ORG INFORMATICS LTD Vs. MTNL

JUDGEMENT

(1.) The petitioner by this writ petition seeks to restrain the respondent no.1 MTNL from invoking / encashing the Performance Bank Guarantee furnished by the respondent no.2 Bank at the instance of the petitioner to the respondent no.1 MTNL. The petitioner also seeks return of the deed of said Bank Guarantee.

(2.) It is not in dispute that the Bank Guarantee in question is unconditional. The law with respect to the said Bank Guarantee need not be restated. It has been repeatedly held that there can be no stay of encashment or interference with such Bank Guarantees.

(3.) The counsel for the petitioner however claims restrain on encashment and return of the Bank Guarantee contending that the agreement in consideration of which the said Bank Guarantee was furnished has since been assigned by the petitioner with the consent of the respondent no.1 MTNL in favour of the respondent no.3. It is thus contended that the agreement along with its benefits and obligations having been assigned in favour of the respondent no.3 and the respondent no.3 having furnished an identical Performance Bank Guarantee in favour of the respondent no.1 MTNL, the respondent no.1 MTNL ceased to have any right to invoke the said Bank Guarantee. Reliance in this regard is placed on Clause 12 of the Tri Partite agreement dated 11th April, 2008 between petitioner, respondent no.1 and the respondent no.3 and which is as under: