JUDGMENT - R.G. VAIDYANATHA, J. :---This is a suit for recovery of money on the basis of contract of guarantee. Defendant No. 2 has contested the suit by filing Written Statement. The other defendants have not filed any Written Statement and have not taken part during trial. Second defendant has also taken a third party notice to all the defendants. But the notice was served only on defendants Nos. 1 3. The other defendants have not been served. Both the plaintiff and the second defendant have not adduced any oral evidence. Both parties have filed some documents, which have been marked by consent. The plaintiff's documents are marked as Exhibit A to Exhibit Z and Exhibit A1 to Exhibit AA. Second defendant's documents are marked as Exhibit 1 to 21. In fact some of the exhibits are common. I have heard the learned Counsel for the plaintiff and the learned Counsel for the second defendant.

2.The plaintiff's case is as follows :---

The plaintiff is Union Bank of India, which is a Nationalised Bank. The defendant No.1 is a partnership firm of which defendants Nos. 3 to 6 are partners. The First defendant-firm had entered into an agreement with the Government of Maharashtra for construction of bridge. In connection with that contract, the first defendant was required by the Government to give cash security deposit or a bank guarantee in a sum of Rs. 34,280/-. Hence, the first defendant approached the plaintiff-Bank for a bank guarantee. The plaintiff agreed and issued a bank guarantee in favour of the Government of Maharashtra, dated 7th August, 1969. The guarantee has been renewed from time to time. On the request of first defendant, Vulcan Insurance Co. Ltd. entered into a guarantee policy with the first defendant undertaking to pay whatever amount the plaintiff-Bank incurs in honouring bank guarantee in favour of the Government of Maharashtra, The said policy is being extended from time to time. It is stated that the present second defendant namely United India Fire General Insurance Co. Ltd. is the successor in interest of Vulcan Co. Ltd. The Executive Engineer of Ratnagiri District, State of Maharashtra by a letter dated 5th December, 1975 invoked the bank guarantee and called upon the plaintiff to make payment of Rs. 34,280/-. Then there was correspondence between the plaintiff and defendant No. 1 and 3 to 6. The first defendant was called upon to make payment. The first defendant took time to get the matter settled with the Government. After some correspondence, the plaintiff was obliged to make payment to the Government of Maharashtra as per the conditions of Bank guarantee. The plaintiff-Bank called upon the second defendant to make payment of sum of Rs. 34,280/- which it had paid to the Government of Maharashtra. But the second defendant did not comply with the plaintiff-Bank's demand. Since, the defendants have failed to reimburse the money to the plaintiff, the plaintiff-Bank has filed this suit for recovery of Rs. 34,280/- with costs.

3.The second defendant who is the only contesting defendant in this suit has filed Written Statement. It is stated that the suit is bad for misjoinder of parties and causes of action. The contract between the first defendant and the Government of Maharashtra and the contract between the plaintiff and first defendant are admitted. The correspondence between the parties is admitted. However, it is stated that on getting plaintiff-Bank's letter, the first defendant wrote to the plaintiff asking him not to make any payment to the Government, since the Government itself is due money to the first defendant. In spite of protest by the first defendant, the plaintiff-Bank paid money to the Government of Maharashtra. This payment is unjustified. Plaintiff called upon the second defendant to reimburse the said amount. In the letter of the Executive Engineer, invoking the bank guarantee, there is no allegation of any default on the part of the first defendant regarding the contract work. Hence, ther

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