K. S. Gupta ( 1 ) IN the suit plaintiff filed I. A. No. 12021/2000 under Order 39 Rules 1 and 2 read with Section 151 Civil Procedure code for issue of ad-interim injunction restraining Union of India, defendant No. 2 from encashing financial bank guarantees No. IIBLND/bg/f/96/0008 dated 28/2/1996 as renewed from time to time in the sum of Rs. 1,59,83,000. 00 or in the alternative, restraining Indus Ind. Bank Ltd, defendant No. 1, from releasing any amount to defendant No. 2 against the said financial bank guarantee. In the reply filed to application by defendant No. 2 one of the preliminary objections raised is that plaintiff, concerning the same subject-matter, had instituted Suit No. 564/97 which was withdrawn on 5/03/1998 without seeking liberty to file fresh suit on the same cause of action and the suit is, therefore, barred under Order 23 Rule 1 Civil Procedure code. ( 2 ) I have heard Sh. A. S. Chandhiok, Senior Advocate for plaintiff and Sh. U. Hazarika for defendant No. 2 on the ground of alleged non-maintainability of present suit under Rule 1 (4) of Order 23 as also it being barred by Section 15 of the Telecom regulatory Authority of India Act, 1997 as amended by Act 2 of 2000. ( 3 ) ADMITTEDLY, Suit No. 564/97 filed on 19th Marh 1997 by the plaintiff against indus Ind. Bank Ltd. , and Union and India, defendants was dismissed as withdrawn unconditionally by the order dated 5/3/1998 taking note of the statement made by Sh. Mukul Rohtagi, Senior Advocate that as plaintiff has filed petition before TRAI it does not wish to proceed with the suit. In the decision in Vallabh Das v. Dr. Madan lal and Ors. , (1971) 1 SCR 211 relied on behalf of defendant No. 2 in test laid down by supreme Court as to the expression subject- matter as used in Rule 1 (4) of Order 23 civil Procedure code was that unless the cause of action and relief claimed in second suit are the same as in the first suit it cannot be said that subject-matter of the second suit is same as in the previous suit. For ascertaining if the subject-matter in the present suit and said Suit No. 564/97 is the same or not, a brief reference to the averment made in plaints of this suit and Suit No. 564/97 has become necessary. It is, inter alia, alleged in this suit that plaintiff is a Public Limited Company incorporated under the Companies act, 1956. Union of India in the Department of Telecommunications vide tender No. 44-113/94-MMT invited tenders for the purpose of introducing Radio Paging services in 18 different territorial circles of India including Rajasthan except Jaipur. Due date of submissions of tender was 5/04/1994 which was extended to 10/05/1994. The tender provided for two stage bid. In the first stage, evaluation was to be done on the basis of technical specification, commercial and eligibility conditions. In the second stage, short listed bidders were to submit financial bids indicating the bid amount to be paid to the Department of Telecommunications for the purpose of licence being granted. In case an Indian company was not having experience by itself, the bid contemplated that it could have a foreign partner who may have the requisite experience but such a foreign partner should have an equitable participation in Indian company of atleast 25%. It is alleged that plaintiff qualified at the technical bid stage as also financial bid stage and was awarded licence for Rajasthan circle by issue of letter of intent by the Department of Communications on 27/10/1995. Thereafter on 29/02/1996 a licence agreement was signed between the plaintiff company and Department of Telecommunications initially for a period of 10 years in consideration of payment of licence fee and due performance of the term and conditions of agreement as also observance of mutual covenants. Contents of condition Nos. 1. 4,4. 1, 4. 2, 6, 18. 1 (c) and 18. 1 (e) etc of Part II, Schedule "b" to the licence agreement have been set out. It is further alleged that defendant No. 1 bank gave financial bank guarantee No. IIBL/nd/bg/f/96/0008 dated 28/2/1996 for Rs. 1,59,83,000. 00 at the request of plaintiff in favour of defendant No. 2. By the letter dated 18/3/1997 the defendant No. 2 invoked this bank guarantee for payment of Rs. 99,62,454. 00 towards quarterly licence fee allegedly falling due on 17/11/1996 and 1 7/02/1997 together with penal interest thereon. 1,59,83,000. 00 at the request of plaintiff in favour of defendant No. 2. By the letter dated 18/3/1997 the defendant No. 2 invoked this bank guarantee for payment of Rs. 99,62,454. 00 towards quarterly licence fee allegedly falling due on 17/11/1996 and 1 7/02/1997 together with penal interest thereon. Aggrieved by this letter the plaintiff moved this court by filing Suit No. 564/9 7/03/1997 praying that defendant no. 2 be restrained from encashing said financial bank guarantee and, in the alternative, defendant No. 1 be restrained from releasing any amount to defendant No. 2 thereunder. It is pleaded that on 5/03/1998 this suit was withdrawn by the plaintiff to move Telecom Regulatory Authority of India (for short trap) in view of Section 27 of the Telecom Regulatory Authority of India Act, 1997. The plaintiff filed petition No. 9/97 before the said authority praying for stay of aforesaid letter dated 18/3/1997 as also letter dated 11/12/1996 hearing No. 843-68/94-VAS threatening to terminate the licence agreement dated 29/2/1996 in regard to rajasthan circle. On 5/03/1998 said authority restrained the Union of India from encashing said financial bank guarantee till further orders. However, on 20/01/2000 stay granted on 5/03/1998 was vacated by the authority taking note of the judgment of this court in Union of India v. Telecom Regulatory Authority of India, 1998 (46) DRJ 557 . Meanwhile, a different authority in place of TRAI has come into existence which is yet to be constituted and presently there is no forum for adjudication of the dispute raised by plaintiff. It is stated that defendant No. 2 has further issued letter dated 15/11/2000 referring to its earlier letters dated 18/3/1997,1 8/02/1998 and 1 7/02/2000 under which they claim to have lodged claim against the said financial bank guarantee dated 28/2/1996. It is asserted that letters dated 18/3/1997 and 15/11/2000 are contrary to law. The defendant No. 2 has failed to performa its part of obligations under the licence agreement dated 29/2/1996 nor had it sent any demand notice before issuing the letter dated 15/11/2000. It is further alleged that as per clause 18. 6 of said licence agreement, if due payment was not received in time for a maximum period of 3 months notice of termination of contract would be deemed to have been served on the date the payment became due. It is further alleged that as per clause 18. 6 of said licence agreement, if due payment was not received in time for a maximum period of 3 months notice of termination of contract would be deemed to have been served on the date the payment became due. Since payment under the licence agreement allegedly became due on 27/11/1996 the licence stood terminated on 27/02/1997. Therefore, defendant No. 2 could not have invoked said financial bank guarantee by aforesaid letters dated 18/3/1997 and 15/11/2000. Moreover, said financial bank guarantee had lapsed on 17/02/2000 as it was not further extended by plaintiff company. Thus on 15/11/2000 when defendant No. 2 invoked the financial bank guarantee there was no bank guarantee in existence in favour of defendant No. 2. It is also alleged that plaintiff applied for SACFA approval well within the time allowed for start of paging service in Rajasthan circle but it did not receive approval upto the date of termination of licence agreement. The plaintiff was thus prevented from implementing the services due to delay on the part of Department of Telecommunications and on this ground also invocation of bank guarantee by said two letters is not in accordance with law. It is further alleged that quality of service to be provided by the licencee under the licence agreement dated 29/2/1996 was intrinsically inter-related with the availability of frequencies desired by the licencee. The plaintiffs made applications to WPC Wing of Ministry of Communications in October and December 1996 and the Ministry has still not allotted the frequency to it. This threw the project of plaintiff company out of gear and delayed commissioning of the project on its part. It is stated that subject Financial bank guarantee can be invoked by defendant No. 2 only in case of loss or damage suffered by it and defendant No. 2 which breached the agreement, cannot be said to have suffered any loss or damage. It is maintained that if defendant No. 2 is permitted to encash the bank guarantee the same would result in irretrievable injury to the plaintiff. It was prayed that decree of permanent injunction be passed in favour of the plaintiff and against defendant No. 2 restraining the later from encashing aforesaid bank guarantee dated 28/2/1996. It is maintained that if defendant No. 2 is permitted to encash the bank guarantee the same would result in irretrievable injury to the plaintiff. It was prayed that decree of permanent injunction be passed in favour of the plaintiff and against defendant No. 2 restraining the later from encashing aforesaid bank guarantee dated 28/2/1996. In the alternative; decree of permanent injunction be passed restraining defendant No. 1 from releasing any amount to defendant No. 2 against the said bank guarantee. ( 4 ) IT is pertinent to mention that allegations made in Paras 8, 9 and 25 of the plaint in present suit arc reproduction of the averments made in Paras 3,4 and 11 of said Suit No. 564/97 with minor additions and/or deletions. Further, some of the sub paras of Para 24 of the plaint in present suit have been bodily lifted from Para 10 of the, plaint in Suit No. 564/97. Indus Ind. Bank was impleaded defendant N6. 1 while union of India as defendant No. 2 in said Suit No. 564/97. Prayers made in present suit in Para 33 of the plaint are verbatim reproduction of the prayers made in Para 20 of said Suit No. 564/97. ( 5 ) SUBMISSION advanced on behalf of plaintiff was that the letter dated 1/2/2000 extinguished the cause of action arising out of earlier invocation of financial bank guarantee in question and the letter dated 15/11/2000 has furnished fresh cause of action to file suit to the plaintiff. During the course of argument copies of letters dated 17/2/2000 and 18/2/1998 have been placed on file on behalf of defendant No. 2. These letters as also said letter dated 15/11/2000 were issued on behalf of defendant No. 2 to defendant No. 1 bank. Omitting immaterial portions, letter dated 17/2/2000 which is material, is reproduced below:- "sub : Financial Bank Guarantee No. IIBL/nd/bg/f/96/0008 dated 28/2/1996 for Rs. 1,59,83,000. 00 issued by your Bank on behalf of M/s. Modi Korea telecom Limited, New Delhi-110020. Sirs, kindly refer to this office letter of even No. dated 18/2/1998 on the above subject. We hereby reiterate our claim lodged therein. You must await further instructions from us regarding payment of the proceeds. "