TMI Blog2003 (2) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... xtended period. Thus when it becomes apparent on the facts and circumstances of the case that there is no chance of the appellant fulfilling its export obligation, the action of the first respondent in invoking the bank guarantee cannot be said to be premature and unjustified, much less arbitrary and illegal so as to warrant any interference by this Court. Appeal dismissed. - 1502-1503 of 2003 - - - Dated:- 20-2-2003 - Syed Shah Mohammed Quadri and Ashok Bhan, JJ. [Order]. - Leave is granted. 2.These appeals arise from a common judgment of the High Court at Delhi in Civil Miscellaneous No. 67/4 of 2002 in Civil Writ Petition No. 2002 of 2002 and in Civil Writ Petition No. 2002 of 2002, dated July 16, 2002. 3.The controversy in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Foreign Tirade, by communication dated February 25, 2002, revoked the export obligation extension period and invoked various bank guarantees. 4.The appellant-company filed writ petition in the High Court at Delhi challenging the validity of the said order invoking the bank guarantee. The High Court took the view that as the writ petition involved disputed questions of fact and as the subject-matter related to encashment of bank guarantee, it would not be appropriate to exercise extraordinary jurisdiction of the High Court under Article 226 of the Constitution. It also observed that the order impugned before the High Court was an appealable order and in that view also, the writ petition ought not to be entertained. The writ petition wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t obligation, the bank guarantee cannot be encashed, except by an arbitrary action of the first respondent. 8.Mr. Soli J. Sorabjee, the learned Attorney General appearing for the first respondent, on the other hand, submits that the extension of time has been revoked, thus, the very foundation on which the company is resting its defence is not available to it. He contends that the Bank has no locus, no cause of action has accrued to it to file the appeal and/or to contest the invocation of the bank guarantee. 9.The short point that arises for our consideration is, whether the impugned order of the High Court dismissing the writ petition of the appellant-company warrants any interference in exercise of the jurisdiction of this Court unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracted paragraphs in particular leaves us in no speck of doubt that those words only qualify the preceding words, "loss or damage caused or suffered by the President of India", and do not constitute a condition precedent for the first respondent to invoke the bank guarantee, much less they give any cause of action to the bank, to contest the encashment of the bank guarantee on the ground of there being no non-fulfilment of the export obligation. 12.Further, it would be appropriate to read here the following clauses of the bank guarantee: "We, Times Bank Ltd., PTI Building, Parliament Street, New Delhi, 110 001 further agree that the demand made by the President of India any money so demanded notwithstanding any dispute raised by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead in conjunction with the terms of the contract but when the bank guarantee itself is in absolute terms, the agreement between the company and the first respondent would be of no avail to the bank. 15.Insofar as the contention of the appellant-company is concerned, firstly, the order extending the export obligation period has been revoked. Even assuming that the revocation is not a valid revocation, the fact remains that the plant of the appellant-company has been closed down; the entire production of the appellant-company has come to an end. It is also on record that public notices have been issued for auctioning the plant of the appellant-company by the company itself. In such circumstances, when there is no apparent possibility of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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