towards the performance guarantee and a letter of confirmation was also sent in this behalf on 28. 12. 1981. According the plaintiff, the Bank has failed to remit the amount in question and therefore, the suit for recovery of Rs. 4,27,500/- with interest was filed by the plaintiff against the defendant-Bank. The said suit was resisted by the defendant-Bank by filing written statement. The defendant, in the written statement, has admitted the fact about the execution of security guarantee and performance guarantee, but denied the factum of receiving any telegram dated 28. 9. 1981 or 28. 12. 1981. It is the case of the defendant that neither such telegram nor any letter was issued by the plaintiff within the time limit. It is also the case of the defendant that as per the terms of the guarantee, in so far as the security guarantee is concerned, the period of guarantee was only upto 30. 9. 1981 and in case of performance guarantee, the period of guarantee was only upto 30. 12. 1981 and that since no intimation prior to these dates was received by the Bank from the plaintiff for making payment in connection with the aforesaid two guarantees, the Bank cancelled the said guarantees after the expiry of the claim period i. e. on 11. 8. 1982 and therefore, the plaintiff is not entitled to receive any amount. It is also the case of the defendant that the suit is barred by limitation and that M/s. U. P. Cables, who is necessary party in the suit, was not joined in the suit, and the Court at Jaipur has no jurisdiction to decide the suit, therefore, on these and such other grounds, the suit of the plaintiff was resisted. The learned trial Judge framed various issues arising out of the pleadings and after recording evidence of both the parties and after considering the oral and documentary evidence available on record, decreed the suit of the plaintiff against the defendant. Against the aforesaid decree, the appellant (original defendant) has filed this first appeal under Section 96 of the C. P. C. During the pendency of the suit, the plaintiff came to know that the plaint is not signed by the Officer Incharge and therefore, an application was submitted on 20. 3. 1987 for permitting the Officer Incharge of the RSEB to sign the plaint. The trial Court by its order dated 18. 5. 1987 permitted the Officer Incharge to sign the plaint. Subsequently, the appellant- defendant Bank filed an application under Order 6 Rule 16 C. P. C. that the suit is liable to be dismissed. The defendant further filed an application under Order 14 Rule 5 C. P. C. on 6. 3. 1990 that issue No. 7 may be modified and since the Officer Incharge signed the plaint on 18. 7. 1987, the issue of limitation should be modified in the following terms:-      " Whether the suit is barred by limitation because the Officer Incharge has signed the plaint on 18. 7. 1987?" The defendant Bank further filed an application under Order 13 Rule 2 C. P. C. on 6. 3. 1990 with a prayer that letter dated 28. 12. 1981 written by the RSEB may be taken on record. The trial Court by its order dated 12. 2. 1990 allowed the application for amendment in the issue and by the same order, the trial Court dismissed the application under Order 13 Rule 2 C. P. C. Ultimately, after hearing the arguments from both the sides, the trial Court by its judgment and decree dated 10. 12. 1990 decreed the suit for an amount of Rs. 4,27,500/- with costs and further ordered that the plaintiff will be entitled for interest @ 12% per annum on the amount decreed from the date of the suit i. e. 27. 9. 1984. The trial Court also found that the suit is within limitation and the Court at Jaipur has territorial jurisdiction to decide the suit. Learned Advocate for the appellant-Bank, Mr. Bhandari, submitted that the trial Court has erred in deciding the suit in favour of the plaintiff-respondent. Learned Advocate Mr. Bhandari also submitted that since the Bank had not received any intimation within the period during which the guarantee was in existence, the suit was required to be dismissed as the Bank was justified in revoking the guarantee in view of the fact that time limit was already over. Learned Advocate Mr. Bhandari further submitted that in any case, the plaintiff was not entitled to invoke the performance guarantee as it cannot be said that the contractor had committed any default or had failed to perform the contract and therefore, in any case no decree could be passed in connection with the performance guarantee dated 23. 8. 1980. In this connection, learned Advocate for the appellant relied upon the terms of the guarantee and stated that unless it is proved that the contractor was negligent in performing his duty, the said guarantee could not have been invoked. It is also submitted that if the contractor has failed to supply the material, it cannot be said that he was negligent in performing and discharging his duty and obligation unless plaintiff is able to prove that it has suffered any loss or damages by the reason of failure by the contractor to supply the material of good quality. It is also submitted by Mr. Bhandari that the Bank had not received any telegram nor any letter during the time limit of guarantee in dispute. Mr. Bhandari further submitted that the suit of the plaintiff is time barred because when it was presented, the same was not signed by the concerned Officer Incharge of the Bank and at the time when said defect was removed, the limitation period had already expired. Mr. Bhandari also submitted that the plaintiff had failed to prove that any such telegram was sent to the defendant and therefore, the plaintiff has failed to prove his case that within the time limit prescribed in the agreement, an intimation was sent by the plaintiff to the defendant. It is further submitted by Mr. Bhandari that in any case the bank guarantee was given by the Bank from its Delhi Branch and no cause of action can be said to have arisen within the territorial jurisdiction of the Court at Jaipur and therefore the suit was required to be dismissed for want of jurisdiction. Mr. Bhandari accordingly submitted that considering the evidence on record, the suit was required to be dismissed. Mr. Rahul Kamwar appearing for Mr. G. C. Garg, learned Advocate for the defendant-respondent, on the other hand, submitted that the plaintiff has led ample evidence to show that the telegrams were sent within the prescribed time limit but in spite of that the Bank made payment to the contractor. It is also submitted by learned Advocate for the respondent that the Court at Jaipur has territorial jurisdiction. It is further submitted that the suit is within the period of limitation and the trial Court has properly appreciated the evidence on record and decreed the suit. It is submitted by learned Advocate for the respondent that there is a clear admission on the part of the defendant that before cancellation of agreement, the defendant had already received confirmation letter sent by the plaintiff regarding sending of telegrams and it is clear from the evidence that the guarantees were cancelled on 11. 8. 1982 i. e. after expiry of six months from receiving the letter regarding revocation, which clearly shows the bad intention on the part of the original defendant. It is also submitted that both the telegrams (Ex. 21 and Ex. 24) were sent by the respondent to the appellant regarding bank guarantees and both are public documents. It is further submitted that since there was some defect at the time of filing of the suit regarding not signing of the plaint by the concerned officer-in-charge, the said defect was later on rectified by signing the plaint by the competent officer and it cannot be said that the suit is time barred as it was not signed by the appropriate officer at the relevant time. It is further submitted that the Court at Jaipur had territorial jurisdiction to decide the suit and that in any case the decree cannot be set aside by the appellate Court on the ground of lack of territorial jurisdiction as the decree has been passed on merits and no prejudice has been caused to the defendant on the ground that the proceedings have were tried at Jaipur and even the defendant had led full evidence both oral and documentary. It is further submitted that the omission to verify a pleading is a mere irregularity and the pleadings which is not verified as required under Order 6 Rule 15 can be verified at any later stage of the suit and even after the expiry of period of limitation. It is further submitted that M/s. U. P. Cables was not a necessary party to the suit and non-joinder of the same in the suit does not effect the merit of the case and that it cannot be said that no effective decree can be passed even in absence of M/s. U. P. Cables (original contractor ). It is, therefore, submitted that the trial Court has passed the decree after appreciating the evidence on record and that the decree passed by the trial Court is required to be confirmed in this first appeal.
(3.) I have heard learned Advocates for the parties at length, have gone through the pleadings, evidence both oral and documentary and have also gone through the judgment and decree passed by the trial Court. The point which requires to be determined in this appeal is whether the plaintiff can be said to have proved his case and whether the plaintiff was entitled to claim the amount prayed for in the suit. In this connection, the factual aspect of the matter is required to be taken into consideration. The defendant- appellant placed an order with M/s. U. P. Cables Co. Pvt. Ltd. , New Delhi for supplying 500 Km. of particular wire. It is not in dispute that the contractor was required to supply the entire goods within 10 months from 22. 10. 1979, and the appellant Bank furnished a security guarantee No. 12/108 for an amount of Rs. 1,90,000/ -. Clause 7 of the aforesaid bank guarantee is in the following terms:-      " Notwithstanding anything contained herein before the Bank's liability under this guarantee is restricted to Rs. 1,90,000/- (Rs. One lac ninety thousand only) and the guarantee shall remain in force upto 30. 6. 81 unless demand or claim in writing is presented on the Bank within 3 months from that date, the Bank shall be released and discharged from all liabilities thereunder. " The appellant Bank thereafter executed a performance guarantee No. 12/115 on 23. 8. 1980. In the said bank guarantee, it was agreed that the contractor should furnish a bank guarantee of 5% of the total contract value by way of security for supplying free of costs any material that may be required to be supplied due to defects arising from faulty materials, design or workmanship. The Bank executed performance guarantee at the request of contractor for a sum of Rs. 2,37,500/- with grace period of six months. So far as the first guarantee is concerned, the same was valid till 30. 12. 1981 whereas second guarantee i. e. performance bank guarantee is concerned, the same was valid upto 30. 12. 1981. It is not in dispute that the contractor could not supply full quantity as he supplied only 163. 65 km. wire against agreed quantity of 500 km. In this behalf, on 28. 9. 1981, the plaintiff sent a telegram to the appellant Bank to remit the amount of security guarantee of Rs. 1,90,000/- along with a letter of confirmation to the Bank. On 28. 12. 1981, the plaintiff sent a telegram to the Bank to remit the amount of Rs. 2,37,500/- towards the second guarantee i. e. performance guarantee as the contractor had failed to perform the contract. The said guarantees were cancelled by the Bank on 11. 8. 1982. The plaintiff thereafter sent reminders to the Bank on 14. 2. 1983 and 10. 5. 1984 and ultimately, the Bank sent a letter to the plaintiff on 31. 7. 1984 stating that both the bank guarantees have been canceled on 11. 8. 1982. Therefore, the plaintiff had filed the present suit. ;