PREMIUM INDUSTRIES INDIA LTD Vs. QUALITY FABRICATORS

JUDGEMENT

(1.) THE petitioner who is the first defendant in the suit in O. S. No. 4323 of 1995 on the file of the II Assistant City Civil Court, madras, has filed the above revision aggrieved against the order passed in i. A. No. 8725 of 1995 in O. S. No. 4323 of 1995, dated 20. 09. 1995, which was confirmed by the learned III Additional City Civil Judge, Madras in c. M. A. No. 146 of 1995.

(2.) THE plaintiff/first respondent filed a suit in o. S. No. 4323 of 1995 praying for a decree for permanent injunction restraining the defendants from in any way releasing, sending/despatching, encashing the bank guarantee provided by the plaintiff, through the second defendant bearing bank guarantee Nos. D2/cc1 1/43/93-94, dated 3. 8. 1994 and D2/cc1147/47/93-94, dated 17. 8. 1994. Pending the suit, the petitioner filed an application in i. A. No. 8725 of 1995, under Order 39, Rule 1 of the Code of Civil Procedure, seeking an order of interim injunction restraining the second defendant officials from in any way despatching/sending/releasing the Demand Draft drawn in favour of the first respondent which represents the amount covered under the two Bank Gurantees dated 3. 8. 1994 and 17. 8. 1994 issued by the second respondent. THE first respondent/plaintiff also filed another application in i. A. No. 8726 of 1995 with which we are not concerned in this revision. THE trial court in its common order dated 20. 9. 1995 held that it has jurisdiction to try the suit and also on merits granted injunction only with respect to the Bank guarantee dated 17. 8. 1994 and rejected the prayer for injunction with respect to the Bank Guarantee dated 3. 8. 1994. Aggrieved against the same, the plaintiff/first respondent filed C. M. A. No. 134 of 1995 on the file of the Principal City Civil Court , Madras . THE petitioner/first defendant filed another appeal in C. M. A. No. 146 of 1995 on the file of the III Additional City Civil Court , Madras . THE lower appellate court while dealing with the said appeals in common, dismissed the appeals filed by the plaintiff and the first defendant. THE said order passed in C. M. A. No. 134 of 1995 filed by the plaintiff was confirmed by this Court in C. R. P. No. 222 of 1996, by dismissing the said revision. THE first defendant/petitioner has therefore filed the present revision, aggrieved against the orders of the courts below, granting injunction with respect to the bank guarantee dated 17. 8. 1994.

(3.) THE learned counsel appearing for the petitioner has vehemently argued with respect to the jurisdiction of the City Civil Court, madras to try the suit filed by the first respondent/plaintiff. According to the learned counsel, as agreed to in the said clause No. 23 extracted above of the minute, the plaintiff cannot file the suit in the City Civil Court, Madras. In support of her submission, she has relied on the decision in South East Asia shipping Co. Ltd v. Nav Bharat Enterprises Pvt. Ltd. , 1996 (3) SCC 433. In the said case, the respondent therein filed a suit on the Original Side of the delhi High Court for perpetual injunction against the appellant from enforcing the bank guarantee. THE learned single Judge held that the court/lacked jurisdiction to entertain the suit. THE Division Bench, on appeal, on the basis of the fact that the bank guarantee was executed at Delhi and payments were to be made in Delhi held that the High Court has jurisdiction to try the suit. Aggrieved against the same, the appellant filed appeal before the Apex Court. On the basis of the fact that the appellant executed the bank guarantee at delhi and transmitted/the same to Bombay for performance of the contract held that merely because bank guarantee was executed at Delhi and transmitted for performance to Bombay, it does not constitute a cause of action to give rise to the respondent to lay the suit on the original side of the Delhi High Court.