A third party cannot apply for vacation, variation, and/or setting aside of an ex-parte injunction order without being impleaded as a party to the suit.

Harish Tandon, J.

1. It would be unnecessary to go into extensive details of the facts as pure question of law is raised at the time of entertaining G.A. No. 2628 of 2009 filed by Deutsche Bank for vacation, variation and modification of interim order passed in the suit without seeking its impleadment and/or addition as party in the suit.

2. In a suit for declaration that the Respondent No. 1 is not liable to make any payments under the letter of credit dated 22nd May, 2008 for a sum of US$1912756.57 for supply of 3340.495 metric tons of French Yellow Peas under the commercial invoice dated 15th September, 2008 and the Respondent No. 2 is not entitled to any payment under the said Letter of Credit and cancellation thereof, an order of temporary injunction was passed, on January 16th, 2009, after recording the existence of prima facie case of fraud and balance of convenience and/or inconvenience lies in favour of the Petitioner in terms of Prayer ‘A’ to the application which is set out herein below:-

“An order of injunction restraining the respondent no. 1 from making any payment or reimbursing the bankers of the respondent no. 2 any sums under the Letter of Credit dated 22nd May, 2008;”

3. It is not in dispute that the said order was extended from time to time and is still in force. The Deutsche Bank, the applicant in G.A. No. 2628 of 2009 took out an application claiming following reliefs:-

(a) The said interim order dated January 16, 2009 passed by this Hon’ble Court be vacated and/or set aside;

(b) The said interim order dated January 16, 2009 passed by this Hon’ble Court be suitably varied and/or modified and/or clarified;

(c) The defendant No. 1 be directed to release and make payment of the said US$ 1,912,756.57 equivalent to Rs. 93,094,086.71 forthwith in terms of the said Letter of Credit dated May 22, 2008;

(d) Ad interim order in terms of prayers above;

(e) Cost of and/or incidental to this application be paid by the plaintiff;

(f) Such further or other order or orders be passed and/or direction or directions be given as to Your Lordship may deem fit and proper.

4. Essentially, the said application is taken out for variation, vacation and/or setting aside the order dated January 16, 2009 without seeking addition and/or impleadment as party in the suit.

5. The point which emerges whether the stranger or third party to the suit can apply for vacation, variation and/ or setting aside the ex-parte order without being impleaded as party therein.

6. According to the learned Advocate representing the Plaintiff, the application for variation, vacation and/or setting aside the ad interim order was passed under Order 39, Rule 1 and 2 of the Code of Civil Procedure which can only be taken out by any party to the suit under Rule 4 Order 39 of the Code and not by a stranger or a third party. In support of the aforesaid contentions, the reliance is placed upon a judgment of the Bombay High Court in case of Madhavji Jeyram Kotak & Others v. Lay Laxmi Gopalji Surji & Others, reported in (2007) 5 Mah. LJ 797. It is further submitted that the party referred under Order 39, Rule 4 of the Code is referable to a party to the suit and therefore an application at the instance of a third party or stranger is neither maintainable nor entertain able by the Court. On merit it is submitted that though normally the Court does not pass an order of injunction against the invocation of bank guarantee or Letters of Credit, but the same is not a rigid rule. It is, thus, submitted that in case of a fraud or of a like nature, the Court, in a given circumstances, can issue injunction against the bank guarantee or Letters of Credit. To buttress the aforesaid submission the several judgments are placed before the Court. It is, thus submitted that it would be apparent that a fraud has been practised for issuing a Letter of Credit and was made known to the applicant as well.

7. On the other hand, the Deutsche Bank submits that an application for variation, vaca