Calcutta High Court (Appellete Side)
M/S. Electrical Manufacturing Co. Ltd vs Uttarpradesh State Electricity Board on 5 July, 2022
05.07.2022
SL No.4
Court No.8
(gc)
SA 271 of 2007
M/s. Electrical Manufacturing Co. Ltd.
Vs.
Uttarpradesh State Electricity Board
(Through Video Conference)
The second appeal appeared in the warning list on
22nd June, 2022 and continued to appear in the list until it
was transferred to the daily cause list on 28th June, 2022.
The appellants are not represented.
The second appeal can be admitted if a substantial
question of law is involved. We have gone through the
order of the learned Trial Judge as well as the Appellate
Court. The dispute arose with regard to the enforcement of
the bank guarantee. The contention of the appellant before
both the Courts that without filing of the suit, the bank
guarantee could not have been enforced. The appellant
before both the Courts has drawn attention to an insertion
made in the extended bank guarantee which mentions that
the bank guarantee can be enforced only after filing of the
suit. Both the Courts have arrived at a finding that the
same was inserted without the consent or approval of the
beneficiary of the bank guarantee. The bank guarantee
was issued at the instance of the appellant. This finding of
fact does not call for any interference on the basis of the
evidence available on record. Moreover, a bank guarantee
2
can be enforced if there is a breach of contract. The
original bank guarantee and the bank guarantee on which
reliance was placed and extended by the appellant contain
a clause that if there is a breach of contract, the beneficiary
would be in a position to enforce the bank guarantee. The
evidence before the Trial Court as well as the Appellate
Court clearly establishes breach of contract. In view
thereof, even if one ignores that the enforcement of the
bank guarantee dehors without filing of the suit but the
breach of contract has been established, we are of the view
that the respondent shall be entitled to enforce the bank
guarantee.
In view of the fact that there is no substantial question of law is involved, the second appeal is not admitted.
Accordingly, the second appeal being SA 271 of 2007 stands dismissed.
However, there shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking. (Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)