D S CONSTRUCTIONS LIMITED Vs. RITES LIMITED

JUDGEMENT

(1.) Initially, the application [IA No.11121/2003] under Order 39 Rules 1 and 2 of CPC was argued on 30.11.2005 and orders were reserved. The counsel also sought time to take instructions as to whether the suit itself could be disposed of at this stage. On 05.12.2005 the counsel responded by saying that it could. The following issues were framed:-

(2.) The plaintiff has filed the present suit seeking a declaratory decree as well as a decree for permanent injunction. The declaration that is sought by the plaintiff is that no agreement / contract has come into being between the plaintiff and the defendant No.1 for the construction of Semi-Merry Go Round System for Tenughat Thermal Power Station, Lalpania, Jharkhand pursuant to the letter inviting tenders dated 17.02.2003 issued by the defendant No.1. The relief of permanent injunction that is sought by the plaintiff is for restraining the defendant No.1 from invoking / negotiating the bank guarantee No.LKB/4692/22050 of 22.03.2003 for a sum of Rs.15.00 lakhs issued by the defendant No.2 (bank) at the request of the plaintiff to the defendant No.1. An injunction is also sought against the defendant No.2, restraining it from making any payment under the said bank guarantee to the defendant No.1. The application [IA No.11121/2003] under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') was filed by the plaintiff seeking the interim relief of restraining the defendant No.1 from invoking / negotiating the said bank guarantee as also restraining the defendant No.2 from making payment to the defendant No.1 under the said guarantee.

(3.) On 25.11.2003, the plaint was registered as a suit and this court directed the issuance of summons to the defendants. Notice was also issued to the defendants in the said application (IA No.11121/2003) and ex parte interim orders were passed restraining the defendant No.1 from invoking the said bank guarantee subject to the condition that the validity of the bank guarantee was extended for a further period of three months from the date of its expiration. The defendant No.2 was also restrained from releasing the bank guarantee and from making payment till further orders from this court. This ex parte order has continued till date. The bank guarantee has, however, been kept alive by extending its validity from time to time.