KROFTA ENGINEERING LTD Vs. HERMES PROPERTIES LTD

JUDGEMENT

(1.) The plaintiff has sued for declaration that the invocation by the defendants of the Performance Bank Guarantee (PBG) dated 3.9.2008 is invalid, illegal, null and void and for permanent injunction restraining the defendants from taking any steps in pursuance to the said invocation. A decree for recovery of Rs. 1,42,363/- along with interest at 12% per annum is also sought jointly and severally against the defendants. Summons of the suit and notice of the application for interim relief were issued and vide ex parte ad interim order dated 8.11.2011, on the condition of the plaintiff depositing an amount of Rs. 9,00,000/- by way of an FDR in the name of the Registrar of this Court, the defendant No. 4 Union Bank of India (UBI), Nehru Place Branch, New Delhi was restrained from remitting the amount of Bank Guarantee dated 3.9.2008 to the defendant No. 3 Bank of Cyprus Public Company Ltd., Limassol (Lemesos).

(2.) The defendant No. 1 Hermes Properties Ltd., Limassol, Cyprus and the defendant No. 2 Velpa Trade, Bulgaria, were reported to be served by e-mail. They were vide order dated 8.12.2012 also directed to be served through DHL courier and were so served but failed to appear and were proceeded against ex parte vide order dated 22.1.2013. Similarly, the defendant No. 3 also failed to appear in spite of service and was also proceeded against ex parte. The defendant No. 4 UBI has filed its written statement. The plaintiff led its ex parte evidence and the Counsel for the plaintiff has been heard.

(3.) The Counsel for the plaintiff has stated that the subject Bank Guarantee has since lapsed and thus the relief claimed of declaration has become infructuous. He, under instructions, further states that the plaintiff is not pressing for the relief of recovery of Rs. 1,42,363/- which was earlier claimed towards charges incurred by the plaintiff for keeping the Bank Guarantee alive beyond the period for which it was required to be kept alive and at the asking of the defendant Nos. 1 and 2. He has argued that thus the only question which remains for consideration in the present case is qua the amount of Rs. 9,00,000/- which was got deposited in this Court as a condition for grant of interim order. Besides arguing on merits on the said aspect, the Counsel has also contended that the defendant Nos. 1 to 3 having failed to contest the suit, the FDR of Rs. 9,00,000/- together with interest accrued thereon ought to be returned to the plaintiff.