*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1776/2007
% Date of decision: 14.11.2008
M/S TECHPARK INDIA (P) LTD. ....... Plaintiffs
Through: Mr. Sanjeev Narula, Advocate
Versus
UT STARCOM INC. AND ANOTHER ....... Defendant
Through: Mr. K.S. Javali, Advocate for
Defendant no. 2
Defendant No.1 Ex-parte
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The plaintiff has instituted the suit for permanent injunction to restrain encashment of the bank guarantee issued by the defendant No.2 bank at the instance of the plaintiff to the defendant No.1. Vide ex-parte order dated 28.09.2007 invocation of the guarantee was stayed till the next date of hearing and the plaintiff was directed to keep the bank guarantee alive. The defendant No.1 failed to appear in spite of being served with the summons of the suit and was on 29 th February, 2008 ordered to be proceeded against ex-parte and remains ex-parte. The defendant No.2 bank appeared but has not contested the claim of the plaintiff. The ex-parte injunction order restraining encashment of bank guarantee was, on 29th February, 2008, made absolute during the pendency of the suit and remains in force. Considering the nature of the said interim order and further considering that the payment under the bank guarantee, as CS(OS)1776/2007 Page 1of 4 demanded by the defendant No.1 has not been made, it is inconceivable that the defendant No.1 does not know of the present suit. The defendant No.1 appears not to be having any defence to the suit and for this reason only appears to have chosen not to contest this suit.
2. The plaintiff has led ex-parte evidence of its Managing Director Mr. Rajiv Anand.
3. The bank guarantee No. DLG-007260/2007 dated 25th April, 2007 subject matter of the suit has been proved as exhibit PW1/5. The defendant No.1 had asked for the said bank guarantee by way of security required by the defendant No.1 from the plaintiff. The defendant No.2 bank under the said bank guarantee undertook to indemnify and keep indemnified the defendant No.1 to the extent of Rs.40,80,000/- in the event of the material to be delivered by the plaintiff to the defendant No.1 not meeting the specifications mentioned in the bank guarantee. As per the terms of the guarantee, the amount thereunder was agreed to be paid upon receipt of a written claim or demand from the defendant No.1 on or before 30th September, 2007.
4. What is conspicuous about the aforesaid bank guarantee is that it does not use the words "unequivocal, without any protest, without any demur, the defendant No.1 being the sole person to decide whether the breach had occurred, or the demand of the defendant No.1 being binding on the defendant No.2 bank". In the absence of the aforesaid terms, the contention of the counsel for the plaintiff to the effect that the bank guarantee is a conditional bank guarantee CS(OS)1776/2007 Page 2of 4 and the bank was liable to make payment there under only upon the condition of the goods supplied by the plaintiff not meeting the specifications mentioned therein being established and not otherwise, is correct.
5. The witness of the plaintiff has in his affidavit by way of examination in chief deposed that the plaintiff completed the supplies of the entire ordered quantities. The Challans of the delivery of the goods have been proved as exhibit PW 1/6 to exhibit PW1/24; that the defendant No.1 after receipt of goods fraudulently attempted to encash the bank guarantee; that the claim of the defendant No.1 that the goods supplied were not as per the specifications was incorrect and untenable; "the entire ordered quantity as per the specifications contained in the bank guarantee had been duly complied with". Needless to state that the aforesaid evidence of the plaintiff remained unrebutted. In the face of the unrebutted evidence of the plaintiff to the effect that the goods had been supplied as per the specifications, the condition subject to which the defendant No.2 was to make the payment under the bank guarantee had not accrued and thus the defendant No.1 was not entitled to demand and the defendant No.2 is not liable to pay under the guarantee aforesaid. Even though the aforesaid would be sufficient, the counsel for the plaintiff has also argued that a comparison of the letter dated 24th September, 2007 of the defendant No.1 invoking the bank guarantee and of the specifications mentioned in the bank guarantee would show that the allegation of the defendant No.1 that the goods had not been supplied as per the specifications is incorrect. It is stated that Office XP was not to be pre-loaded on the desktops and Office XP was to be only supplied and not pre-loaded on the note books. Be that as it may, in the face CS(OS)1776/2007 Page 3of 4 of the statement of the witness of the plaintiff that the goods had been supplied as per the specifications and the failure of the defendant No.1 to challenge the same, the court has no option but to believe the version of the plaintiff.
6. The counsel for the plaintiff confirms that the defendant No.1 has not filed any proceedings against the plaintiff and besides the present suit there are no other inter-se proceedings subject matter of the present suit.
7. The plaintiff has thus become entitled to the relief of injunction claimed. A decree of permanent injunction is passed in favour of the plaintiff and against the defendant No.1 restraining the defendant No.1, its Directors and officers from invoking/encashing the aforesaid bank guarantee and restraining the defendant No.2 from releasing any payments under the said bank guarantee. However, in the facts of the case, the parties are left to bear their own cost. The interim order directing the plaintiff to keep the bank guarantee alive shall stand discharged after 45 days here from. A decree sheet be drawn up accordingly.
RAJIV SAHAI ENDLAW
(JUDGE)
November 14, 2008
P
CS(OS)1776/2007 Page 4of 4