NEW ENGINEERING ENTERPRISES Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) Civil Revision is directed against the judgment and order dated 25.01.1994, passed by Addl. Civil Judge, Roorkee, in Misc. Case no. 24 of 1992, whereby the arbitral award has been set aside; as also the judgment and order dated 25.05.2012, passed by the District Judge, Haridwar, dismissing the appeal against the said order.

(2.) Heard learned counsel for the parties and perused the entire record.

(3.) Facts leading to the present case are that the plaintiff, a registered partnership firm, entered into a contract, being no. 2/EE 86-87 with defendant no. 2 The Executive Engineer, Tunnel and Power House Division II, Shinchai Bhawan, Dehradun in connection with the supply of instruments as mentioned in the contract and the plaintiff was also asked to install the instruments. The work having been found satisfactory, the defendant no. 3 Superintending Engineer, Lakhwar Construction Circle-1, Yamuna Bhawan, Dehradun entered into a second contract No. 4/SE/87-88 for instrumentation for the same project at Lakhwar. The terms and conditions of both the contracts are the same. As per Clause no. 1-10, contractor is responsible towards supply of instruments and their fixing and 20% of the cost of instruments and cable as stipulated in clause 1 of ID form no. 111, will be deducted for one year. ID form 111 specifies bank guarantee as an alternative to cash which is also applicable for performance guarantee. Some dispute arose relating to execution of agreement no. 2/EE/86-87 dated 01.01.1987 between M/s New Engineering Enterprises, Roorkee and Executive Engineer, Lakhwar Colony, Division Dakpathar and Agreement no. 4/SE/87-88 between M/s New Engineering Enterprises and Superintending Engineer, Lakhwar Vyasi Construction Circle-01, Dehradun. Since the work was not completed by the revisionist, the Irrigation Department initiated proceedings to invoke the bank guarantee submitted by the plaintiff / revisionist. Feeling dissatisfied, plaintiff / revisionist filed Original Suit no. 365 of 1989, Ms New Engineering Vs Indian Overseas Bank and others, with the prayer that defendant no. 1 (respondent no. 1 herein) be restrained by means of a permanent injunction not to make payment of bank guarantee nos. LG/359/57/87 dated 26.12.1987 for Rs.20,000/-LG/359/58/87 dated 26.12.1987 for Rs.25,000/-; LG/359/1/89 dated 02.01.1989 for Rs.24,008/-and LG/359/2/89 dated 09.01.1989 for Rs.16,000/- to defendant nos. 2 and 3 or either of them on the basis of the letter of invocation no. 10962 / Lakhwar-I / Agr.No.4 / SE / 87-88 dated 20.12.1989 or otherwise.