IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 WP(C).No. 1866 of 2007(V) -------------------------------------- PETITIONER(S): ------------------------- SOORAJ ELECTRO APPLIANCES PVT. LTD., REP. BY ITS MANAGING DIRECTOR, K.R.S.PANICKER, 33/2366 B, GEETHANJALI JUNCTION, N.H. BYE PASS, KOCHI. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------------------- 1. ANDHRA BANK LTD., REP. BY ITS CHIEF MANAGER, ERNAKULAM BRANCH. 2. PRESTIGE ONIDA LTD., REP. BY ITS MANAGING DIRECTOR, M.K.GOYAL, DHALWALA INDUSTRIAL ESTATE, RISHIKESH, UTHARANCHAL. R1 BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.1866/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LETTER DATED 24/11/2004 BY 2ND RESPONDENT TO THE PETITIONER. P2 COPY OF THE LETTER DATED 2/1/2005. P3 COPY OF THE LETTER DATED 24/4/2005 FROM THE PETITIONER TO THE 1ST RESPONDENT. P4 COPY OF THE LETTER DATED 26/4/2005 FROM THE PETITIONER TO THE 1ST RESPONDENT. P5 COPY OF THE I.A.NO.1413/2005 BEFORE THE DISTRICT COURT, ERNAKULAM. P6 COPY OF THE INJUNCTION ORDER DATED 26/5/2005 IN IA NO.2382/2005. P7 COPY OF THE ORDER DATED 25/2/2006 IN OS NO.246/2005. P8 COPY OF THE LETTER DATED 19/10/2006 FROM THE PETITIONER TO THE 1ST RESPONDENT. P9 COPY OF THE LETTER DATED 4/1/2007 FROM THE 1ST RESPONDENT TO THE PETITIONER. P10 COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 4/1/2007 TO THE 1ST RESPONDENT. P11 COPY OF THE LETTER DATED 10/1/2007 FROM THE PETITIONER TO 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE BANK GUARANTEE NO.125/2004/036 ISSUED IN FAVOUR OF THE 2ND RESPONDENT DATED 31/12/2004. R1(B) COPY OF THE COMMUNICATION NO.POL/BG-SEAPL/05 ISSUED BY THE 2ND RESPONDENT DATED 21/4/2005. R1(C) COPY OF THE LETTER ISSUED BY THE PETITIONER DATED 28/3/2005. R1(D) COPY OF THE LETTER NO.125/16/BG 036/2005-06 ISSUED TO THE 2ND RESPONDENT DATED 27/4/2005. R1(E) COPY OF THE INJUNCTION ORDER PASSED BY THE HON'BLE DISTRICT COURT, ERNAKULAM(VACATION COURT) DATED 4/5/2005. R1(F) COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 31/12/2005. R1(G) COPY OF THE REPLY NO.125/16/BG 036-04/2005-06 ISSUED TO THE PETITIONER DATED 4/1/2006. /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.1866 OF 2007 ---------------------------------------------- Dated this the 21st day of October, 2011 JUDGMENT The petitioner furnished a bank guarantee through the 1st respondent Bank in favour of the 2nd respondent in respect of certain business dealings between the petitioner and the 2nd respondent. The validity of the bank guarantee expired in December 2005. The petitioner had earlier filed a suit against invocation of the bank guarantee which was withdrawn by the petitioner. Even after the withdrawal of the suit, according to the petitioner, the 2nd respondent did not raise any claim based on the bank guarantee. According to the petitioner now the 2nd respondent cannot invoke the bank guarantee and therefore the 1st respondent Bank is liable to be directed to cancel the bank guarantee. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a writ of mandamus or other appropriate writ, order or direction commanding 1st respondent to treat the bank guarantee arranged by the petitioner in favour of the 2nd respondent and mentioned in Ext.P9 as cancelled and to release the margin money deposit endorsed for W.P.(C)No.1866/07 2 arranging bank guarantee. ii) Pass an order declaring that the bank guarantee arranged by the petitioner and mentioned in Ext.P9 to P11 in favour of the second respondent has become unenforceable and that respondents have no right to initiate any proceedings against petitioner or others based on the bank guarantee. iii) Issue a writ of mandamus or other appropriate writ, order or direction commanding 1st respondent to release the deposits in favour of the petitioner's children endorsed in its favour for arranging bank guarantee.” 2. Initially, notice to the 2nd respondent was taken out by publication in the newspapers. Subsequently, as directed by me, the petitioner took out notice to the 2nd respondent in the correct address. The same was returned with the postal endorsement 'refused to accept'. It is pursuant to the same this matter comes up for hearing before me today. Insofar as the beneficiary of the bank guarantee is the 2nd respondent and the 2nd respondent is no more interested in the bank guarantee and even refused to accept notice issued by this Court, I am inclined to allow the writ petition. Accordingly, the writ petition is allowed as prayed for. S. SIRI JAGAN, JUDGE acd W.P.(C)No.1866/07 3 W.P.(C)No.1866/07 4