1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2983 OF 2009 Prince Electricals & ors. ....Petitioners vs 1. Rashtriya Chemicals & Fertilizers ltd. & anr. ....Respondents Mr. P.S. Dani for the Petitioners. Mr. O.A. Das for the Respondent No.2. Ms. Prachi Mhatre i/b M.S. Bodhanwala for the Respondent No.1. CORAM : S.J. VAZIFDAR, J. DATE : 15TH FEBRUARY, 2010. P.C. :- 1. The learned Judge has rightly rejected the application for injunction restraining payment under a bank guarantee. A grant of injunction would result in a miscarriage of justice. 2(A). At the request of the Petitioners, the second Respondent -bank issued a performance guarantee. Respondent No.1 invoked the 2 guarantee by a letter dated 2nd February, 2001. On 3rd February, 2001, the Petitioners filed Regular Civil Suit No.18 of 2001 before the learned Civil Judge, Junior Division. An ad-interim injunction restraining payment under the bank guarantee was issued on 3rd February, 2001 itself. (B). The Petitioners then adopted a convenient strategy. They withdrew Regular Civil Suit No.18 of 2001 on 22nd October, 2008. The withdrawal of the Suit, in fact, immediately revived the invocation dated 2nd February, 2001 which had been kept in abeyance by the ad-interim order dated 3rd February, 2001. 3. On 14th November, 2008, Respondent No.1 once again called upon the second Respondent-bank to make payment under the said bank guarantee. In view thereof, the Petitioners filed another suit in which an interim application was taken out to restrain payment under the said bank guarantee, this time on the ground that the bank guarantee had expired by efflux of time. The impugned order rightly rejected the interim application to restrain payment under the guarantee on the ground that it has expired. 4. The Petitioner has not even produced the bank guarantee in 3 this court. It is contended that the bank guarantee contains a clause to the effect that if the same is not invoked within the period mentioned therein, the bank would not be liable to make payment thereunder. 5. I will assume that such a clause exists in the bank guarantee. It would make no difference. The bank guarantee had admittedly been invoked on 2nd February, 2001, within the period stipulated in the bank guarantee. The only reason that the second Respondent-bank did not make payment thereunder was the said interim order dated 3rd February, 2001, passed in Regular Civil Suit No.18 of 2001. That Suit, as stated above, was withdrawn. The injunction thereupon came to an end. There was no need for the first Respondent to even invoke the bank guarantee afresh. The second Respondent-bank was bound and liable to make payment in view of the letter of invocation dated 2nd February, 2001. The invocation of the guarantee was not set aside. The effect thereof was not affected in any manner. 6. Any other view would really put a premium on the Petitioners attempt to take advantage of the interim orders obtained. 7. In the circumstances, the Writ Petition is dismissed with costs, fixed at Rs.2,500/-, payable on or before 31st March, 2010. 4 8. This order is stayed upto and including 15th March, 2010.