TECHPARK INDIA (P) LTD Vs. UT STARCOM INC.

JUDGEMENT

(1.) THE plaintiff has instituted the suit for permanent injunction to restrain encashment of the bank guarantee issued by the defendant No.2 bank at the instance of the plaintiff to the defendant No.1. Vide ex-parte order dated 28.09.2007 invocation of the guarantee was stayed till the next date of hearing and the plaintiff was directed to keep the bank guarantee alive. The defendant No.1 failed to appear in spite of being served with the summons of the suit and was on 29th February, 2008 ordered to be proceeded against ex-parte and remains ex-parte. The defendant No.2 bank appeared but has not contested the claim of the plaintiff. The ex- parte injunction order restraining encashment of bank guarantee was, on 29th February, 2008, made absolute during the pendency of the suit and remains in force. Considering the nature of the said interim order and further considering that the payment under the bank guarantee, as demanded by the defendant No.1 has not been made, it is inconceivable that the defendant No.1 does not know of the present suit. The defendant No.1 appears not to be having any defence to the suit and for this reason only appears to have chosen not to contest this suit.

(2.) THE plaintiff has led ex-parte evidence of its Managing Director Mr. Rajiv Anand.

(3.) WHAT is conspicuous about the aforesaid bank guarantee is that it does not use the words 'unequivocal, without any protest, without any demur, the defendant No.1 being the sole person to decide whether the breach had occurred, or the demand of the defendant No.1 being binding on the defendant No.2 bank' In the absence of the aforesaid terms, the contention of the counsel for the plaintiff to the effect that the bank guarantee is a conditional bank guarantee and the bank was liable to make payment there under only upon the condition of the goods supplied by the plaintiff not meeting the specifications mentioned therein being established and not otherwise, is correct.