JUDGMENT : (Gita Gopi, J.) 1. The appellant is the original plaintiff of Civil Suit No.3184 of 1981 filed before the City Civil Court at Ahmedabad. The challenge is given to the judgment dated 24.01.2002, whereby the suit of the plaintiff was dismissed and was ordered to pay cost to the defendant No.1, while no order of cost was in respect of defendant No.2. 2. The plaintiff before the City Civil Court vide the plaint has stated that it is an existing company under the Companies Act, 1956 and is carrying on business, inter alia as manufacturers of textile processing machinery at Ahmedabad. The plaintiff Company is an actual user of stainless steel plates, sheets and coils and requires imported stainless steel sheets of different qualities or space of different gauges and different sizes. 3. Defendant No.1-Company is carrying on business in different places of India in minerals and metals and also acting as canalising agency under the import policy of the Government of India. Defendant No.2 is a Nationalized Bank and acting as Bankers of the plaintiff. 4. Plaintiff stated that according to the import policy of the Government of India, the Government permits the actual users to import raw materials at times under Open General Licenses or under other licenses. However, in respect of certain items, including stainless steel plates, sheets and coils, the Government has decided that those imports are to be canalised through public sector agencies. As per the plaintiff, the policy lays down requirements of eligible actual users to register their twelve monthly requirements with the canalising agency together with the earnest money, and are required to make an application in a particular form for that purpose. Accordingly, the defendant No.1, therefore, had required the actual user to apply for registration of their requirements of stainless steel plates, sheets and strips every year as per the import policy. 5. The plaintiff stated that they wanted one booking for 25 metric tons of stainless steel, hence, produced one Bank Guarantee on or about 09.05.1979 from defendant No.2 Bank of India in accordance with the form given by defendant No.1, and sent the same to defendant No.1 along with letter dated 11.05.1979. 6. 5. The plaintiff stated that they wanted one booking for 25 metric tons of stainless steel, hence, produced one Bank Guarantee on or about 09.05.1979 from defendant No.2 Bank of India in accordance with the form given by defendant No.1, and sent the same to defendant No.1 along with letter dated 11.05.1979. 6. The Bank Guarantee No.60/127 was for a sum of Rs.2,81,250/- at the rate of 25% of the approximate sale value of 11,25,000/- being the total of the 11 items of stainless steel of different gauges, sizes and types, which were required by the plaintiff and were agreed to be imported by the defendant No.1 to be sold to the plaintiff on high seas/ex-jetty basis, the details of the requirements has been noted in the plaint, which reads as under: Sr. No. Quality Particular of Gauge, Sizes, etc. Quantity M.Ton. Value per Metric Ton. 1. 304 10-G 8’x 4’ Sheets 1 45,000-00 2. 316 10-G 8”x 4’ Sheets 3 1,35,000-00 3. 304 12-G 8’x 4’ Sheets 2 90,000-00 4. 316 12-G 8’x 4’ Sheets 2 90,000-00 5. 304 14-G 4’ Coil 3 1,35,000-00 6. 304 14-G 8’x 4’ Sheets 2 90,000-00 7. 304 16-G 4’ Coil 2 90,000-00 8. 304 16G 8’x 4’ Sheets 1 45,000-00 9. 316 16G 8’x 4’ Sheets 3 1,35,000-00 10. 304 18G 8’x 4’ Sheets 1 45,000-00 11. 316 18G 8’x 4’ Sheets 5 2,25,000-00 Total 25 11,25,000-00 7. It is the case of the plaintiff that defendant No.1 had received the letter of plaintiff dated 11.05.1979 of Bank Guarantee and has acknowledged the receipt thereof by letter dated 16.05.1979. The defendant No.1 had agreed to supply various materials as per the booking of the plaintiff and had offered to supply the referred items on high seas/ex-jetty basis in the expected time of November/December, 1979. The plaintiff contended that the defendant No.1 offered the goods after several months. 8. The plaintiff had received on different dates the goods from defendant No.1 in accordance with the agreement between the parties in material in respect of 7 of 11 items, as per the particulars, noted in paragraph No.16, which reads as under: “16. The plaintiff contended that the defendant No.1 offered the goods after several months. 8. The plaintiff had received on different dates the goods from defendant No.1 in accordance with the agreement between the parties in material in respect of 7 of 11 items, as per the particulars, noted in paragraph No.16, which reads as under: “16. The Plaintiff had received on different dates from the defendant No.1 in accordance with the agreement between the parties, the materials in respect of seven of the aforesaid eleven items as under on high seas basis, by seven different contracts of different dates as under: Sl. No. Date Qlty. Size Quantity Steamer Dt. of receipt of material 1 29.12.79 316 10G Sheets 3150 Kgs. Jalkala 31.3.1980 2 01.03.80 304 12G Sheets 2109 Kgs. Primroje 25.7.1980 3 22.12.79 316 12G Coil 2974 Kgs. Lika 31.2.1981 4 22.11.79 304 14G Sheets 2258 Kgs. Primroje 17.2.1980 5 22.12.79 316 16G Sheets 2065 Kgs. Lika 13.3.1980 6 17.12.79 304 16G Sheets 2004 Kgs. Lika 13.3.1980 7 29.12.79 316 16G Sheets 2985 Kgs. Jalkala 31.3.1980 Plaintiff’s Booking Total 17545 Kgs. 8.1 The defendant No.1 had sent a Sale Note No.BP/SS/Ex.Bond/126/80 dated 05.08.1980, making an offer for the supply of 0.979 metric tons of S.S. Sheets of 10-G, which had arrived as per S.S. Indian Fraternity. 8.2 It was the case of the plaintiff that the defendant No.1 was expected as an Agent of the plaintiff to float inquiries, invite tenders, inform the plaintiff of the tenders received, obtain instructions from the plaintiff and then book orders with the foreign suppliers and to arrange for the import on account of and for and on behalf of the plaintiffs. The plaintiff further states that by a letter dated 23.06.1979 enquired from the defendant No.1 about the bookings of its order for 25 MT and whether the defendant No.1 had floated any tender or not. 8.3 It was informed to the plaintiff by the defendant No.1 by its letter No.50(71)/Steel/ISC/ 77 dated 15.09.1979 that out of 25 MT, 11 items of different qualities, sizes and gauges mentioned in the letter dated 11.05.1979 were covered by the tenders as mentioned hereinbelow. Sl.# Quality Gauge Sizes etc. 8.3 It was informed to the plaintiff by the defendant No.1 by its letter No.50(71)/Steel/ISC/ 77 dated 15.09.1979 that out of 25 MT, 11 items of different qualities, sizes and gauges mentioned in the letter dated 11.05.1979 were covered by the tenders as mentioned hereinbelow. Sl.# Quality Gauge Sizes etc. Qty M. Ton Tender No. 1 304 10-G 8’x4’ Sheets 1 T-9 2 316 10-G 8’x4’ Sheets 3 T-249 3 304 12-G 8’x4’ Sheets 2 T-9 4 316 12-G 8’x4’ Sheets 2 T-8 5 304 14-G 4’ Coil 3 T-10 6 304 14-G 8’x4’ Sheets 2 T-9 7 304 16-G 4’ Coil 2 T-10 8 304 16G 8’x4’ Sheets 1 T-9 9 316 16-G 8’x4’ Sheets 3 T-246-2T T-249-1T 10 304 18-G 8’x4’ Sheets 1 No Offer 11 316 18-G 8’x4’ Sheets 5 No Offer Total 25 8.4 The delivery schedule of the above referred items were November/December 1979 as mentioned in the referred letter. The plaintiff has further stated that they had requested by a letter dated 30.09.1979 to give the shipment particulars and requested the defendant No.1 to obtain offer for 18SWG x 8’ x 4’ Grade AISI 316, as the same was badly required by the plaintiff. The plaintiff had also requested the defendant No.1 to give details of tender T-8, T-9, T-10, T- 20, T-245, T-246 and 249 and the names of the foreign suppliers, prices and other details. 8.5 The plaintiff had paid to defendant No.1 the value of such material on the provisional price as mentioned in the relevant contracts sent by the defendant No.1. Subsequently the plaintiff had received refunds in respect of the above items on different dates as the provisional prices were on the higher side and the final invoices were for lower amounts. 9. The issue that had arisen between the plaintiff and defendant No.1 appears to be from the three contracts which the defendant No.1 had sent to the plaintiff. 1) Contract No.BB/IMP/OG/HS/SS/T/8/ 1422/80 dated 15.3.80 for 1958 Kgs. of Quality 316, 2.64 MM x 1250 x 2500 equivalent to 12G, 8’ x 4’ stainless steel sheets at a provisional price of Rs.73,270.32 @ Rs.37,421/- per ton. 2) Contract No.BB/MP/CC/T/237/1394/40 dated 14.03.1980 for 14G No.316, S.S. Sheets of 2484 Kgs. of total value of Rs.54,291/-. 3) Contract No.BP/IMP/CC/HS/T/8/1421/80 dated 15.03.1980 of quality : 316, 14G S.S. Coils quantity 1964 Kgs for the total sale value of Rs.72,315/-. 2) Contract No.BB/MP/CC/T/237/1394/40 dated 14.03.1980 for 14G No.316, S.S. Sheets of 2484 Kgs. of total value of Rs.54,291/-. 3) Contract No.BP/IMP/CC/HS/T/8/1421/80 dated 15.03.1980 of quality : 316, 14G S.S. Coils quantity 1964 Kgs for the total sale value of Rs.72,315/-. It was notified by the defendant that the materials would arrive per S.S. Vishvanidhi as mentioned in the Contract. 10. The plaintiff stated that the contracts were not covered by the Registration and booking of the plaintiff and the Bank Guarantee of Rs.2,81,280/-. The plaintiff further agreed to accept the said two contracts No. at Serial No.2 and 3 referred hereinabove as it was in urgent need for fulfilling export commitments. The plaintiff had made enquiries from the defendant No.1, its Agents and in the docks and yet the goods covered by the aforesaid three contracts were not traceable and thereafter, the plaintiff had to made arrangements of direct import of such materials against its advance import licenses. 11. The contention which was raised by the plaintiff in the plaint was that the defendant No.1 had agreed to supply various materials as per the booking of the plaintiff and had offered to supply the aforesaid items and they were expected in November / December 1979 on high seas basis. Further, the defendant No.1 had offered in the month of April 1980, to release 1 MT of 10G x 8’ x 4’ sheets of 304 quality, shipped as per S.S. Indian Fraternity against ex-bond basis, against the plaintiff’s registration dated 18.10.1978. The plaintiff were not furnished any details about the contract for import of these materials and therefore, it was the contention of the plaintiff that he was not bound to accept the same. 12. The said steamer did arrive at Mumbai on 01.01.1980, while the defendant No.1 had not informed the plaintiff about the expected date of arrival and had not offered to supply the goods on high seas basis as it was bound. 12.1 The issue which was raised by the plaintiff was that the material sent by defendant No.1 was on ex-bond basis, as agreed it was only to be sent on high seas basis, and were not as per the booking. 13. 12.1 The issue which was raised by the plaintiff was that the material sent by defendant No.1 was on ex-bond basis, as agreed it was only to be sent on high seas basis, and were not as per the booking. 13. The plaintiff contended that the defendant had also send a Sale Note dated BP/SS/Ex-bond/126/80 dated 05.08.1980 making an offer for the supply of the aforesaid 0.979 MT of SSS of 10 grams which had arrived as per SS Indian fraternity and since the defendant No.1 failed to send the plaintiff the details required, the plaintiff was not bound to accept the same. That defendant No.1 had also required the plaintiff to pay demurrage interest and other charges for no fault of the plaintiff and according to the plaintiff, the demand was not justified and was contrary to the agreement between the parties, and as, the Sale Note was not in accordance with the Agreement and therefore, the plaintiff returned the Sale Note for cancellation. 13.1 For the same reason, defendant sale note No.BB/CC/EX-BOND/149/80 dated 23.08.1980 for the supply of 2.050 M.Tons of stainless steel sheet quality No.316 14G 8’x4’ and another sale note No.CC/EX-Bond/159/80 dated 28.08.1980 for 2.200 M.Tons of stainless steel quality No.316 16G Coils which had arrived as per S.S. Hanoi were returned back to the defendant for cancellation. 13.2 As per the plaintiff, on 25.11.1980 had received from the defendant No.1 a copy of its letter to the defendant No.2 to pay the defendant No.1 the entire amount of Rs.2,81,250/- covered by defendant No.2’s Bank Guarantee No.60/127 dated 09.05.1979 covering 25 M. Tons of the referred 11 items. 14. The defendant No.1 had alleged in the said letter that the plaintiff had not lifted the following material:- Sl.# Quality/Size Quantity Vessel Container No. 1 316 16G x 1250 x Coil 2.000 Hanoi T.248 2 316 14G x 1250 x 2500 2.050 Hanoi T.248 3 316 14G 2.484 V. Nidhi T.237 3 316 14G 2.484 V. Nidhi T.237 4 304 10G x 8’ x 4’ 0.979 I. Faternity -- 5 316 10G x 1250 x 2500 2.986 2.986 T.246 14.1 Thus, the plaintiff raised a contention that it was surprised to receive the letter and therefore, immediately sent a telegram to the defendant No.1 stating that the plaintiff does not accept the defendant No.1’s claim, as the defendant No.1 had not fulfilled its contractual obligations. It was followed by a letter dated 04.12.1980 to the defendant No.1 explaining the position both generally in respect of the particular items and had also written that the plaintiff had not been offered any goods, which were stated to have arrived per Steamer N. Leuva and had not received any sale note in respect thereof. 15. The written statement of the defendant No.1 denying the averment and the pleading of plaintiff has stated that the plaintiff – Swastik Textile Engineering Pvt. Ltd. had applied for tender stainless steel requirements as per their letter No.STEL:MOP:NVV:1252:78 dated 26.09.1979 for 64.90 MT. The plaintiff submitted the following Bank Guarantees in lieu of 2% earnest money, totaling Rs.50,000/- - BG No.59/264 dated 20.09.1978 for Rs.12,980/- (validity extended on 26.09.1979). - BG No.59/325 dated 16.11.1978 for Rs.25,000/- (validity extended till 10.11.1980). - BG No.60/53 dated 24.02.1979 for Rs.12,100/-. The plaintiff’s requirement were registered under Direct Allotment Scheme as per Registration No.DEL/SS/DA/78 dated 18.10.1978 for 64.90 MT and the same was confirmed vide letter dated 03.03.1979 of the defendant. 15.1 It is contended by the defendant that the plaintiff was further advised to submit the Bank Guarantee covering 25% of the sale value in favour of the defendant or open L/C in favour of the defendant at Bombay Office covering 100% CIF Value of the materials so that the procurement action could be initiated. The defendant submitted that vide letter dated 31.03.1979, the plaintiff desired the defendant to cover the following items in defendant’s tender No.T-245/I- 246/T-237/T-8 :- a) 304 quality 146 WG x 4 T–245 - 2 MT b) 316 quality 145 WG x 4 T-8 - 2 MT c) 316 quality 185 WG x 8’ x 4’ (not finalized) d) 316 4mm x 8’ x 4’ T-237 - 1 MT T-8 - 2 MT 15.2 The defendants further contended that the BG No.60/104 dated 11.04.1979 for Rs.78,750/- covering 7 MT of stainless steel was submitted for procurement as required by them in their letter dated 31.03.1979 and had also submitted another Bank Guarantee No.60/127 dated 09.05.1979 for Rs.2,81,250/- as requested by the defendant to cover another 25 MT against the plaintiff’s requirements. 15.3 Thus, the defendant No.1 stated that the plaintiff’s requirements were covered in defendant’s Tender T-8, T-9, T-10, T-245 and T- 246 depending upon the items being finalized at that time and it was duly informed by the defendant vide letter dated 15.09.1979 giving details of the booking done by the defendant for the plaintiff against their requirements registered with the defendant. The defendant thus, contended that the plaintiff had registered the requirement twice with the defendant once against clearance from Iron and Steel Controller vide Registration No.DEL/SS/55/78/ISC dated 11.01.1978 and then, again as per Registration No.DEL/SS/199/DA/78 dated 18.10.1978, but this time against Direct Allotment Scheme. It was contended that the items required by the plaintiff were of same bulk in nature and there was no practice of asking for confirmation of CIF price when such items were finalized after bulking with requirements of every end user. The quotations were finalized with the lowest tenders without any reference to the plaintiff. Some of the consignments, where the quantity involved was less than 5 MT, the foreign suppliers did not agree to ship the material under separate Bill of Lading. They shipped requirements for such end users under one Bill of Lading for delivery on ex-bond basis, as high seas sale was not possible. The defendant, thus, stated that RO Mumbai could not clear the consignment due to certain problems with the handling agents, shortage in stocking space. Similarly CIF prices for items covered in tender T-8 were slightly higher than finalized in other tenders as moly prices which is an important constituent of 316 quality items, were shown as upward trend. 15.4 It is stated that the plaintiff failed to lift the consignments when offered to them on ex-bond basis/high seas basis. The details referred hereinabove are in Para 14. 15.5 The defendant states that it had advised RO Mumbai to offer 16G x 1250 x 2500 mm Sheets to the tune of 2 MT, whereas, the plaintiff were offered by RO this material in 16G coils x 1250mm width. The defendant is not aware of the reason of offering of this material. 15.5 The defendant states that it had advised RO Mumbai to offer 16G x 1250 x 2500 mm Sheets to the tune of 2 MT, whereas, the plaintiff were offered by RO this material in 16G coils x 1250mm width. The defendant is not aware of the reason of offering of this material. 15.6 It is also contended by the defendant that the plaintiff in addition to the requirement registered with the defendant as per DEL/SS/199/DA/78 dated 18.10.1978 had also earlier registered the requirement against the iron and steel controller’s clearance to the tune of 60.170 as per Registration No.DEL/SS/55/78 (ISC) dated 11.01.1978, thus according to the defendant the procurement action was initiated against two registrations by the plaintiff. 15.7 For the material, which was not lifted as per Vessel V. Nidhi, was against contract T-8. The prices were charged at provisional rate by adding 314% to the CIF Price of the contracted items. 15.8 Further, it is stated that the plaintiff wanted to know the shipment status covered in Tender T-237, 245 and 246 while their fresh requirements were covered in T-8, 9, 10, 246, 249 and 20 and the plaintiff was advised for placing order of the defendant with foreign suppliers against the two registrations done by the plaintiff. Hence, according to the defendant, plaintiff did not give indication of the booking against the registration done earlier against the clearance from iron and steel controller. Subsequently, vide letter dated 15.09.1979, the defendant advised the plaintiff to obtain suitable recommendations from their sponsoring authorities as per the import Policy for the year 1979-1980 which stood amended by a public notification dated June 2, 1979 issued by the Officer of Chief Controller of Imports and Exports. The communication was also sent to the Textile Commissioner. The defendant thus has pleaded that no suitable recommendation was available till the time prescribed. The requirements covered in T-9 and T-10, to the issuance of the Public Notification thus stood automatically withdrawn. This fact was also made clear to the plaintiff that the material would not be released even though procurement had already been taken. 15.9 The defendant has further stated that the plaintiff had intimated that they lifted 2.974 MT of 12swg coils shipped as per Vessel Kile whereas the same was booked for 2 MT in 12swg sheets. This fact was also made clear to the plaintiff that the material would not be released even though procurement had already been taken. 15.9 The defendant has further stated that the plaintiff had intimated that they lifted 2.974 MT of 12swg coils shipped as per Vessel Kile whereas the same was booked for 2 MT in 12swg sheets. They had lifted the goods booked against contract T-237 and had not mentioned the defaulted item of 1.958 MT shipped per Vessel V. Nidhi against Contract T-8 whose earlier booking was confirmed vide letter 15.09.1979. And that refund of some of the consignment released to the plaintiff earlier on provisional basis made at RO Mumbai were on the communication of the defendant of the final prices. 16. The defendant took a plea that the plaintiff was fully aware that 1 MT of their requirement in 12G Coils in Tender T-237 in AISI 316 quantity were covered against the requirement under iron and steel controller’s clearance which was admitted by the plaintiff by letter dated 30.08.1979 and that they had enclosed the statement showing booking of requirements against ISC.2MT requirement covered in 12G sheets in Tender T-8 corresponding to the requirement registered against Direct Allotment Scheme, which was also confirmed to the plaintiff vide letter dated 15.09.1979 and at the relevant time, no objection was raised. 16.1 Similarly the requirement in 14G Coils covered in Tender T-8 corresponded to the plaintiff’s 7MT requirements which the plaintiff finalised with the defendant. The defendant with respect to the issue of high seas basis / ex-bond basis has pleaded that the items sold on high seas basis, the title of the goods passed to the end users after they had made financial arrangements and documents endorsed to them. The defendant has raised the contention that the plaintiff never made any financial arrangement but started making enquiries for reasons known to them with other agencies without making any financial arrangements with the defendants. 16.2 For the contention of the plaintiff that the goods were not available traceable, the defendant states that the plaintiff could have lodged claims with the Underwriters after the documents have been endorsed to them. Instead of making payments, the plaintiff started making further enquiries with the Port Trust / Customs which has not been the normal practice with any of the end users of the defendant. Instead of making payments, the plaintiff started making further enquiries with the Port Trust / Customs which has not been the normal practice with any of the end users of the defendant. 16.3 It is submitted by the defendant that 1 MT of 10G Sheets was offered to the plaintiff soon after the requirements were recommended by the Textile Commissioner. The said items were covered under Contract T-9 for which recommendation from Sponsoring Authority was necessary. The defendant states that this material was allotted to the plaintiff on ex-bond basis and it took some time for Bombay Office to clear the material to bonded godown. The Corporation recovers all additional expenses from the alottees in clearing the consignment so that it does not suffer any loss and that RO Mumbai has made the offer accordingly to the plaintiff. 17. For the Sale Note No.BB/CC/Ex-Bond/ 149/80 dated 23.08.1980, for the supply of 2.050 MT of Stainless Steel Sheets Quality 316, 14G 8”x4” and Sale Note No.Ex-bond/159/80 dated 28.08.1980 for 2200 MT of Stainless Steel Quality 316, 16G Coils which both arrived per S.S. Hanoi were issued by RO Bombay only and that it is not correct to say that the plaintiff had not registered the requirement with the defendant and that the requirements were registered against the clearance given by the Iron and Steel Controller. That there was delay in clearance by RO branch and Sale Notes were issued to the plaintiff with additional incidental expenses to their account. 17.1 It is stated by the defendant that the plaintiff had defaulted in lifting two other consignment shipped against Contract T-8 also in addition to the items mentioned in the letter of 20.11.1980 and 100 Sheets covered against the Contract T-246 were offered to the plaintiff vide Ex-Bond Sale Note No.135 of 80 dated 18.08.1980. 18. The defendant thus states that the plaintiff on one side had claimed that they did not get the material and had to buy the material from outside the market while on the other side claimed that these materials were wrongly offered to them which were never booked, both the versions according to the defendant are diagonally opposite. The defendant states that the plaintiff registered requirements but could not lift the same. The defendant states that the plaintiff registered requirements but could not lift the same. The value of BG was amended till May 1980 thereby showing the intention of the plaintiff to lift the goods even if there was delay in shipment by foreign suppliers. The material was offered on high seas basis immediately on arrival of the vessels and on exbond basis on clearance of the material through Bonded Godown. The material was booked by the plaintiff as per their requirement. The defendant contents that they had tried their best to procure the material the way the plaintiff had required. The delay was on the part of the supplier to ship the materials while there is no practice of back to back contract. The imports are arranged and delivery of the material is made on high seas/ex-bond basis depending on the circumstances. The defendant states that they do not sell the material at market price but has a principle of charging on the basis of CIF Price, fixed service charges + all additional expenses on the consignment incurred during its clearance. It is contended by the defendant that if the plaintiff wants to take delivery from local market, they could have very well paid the additional expenses of interest and demurrage and cleared the consignment themselves at much lower cost. The CIF prices of some of the items increase as there was increase in Moly. prices and Moly. happens to be an important constituent of stainless steel of 316 quality. The price of Rs.36,000/- charged from the plaintiff for certain consignment was the lowest prevailing at that time, since the plaintiff faulted to lift the consignment the defendant had to suffer. 19. It was the case of the plaintiff that the defendant No.1 was expected as an Agent of the plaintiff to float inquiries, invite tenders, inform the plaintiff of the tenders received, obtain instructions from the plaintiff and then book orders with the foreign suppliers and to arrange for the import on account of and for and on behalf of the plaintiffs. The plaintiff further states that by a letter dated 23.06.1979 enquired from the defendant No.1 about the bookings of its order for 25 MT and whether the defendant No.1 had floated any tender or not. 20. The plaintiff further states that by a letter dated 23.06.1979 enquired from the defendant No.1 about the bookings of its order for 25 MT and whether the defendant No.1 had floated any tender or not. 20. It was informed to the plaintiff by the defendant No.1 by its letter No.50(71)/Steel/ISC/ 77 dated 15.09.1979 that out of 25 MT, 11 items of different qualities, sizes and gauges mentioned in the letter dated 11.05.1979, were covered by the tenders. 21. The present appellant as plaintiff examined Ashit Suryakant Mehta at Ex.176 – PW1. The crux of the evidence recorded can be noted. As per the witness, he was attached with the plaintiff Company since 1980, and was looking after the accounts, legal affairs and administration of the Company. Earlier from the year 1977-78, he was part time attending the office. He stated that thirteen different applications were given to defendant No.1 for the product, along with that, bank guarantee of 2% decided by defendant No.1 were furnished, and thereafter, the plaintiff Company was allotted the registration number and under further process, indent was placed by the plaintiff, and along with it as per the rules of defendant No.1, bank guarantee of 25% was placed, and after that the process of floating tender would be initiated by defendant No.1. As per the witness, the price which comes in the tender has to be communicated to the plaintiff and defendant No.1 would release the order as per the lowest tender. After the shipment, the receipt of bill of lading would be informed to the plaintiff and before the ship reaches the port, sale note would be sent; and as per the sale note, total payment would be done or irrevocable letter of credit for 100% amount would be given in favour of defendant No.1 and thereafter, defendant No.1 would give bills and bill of lading of the concern vessel or steamer on which the goods is loaded, to consider the high seas sale as fulfilled, and whenever the vessel arrives, the goods are to be unloaded by paying the customs duty for clearance. 21.1 The witness has referred to Mark 3/8, bank guarantee of Rs.78,750/- dated 11.4.1979 for which according to the witness, the transaction was complete. 21.1 The witness has referred to Mark 3/8, bank guarantee of Rs.78,750/- dated 11.4.1979 for which according to the witness, the transaction was complete. 21.2 Thereafter, as there was requirement of more than 25 metric tons and hence, letter Ex.37 was written to defendant No.1 for that bank guarantee 60/127 for Rs.2,81,250/- for the value of material of Rs.11,25,000/- was given. 21.3 After giving the bank guarantee, reminders were sent to the defendant at regular intervals for details of tender floated and price quoted for offer. The witness put the letter Ex.41 in evidence, thereafter too, another letter was written and then, defendant No.1 informed about those offers which were received for the goods and their details of delivery and also informed non-receipt of offer for other goods. The letter Ex.45 was referred to state that the delivery was to be received in November-December. According to the witness, after the material is loaded and is in mid-sea, by way of bill of lading gets sold, then it is known as High Seas Sale and when goods reaches the port and before unloading, if the sale occurs, then it is known as ex-jetty sale. 22. In context of the facts narrated by plaintiff, it become noticeable that the application for registration of requirement for the year 1978-79 under the scheme of direct allotment was by the letter dated 26.9.1978 of the plaintiff/appellant for registering their demand for the supply of 65 MT of stainless steel sheets along with bank guarantee of Rs.12,980/- towards earnest money, was replied by the defendant No.1 vide letter dated 19.10.1978, wherein through their observation at Paragraph 1, it was requested to note that the material of 16G and thinner is not being supplied on high seas basis. 22.1 The plaintiff applied for tender for the stainless sheet requirements as per the letter No. STEL:MOP:NVV:1252:78 dated 26th September 1979 for 64.90 MT. Bank guarantee in lieu of 2% earnest money totaling Rs.50,000/- were submitted. The details of which are as under:- (i) BG No.59/264 dt.20.9.1978 for Rs.12,980.00 (validity extended on 26.9.79). (ii) BG No.59/325 dt.16.11.1978 for Rs.25,000.00 (validity extended till 10.11.1980). (iii) BG No.60/53 dated 24.2.1979 for Rs.12,100.00” 22.2 The plaintiff’s requirement under direct allotment scheme as per registration No.DEL/SS/199/DA/78 dated 18.10.1978 for 64.90 MT was confirmed by defendant No.1 under letter dated 3.3.1979. The details of which are as under:- (i) BG No.59/264 dt.20.9.1978 for Rs.12,980.00 (validity extended on 26.9.79). (ii) BG No.59/325 dt.16.11.1978 for Rs.25,000.00 (validity extended till 10.11.1980). (iii) BG No.60/53 dated 24.2.1979 for Rs.12,100.00” 22.2 The plaintiff’s requirement under direct allotment scheme as per registration No.DEL/SS/199/DA/78 dated 18.10.1978 for 64.90 MT was confirmed by defendant No.1 under letter dated 3.3.1979. 22.3 The plaintiff was further advised to submit Bank guarantee covering 25% of the sale value or open LIC in favour of the defendant at Bombay office covering 100% CIF value of the material for the initiation of procurement. The letter Ex.34 enclosed a proforma of bank guarantee expected by the defendant which is on record along with Ex.34. The proforma refers to the sale on ‘high seas/ex-jetty/ex-godown basis’. Ex.34 is with clarification that the supply of material of 16G and thinner would not be supplied on High Seas Basis. 23. The learned Trial Court Judge while appreciating the evidence has considered the plea of plaintiff of accepting the goods on High Seas basis only and not otherwise, has concluded that the plaintiff failed to lift the goods. The observation thus is: “the witness for the plaintiff has admitted that the goods imported used to be disbursed on the basis of high seas, ex-jetty and ex-bond and in ext.38 i.e. copy of bank guarantee No.60/127 also the words stated are high seas/ex-jetty basis and the plaintiff now taking advantage of missing word on ex-bond basis and therefore, from the evidence on record it is clear that though all the items have been offered to the plaintiff against the plaintiff’s specific booking, the plaintiff failed to lift the goods.” 24. The observation of the learned Trial Court Judge would be required to be examined to find whether the plaintiff has tried to take advantage of the missing word ‘ex-bond’ in the bank guarantee. An ex-bond Bill of Entry (BOE) is a legal document that allows an importer to release goods from customs – bonded warehouse for home consumption. 25. Learned advocate for the appellant Mr. Krishal H.Patel submitted that the Bank Guarantee was to cover import of 25 metric tons of stainless steel, as specified in letter dated 11.05.1979 to be sold by the respondent No.1 on high seas/ex-jetty basis. Advocate Mr. 25. Learned advocate for the appellant Mr. Krishal H.Patel submitted that the Bank Guarantee was to cover import of 25 metric tons of stainless steel, as specified in letter dated 11.05.1979 to be sold by the respondent No.1 on high seas/ex-jetty basis. Advocate Mr. Patel submitted that out of the requirement, the appellant had booked 11 items with the value of Rs.11,25,000/- and 25% Bank Guarantee of Rs.2,81,250/- was provided, as BG No.60/127 dated 09.05.1979. The defendant No.1 had informed the plaintiff of the requirement of 25 metric tons, and that it had not received any offer for 316Q – 18SWGx9x4 – 5M.Tons, and the rest of the materials, the delivery was scheduled in November-December, 1979, as quoted by foreign suppliers. 25.1 With regard to the remaining 5 metric tons, which could not be finalised, learned advocate Mr. Patel stated that since defendant No.1 was having 3.788 metric tons S.S. incurring demurrage and corresponding offer to M/s. G.R. Engg. Works, Bombay from an earlier contract T- 237, it had vide its letter offered the same to the appellant on ex-bond basis which was contrary to the agreed terms of high seas basis. Mr. Patel stated that since the appellant was not interested hence, had informed the defendant no.1 accordingly. 25.2 Advocate Mr. Patel submitted that the appellant received 7 items out of 11 being 17.545 metric tons out of 25 metric tons on high seas basis, and that there was no dispute regarding the seven items and the excess amounts had been refunded by defendant No.1 to the plaintiff. 25.3 Advocate Mr. Patel submitted that three of the contracts were not as per the requirements on high seas basis nor was covered by the registration, booking and the Bank Guarantee, hence, the plaintiff was not required to accept the same, and therefore, were returned back. 25.4 Advocate Mr. 25.3 Advocate Mr. Patel submitted that three of the contracts were not as per the requirements on high seas basis nor was covered by the registration, booking and the Bank Guarantee, hence, the plaintiff was not required to accept the same, and therefore, were returned back. 25.4 Advocate Mr. Patel submitted that defendant No.1 as a canalising agency for the import was required to act according to the instructions of the plaintiff and was expected to disclose all relevant informations and facts and details about the act done, and the defendant No.1 was required to act diligently in matter of inviting tenders, booking of orders, shipment and informing the plaintiff of the expected arrivals of the steamers, and to provide bills of lading, invoice and other documents or titles to the goods on high seas basis in advance, before the arrivals of the goods. Mr. Patel stated that in respect of the five offers, which had not been accepted by the plaintiff on the basis of which the defendant No.1 claimed to invoke the Bank Guarantee was contrary to the practice and the duty, and the defendant No.1 is liable for breach of obligation and for breach of contract, for negligence and for default, and, that defendant No.1 is not entitled to any amount from the plaintiff. 25.5 Advocate Mr. Patel submitted that the plaintiff was ready and willing to accept all goods offered in accordance to the agreed terms between the plaintiff and defendant No.1. Mr. Patel stated that the prices that were prevalent in the market was much higher than total amount of expenditure, that might have to be incurred by the plaintiff in respect of payment of the prices to defendant No.1 and payment of customs duties, and that the plaintiff required the material for the use of textile processing machinery, as per their business. 25.6 Advocate Mr. Patel further submitted that plaintiff suffered on account of failure of the defendant No.1 to deliver the goods in respect of four items out of eleven items covered by the Bank Guarantee, and the bookings of the plaintiff in May, 1979. Advocate Mr. 25.6 Advocate Mr. Patel further submitted that plaintiff suffered on account of failure of the defendant No.1 to deliver the goods in respect of four items out of eleven items covered by the Bank Guarantee, and the bookings of the plaintiff in May, 1979. Advocate Mr. Patel stated that the plaintiff exceeded the Bank Guarantee, which expired in May, 1980 only because the plaintiff was anxious to receive the material, even at the lesser rate, in spite of that, the defendant No.1 had not arranged to deliver the material even latter in accordance to the agreed terms, and had offered other materials on other terms and conditions, which were not in accordance to the agreement, which were seriously adverse and prejudicial to the plaintiff. 25.7 Advocate Mr. Krishal Patel, took this Court to the pleadings of the parties and exhibited documents, recorded during trial. Advocate Mr. Patel stated that the Bank Guarantee was explicit as it did not cover sale on ex-bond basis, the observation of the trial Court would be erroneous to note that the term ‘ex-bond’ was missing in the Bank Guarantee. Mr. Patel, thus, contended that the terms of the Bank Guarantee has to be read as contracted by defendant Nos1 and 2. 25.8 Advocate Mr. Patel’s next bone of contention was that the sale-note returned back for cancellation were not referring the registration number and were not against the booking which is the subject matter of dispute, hence the plaintiff was not obliged to accept them, rather the sale note corresponding column were left blank. 25.9 Advocate Mr. Patel relying on the judgment of Standard Chartered Bank Vs. Heavy Engineering Corporation Ltd. and Another, reported in (2020) 13 SCC 573, submitted that it was held by the Hon’ble Supreme Court that the terms of Bank Guarantee are extremely material and both the parties would be bound by the terms thereof and the invocation, therefore, will have to be in accordance with the terms of the Bank Guarantee, or else, it would be bad in law. 25.10 Advocate Mr. Patel has also relied on the judgment of National Highways Authority of India & Anr. Vs. Jivanlal Joitaram Patel & Ors., reported in 2009 (2) GLH 35 , to contend that the Bank Guarantee in respect of one contract between the parties cannot be invoked in respect of another contract. 25.11 Advocate Mr. 25.10 Advocate Mr. Patel has also relied on the judgment of National Highways Authority of India & Anr. Vs. Jivanlal Joitaram Patel & Ors., reported in 2009 (2) GLH 35 , to contend that the Bank Guarantee in respect of one contract between the parties cannot be invoked in respect of another contract. 25.11 Advocate Mr. Patel submitted that the witness of the plaintiff had deposed before the trial Court that the value of sale note at Exh. Nos.47, 48 and 49 had not formed part of the Bank Guarantee, but the trial Court failed to appreciate the oral evidence of the witness, wherein the witness had categorically stated that the goods offered by defendant No.1 through S.S. Hanoi, Indian Fraternity and S.S. Vishwanidhi were not as per the specific requirement and the invocation of the Bank Guarantee was fraudulent and not in accordance with the terms and therefore unlawful. 25.12 Advocate Mr. Patel further submitted that the learned trial Court while placing reliance on the letter dated 08.04.1980, at Exh.206, wherein defendant No.1, while offering 3.788 metric tons of materials corresponding to one offer to M/s. G.R. Engg. Works, Bombay, on ex-bond basis incurring the demurrage, had failed to appreciate the evidence on record being reply dated 14.05.1980 sent by the plaintiff informing the defendant No.1 that they wanted only stainless steel sheets against their shipment, and the material offered by the defendant No.1 was not as per the indent of the plaintiff. 25.13 Advocate Mr. Patel submitted that the learned trial Court failed to appreciate the events subsequent to letter dated 27.06.1980, and that the learned Judge was required to appreciate that defendant No.1 could not have invoked the Bank Guarantee for the failure in lifting the stainless steel materials, since they were not as per contract, and the goods offered were on exbond basis. Mr. Patel stated that the defendant No.1 had admitted in the written statement of having offered coils instead of sheet, and thus laid down unnecessary burden. Further stated that the contract dated 14.03.1980 was sent, however, the material was not traceable and the said fact was required to be ascertained from the R.O. Bombay of the defendant. For non-lifting the items, for item No.304/10G 8’x 4’ 0.979 I. Fraternity contract T267, Mr. Patel stated that there was no contract and it was on ex-bond basis and, therefore, the same note was returned. For non-lifting the items, for item No.304/10G 8’x 4’ 0.979 I. Fraternity contract T267, Mr. Patel stated that there was no contract and it was on ex-bond basis and, therefore, the same note was returned. While for 316/10G/1250x2500 2.986 N.Leuva contract T246, submitted that assignment was not offered, and there was no sale note. 25.14 Advocate Mr. Patel, thus, submitted that the learned trial Court Judge has erred in not appreciating the oral evidence and not accepting the reasons cited by the plaintiff's witness for non-accepting the defendant No.1’s goods through S.S. Hanoi, Indian Fraternity and S.S. Vishwanidhi as were not as per specific requirement and the invocation of the Bank Guarantee was fraudulent and not in accordance with the terms. 26. Per contra, learned advocate Mr. H.J. Karathiya submitted that the plaintiff has admitted that they had agreed to accept the goods, though were outside the registration done by them, since they were in urgent need of the same and, therefore it is an admitted position that there was alteration in the original contract/registration by the plaintiff himself and the alternation made, were pursuant to the personal meeting which took place between the parties on 12.02.1980, which is not disputed by the plaintiff, and, thus advocate Mr. Karathiya submitted that the plaintiff now cannot contend that the contracts were not covered by the Bank Guarantee, since the contract were issued in the month of March, 1980 after the personal meeting between the parties. 26.1 Advocate Mr. Karathiya further stated that the plaintiff had made contrary pleadings in the plaint; at one stage had pleaded that the goods were offered beyond booking and on other stage had pleaded that the goods were not traceable. Mr. Karathiya stated that no claims were raised by the plaintiff with regard to goods not traceable till the defendant No.1 had initiated the process by invocation of Bank Guarantee. 26.2 Advocate Mr. Karathiya submitted that the Bank Guarantee is an independent contract between defendant No.1 and defendant No.2 and the perusal of the terms and conditions of the Bank Guarantee itself clearly shows that it is “unconditional and irrevocable”. The author of the contract is the best person to clarify the nature of contract of guarantee and the plaintiff, who is not the party to the said contract has no right to interpret the terms of the said contract. For that purpose, learned advocate Mr. The author of the contract is the best person to clarify the nature of contract of guarantee and the plaintiff, who is not the party to the said contract has no right to interpret the terms of the said contract. For that purpose, learned advocate Mr. Karathiya has relied on the judgment of Cargo Motors Pvt. Ltd. Vs. Gujarat Maritime Board, 2020(2) GLR 1077 . 26.3 Learned advocate Mr. Karathiya further submitted that the plaintiff had not pleaded fraud or irretrievable injury in the entire plaint, which are the only ground available for obtaining the stay against the invocation of Bank Guarantee; and further submits that even the said Bank Guarantee provides that respondent No.2 – Bank, without any demur, invocation dispute or delay and without any reference to the plaintiff shall pay the money, if the plaintiff cancels the contract in full and in part after the defendant No.1 places order on foreign supply or fails to take delivery of the material in full or in part, when offered by the defendant No.1. 26.4 Advocate Mr. Karathiya, thus, stated that it is an undisputed fact that the plaintiff herein had refused to take delivery of the material vide communication dated 14.05.1980 and therefore, the defendant No.1 had invoked the Bank Guarantee. Advocate Mr. Karathiya further contended that the Bank Guarantee itself provides that the decision of the defendant No.1 with regard to plaintiff’s failure to carry out obligation would be final and binding to defendant No.2 – Bank. 26.5 Advocate Mr. Karathiya further stated that the plaintiff had agreed to accept the goods though the same were outside the registration done by them, as pleaded in the plaint, since they were in urgent need of the same and, therefore, it is an admitted position that there was alteration in the contract, which cannot be disputed by the plaintiff, and the Bank Guarantee invoked is as per terms. 26.6 Advocate Mr. 26.6 Advocate Mr. Karathiya submitted that the plaintiff had agreed to lift goods of vessel V. Nidhi, which get reflected in the letter dated 20.11.1980, and vide letter dated 15.09.1979, the defendant No.1 had specifically informed the plaintiff the Schedules provided by the defendant No.1 as per the information received from the foreign suppliers, which time schedule would be tentative and would not bear any significance in view of the subsequent events, which happened in the month of February, 1980, wherein the appellant had agreed to accept the goods in different terms and conditions. 26.7 Advocate Mr. Karathiya submitted that the letter dated 27.06.1980 speaks that vide letter dated 12.02.1980, the plaintiff had agreed to accept goods, which was subsequently offered in the month of March, 1980 and no reason could be known for refusal to lift the same, and the explanation, which had been forwarded by the plaintiff is factually incorrect. 26.8 Advocate Mr. Karathiya, thus, stated that the trial Court has not rewritten any words in the Bank Guarantee. The trial Court has interpreted the real intent of the parties in view of the subsequent events, which took place considering the alteration in the contract by the parties as per section 62 of the Contract Act. 27. It is to be noticed that there was categorical pleadings of the defendant No.1 that plaintiff vide letter dated 31.03.1979, desired the defendant to cover the items in defendant’s tender T-245/T-246/T-237/T-8. The dispute raised is for the booking of 25MT of stainless steel with the bank guarantee on or about 09.05.1979, the same sent vide letter dated 11.05.1979 to defendant No.1. 27.1 Ex.45 dated 15.9.1979 is the document to refer to the requirement placed by the plaintiff towards both the registration, which is reproduced hereinbelow:- “1. The dispute raised is for the booking of 25MT of stainless steel with the bank guarantee on or about 09.05.1979, the same sent vide letter dated 11.05.1979 to defendant No.1. 27.1 Ex.45 dated 15.9.1979 is the document to refer to the requirement placed by the plaintiff towards both the registration, which is reproduced hereinbelow:- “1. DEL/SS/199/DA/78 – 7MT: 304 – 14SWGx4 2MT (T-245) 316 – 14SWGX4 2MT (T-8) 18SWGX8X4 1MT (NO OFFER IN T-20) 4mmx8’x 4’ 2MT (T-237 1MT+2MT T-8– 1MT extra) 25MT 304 – 10SWGX8’ X 4’ 1 (T-9) 12SWGX8’ X 4’ 2 (T-9) 14SWGX4 3 (T-10) 14SWGX8’ X 4’ 2 (T-9) 16SWG X 4 2 (T-10) 16SWGX8’ X 4’ 1 (T-9) 18SWGX8’ X 4’ 1 (T-249) 316- 10SWGX8’ X 4’ 3 (T-249) 12SWGX8’ X 4’ 2 (T-8) 16SWGX8’ X 4’ 3 (T-246 2MT+T- 249 1 MT) 18SWGX8’ X 4’ 5 (no offer in T-20) 2 – DEL/SS/55/78/ISC – 15.5 MT 304 – 14SWGX4 4 (T-245) 12SWG4 3 (T-245 shipped A1 Bharat- 24.8.79) 316 - 10SWGX8’ X 4’ 3.5 (T-246) 14SWGX8’ X 4’ 2 (T-246) 16SWGX8’ X 4’ 3 (T-249) You would thus observe that, 18Gx8’x4’ sheets in AISI316 totaling 6MT have not been finalised so far. Your these requirements were covered in our tender T-20 floated on 6.7.79. However, no offer was received against this tender. Also you would observe that we have booked 3MT instead of 2MT requirements in 4mm 8’x4’ outsheets in AISI 316 quality. Please confirm whether you would be in a position to accept 3 MT in 4mm 8’x4’instead of 2MT. Otherwise, we shall have to advise the foreign suppliers to ship accordingly. An early confirmation will be highly appreciated. The delivery schedules quoted by the foreign suppliers are as follows. AISI 304 T-245-June-July, 79 T-9 – Nov.Dec.79 T-10 AISI 316 T-246 / T-249 / Nov-December, 79 T-8 / For your information, 12Gx4’ coils 304 quality have been already shipped per vessel F1 Bharat now in port. We have already advised our Bombay Office to release you the same on high seas basis.” 27.2 From Ex.45, it transpires that plaintiff and defendant No.1 both were still corresponding and confirming the material and its mode. The correspondence is in relation to two registration (1) against the clearance from Iron and Steel Controller vide registration No.DEL/SS/55/78/ISC dated 11.01.1979 and (2) Registration No. DEL/SS/ 199/DA/78 dated 18.10.1978 against direct allotment scheme. The correspondence is in relation to two registration (1) against the clearance from Iron and Steel Controller vide registration No.DEL/SS/55/78/ISC dated 11.01.1979 and (2) Registration No. DEL/SS/ 199/DA/78 dated 18.10.1978 against direct allotment scheme. The total quantity booked by plaintiff was 7 MT + 25 MT + 15.5 MT total 47.5 MT. So in total the dealing was for 47.5 MT. Ex.45 clarifies that 12G X 4 coils 304 quality shipped per vessel F1 Bharat at port was advised to Bombay office to release them to plaintiff on high seas basis. 27.3 Plaintiff had denied by letter May 14, 1980 stating that they are not interested in 18G8 X 4 sheets in AISI 316 quality lying with defendant No.1 shipped as per vessel LIKA against contract T-237. 27.4 Ex.206 and Ex.207 dated 8.4.1980 and 27.6.1980 has been considered going to the root of controversy by the learned Trial Court Judge. The letter addressed by the defendant No.1 to the plaintiff about the personal meeting at Delhi by plaintiff and officer of defendant No.1. 27.4 Ex.206 and Ex.207 dated 8.4.1980 and 27.6.1980 has been considered going to the root of controversy by the learned Trial Court Judge. The letter addressed by the defendant No.1 to the plaintiff about the personal meeting at Delhi by plaintiff and officer of defendant No.1. The observation of the learned Judge is as under:- “In my opinion, the oral evidence in that context is not of much significance and in that context, it is expedient to refer ext.206 dated 8-4- 1980 and ext.207 dated 27-6-1980 and in my opinion, ext.207 goes to the root of controversy in the sense that in the said letter addressed to the plaintiff by MMTC there is a reference of personal meeting at Delhi between the plaintiff and the officer of the defendant Corporation and that the plaintiff had shown willingness to release the quantity of the goods mentioned therein i.e. ext.206 and which were covered by tender No.T-8 and it has been further stated that by letter dated 25-4-1980 the plaintiff was not willing to accept the offer of the defendant MMTC and the defendant was also informed regarding the releasing of goods through vessel Indian Faternity on ex-bond basis and it has been specifically stated that all the items have been offered to the plaintiff against the plaintiff’s specific booking (underlined by me for pointed attention) and even though the plaintiff has not lifted the goods and the witness for the plaintiff in his deposition ext.176 has admitted that the goods i.e. 316 quality sent through S.S.Hanoi, Vishvanidhi and Indian Faternity were not accepted by it and because of that reason alone the defendant No.1 invoked the bank guarantee.” The learned trial Court Judge has underlined the glaring fact in his observation. 27.5 The plaintiff was ready to accept the contracts No.BB/MP/CC/T/237/1394/40 dated 14.3.1980 for 14G No.316 S.S. Sheets of 2489 kg. of total value of Rs.54,291/- and contract No.BP/ IMP/CC/HS/T/8/1421/80 dated 16.3.1980 of quality 316,14G S.S. coils quantity 1964 kg for the total sale value of Rs.72,315/- arrived at S.S.Vishvanidhi, though the said was not covered by the registration and booking of the plaintiff, in connection of bank guarantee of Rs.2,81,250/- as has also been admitted in the plaint. of total value of Rs.54,291/- and contract No.BP/ IMP/CC/HS/T/8/1421/80 dated 16.3.1980 of quality 316,14G S.S. coils quantity 1964 kg for the total sale value of Rs.72,315/- arrived at S.S.Vishvanidhi, though the said was not covered by the registration and booking of the plaintiff, in connection of bank guarantee of Rs.2,81,250/- as has also been admitted in the plaint. 27.6 The personal meeting at Delhi as referred in letter Ex.206 and 207 was dated 8.4.1980 and 27.6.1980, what was the reason which had fallen to accept the material outside the booking has not been explained by the plaintiff. 27.7 The reason thereafter for returning the contract as stated in the plaint was that the goods covered by the three contracts which includes contract No.BB/IMP/OG/HS/SS/T/8/1422/80 dated 15.3.1980 for 1958 kgs. of quantity 316, 2.64 MM X 1250 X 2500 equivalent to 12G, 8’ x 4’ stainless steel sheets at the provisional price of Rs.73,270.32, they were not traceable and that the plaintiff had to ultimately make arrangements for direct import of such material against its advance import licences. This reason has not been explicitly disclosed by the plaintiff in its letter Ex.56 to the defendant No.1 against invoking the bank guarantee dated 4.12.1980, the time limit which was extended on the instruction of the plaintiff. 27.8 The contention raised by the plaintiff side in their letter Ex.56 was that the ex-bond contract could not be accepted since demurrage and interest charges are to be paid by the plaintiff for no fault on their side, for delay in issuing the sale note at their office. 27.9 On the pleadings of the parties, the trial Court had framed the following issues: “(1) Whether the plaintiff proves that since it wanted one booking for 25 M.Tons of stainless steel as per the particulars given in plaint para-10, procured one bank guarantee for Rs.2,81,250-00 on or about 9-5-1979 from the defendant No.2 in accordance with the form given by the defendant No.1? (2) Whether the plaintiff proves that the defendant No.1 had agreed to supply various materials as per the booking of the plaintiff and had offered to supply the aforesaid items and they were expected in November/December, 1979 on high seas basis? (3) Whether the plaintiff proves that the goods arrived as per S.S.Hanoi were offered by the defendant No.1 though not booked by the plaintiff and were outside their booking? (3) Whether the plaintiff proves that the goods arrived as per S.S.Hanoi were offered by the defendant No.1 though not booked by the plaintiff and were outside their booking? (4) Whether this Court has no jurisdiction to entertain and to hear this suit? (5) Whether the plaintiff proves that the defendant No.1 was not entitled to invoke asit sought to invoke the bank guarantee? (6) To what relief or reliefs the plaintiff is entitled to? (7) What order and decree? 27.10. Exh.206, which is letter dated 08.04.1980 by Deputy Division Manager to the appellant – plaintiff, reads as under: “Dear Sirs, This has reference to our letter of even number dated 15.9.1979 intimating to you your requirements covered against your registration No.DEL/SS/199/DA/78 dated 18.10.78. 2. We observe that your requirements in 18G 8’ x 4’ sheets in AISI 316 quality covered in tender T-20 could not be finalised as there was no offer from the foreign suppliers. In the meanwhile this material has become available with us from our earlier contract T-237 when the CIF prices were around 23,000 per MT. We are advising our Regional office at Bombay to release you 3.788 MT of 180x8’x4’ sheets 316 quality shipped as per vessel LIKA against our contract T-237 at provisional highseas price of Rs.22,393 per MT. You are requested to be on immediate touch with them for taking delivery of this material on highseas/ex-bond basis. Matter urgent as material already incurring demurrage and being cleared to bonds. Please let us know the action to be taken by us for your balance 2 MT requirement in 18G sheets as the present highseas price is around Rs.35- 36,000 per MT. We will take action for balance material on hearing from you.” 27.11 Another communication at Exh.207, which is letter dated 27.06.1980 by Deputy Division Manager to the appellant – plaintiff reads as under: “Dear Sirs, This has reference to your stainless steel Regn. No.DEL/SS/199/DA/78 dated 18.10.78 for 64.9 MT we have to advise you about its detailed booking as per following details: 1. You had asked us to cover 7MT vide your letter No.STEK/DMD:NVV:2133 dated 31.3.1979 and submitted the required 25% bank guarantee for Rs.78750/- vide your letter dated 13.4.79. Procurement action for these items was communicated to you vide our letter of 15th September 79. No contract was finalised for 18G sheets as there were no offers. 2. You had asked us to cover 7MT vide your letter No.STEK/DMD:NVV:2133 dated 31.3.1979 and submitted the required 25% bank guarantee for Rs.78750/- vide your letter dated 13.4.79. Procurement action for these items was communicated to you vide our letter of 15th September 79. No contract was finalised for 18G sheets as there were no offers. 2. Again you submitted another bank guarantee for Rs.2,81,250/- dated 9.5.79 requesting us to take procurement action for 25MT stainless steel sheets. In this regard you may refer to your letter No.STEL:V:JV:2280:79 dated 11.5.79. Again we advised you vide our letter of even number dated 15.9.79 the details of your bookings with us. However, there was no offer for 18G sheets (5MT – AISI 316) and also we requested you to obtain recommendation from sponsoring authorities for your items covered in our tenders T-9 & T-10 in 304 quality so as to enable us release material accordingly. This covered approximately 11MT out of your total booking of 25MT. However, the Textile Commissioner vide his letter No.S-22/299 dated 22/24.1.80 cleared release of following stainless steel sheets:- 1. AISI 304/316 - 10Gx8’x4’ 1.877MT 2. AISI 316 - 20G 0.480+0.872MT 16G 2.9+1.4MT 14G 0.432+0.6MT 10G 0.352MT 6G 0.8MT However, vide your letter dated 12.2.80, when you were here in Delhi, you desired us to release you the following items immediately:- 10G 2MT 14G 2MT 16G 5MT You had mentioned that you could accept sheets as well as coils against these requirements. Accordingly we had sent release instructions to release you the following:- 10G 2.012MT 14G 1.956MT 16G 5.567MT All these items were covered in our tender T-8 with Italian suppliers. We now understand from your letter of 25.4.80 that these materials have not been offered to you as per your bookings hence you are not accepting our offer. We are unable to understand it. In view, you are requested to make financial arrangements on immediate basis otherwise we would be forced to write to your bankers invoking the bank guarantees. As 18Gx8’x4’ 316 quality sheets had become available with us against our previous tender T-237, we had advised our Bombay office to release you 3.788 MT of this item shipped as per vessel Lika. You are requested to be in touch with them for taking delivery of the material. As 18Gx8’x4’ 316 quality sheets had become available with us against our previous tender T-237, we had advised our Bombay office to release you 3.788 MT of this item shipped as per vessel Lika. You are requested to be in touch with them for taking delivery of the material. Also we advised you vide our letter of even number dated 8.4.80 that 1MT of 10Gx8’x4’ sheets 304 quality were being released to you from vessel Indian Fraternity on ex-bond basis. Please let us know your acceptability of the same. Please note all items have been offered to you against your specific bookings. In view, we expect you to honour the sale notes issued to you by our Bombay Office. Matter most urgent.” 28. Here, in this case, the defendant No.1 was only a canalising agency for the purpose of canalising of imports. The items are imported through registered agencies. The concerned agency will import them under open general license. No release orders would be required by eligible actual users from licensing and sponsoring authority for obtaining the legitimate requirements of the items from the canalising agency concerned. The eligible actual users may register their 12 months requirements with the concerned canalising agency together with earnest money calculated at 12% of the sale value of the quantity so registered or Rs.50,000/- which ever is less. The canalising agency in respect of certain items, which is to be identified, seek additional information of clarification required for satisfying itself about the eligibility of the applicant or the reasonableness of his registered requirement in respect of imported material. The canalising agency may take such financial covers, as it considers necessary before arranging the import not exceeding the sale value of the quantity registered. In case of such items, as it deems appropriate, the canalising agency may arrange to meet their registered requirements from indigenous suppliespartly or wholly instead of imports. There will be no last date for the actual users to register his requirements with the canalising agency. Accordingly, the period for delivery of the quantity so registered may extend beyond the period of the policy. Whenever any shortage arises or apprehended in respect of any item, the import of which is not permitted, its import may be arranged by the Chief Controller of Imports and Exports, New Delhi through a public sector agency. Accordingly, the period for delivery of the quantity so registered may extend beyond the period of the policy. Whenever any shortage arises or apprehended in respect of any item, the import of which is not permitted, its import may be arranged by the Chief Controller of Imports and Exports, New Delhi through a public sector agency. In case of items being decanalised for import in this policy persons who have already registered their demand with the concerned canalising agency will not be allowed to cancel their indents except with the consent of the agency concerned. This is the provisions of the dealings, as could be gathered from the pleadings, and the standard system adopted for such imports. 29. In the case of Standard Chartered Bank v. Heavy Engineering Corporation Limited, (2020) 13 SCC 574 , it has been held that the bank guarantee is an independent contract between bank and the beneficiary and the bank is always obliged to honour its guarantee as long as it is an unconditional and irrevocable one. It has been further held that the dispute between the beneficiary and the party at whose instance the bank has given the guarantee is immaterial and is of no consequence, however, exceptions to this rule are when there is a clear case of fraud, irretrievable injustice or special equities. It has been further held that the Court ordinarily should not interfere with the invocation or encashment of the bank guarantee so long as the invocation is in terms of the bank guarantee. 30. The Hon'ble Apex Court in the judgment in case of Syndicate Bank v. Vijay Kumar & Ors. reported in (1992) 2 SCC 330 has observed as under: “9. In this context it becomes necessary to examine the meaning and scope of a Bank guarantee and the respective rights created thereunder. 10. It is in common parlance that the issuance of guarantee is what that a guarantor creates to discharge liability when the principal debtor fails in his duty and guarantee is in the nature of collateral agreement to answer for the debt. It is well-settled that the Bank guarantee is an autonomous contract and imposes an absolute obligation on the Bank to fulfill the terms and the payment in the Bank guarantee becomes due on the happening of a contingency on the occurrence of which the guarantee becomes enforceable. 11. It is well-settled that the Bank guarantee is an autonomous contract and imposes an absolute obligation on the Bank to fulfill the terms and the payment in the Bank guarantee becomes due on the happening of a contingency on the occurrence of which the guarantee becomes enforceable. 11. The Guarantee has been defined in Halsbury's Laws of England Vol.20, Fourth Edn. page 49 para 101 as that'' A guarantee is an accessory contract whereby the promisor undertakes to be answerable to the promisee for the debt, default or miscarriage of another person whose primary liability to the promise must exist or be contemplated. 12. In the banking system it is understood that Bank guarantee has an dual aspect. In the case of a Bank guarantee the banker is the promisor. It is a contract between the Bank and the beneficiary of the guarantee and it is also a security given to the beneficiary by a third party. Now, it is a well-known business transaction in the World of commerce and it has become the backbone of the banking system. Now coming to its enforceability the same depends upon the terms under which the guarantor has bound himself. He cannot be made liable for more than what he has undertaken. Therefore the Bank guarantee, as already noticed, is in the nature of a special contract depending upon the happening of a specific event and when once it is discharged the guarantee comes to an end. It has to be borne in mind that the obligations arising under the Bank guarantee are independent of the obligations arising out of a specific contract between the parties. Therefore the endorsement of the words "Lien to BG 11/80" cannot have a bearing on the. banker's lien on the two FDRs. Merely because on the basis of the security of the two FDRs the appellant Bank gave a guarantee it cannot be said that the banker had only a limited particular lien and not a general lien on the two FDRs. In our view this finding of the High Court is erroneous.” 30.1 The Hon'ble Apex Court in the case of Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corpn. Ltd., (1996) 5 SCC 450 , in para-4 has held as under : "4. In our view this finding of the High Court is erroneous.” 30.1 The Hon'ble Apex Court in the case of Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corpn. Ltd., (1996) 5 SCC 450 , in para-4 has held as under : "4. It is settled law that bank guarantee is an independent and distinct contract between the bank and the beneficiary and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. Unless fraud or special equity exists, is pleaded and prima facie established by strong evidence as a triable issue, the beneficiary cannot be restrained from encashing the bank guarantee even if dispute between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in performance of the contract or execution of the works undertaken in furtherance thereof. 30.2 The Hon'ble Apex Court in the case of Gujarat Maritime Board v. Larsen and Toubro Infrastructure Development Projects Ltd. reported in (2016) 10 SCC 46 has observed as under: “9. Unfortunately, the High Court went wrong both in its analysis of facts and approach on law. A cursory reading of LoI would clearly show that it is not a case of forfeiture of security deposit “if the contract had frustrated on account of impossibility “ but invocation of the performance bank guarantee. On law, the High Court ought to have noticed that the bank guarantee is an independent contract between the guarantor Bank and the guarantee appellant. The guarantee is unconditional. No doubt, the performance guarantee is against the breach by the lead promoter viz. the first respondent. But between the bank and the appellant, the specific condition incorporated in the bank guarantee is that the decision of the appellant as to the breach is binding on the Bank. The justifiability of the decision is a different matter between the appellant and the first respondent and it is not for the High Court in a proceeding under Article 226 of the Constitution of India to go into that question since several disputed questions of fact are involved. Xxx xxx xxx 13. The guarantee given by the Bank to the appellant contains only the condition that in case of breach by the lead promoter viz. Xxx xxx xxx 13. The guarantee given by the Bank to the appellant contains only the condition that in case of breach by the lead promoter viz. the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the Bank should honour it " without any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform the covenants ". It has also been undertaken by the Bank that such written demand from the appellant on the Bank shall be " conclusive, absolute and unequivocal as regards the amount due and payable by the Bank under this guarantee". Between the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 6-2-2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc. are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the Bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the Bank is bound to honour the payment under the guarantee." 30.3 The Hon'ble Apex Court in the case of Syndicate Bank v. Vijay Kumar & Ors. reported in (1992) 2 SCC 330 has observed as under: “13. In this context it is also necessary to consider the extent to which the Court can go into the nature of the securities offered for the Bank guarantee in the light of the banker's lien. In United Commercial Bank v. Bank of India this Court referred to a passage from R.D. Harbottle (Mercantile) Ltd. and Anr. v. National Westminster Bank and Ors. (1977) 2 All ER 862 with approval which runs as under: It was only in exceptional cases that the courts would interfere with the machinery of irrevocable obligations assumed by banks. They were the life blood of international commerce. v. National Westminster Bank and Ors. (1977) 2 All ER 862 with approval which runs as under: It was only in exceptional cases that the courts would interfere with the machinery of irrevocable obligations assumed by banks. They were the life blood of international commerce. The machinery and commitments of banks were on a different level. They must be allowed to be honoured, free from interference by the courts. Otherwise trust in internal commerce could be irreparably damaged. In R.D. Harbottle (Mercantile) Ltd. And Arn. Vs. National Westminister Bank & Ors., 1977 2 AIIER 862, case it was stated: (i) Only exceptional cases would the courts interfere with the machinery of irrevocable obligations assumed by banks. In the case of a confirmed performance guarantee, just as in the case of a confirmed letter of credit, the bank was only concerned to ensure that the terms of its mandate and confirmation had been complied with and was in no way concerned with any contractual disputes which might have arisen between the buyers and sellers.... The above passage has also been referred in U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. wherein the Court held that the aforesaid represents the correct state of the law… 30.4 The Hon'ble Apex Court in case of State Trading Corporation v. Jainsons Clothing Corporation, (1994) 6 SCC 597 , has observed as under: "8. The grant of injunction is a discretionary power in equity jurisdiction. The contract of guarantee is a trilateral contract which the bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade or business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e. bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the party's favour, he/it is entitled to damages or other consequential reliefs. 9. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the party's favour, he/it is entitled to damages or other consequential reliefs. 9. It is settled law that the Court, before issuing the injunction under Order 39, Rules 1 and 2, CPC should prime face be satisfied that there is triable issue strong prima facie case of fraud or irretrievable injury and balance of convenience is in favour of issuing injunction to prevent irremediable injury. The court should normally insist upon enforcement of the bank guarantee and the court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud." 30.5 The Hon'ble Apex Court in the case of U.P. State Sugar Corpn. v. Sumac International Ltd., reported in (1997) 1 SCC 568 , has observed as under: “16. Clearly, therefore, the existence of any dispute between the parties to the contract is not a ground for issuing an injunction to restrain the enforcement of bank guarantees. There must be a fraud in connection with the bank guarantee. In the present case we fail to see any such fraud. The High Court seems to have come to the conclusion that the termination of the contract by the appellant and his claim that time was the essence of the contract, are not based on the terms of the contract and, therefore, there is a fraud in the invocation of the bank guarantee. This is an erroneous view. The disputes between the parties relating to the termination of the contract cannot make invocation of the bank guarantees fraudulent.” 30.6 The Hon'ble Apex Court in the case of Dwarikesh Sugar Industries Limited v. Prem Heavy Engineering Works (P) Ltd. reported in (1997) 6 SCC 450 has held as under: “21. This is an erroneous view. The disputes between the parties relating to the termination of the contract cannot make invocation of the bank guarantees fraudulent.” 30.6 The Hon'ble Apex Court in the case of Dwarikesh Sugar Industries Limited v. Prem Heavy Engineering Works (P) Ltd. reported in (1997) 6 SCC 450 has held as under: “21. Numerous decisions of this Court rendered over a span of nearly two decades have laid down and reiterated the principles which the Courts must apply while considering the question whether to grant an injunction which has the effect of restraining the encashment of a bank guarantee. We do not think it necessary to burden this judgment by referring to all of them. Some of the more recent pronouncements on this point where the earlier decisions have been considered and reiterated are Svenska Handelshanken v. M/s. Indian Charge Chrome, (1994) 1 SCC 502 : (1993 AIR SCW 4002), Larsen and Toubro Ltd. v. Maharashtra State Electricity Board, (1995) 6 SCC 68 : (1975 AIR SCW 4134), Hindustan Steel Workers Construction Ltd. v. G. S. Atwal and Co. (Engineers) Pvt. Ltd., (1995) 6 SCC 76 : (1995 AIR SCW 3821) and U. P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 : (1997 AIR SCW 694). The general principle which has been laid down by this Court has been summarised in the case of U. P. State Sugar Corporation's case as follows (at p. 697 of AIR SCW): "The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour, it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The Courts should, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take the advantage, he can be restrained from doing so. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take the advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealings in the country." Dealing with the question of fraud, it has been held that fraud has to be established. The following observations of Sir John Donaldson, M.R. in Bolivinter Oil S. A. v. Chase Manhattan Bank,(1984) 1 All ER 351, are apposite: "The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the bank's knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a bank's credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it charged." (emphasis supplied) 30.7 The Hon'ble Apex Court in the case of Federal Bank Ltd. v. V.M. Jog Engg. Ltd., (2001) 1 SCC 663 , in para 55 has held as under : "55. In several judgments of this Court, it has been held that courts ought not to grant injunction to restrain encashment of bank guarantees or letters of credit. Two exceptions have been mentioned -- (i) fraud, and (ii) irretrievable damage. If the plaintiff is prima facie able to establish that the case comes within these two exceptions, temporary injunction under Order 39 Rule 1 CPC can be issued. Two exceptions have been mentioned -- (i) fraud, and (ii) irretrievable damage. If the plaintiff is prima facie able to establish that the case comes within these two exceptions, temporary injunction under Order 39 Rule 1 CPC can be issued. It has also been held that the contract of the bank guarantee or the letter of credit is independent of the main contract between the seller and the buyer. This is also clear from Articles 3 and 4 of UCP (1983 Revision). In case of an irrevocable bank guarantee or letter of credit the buyer cannot obtain injunction against the banker on the ground that there was a breach of the contract by the seller." An injunction against the invocation of an absolute and an unconditional bank guarantee cannot be granted except in situations of egregious fraud or irretrievable injury to one of the parties concerned. This position also is no more res integra. In Himadri Chemicals Industries Limited v. Coal Tar Refining Company AIR 2007 SC 2798 , at paragraph -14: “14. From the discussions made hereinabove relating to the principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee or a letter of credit, we find that the following principles should be noted in the matter of injunction to restrain the encashment of a bank guarantee or a letter of credit: (i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract. (ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. (iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit. (iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit. (iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit. (v) Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation. (vi) Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned.” 31. Advocate Mr. Karathiya has placed reliance on Section 62 of the Indian Contract Act, 1872 to base his argument on the alteration of the original contract. 31.1 Section 62 of the Indian Contract Act, 1872 reads as under:- “62. Effect of novation, rescission, and alteration of contract.— If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract, need not be performed.” 31.2 Section 38 of the Indian Contract Act also requires mention here. Section 38 of the Indian Contract Act, 1872 reads as under:- “38. Effect of refusal to accept offer of performance.— Where a promisor has made an offer of performance to the promisee, and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract. Every such offer must fulfil following conditions: — (1) It must be unconditional; (2) It must be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing, there and then, to do the whole of what he is bound by his promise to do; (3) If the offer is an offer to deliver anything to the promisee, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver. An offer to one of several joint promises has the same legal consequences as an offer to all of them. An offer to one of several joint promises has the same legal consequences as an offer to all of them. 31.3 Thus, in context, it can be found that the Section 38 lays down the following propositions: (a) When a promisor has made an offer of performance to the promise, and the offer has not been accepted, two consequences ensue, namely,- (1) the promisor is thereafter not responsible for performance, that is to say, he is excused from performance; (2) by the non-acceptance of the offer, he does not lose his rights under the contract. (b) But every such offer must fulfil the following conditions: (1) it must be unconditional; (2) it must be made at a proper time and a proper place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing, there and then, to do the whole of what he is bound by his promise to do; (3) if the offer is an offer to deliver anything to the promise, the promisee must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver. (c) An offer to one of several joint promisees has the same legal consequences as an offer to all of them.” 32. Here in this present matter, the plaintiff had registered their requirements for the year 1978-79 twice. One was against clearance from the Iron and Steel Controller, while another was against the Direct Allotment Scheme. Exhibit 45 notes that in connection with two registrations, the total quantity booked by the plaintiff was 7MT + 25 MT + 15.5 MT totalling 47.5 MT. The requirement dated 26.09.1979 was 64.90 MT which was confirmed vide letter dated 03.03.1979. Vide letter dated 31.03.1979 at Exh.36, the plaintiff desired to cover the items as referred therein to be covered in Tender T-245 and T-246. 32.1 Exh.36 is reproduced hereinbelow: “The 31st March, 1979 STEL:DMD:NVV:1/33 The Minerals & Metals Trading Corporation of India Ltd, Post Box No.7051, Express Bldg. Bahadur Shah Zaffar Marg New Delhi – 110002. Dear Sirs, Re: Regn.No.DEL/SS/199/DA/78 dated 18.10.78 With reference to the above, we require some material which you are in a position to incorporate against your tender nos.245 and 246. Bahadur Shah Zaffar Marg New Delhi – 110002. Dear Sirs, Re: Regn.No.DEL/SS/199/DA/78 dated 18.10.78 With reference to the above, we require some material which you are in a position to incorporate against your tender nos.245 and 246. We give below the details of our requirement and are also sending our Bank guarantee for the same immediately i.e. within 3/4 days. 14 SWG 304 quality 4’ coil - 2 tons 14 SWG 316 ” 4’ coil - 2 tons 18 SWG 316 ” 8x4 - 1 ton. 4 MM 316 ” 8x4 - 2 tons Thanking you, Yours faithfully, for SWASTIK TEXTILE ENGINEERS PVT.LTD, (D.M.DESAI) GENERAL MANAGER” 32.2 Exh.46 is also reproduced to show the communication of dealing between the plaintiff and defendant No.1, which reads as under:- “No.50(233)/DA/Steel/29 21.11.1979 M/s. Swastik Textiles Ltd., Ahmedabad. Dear Sirs, Reference your stainless steel registration No./DEL/SS/199/DS/79 covered in our tender T-237, we have to advise you that 2.065 MT of 16GX8’X4’ and 2.974MT of 12Gx4’ coils both 316 quality have been shipped as per vessel LIKA with ETA Bombay around 5.12.79. Also 2.004 MT of 16Gx8’x4’ 304 quality covered in tender T-235 for you have been shipped as per the same vessel. You are requested to be in touch with our Bombay Office for taking delivery of the material. Yours faithfully, (SUBHASH BATRA) DEPUTY DIVISIONAL MANAGER“ 32.3 The Bank Guarantee No.60/104 dated 11.04.1979 for Rs.78,750/- covered 7 MT of Stainless Steel Sheets, while Bank Guarantee No.60/127 dated 09.05.1979 for Rs.2,81,250/- was to cover another 25 MT of Stainless Steel. 7 MT and 25 MT were directed to be in connection with the DEL/SS/199/DA/78 while 15.5 MT was covered with DEL/SS/55/78/ISE. The reference of the same could be drawn vide Exhibit 45. The said document Exhibit 45 refers to the requirements which were not finalized while it was covered in Tender T-20 floated on 06.07.1979. The defendant had raised the contention that no order was received against that tender. The defendant has also informed about the booking of 3 MT instead of 2 MT the requirement in 4mm x 8’ x 4’ sheets in AISI 316 Quality. The defendant had also asked the plaintiff to confirm the same or else stated that they would have to advise foreign suppliers to ship accordingly. The defendant has also informed about the booking of 3 MT instead of 2 MT the requirement in 4mm x 8’ x 4’ sheets in AISI 316 Quality. The defendant had also asked the plaintiff to confirm the same or else stated that they would have to advise foreign suppliers to ship accordingly. The details regarding the delivery schedule quoted by the foreign suppliers were also referred in Exhibit 45, where the defendant had specified that they had advised the Bombay Office to release the same on high seas basis. 32.4 This document Exhibit 45 reflects the dealing between the plaintiff and defendant No.1, offer and counter offer of performance could be found from subsequent communication since the defendant No.1 are the canalizing agency and the procurement of the requirement of the plaintiff would be as per the tender floated by defendant No.1 to be secured at the lowest price. 32.5 The total booking of 25 MT @ Rs.45,000/- per MT was mentioned by the plaintiff’s letter dated 11.05.1979. Out of the 25 MT requirement, 11 items were agreed to be imported. As per the case of the plaintiff and the defendant towards the registration, the procurement of the material provides clearance from the Iron and Steel Controller and Direct Allotment Scheme. 32.6 The plaintiff had offered to take the materials even beyond their bookings as could be noted from the pleadings as well as the documents placed on record. The plaintiff was also informed vide communication dated 19.10.1978 Exhibit 34 that the material of 16G and thinner is not being supplied on high seas basis. The Proforma of 25% duty also refers to the material to be sold on high seas / ex-jetty / ex-godown basis and the Bank Guarantee referred at Exhibit 38 notes that the quantity of 25 MT Stainless Steel Sheets in 10, 12, 14, 16 and 18 gauges in 304 / 316 quantities to be sold on high seas / ex-jetty basis. 32.7 The Bank of India – respondent No.2 had irrevocably undertaken and promised to pay the defendant No.1 on demand without demur equivocation, dispute or delay and without reference to M/s. Swastik Textiles Engineering Pvt. Ltd. (plaintiff) or any sum of the money upto a maximum of Rs.2,81,250/- in case the plaintiff cancel the contract in full or in part after the defendant No.1 had placed orders on their foreign sellers or plaintiff failed to take delivery of the material in full or in part when offered by the defendant No.1. 32.8 Section 38 as referred hereinabove of the Indian Contract Act provides for the consequences in non-acceptance of the offer. The promisor does not lose his rights under the contract. Here in this case, the arrangement of the materials were in context of the communication between the plaintiff and the defendant No.1. The earlier rejection of the goods were taken into countenance by the defendant No.1 and in turn had offered another goods. Exhibit 192 transpires about the discussion between the plaintiff and the defendant in connection with the pending requirement of stainless steel sheets and coils. The defendant No.1 had indicated about their position to offer about 13 MT of materials for which the steamers had already arrived. The plaintiff informed the defendant that they were checking for the details like indent etc. and informed the defendant that the bookings were already completed by various allotments and that plaintiff was not in a position to accept the stainless steel offered by the defendant from the consignments which had been received by the defendant’s office 4-5 months back. The plaintiff in the said letter had also referred with their enquiries with the Bombay Office informing the defendant that they have not given them any information about the Bill of Lading received in their names for the offers made by the defendant No.1 The Letter is also placed on record dated 01.09.1980 which appears to be an Office copy which has not been put into evidence but the said letter by the defendant No.1 to the plaintiff also refers to the discussion with Shri. D.N. Desai, General Manager of plaintiff, who had assured of lifting the items covered in Tender T- 246 and also 10, 14 and 16G coils as mentioned in the letter dated 27.06.1980 and the balance registration was to be treated as cancelled. 32.9 Exhibit 194 also refers to the discussion of Shri. D.N. Desai, General Manager in connection with the pending requirements of stainless steel sheets and coils where again their offer about 13 MT of materials was referred to and also reflect the same about their regret of bookings already completed by various allotments. In the Exhibit 194, the General Manager has noted about the points discussed with the defendant No.1 in person and has clarified that they have nothing more to take of DEL/SS/199 for the year 1978-1979. Thus, had requested to return all their Guarantees under that registration as according to the plaintiff’s register, there was nothing pending to be lifted by them. 32.10 Exhibit 208 refers to the invocation of the Bank Guarantee addressing the materials not lifted by the plaintiff. The said documents No.208 also refers that the plaintiff had submitted a fresh application for registration of the requirement for the period 1981-1982. The necessary extract of the communication of Exhibit 208 is reproduced hereinunder :- “Further, party had submitted a fresh application for registration of their requirement for the period 1981-82. Their request for registration would be considered only if they have made necessary arrangements for lifting the materials specifically imported for them against the earlier registration. Earlier the party appeared in the defaulters list. Hence, would request for intimating at your earliest details of materials lifted by the party, so that their request for return of the bank guarantee / fresh registration could be considered accordingly.” 32.11 The fact that the Bank Guarantee was extended by the plaintiff itself shows that the plaintiff was open to accepting the goods and subsequent change to the supply of the materials. Since out of 11 items on high seas basis, the material that could be procured was for 7 items under 7 different contracts of different dates. For the rest of the items, both the plaintiff and defendant No.1 had communicated for the alternative and as per the evidence on record, three contracts were sent by the defendant No.1. The plaintiff had shown the willingness to lift those items, which itself proves that the plaintiff was willing to take the items beyond their bookings. 32.12 The performance is complete when there is a legal acceptance on part of the promisee. The plaintiff had shown the willingness to lift those items, which itself proves that the plaintiff was willing to take the items beyond their bookings. 32.12 The performance is complete when there is a legal acceptance on part of the promisee. If a promisor makes an offer of performance to the promisee making necessary arrangement for the opportunity to the promisee to verify the thing offered to be performed and has offered to perform at the proper time and the proper place, the contract is discharged. This is so even if there is a wrongful refusal to accept the performance. Thus, the proposition is self evident. When a promisor offers performance, but the promisee does not accept the offer, the promisor cannot be held guilty of non-performance and if he has any right under the contract, he does not lose them. The defendant No.1 as a canalizing Agent had made an offer alternatively, without laying down any extra conditions. The insistence of plaintiff to receive the material on high seas basis were waived off when the plaintiff had shown his willingness to accept three contracts sent by the defendant No.1. It is another thing that the said goods could not be located at the dock. According to the plaintiff, along with the Bombay Regional Office and its Agent had proposed to identify the material at the dock. The very conduct of the plaintiff to take the material from the dock itself shows that the plaintiff was willing to accept the goods on ex-bond basis. The plaintiff had all the opportunity to ascertain the material which was sent through the relevant steamers/vessel at the dock. Thereafter, the documents on evidence on record suggest that there was personal meeting between General Manager of the plaintiff and the defendant No.1. The assurance to lift the material was also given, but it appears that since the plaintiff had already procured the material from alternate source, had denied to take the goods offered by the defendant No.1. The defendant No.1 could only offer the goods on appropriate tendering with the legal suppliers, thus, the dealing between the plaintiff and the defendant would be subject to the tendering process. The plaintiff has failed to comply with their part of performance. The defendant No.1 could only offer the goods on appropriate tendering with the legal suppliers, thus, the dealing between the plaintiff and the defendant would be subject to the tendering process. The plaintiff has failed to comply with their part of performance. The cause for refusal of the plaintiff to lift the goods does not appear to be genuine and the reason which had been forwarded by the plaintiff does not find consistency with its own communication and the personal meeting by Shri. D.N. Desai, General Manager. The plaintiff appears to be appropriating the requirement in the earlier order and was waiting for their convenience with regard to the offer of the defendant No.1. 33. Shri D.N. Desai, General Manager has not been examined during the trial and from the side of defendant No.1, witness Tejas Dilipsinh examined at Exhibit 205, was working with the defendant No.1 as Stenographer for 24 years and till 1982, he was on the said post of the Corporation and he was working with the Fertilizer and Steel Division. He refers that he knows Subhash Batra who was the Deputy Divisional Manager of the Corporation and the witness was working with him. The witness could identify his signature and hand writing. The witness stated that he was aware of the subject of the Suit. In the deposition, he referred to the communication Exhibits 206, 207 and 208 and had also stated that though there was a condition No.9 for arbitration, the plaintiff had never asked for it. Referring to the procedure, for placing the orders and shipment he stated that when they would know about the expected arrival time of the ship, they would inform the party, the purchaser would make arrangements for the payment and thereafter, high seas documents would be endorsed to the concerned party. He states that many a times there would be high seas sales and also exbond sales. He has referred to the difference between the high seas sales and ex-bond sales and has given the evidence that the sale to the plaintiff was as per their requirement. When sale of bulk quantity is not possible, at that time, after accumulating orders from other parties, again foreign orders would be placed and in case when the quantity is less than 5 MT, the sale would be on ex-bond basis. When sale of bulk quantity is not possible, at that time, after accumulating orders from other parties, again foreign orders would be placed and in case when the quantity is less than 5 MT, the sale would be on ex-bond basis. He states that the goods which were offered to the plaintiff on S.S. Hanoi, Vishwa Nidhi, Leuva and Indian Fraternity were as per the requirements of the plaintiff and though Exhibit 208 was addressed to the plaintiff, they failed to take the delivery. 34. As held in the referred judgments, Bank guarantee is an independent contract between the Bank and the beneficiary and the Bank is always obliged to honour its guarantee as long as it is unconditional and irrevocable. The proposition of law in respect of encashment of the Bank guarantees is well settled. There are two types of performance guarantees. The first are the ones, which are absolute and they are enforceable on the very demand of the beneficiary and the demand according to the terms of guarantee, is conclusive. In such types of guarantee, the beneficiary is a sole Judge or arbiter as to whether there is any breach of contract on the part of other party and as to how much amount is due to the former. The other type is where guarantee is not encashable without proof of breach of the contract. However, in both types of guarantees, the Bank issuing performance guarantee is not concerned with the contract. The duties of the Bank in such guarantee are created by the document itself which in other words is independent and autonomous and is not concerned with the contract unless the guarantee itself says that it will be enforceable on the proof of breach of the primary contract. The only one exception which has to be noted is a clear case of fraud, of which, the Banks have notice. The Courts will leave the merchants to settle their disputes under the contracts by litigating or arbitration as available to them or stipulated in the contracts. 35. Learned advocate Mr. Patel has referred to the case of National Highways Authority of India & Anr. v. Jivanlal Joitaram Patel & Ors., 2009 (2) GLH 35 . The question posed for consideration was, whether a Bank Guarantee executed in performance of a contract between the parties can be invoked for non-performance of another contract between the same parties. 35. Learned advocate Mr. Patel has referred to the case of National Highways Authority of India & Anr. v. Jivanlal Joitaram Patel & Ors., 2009 (2) GLH 35 . The question posed for consideration was, whether a Bank Guarantee executed in performance of a contract between the parties can be invoked for non-performance of another contract between the same parties. The first contract was for maintenance of Abu Road – Deesa Section National Highway No.14, for a period of 24 months. Two Bank Guarantees were submitted for due performance of contract. There was no dispute for that contract. However, dispute arose between the same parties in respect of another contract for supply of manpower for collection of toll of Samkhayali – Gandhidham National Highway No.8-A. It was noticed that huge loss caused to the petitioner in respect of that contract. After notice, consequently the Bank Guarantee invoked was of the earlier contract of Abu Road – Deesa Section National Highway No.14. It was in these facts of the case held that both the contracts are independent and separate and hence, the bank guarantee executed in respect of one contract between the parties cannot be invoked in respect of another one, unless there is a specific stipulation to that effect in the contract. 36. The referred case of Jivanlal Joitaram Patel (supra) would not be applicable in the present matter. The plaintiff has placed reliance on the pleading of the defendant No.1, which states that the plaintiff had failed to lift the consignment, the Bank guarantee was in vogue which was valid on that day though the Bank guarantee was submitted against other registration. This pleading has to be read in context with preceded pleading of the defendant No.1, as well as the evidence on record produced by both the sides. There is a specific case of the defendant No.1 that there were two registrations by the plaintiff, which was running in the current year dated 11.01.1978 and 18.10.1978, one against the clearance from iron and steel controller and another against direct allotment scheme. During the continuation of the communication of both the registration, the defendant had asked for 25% Bank guarantee for the subsequent order, which was placed for the sale value of Rs.11,25,000/-. The Bank guarantee 60/127 for that order is disputed by the plaintiff. During the continuation of the communication of both the registration, the defendant had asked for 25% Bank guarantee for the subsequent order, which was placed for the sale value of Rs.11,25,000/-. The Bank guarantee 60/127 for that order is disputed by the plaintiff. However, with the communication and the conduct of the plaintiff and the defendant No.1 read with Exhs.206 and 207, with the other allied communications very clearly shows that the plaintiff and the defendant No.1 had negotiated and concluded about the arrangement to be made for the supply of material towards both the registrations. 37. Learned advocate Mr. Karathiya has placed reliance on Section 62 of the Indian Contract Act to submit that on alteration of contract, the original contract need not be performed. Section 62 is the provision for the effect of novation, res cission and alteration of contract. In novation of contract, there must be complete substitution of contract. Novation of contract in terms of Section 60 of the Indian Contract Act must precede the contract making process. The parties thereto must be ad idem so far as terms and conditions are concerned. If a contracting party intended to alter or modify the terms of contract, it was obligatory on his part to bring the same to the notice of other party. Having not done so, new terms of contract cannot be thrust upon the other party to the contract. A novation requires in every case that new contracting party has consented to assume liability for the contract and also that the person on whom correlative right recites has agreed to accept the new party’s liability. A contract by novation requires as an essential element that the right against the contracting party shall be relinquished and the liability of the new contracting party accepted in their place. In the same way for the alteration to be considered as material, which varies the rights, liabilities or legal position of the parties as ascertained by the deed from its original state, the effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The defendant No.1 claims to rely on the personal meeting between Shri D.N. Desai, General Manager of the defendant Corporation Shri Subhash Batra. The plaintiff does not admit to any change in the contract so to say any alteration. The defendant No.1 claims to rely on the personal meeting between Shri D.N. Desai, General Manager of the defendant Corporation Shri Subhash Batra. The plaintiff does not admit to any change in the contract so to say any alteration. The plaintiff’s claim is that the goods purported to be supplied were not as per booking and the registration. 38. In the case of Chrisomar Corporation v. Mjr Steels Private Limited, 2017 (0) AIJEL-SC 60783, as has been referred by advocate Mr. Karathiya, it has been noted in Paragraph No.35 as under:- “35. We approve of the said judgment as laying down the correct law on the expression “alter” in Section 62 of the Contract Act. In order that a contract that is altered in material particulars fall under Section 62, it must be clear that the alteration must go to the very root of the original contract and change its essential character, so that the modified contract must be read as doing away with the original contract. If the modified contract has no independent contractual force, in that it has no meaning and content separately from and independently of the original contract, it is clear that there is no new contract which comes into being. The original terms continue to be part of the modified contract except to the extent that they are inconsistent with the modifications made.” 39. So Section 62 of the Indian Contract Act, would not applicable in the case. The alteration, as pleaded does not change the original contract, or the mode of its implementation. The registration remains the same. The booking has not been cancelled. The only change that can be perceived is that goods to be offered. The Bank guarantee invoked by defendant No.1 being an independent contract, the Bank would have no say in the disputes between the plaintiff and the defendant No.1. The Bank guarantee was with a clear specification vide Exh.38 that Bank of India irrevocably had undertaken promise to pay without demur, equivocation, dispute or delay and without reference to the plaintiff or any sum of money upto a maximum of Rs.2,81,250/- in case the plaintiff cancels the contract in full or in part after defendant has placed orders on foreign seller or failed to take delivery of the material in full or part when offered by them. This along with the stipulation agreed upon by the Bank to defendant No.1 that the decision of the defendant No.1 as to whether the plaintiff had failed to carry out their obligation shall be final and binding to the Bank. The defendant No.1 has specified the goods not lifted by the plaintiff. The evidence on record clarifies that the agreement which was made by both the parties were in connection to the Bank Guarantee No.60/127 since the earlier Bank guarantees were exhausted. 40. The learned Trial Court Judge has very relevantly observed that the plaintiff has misused the omission of the word ‘ex-bond’ in the Bank guarantee. The omission of the word in Exh.38 Bank guarantee could be well noticed since the proforma which was sent by the defendant No.1 for 25% Bank guarantee notes of high seas/exjetty/ ex-godown. 41. "Ex-godown" is a sales term used in international trade to describe a transaction where the seller is responsible for the goods until they are delivered to a warehouse specified by the buyer: 41.1 The seller is responsible for the goods and the fares and risk until they are delivered to the buyer's warehouse. The buyer is responsible for making arrangements for export customs clearance. 41.2 An ex-bond is a bill of entry that allows goods to be removed from a bonded warehouse for home consumption or other purposes. It is used to export warehoused goods, but not other goods or goods that result from manufacturing or other operations in a bonded warehouse. 41.3 An ex-bond bill of entry is linked to the original warehousing bill of entry, which is the bill of entry used when the goods were warehoused during import. 41.4 The system automatically calculates the duty and bond interest amounts for the clearance of an ex-bond bill of entry. 42. Section 38 of the Indian Contract Act clarifies that when the promisor has made an offer of performance to the promisee and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his right under the contract. 43. The contract has remained the same, out of 11 items for 25 MT i.e. 25000 Kgs, 7 items of 17545 Kgs were received. The controversy was for 7455 Kgs. The supply in the dealing would depend upon the tender to receive contract from foreign suppliers. 44. 43. The contract has remained the same, out of 11 items for 25 MT i.e. 25000 Kgs, 7 items of 17545 Kgs were received. The controversy was for 7455 Kgs. The supply in the dealing would depend upon the tender to receive contract from foreign suppliers. 44. The defendant No.1 had not obtained tender for two items, one of 304 18G 8’x4’, one ton, the other of 316 18G 8’x4’ five tons, so in total 6000 Kgs. Defendant No.1 offered the material, which, as per defendant No.1 was against plaintiff’s specific booking, but the plaintiff failed to lift them. The plaintiff has failed to prove irretrievable harm to grant injunction against the invocation of Bank Guarantee. The plaintiff has not lead any evidence to prove any loss to them, rather the evidence proves that the plaintiff had again placed its proposal for registration for the 1981-82. The examination of evidence shows that the plaintiff had suffered no loss, rather were dwindling their requirement, as had satisfied from other source, for that defendants cannot be put at fault. The defendant No.1 does not lose his right to encash the guarantee, which was in connection to 25MT registration. 45. In view of the analysis of the evidence and proposition of law as propounded in the referred judgments along with the provisions of the Act, the appellant has failed to prove its case. 46. The judgment passed by the learned City Civil Court, Ahmedabad is just and proper. There is no reason to interfere in the conclusion arrived at for the issues framed, whereby the learned Judge has answered the issue Nos.1 and 2 in affirmative, while issue Nos.3 to 6 are decided in negative and has dismissed the Suit of the plaintiff since the plaintiff failed to prove the Suit. Consequently, for the reasons given hereinabove, the amended reliefs 49(A) and 50(CC) are rejected. 47. In the result, the present appeal stands dismissed with no order as to costs.