*1* nms.2634.09 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2634 OF 2009 IN SUIT NO.1528 OF 2009 Hitesh Constructions. ..Plaintiffs -Versus- Dena Bank and another. ..Defendants .......... D.D.Madan, Senior Counsel a/w R.M.Vasudeo, for the Plaintiffs. S.R.Page, for the Defendant No.2. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd November, 2010. P.C. 1 This is a suit for declaration that invocation of the bank guarantee dated 18.03.2008 by the Defendant No.2 is bad in law and void ab-initio. Further a perpetual injunction is sought restraining the Defendant No.1 from paying any amount to the Defendant No.2 under the said bank guarantee. 2 After perusing the bank guarantee, copy of which is at Exhibit-B to the plaint, particularly clauses 1 and 2 thereof and after hearing both sides, this Court passed an ad-interim order on 12.03.2009 restraining the Defendants from invoking the bank guarantee or making payment under the bank guarantee. That order is continuing. 3 My attention is invited to the fact that subsequently, the Defendant No.2 (beneficiary) has vacated the premises. There was an order made in Revision Application No.29/2010 by the Court of Small Causes, Mumbai against the Defendant No.2 to this suit, that order has *2* nms.2634.09 been challenged by filing Writ Petition No.7135/2010 which is stated to be pending. There is interim order passed in this Writ Petition in favour of the Defendant No.2 (beneficiary). 4 It is stated that although the bank guarantee is kept alive there is some amount which requires to be refunded and/or adjusted, post handing over possession. 5 In such circumstances, both sides agree that without prejudice to the rights and contentions of the parties to this suit and the pending Writ Petition; this Notice of Motion can be made absolute in terms of the ad-interim order dated 12.03.2009 with liberty to the Defendant No.2 to apply for modification and/or variation after disposal of the pending Writ Petition No.7135/2010. (S.C. Dharmadhikari, J)