M/S. ENTERPRISE FOR WATERWAYS IVAN MILUTINOVIC PIM Vs. BOARD OF TRUSTEES FOR THE PORT OF MOURMUGAO AND OTHERS

JUDGEMENT

(1.) This application has been taken out by the Board of Trustees for the Port of Mourmugao, the defendant no. 1 herein, for an order for revocation of leave granted under Clause 12 of the Letters Patent in this suit, the suit and any proceedings thereunder be permanently stayed, injunction restraining the plaintiff and/or its agents or servants or assigns from taking any further steps in the said suit and for other consequential reliefs.

(2.) The facts of this application shortly are that the plaintiff M/s. Enterprise for Waterways Ivan Milutinovic Pirn instituted this suit against the petitioner, the defendant no. 2, United Commercial Bank, and defendant no. 3 on 20th of Nov., 1978, inter alia, for a declaration that the deed of guarantee dated 14th of Sept., 1974 executed by the defendant do. 2 in favour of the defendant no. 1 ceased to have effect from 1st of Dec., 1978 and the same is not binding and/or enforceable against the plaintiff from that date. As such the said deed of guarantee be declared null and void on and from 1st of Dec., 1978, and an order for delivery up of the deed of guarantee and also for a declaration that the Ports Trusts are not entitled to claim for damages or other reliefs against the plaintiff under deed of guarantee; as such any claim to enforce the said guarantee is wrongful and illegal, injunction restraining the defendant no. 1 from making any claim in respect of the Bank guarantee or to ask for any extension of time, an injunction restraining the defendant no. 1 from tiling any suit or claim m respect of the said Bank guarantee. Receiver etc.

(3.) In this suit the Respondent No. 1 obtained leave under Clause 12 of the Letters Patent. According to the petitioner, from the perusal of the plaint including the prayers asked for it would appeal that there is no specific allegation against the defendant No. 2 or defendant no. 3 and there is no cause of action in favour of the plaintiff against the said defendants. In fact no relief has been claimed against the defendant no. 3. There is no allegation in the plaint against the defendant no. 2 with regard to its conduct in respect of Bank guarantee. Leave under Clause 12 of the Letters Patent was obtained by the plaintiff in this suit by making certain allegations in paragraphs 3, 5, 6 and 7. In paragraph 3, it has been stated by the plaintiff that the Bank guarantee was in favour of Port trust Which was executed and issued by the defendant No. 2 at Calcutta within jurisdiction of this Court. In paragraph 5 it has been pleaded that in terms of Clause 10 of further supplemental agreement the plaintiff made arrangements with the defendant no. 2 at Calcutta within jurisdiction of this Court for issue of Bank guarantee and the defendant no. 2 duly executed and granted Bank guarantee at Calcutta hi favour of the Port Trust. The paragraph 6 sets out various terms and conditions of the said Bank guarantee In paragraph 7 it has been pleaded that on 7th of Oct., 1974 certain amendments were made by mutual consent of the parties and these amendments are recorded in a letter written and sent by the defendant no. 2 from Calcutta within the jurisdiction of this Court to the chairman. Port Trust which amendment provided "that in case the date of completion of the work under agreement is extended the guarantee will automatically be extended upto a date for six months after the said extended date for completion."