IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7500/2006 Department of Automic Energy Petitioner Vs. R.B.Industrial Construction Co. Pvt.Ltd. Respondent Shri.R.A.Jahagirdar i/b Shri.K.P.Anilkumar advocate for the petitioner Shri.Kedar D.Soman,advocate for the respondent Coram : A.M.Khanwilkar,J. Date :11.7.2008 P.C. 1] Heard counsel for the parties. Rule. Rule made returnable forthwith by consent .As short question is involved the petition is taken up for final disposal by consent . 2] This petition takes exception to the judgment and decre passed by Ad Hoc Additional District Judge, I,Pune dt.12.10.2006 in Misc.Civil Appeal no.311/2005. By the said order the appellate court has injuncted the petitioners from taking any further action on the basis of notice dt.10.5.2005 issued by the petitioners till the decision of the suit . The said notice dt.10.5.2005 reads thus :- 2 '' Dear Sir(s) , Whereas under Clause 3 of the aforesaid agreement the Engineer -in-charge shall have powers to take action under one or more of the sub-clause 3(a) ,3(b) & 3(c) in theevent of delay or suspension in the execution of the aforesaid work by the contractor so that in the opinion of the Engineer -in-charge (which shall be final and binding) the Contractor will be unable to secure completion of the work by the stipulated date of completion whereas you have delayed the execution of the aforesaid work and as per the opinion of the undersigned ,the Engineer-in-charge (which is final and binding ) ,you will be unable to secure completion of the work by the stipulated date of completion and, and whereas you were served with a show cause notice in this regard under this office No.DCSE/NCCS/PE (PW) RBIC/94 dated 17-3-2005 which has not been replied to the satisfaction of the Engineer-in -Charge by the date specified in the show cause notice ,therefore under powers delegated to me under sub-clause 3(a) ,and 3(c) I Milind Gowardhan the Engineer-in-charge for the aforesaid work under the aforesaid agreement for an on behalf of the President of India ,hereby, (a) Determine /rescind the contract as aforesaid upon which determination/rescission our security deposit stands asolutely forfeited to the Government ,and (b) Take out such part of the work out of your hand ,as remains unexecuted ,for giving it to another contractor to complete the same in which case any expenses which may be incurred in excess-of the sum which would have been paid to you if the whole work had been executed by you in terms of the agreement (the amount of excess certified in writing by the Engineer-in-Charge shall be final and conclusive ) shall be borne and paid by you on demand/or 3 may be deducted from any money due to you by Government under this contract or any other contract whatsoever or from security deposit or the proceeds of sales thereof or a sufficient part thereof as thecase may be without prejudice to the right of the Government to realise said excess amount by suit or otherwise. You are also hereby served with notice to the effect that the work executed by you will be measured up on 16-5-2005 failing which the work will be measured by the departme unilaterally in your absence and result of measurement will be final and will be binding on you . This is without prejudice to Goverment's right to take action under any other clause or sub-clauses of the agreement and to realise Government dues and losses and damges whatsoever under such clauses or sub-clauses. '' 3] The respondent filed the suit for injunction against the petitioners for relief of injunction against the petitioners not to give effect to the aforesaid notice .During the pendency of the said suit the respondent asked for the relief which reads thus : ''The defendants be directed by issuance of temporary injunction under o.39 Rule 1 of C.P.Code restraining the Defendants no.1 to 3 from taking any further action on the basis of letter-cum-notice,dt.10.5.2005 issued by them on plaintiff till the decision of the suit.'' The Trial Court rejected the said application,however, the appellate Court for the first time has granted relief in favour of the respondents 4 in terms of impugned decision .The appellate Court however, granted this relief inpsite of the information placed before it that the notice was already acted upon by the defendants and consequent thereto third party was appointed as a contractor to complete the remaining work taken away from the respondent under the impugned notice. Besides , the appellate Court was also informed that the respondent has already resorted to arbitration proceeding in which all the issues could be addressed . The appellate Court never the less chose to pass interim relief in favour of the respondent which order is the subject matter of challenge in the present petition . 4] Having considered the rival submissions, without burdening this judgment with the reasons recorded by the appellate Court and the authorities referred to therein, I have no hesitation in taking the view that the interim relief claimed by the respondent below Exh.5 had already worked out. For , after the said notice was issued , admittedly the unfinished work was taken away from the respondent and the same was assigned to the third party contractor who in turn has already completed the same. The grievance of the respondent that relying on the abovesaid notice dt.10.5.2005 , the petitioners have invoked the bank guarantee is of no avail . In as much as , the invocation of bank guarantee is a separate cause of action in respect of which the respondents will have to proceed by way of appropriate remedy if so advised. The fact remains that the directions issued in the notice dt.10.5.2005 have already been acted upon in its entirity for 5 which reason the question of granting injunction at subsequent point of time does not arise. 5] Accordingly , this petition succeeds. The impugned judgment and order is set aside. It is , however, made clear that all the contentions on merits available to the parties are kept open to be decided in appropriate proceeding uninfluenced by this order. (A.M.Khanwilkar,J.)