Calcutta High Court
Unit Construction Company Private ... vs Steel Authority Of India & Anr on 9 September, 2009
Author: Patherya
Bench: Patherya
GA No. 2267 of 2009 with
CS No. 237 of 2009
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
UNIT CONSTRUCTION COMPANY PRIVATE LIMITED Plaintiff/Petitioner/Applicant
Versus
STEEL AUTHORITY OF INDIA & ANR. Defendant/Respondent
For Petitioner : MR. JISHNU CHOWDHURY WITH MS. R. KAJARIA For Respondent : MR. ABHIJIT GANGULI BEFORE:
The Hon'ble JUSTICE PATHERYA
Date : 9th September, 2009.
The Court : By order dated 24th August, 2009 the letter dated 21st August, 2009 was stayed. Counsel for the petitioner seeks extension of the interim order while counsel for the respondent seeks vacating of the said order. Counsel for the respondent submits that the bank guarantee is an agreement between the bank and itself. The said bank guarantee is unconditional and upon invocation payments ought to have been made thereunder. In the event the invocation is not as per terms of the bank guarantee, a proceeding be initiated by the bank. Although payment was received but the same was not full payment and upon payment of such part the earlier invocation letter was withdrawn. It is for the balance sum that the invocation letter has been issued. Fraud alleged, if any, is in respect of the underlying transaction and therefore the exceptions are not attracted. For all the said reasons the order dated 24th August, 2009 be vacated.
2
Counsel for the petitioner submits that the invocation is not as per the terms of the guarantee which postulates a letter specifying therein the failure to make payment. The same is absent in the letter of invocation dated 21st August, 2009.
Having considered the submissions of the parties as the invocation is not in terms of the guarantee given, the interim order granted is continued till 15th December, 2009. Directions are given for filing affidavits :
Affidavit-in-opposition be filed within two weeks after the long vacation; affidavit in reply be filed within one week thereafter. Matter to appear in the list four weeks after the long vacation.
All parties concerned are to act on a signed xerox copy of this order on the usual undertakings.
(PATHERYA, J.) TR/