MAKHARIA BROTHERS Vs. STATE OF NAGALAND AND ORS.

JUDGEMENT

(1.) THE broad and relevant facts of the case are these, A suit was filed by Respondent No. 1 against the Petitioner and Respondents 2 and 3. The suit was for declaration and perpetual injunction. The declaration sought was that the bank guarantee for a sum of Rs. 2,87,800/ - furnished by Defendants No. 2 and 3 which was extended till 5.7.79 and whose further extension till 5.1.80 was refused, must subsist until expiration of a period of 90 days of the successful commissioning of the generating sets etc., to the satisfaction of a Chief Engineer as per terms and conditions of the contract, entered into by Defendant No. 1 with the Government of Nagaland. The suit was filed on 27.12.79. It was desired by the Defendant that issues 1, 2, 3, 4 and 5 be heard as preliminary issues which was done. These issues are:

(2.) OF these, issues 3 and 5 were not pressed before the learned Asstt. to the Deputy Commissioner, and I was also not addressed on the same. Issues 1 and 4 are related and they have been answered in favour of the Plaintiff, i.e., the State of Nagaland. Issue No. 2 has to follow these. For the sake of completeness, it may be pointed out that the guarantee was forfeited on 1.10.80. On the ground that the contract was rescinded due to assignment on Sub -electing of the contract in contravention of Clause 15 of the agreement.

(3.) TO decide the question of maintainability, Rule 34 of the Rules may be set out in so far as it is material: