LUCKY EXPORTS Vs. ACCESS MARITIME CORPORATIOM

JUDGEMENT

(1.) In this suit for perpetual injunction, seeking to restrain the first defendant-M/s. Access Maritime Corporation, Athens, Greece, from encashing the Bank guarantee No. 009100197, dated 15th July, 1997 in the sum of US $ 52,500, issued by the second defendant Syndicate Bank, New Delhi, in favour of defendant No. 1, the plaintiff has filed this application under Order 39, Rules 1 & 2, Civil Procedure Code for grant of ex parte and interim injunction in its favour to the same effect.

(2.) The plaintiff is engaged in the trade and business of export of goods and also acts as a charter party, i.e. charterer, hiring vessels for transportation of goods from one port to another. Defendant No. 1 is engaged in the business of carriage by sea, owning vessels, which are given on hire for a particular voyage or for a particular period of time, under a contract termed as "charter party agreement". Defendant No. 2 Bank has furnished the Bank guaratnee in question.

(3.) On 9th July, 1997, the plaintiff entered into a `charter party agreement' in the capacity of a charterer with the first defendant for the shipment of 7500 M.T. of rice from the Port of Vishakhapatnam (hereinafter referred to as the load port) to the Port of Novorossisk (hereinafter referred to as the discharge port). The said goods were to be transported aboard the ship named "Danube Trader", belonging to defendant No. 1. Under Clause 26 of the said agreement, the plaintiff was required to furnish a Bank guarantee in the sum of US $ 52,500 to secure the amount payable by the plaintiff for the demurrage payable for delay in berthing of the said vessel on account of port congestion at the discharge port for 15 days at US $ 3,500 per day. On 15th July, 1997, on the request of the plaintiff the second defendant furnished the guarantee in question. The relevant portion of the Bank guarantee reads as follows: @SUBPARA = "We are informed by our client M/s. Lucky Exports, 8, Aradhana Colony, R.K. Puram, Sector, 13, New Delhi-110066 (hereinafter called the Charterers) that they have entered a charter party agreement dated 9.7.97 (hereinafter called the contract)with M/s. Access Maritime Corp. (hereinafter called the vessel owners) for the shipment of 7500 MT of rice (the goods) from Vishakhapatnam Port (Load Port) to Novorossisk Port (Dsicharge Port) and in this connection a Bank guarantee is required for USD 52500 (USD fifty two thousand five hundred only) being the demurrage payable for delay in berthing on account of port congestion at the discharge port i.e. Novorossisk for 15 days @ USD 3500 per day i.e. USD 52500. These 15 days demurrage period to start after the expiry of free time of 13 days and 12 hours which excludes the period from Saturday noon to Monday 8.00 a.m. This free time to start after the date of getting notice of readiness and accepted as per charter party. @SUBPARA = Accordingly, we the Syndicate Bank at the request of charterers do hereby give you our guarantee and undertake to pay you on receipt of your first demand alongwith your invoice towards demurrage, telex copy of notice of readiness served to consignee, statement of fact giving lay time and time sheet calculations, duly authenticated by our Bankers with a three days notive of payment waving all rights of objection and defence any amount upto maximum of USD 52,500 (USD fifty two thousand five hundred only) from the expirty of third day from the date of receipt at this office at F-40, Connaught Place, New Delhi."