1. The above Suit is filed by the Plaintiff for declarations that: (i) the Suit Bank Guarantee has ceased to be operative and that the first Defendant is not bound to make any payment thereunder; (ii) the first Defendant is not entitled to recover the amounts that may be paid by it under the Suit Bank Guarantee to the second Defendant from the Plaintiff and debit the account of the Plaintiff towards the same and (iii) the first Defendant’s demand made on the Plaintiff vide their email dated 4th December 2012 is wrongful, non-est and of no effect whatsoever and not binding upon the Plaintiff. The Plaintiff has also sought a permanent injunction restraining the first Defendant from making payment to the second Defendant purportedly due under the Suit Bank Guarantee and for restraining the Defendant No.1 from demanding payment from the Plaintiff and/or debiting the account of the Plaintiff towards payment that may be made under the Suit Bank Guarantee, and/or in any way acting in furtherance of the e-mail dated 4th December 2012.

2. The Plaintiff has also taken out the above Notice of Motion in the Suit seeking an order restraining the Defendant No.1 (Bank) from claiming or demanding payment from the Plaintiff or debiting the account of the Plaintiff towards payment that may be made under the Suit Bank Guarantee and/or in any manner acting in furtherance of the e-mail dated 4th December 2012 and also restraining Defendant No.1 from making any payment to Defendant No.2 of any amount under the Suit Bank Guarantee.

3. According to the Plaintiff, the demand made by Defendant No.2 on Defendant No. 1 for payment under the Suit Bank Guarantee is after the Bank Guarantee ceased to be operative. The Plaintiff in fact has completed construction of the Container Terminal, as acknowledged by the Independent Engineer, which acknowledgement is binding on Defendant No.2 as per the terms of the License Agreement and therefore the question of invoking the Bank Guarantee does not arise and the invocation is therefore not in terms or is beyond the terms of the Bank Guarantee (Cl. 2 (d) of Plaintiff's letter dated 5th December 2012 to Defendant No.1 Bank). According to the Plaintiff, the Defendant No.1 Bank is therefore not obliged to make any payment and consequently is not entitled to demand payment from the Plaintiff of any amount that may be paid under the Suit Bank Guarantee by Defendant No.1 to Defendant No.2. Hence the Plaintiff is entitled to the reliefs as prayed for in the Notice of Motion.

4. The facts as narrated by the Plaintiff in the Plaint are briefly set out herein:

5. Pursuant to the mechanization/modernization initiative of the Central Government, on 22nd January 2004, the second Defendant-the Board of Trustees of Kandla Port, floated a global Notice Inviting Tender (“NIT”) for the development, operations, management and maintenance of Berths 11 and 12 in Kandla Port as Container Terminal on Build, Operate and Transfer (“BOT”) basis for a period of 30 years (“the Project”).

6. The Request for Qualification Document (“RFQ”) was issued by the second Defendant to M/s. ABG Infralogistics Limited (“bidder”). The bidder submitted its application/request for qualification in terms thereof. Thereafter the second Defendant informed the bidder that its application/request for qualification has been found acceptable and issued a Request For Proposal Document (“RFP”) on 16th April 2004. In terms of the RFP, the Plaintiff was required to furnish to the second Defendant a Performance Bank Guarantee, to secure the due and faithful performance of its obligations under the License Agreement dated 23rd June 2006 executed between the second Defendant and the Plaintiff (“License Agreement”) till commencement of full-fledged commercial operations at Berth No. 12 in terms of the License Agreement. Accordingly the Bank Guarantee bearing No. 0040100002089 dated 20th June 2006, for a sum of Rs. 9,50,00,000/- (Rupees Nine Crores Fifty lakhs on