SUDARSHAN WADIA Vs. TITAN INDUSTRIES LTD

JUDGEMENT

(1.) THIS appeal by the second defendant in O. S. No. 3464/2000 on the file of XXX Addl. City Civil Judge, bangalore City is filed by being aggrieved by the order dated 17-11-2001 allowing I. A. I filed by the plaintiff and restraining defendant No. 1-Bank from paying any money under the bank guarantee dated 14-10-97 for rs. 1,25,00,000/- till the disposal of the suit.

(2.) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the trial Court are as follows : the plaintiff filed O. S. No. 3464/2000 on the file of City Civil Judge, Bangalore, seeking for recovery of Rs. 53,36,717/- along with interest thereon at 18% p. a. from the date of suit to the date of payment and seeking permanent injunction restraining first defendant-Bank from making any payment under or pursuant to Bank guarantee dated 14-10-1997. In the said suit plaintiff filed I. A. No. 1 under order 39, Rules 1 and 2, CPC, seeking an order of interim injunction to restrain first defendant-Bank from paying any money under bank guarantee dated 14-10-1997 for Rs. 1,25,00,000/-pending disposal of the suit.

(3.) THE plaintiff averred in the I. A. that second defendant is the owner of flat bearing no. 502, Jaladarshan Building, Chimbai Master, vinayak Cross Road, Bandra West, Mumbai (hereinafter called 'schedule premises' ). The plaintiff obtained leave and licence of the schedule premises under an agreement dated 1-3-1994, for the purpose of housing plaintiffs guest house at Mumbai. The plaintiff initially gave deposit of Rs. 15,00,000/- and agreed to pay monthly licence fee of Rs. 6,500/-and also furnished Bank guarantee to ensure prompt vacating of the premises at the end of period of agreement. The plaintiff was put in possession of schedule premises and the same was used as guest house by the plaintiff. The period of agreement expired on 28-2-1997 and second defendant entered into fresh leave and licence agreement for the period from 1-3-1997 to 29-2-2000. As per the terms and conditions of the agreement would automatically came to an end on 29-2-2000. The plaintiff paid security deposit of rs. 42,35,000/- and also furnished Bank guarantee for Rs. 1,25,00,000/- (Rupees one crore twenty-five lakhs only) issued by the first defendant for enforcing prompt vacating and handing over vacant possession of schedule premises on 29-2-2000 agreed to amendment of para 1 and deletion of proviso to para 2 of bank guarantee subject to addition of para 14 in the leave and licence agreement. Bank guarantee was amended but second defendant neglected to amend agreement. Amendment of bank guarantee was intimated to the second defendant. It is further averred that before the expiry of period of agreement, plaintiff wrote a letter to second defendant on 7-1-2000 intimating that agreement period is expired on february 29, 2000 and as plaintiff is interested in continuing the lease, second defendant was requested to inform acceptance by second defendant with fresh terms and conditions. Second defendant by letter dated 2-2-2000 informed the plaintiff that there is no meeting ground and it would be appropriate if the dues pertaining to first and second period of licence are discharged at the earliest. In response to said letter of second defendant, plaintiff addressed a letter to second defendant on 15-2-2000 intimating that in view of second defendant not agreeing to terms for renewing the licence, Mr. Kashy Cherian, Admin. Executive, regional Office, Bombay to hand over possession of premises on 1-3-2000 and requested the second defendant to intimate particulars of the representative who will be taking over possession of premises and to hand over Bank guarantee and security deposit amount to Mr. K. Cherian. The second defendant in response to letter of plaintiff dated 15-2-2000 send a reply letter dated 24-2-2000 informing that on account of Central budget excise, it was not possible for him to come to bombay on 1-3-2000 to take possession and that suitable date in the third week of March, preferably on Saturday/sunday may be fixed for handing/taking over possession of schedule premises.