1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3397 OF 2009 IN SUIT NO. 2441 OF 2009 Big Vision Pvt. Ltd. ... Plaintiffs. V/s. Union Bank of India & Ors. ... Defendants. Mr. Virag Tulzapurkar, Sr. Counsel a/w. Ms. Bindi Dave, Rahul Dwarkadas, Ms. Brigitta Joha i/b. Wadia Ghandy & Co. for the Plaintiffs. Mr. Vikram Nankani a/w. Naresh Thacker for Defendant 3. CORAM : S.C. DHARMADHIKARI,J. DATED : 3rd NOVEMBER 2009. P.C. :- Heard learned Counsel for both Sides. Reply rejoinder taken on record. 2. The Notice of Motion seeks a restraint against Defendant Nos. 1 and 2 from making any payment to Defendant No.3 or any other person claiming through and under Defendant No.3. The payment that is sought to be made by Defendant Nos. 1 and 2 to Defendant No.3 is under a Letter of Credit. Details of which are set out in prayer clause (a) of the Notice of Motion. 3. The interim relief that is claimed is in furtherance of the final reliefs in the plaint viz. a declaration that this letter of 2 credit stands duly and validly revoked and cancelled. The Plaintiffs are contending that none of the Defendants can claim and assert rights under the Letter of Credit. Copy of which is annexed as Annexure ‘A’ to the plaint. 4. It is the case of the Plaintiffs that they had contracted to purchase the equipments for the specific purpose of manufacturing the recyclable eco-friendly banner material which it intended to use as a material and base for the digital inkjet printing used in billboard advertising/banners. It is their case that the Third Defendant never intended to supply the equipments and therefore, the Third Defendant has failed to comply with and breached its obligations under the contract. 5. If the contract stands terminated, then there is no question of the Letter of Credit being invoked. In such circumstances, the declaration and permanent injunction is sought. The Notice of Motion is moved to claim interim injunction in terms of these prayers. 6. On the last occasion, when the matter was moved for ad-interim reliefs, a statement was made by the Third Defendant’s Counsel on instructions that the Third Defendant will not invoke the subject Letter of Credit until disposal of this Notice of Motion. This statement made was accepted as an undertaking to this Court. It is stated by both sides that the Letter of Credit has not been invoked. 3 7. An affidavit in reply is filed by the beneficiary Defendant No.3 wherein it has stated that for the acts of omission and commission on the part of the Plaintiffs, the Third Defendant has filed a complaint in the United States District Court, Northern District of New York, U,S.A. for damages. They have alleged breaches on the part of the Plaintiffs. The Defendant No.3 states that the Plaintiff must pay damages for not performing its contractual obligations. 8. From the contents of this affidavit, there is no serious dispute that the contract in question stands terminated. The only issue then survives is of damages and as to who is responsible for the same. The Third Defendant having sued the Plaintiffs for damages for alleged breach of contract and its claim being based on wrongful repudiation or termination of the same, it is clear that the Letter of Credit would then not survive and cannot be invoked. 9. In other words, the parent contract having been put an end to and claims under the same for damages instituted by Defendant No.3 are pending, then, there is no question of invocation of the Letter of Credit. The affidavit filed by Defendant No.3 is based on these lines. 10. In such circumstances, it is apparent to me that the Letter of Credit which is the subject matter of the Suit can no longer be invoked. It is not necessary for Defendant Nos.1 and 2 to make any payment thereunder. The parent contract 4 itself being terminated, the Plaintiffs are entitled to the injunction as prayed. 11. Consequently, keeping all pleas and contentions of both parties on merits of the claim open, the Motion is made absolute in terms of prayer clauses (a) and (b). There will be no order as to costs. (S.C. DHARMADHIKARI,J.)