1 HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 165 OF 2008 APPEAL NO. 165 OF 2008 APPEAL NO. 165 OF 2008 IN IN IN NOTICE OF MOTION NO. 2970 OF 2006 NOTICE OF MOTION NO. 2970 OF 2006 NOTICE OF MOTION NO. 2970 OF 2006 WITH WITH WITH NOTICE OF MOTION NO. 1091 OF 2008 NOTICE OF MOTION NO. 1091 OF 2008 NOTICE OF MOTION NO. 1091 OF 2008 IN IN IN SUIT NO. 1110 OF 1993 SUIT NO. 1110 OF 1993 SUIT NO. 1110 OF 1993 Trevor D’Souza and Anr. ... Appellant/ Orig. Plaintiffs Versus Landmark Builders & Ors. ... Respondents/ Orig.Defendants Mr. Shailesh Shah along with Ms. Usha Rahi i/by Mayur Narendra & Co. for the Appellants. Mr. Shyam Mehta along with Mr. Akshay Patil i/by Apex Law Partners for R. Nos. 5 to 7. Mr. Ravi Kadam, Advocate General along with Mr. Birendra Saraf i/by M/s. M.K. Ambalal & Co. for R. Nos. 2 and 3. CORAM: S.B. MHASE CORAM: S.B. MHASE CORAM: S.B. MHASE & PRASANNA B. VARALE,JJ. & PRASANNA B. VARALE,JJ. & PRASANNA B. VARALE,JJ. DATED: JULY 21, 2008 DATED: JULY 21, 2008 DATED: JULY 21, 2008 P.C. P.C. P.C. 1. This is an appeal against the order passed by the learned Single Judge of this Court in Notice of Motion No. 2970 of 2006 in Suit No. 1110 of 1993. The appellant is plaintiff in the original suit. The appellant has filed the suit for specific performance of the agreement dated 25.7.1986 entered with defendant No. 1. Defendant Nos 4 and 7 are the original lessees who have subsequently granted development rights to defendant Nos. 2 and 3. The appellant had taken Notice of Motion No. 615 of 1993 for injunction and direction against Defendant Nos. 4 to 7. The court initially issued notices to 2 the respondents directing them to give bank guarantee of Rs. 10 lacs. The respondent failed to give bank guarantee and therefore, respondents filed motion for extension of time. The learned Single Judge rejected the motion for extension of time and therefore, respondents filed an Appeal before the Division Bench of this court being Appeal No. 1165 of 1996. In the said appeal, the respondents were allowed to give bank guarantee and therefore, respondents filed bank guarantee before the Prothonotary. After having communicated to the Division Bench about the Bank Guarantee has been given by 30.10.1996, the Division Bench disposed of the appeal recording the fact of bank guarantee being given and observing that nothing more was required to be done in the appeal. 2. The Bank guarantee which was submitted by the respondent was operative for the period of one year and/or if the suit is disposed of earlier to that, then six months after the disposal of the suit. The Bank has placed an obligation on the defendants to get the bank guarantee extended at the time of completion of one year and the Bank also made it clear that if the bank guarantee is not extended at the end of the year and the suit is pending, the bank will deposit Rs. 10 lacs. with the Prothonotary. It appears that after completion of one year the Bank guarantee was not extended. The learned counsel for the respondent state that since the suit was not disposed of, they were under the 3 bonafide impression that the bank must have renewed the bank guarantee as agreed. We need not go into that controversy at this stage. The fact remains that the period after 1.11.1997 to 30.04.1998 there was no renewal of the bank guarantee. However, it appears that by letter dated 10th September, 1998, the bank guarantee was renewed for the period 1st May, 1998to 30th April, 1999. It was further renewed upto 29th April, 2000. Prothonotary accepted the second renewal. However, on 16.8.1999 the Prothonotary informed by letter that there is no renewal after 30.4.1999 and hence, the bank shall deposit the amount of Rs.10 lacs. So the Prothonotary made two requests, firstly to renew the guarantee and/or to deposit amount of Rs. 10 lacs. Thus both the actions were complied by the Prothonotary. Thereafter an attempt was made to renew the bank guarantee. However, Prothonotary did not accept it and advised them to file appropriate proceedings before the court. The Respondent Nos. 5 and 7 filed Notice of Motion No. 2970 of 2006. In this Notice of Motion the Appellant/Plaintiff vehemently opposed for taking a fresh bank guarantee. However, the court having found that it was renewed as earlier and observed that the Prothonotary should have invoked the Bank guarantee. However, those observations appear to be incorrect in view of the contents of the letter dated 16.8.1999 wherein the Prothonotory has invoked the bank guarantee in the absence of renewal of the bank guarantee and therefore, it cannot be said that the 4 Prothonotary has failed in its duty. There is failure on the part of the Bank to obey the terms of the Bank Guarantee wherein they have assured to the Court and especially to the Prothonotary that if the bank guarantee is not renewed, the bank will deposit without any call from the Prothonotary the amount of Rs. 10 lacs. with the Prothonotary and that too without making any demur. This candid assurance given by the Bank has been violated which is unethical in the profession of the business of banking. However, fact remains what to do whether to allow the respondents to give fresh bank guarantee or not. But it appears that the learned Single Judge must have found that because of the bank guarantee, the interim relief was not given and if present Notice of Motion is rejected, then the Plaintiff/Appellant will not have any sort of security or protection which was earlier granted by the court. The court has also found that the orders passed by the Division Bench in Appeal No. 1165 of 1996 have attained finality as against the appellant since the appellant have not taken out any S.L.P. against that order or challenged that order before the appropriate Forum. Thus having found that the Plaintiff/Appellant is helpless, and granting of the motion is in the interest of the Plaintiff and therefore, the Motion was made absolute by the learned Single Judge. 3. Now the learned counsel for the appellant/Plaintiff submits that the order be 5 quashed and he will follow the remedies of getting injunction by filing a fresh motion. It appears that while this motion was pending, the appellant had filed motion for injunction bearing No. 2554 of 2007. However, that was withdrawn with liberty to the appellant to file a fresh motion in the event order dated 11.2.2008 passed in Notice of Motion No.2970 of 2006 (this Notice of Motion from which the present appeal arises) is set aside in the appeal. Therefore, if the present appeal is allowed, then he can file Notice of Motion. But for the present if it is allowed, then the Plaintiff is without any protection which was earlier granted by this court. We therefore, suggested the appellant that the appellant shall make statement that he do not want protection of Rs. 10 lacs. by way of bank guarantee and or invoking the earlier bank guarantee to deposit the amount in the court. However, on instructions, he has stated that he is willing to make such statement. He has also filed written statement to that effect duly signed by the Plaintiff. Thus we find that the protection of Rs. 10 lacs. by way of guarantee which was available since beginning in this suit and which has attained finality in favour of the appellant has been relinquished by the appellant on his own volition. The net result is that the respondents are not under obligation to furnish a bank guarantee and therefore, under these circumstances, namely relinquishment of the rights of claiming bank guarantee by the appellants, the Motion No. 2970 of 6 2006 does not survive for consideration and we dispose of the appeal accordingly and order making the Motion made absolute passed by the learned Single Judge is set aside. The Prothonotary shall return the bank guarantee to the Respondents. In view of the same, Notice of Motion No. 1091 of 2008 also does not survive which is disposed of accordingly. (PRASANNA B. VARALE, J.) (S.B. MHASE,J.)