JUDGMENT J.D. Kapoor, J.
1. This is a suit for recovery filed by the plaintiff Bank on account of the dues which the plaintiff Bank had to pay to defendant No. 4, since the defendant No. 4 had obtained a decree for non-invokation of the Bank Guarantee.
2. The defendant No. 4 filed a civil suit in the Court of Civil Judge at Udupi, D.K. The suit was decreed and in pursuance of the decree the plaintiff paid the decretal amount including the interest to the tune of Rs. 6,56,078/- and called up to the defendants 1 to 3 to pay back the said amount to the plaintiff in terms of their Counter Guarantee. Despite service of legal notices defendants 1 to 3 failed to pay the said dues. Hence this suit.
3. The averments of the plaintiff in support of its claim in brief are as under:-
4. The defendant No. 2 being the sole proprietor of defendant No. 1 placed an order on defendant No. 4 of printing and supply of lottery tickets and requested the plaintiff Bank to furnish Bank Guarantee for a sum of Rs. 2,14,000/- with defendant No. 4 as beneficiary. Defendant No. 2 as the proprietor and defendant No. 3 as the guarantor furnished counter guarantees in favor of the plaintiff clearly undertaking to indemnify the Bank and to pay all amounts in case the plaintiff was compelled to pay any amount to defendant No. 4 pursuant to the Bank Guarantee. As a consequence of certain dispute arising between defendant No. 2 and defendant No. 4, the defendant No. 4 invoked the Bank Guarantee. The plaintiff Bank refused to encash the same on the ground that the defendant No. 4 had supplied lottery tickets to defendant No. 1 before issuing of Bank Guarantee whereas the said bank Guarantee did not relate to any past transaction.
5. The defendant were proceeded ex parte as they did not put in appearance to contest the claim of the plaintiff despite service of summons of the suit. The plaintiff was called upon to file affidavit by way of evidence. In support of its claim the plaintiff has proved the following documents:-
1. Exhibit PW-1/1 is the photocopy of the power of attorney authorizing to file the suit.
2. Exhibit PW-1/2 is the letter of sanction for issuing the Bank Guarantee.
3. Exhibit PW-1/3 is the certified copy of the Bank Guarantee.
4. Exhibit PW-1/4 is the counter guarantee by defendant No. 2 as proprietor of defendant No. 1.
5. Exhibit PW-1.5 is the certified copy of the judgment and decree taken by the plaintiff against defendants 1 & 2.
6. Exhibit PW-1/6 is the certified copy of the judgment passed by the Civil Judge, Udupi.
7. Exhibit PW-1/7 & PW-1/8 are the letters written by the Mangalore Branch of the plaintiff to the plaintiff.
8. Exhibit PW-1/9 is the letter by the counsel for the plaintiff informing full satisfaction of the decree passed by Udupi Court,
9. Exhibit PW-1/10 is the reply sent by Mangalore Branch of the plaintiff to the counsel.
10. Exhibit PW-1/11 are the certified copies of the proceedings pertaining to the Court of Civil Judge, Udupi.
11. Exhibit PW-1/12 & PW-1/13 are the carbon copies of the legal notice and postal receipts.
6. As is apparent from the aforesaid documents defendant No. 2 had given a counter guarantee in favor of the plaintiff bank that in case the plaintiff has to pay any amount to defendant No. 4 in pursuance of the invocation of the bank Guarantee they will re-imburse the said amount to the plaintiff Bank. Since the defendants have failed to pay, the plaintiff is entitled to the decree as prayed for.
7. The suit of the plaintiff is decreed for Rs. 6,78,788.65 with costs and pendente lite and future interest @ 24.75% per annum from the date of the filing of the suit till its realization. Decree sheet be drawn up accordingly.