JUDGMENT
J.D. Kapoor, J.
1. This is a suit for recovery filed by the
plaintiff Bank on account of the dues which the plaintiff
Bank had to pay to defendant No. 4, since the defendant
No. 4 had obtained a decree for non-invokation of the Bank
Guarantee.
2. The defendant No. 4 filed a civil suit in the
Court of Civil Judge at Udupi, D.K. The suit was decreed
and in pursuance of the decree the plaintiff paid the
decretal amount including the interest to the tune of
Rs. 6,56,078/- and called up to the defendants 1 to 3 to pay
back the said amount to the plaintiff in terms of their
Counter Guarantee. Despite service of legal notices
defendants 1 to 3 failed to pay the said dues. Hence this
suit.
3. The averments of the plaintiff in support of its
claim in brief are as under:-
4. The defendant No. 2 being the sole proprietor of
defendant No. 1 placed an order on defendant No. 4 of
printing and supply of lottery tickets and requested the
plaintiff Bank to furnish Bank Guarantee for a sum of
Rs. 2,14,000/- with defendant No. 4 as beneficiary.
Defendant No. 2 as the proprietor and defendant No. 3 as the
guarantor furnished counter guarantees in favor of the
plaintiff clearly undertaking to indemnify the Bank and to
pay all amounts in case the plaintiff was compelled to pay
any amount to defendant No. 4 pursuant to the Bank
Guarantee. As a consequence of certain dispute arising
between defendant No. 2 and defendant No. 4, the defendant
No. 4 invoked the Bank Guarantee. The plaintiff Bank
refused to encash the same on the ground that the
defendant No. 4 had supplied lottery tickets to defendant
No. 1 before issuing of Bank Guarantee whereas the said
bank Guarantee did not relate to any past transaction.
5. The defendant were proceeded ex parte as they
did not put in appearance to contest the claim of the
plaintiff despite service of summons of the suit. The
plaintiff was called upon to file affidavit by way of
evidence. In support of its claim the plaintiff has
proved the following documents:-
1. Exhibit PW-1/1 is the photocopy of the power
of attorney authorizing to file the suit.
2. Exhibit PW-1/2 is the letter of sanction for
issuing the Bank Guarantee.
3. Exhibit PW-1/3 is the certified copy of the
Bank Guarantee.
4. Exhibit PW-1/4 is the counter guarantee by
defendant No. 2 as proprietor of defendant No. 1.
5. Exhibit PW-1.5 is the certified copy of the
judgment and decree taken by the plaintiff
against defendants 1 & 2.
6. Exhibit PW-1/6 is the certified copy of the
judgment passed by the Civil Judge, Udupi.
7. Exhibit PW-1/7 & PW-1/8 are the letters
written by the Mangalore Branch of the plaintiff
to the plaintiff.
8. Exhibit PW-1/9 is the letter by the counsel
for the plaintiff informing full satisfaction of
the decree passed by Udupi Court,
9. Exhibit PW-1/10 is the reply sent by
Mangalore Branch of the plaintiff to the
counsel.
10. Exhibit PW-1/11 are the certified copies of
the proceedings pertaining to the Court of Civil
Judge, Udupi.
11. Exhibit PW-1/12 & PW-1/13 are the carbon
copies of the legal notice and postal receipts.
6. As is apparent from the aforesaid documents
defendant No. 2 had given a counter guarantee in favor of
the plaintiff bank that in case the plaintiff has to pay
any amount to defendant No. 4 in pursuance of the
invocation of the bank Guarantee they will re-imburse the
said amount to the plaintiff Bank. Since the defendants
have failed to pay, the plaintiff is entitled to the
decree as prayed for.
7. The suit of the plaintiff is decreed for
Rs. 6,78,788.65 with costs and pendente lite and future
interest @ 24.75% per annum from the date of the filing of
the suit till its realization. Decree sheet be drawn up
accordingly.