The amendments sought for are necessary as the subsequent event of the bank guarantee being invoked in January, 2020 has a real nexus to the original cause of action as pleaded in the un-amended plaint.

JUDGMENT

1. The Court : This is an application for amendment of the plaint filed by the plaintiffs for bringing certain subsequent events on record. The proposed amendments includes a tabulation claiming additional amounts and averments outlining what the plaintiffs say are events subsequent to the stage at which a Division Bench of this Court confirmed an order of a Single Judge allowing an application for amendment filed by the plaintiffs and the Supreme Court confirmed the judgment of the Division Bench setting aside the injunction on the invocation of the Bank Guarantee.

2. Mr. Samrat Sen, learned senior counsel appearing for the plaintiffs/petitioners gives a brief outline of the facts leading to the plaintiffs filing a suit in 2014 for a declaration that the notices dated 3r d July, 2013 etc. of the defendant railways for invoking the bank guarantee be declared illegal, null and void. The threat of invoking the bank guarantee arose out of the plaintiffs inability to perform a contract due to certain structural impediments. Counsel submits after the plaintiffs filed a suit, the defendants terminated the contract and issued a fresh tender inviting participation from other contractors from which the plaintiffs were disqualified. This made it necessary for the plaintiffs to file an application for amendment of the plaint which was allowed by an order dated 4t h May, 2017. The Division Bench by its order of 13t h June, 2017 confirmed the order allowing amendment on the ground that the subsequent events had a connection to the original cause of action pleaded in the plaint. Mr. Sen also places the judgment of a Single Bench dated 10t h November, 2017 where the injunction obtained by the plaintiffs on the invocation of the bank guarantee was confirmed and the order of injunction restraining the defendant no.1 from encashing the bank guarantee was directed to continue subject to certain conditions. The Division Bench by its judgment dated 30t h September, 2019 set aside the order of the Single Bench on the ground that the plaintiffs (respondents before the Division Bench) could not make out a case of fraud. The plaintiffs were unsuccessful before the Supreme Court where the Special Leave Petition was dismissed on 13t h December, 2019. On 9t h January, 2020, the defendant railways invoked and encashed the bank guarantee for a sum of Rs.61,53,350/-. Counsel submits that the events subsequent to the order of the Supreme Court are required to be brought on record by way of the proposed amendments since the issue of the invocation of the bank guarantee in January, 2020 is required to be considered at the time of trial.

3. Mr. P.S. Bose, learned senior counsel appearing for the defendant railways opposes the application by relying on the judgment of the Division Bench dated 30t h September, 2019 by which the judgment confirming the order of injunction on invocation of the bank guarantee was set aside. Counsel relies on the views expressed by the Division Bench that the agreement for bank guarantee is an independent agreement and further that a party alleging breach of the terms of the contract would only be entitled to damages. Counsel submits that the bank guarantee was invoked in January, 2020 after the Division Bench judgment and the order of the Supreme Court held that the injunction which had been operating since November, 2017 cannot be sustained. It is submitted that the plaintiffs cannot be permitted to reopen the issue of invocation of the bank guarantee after the decision of the Division Bench was confirmed by the Supreme Court. Counsel relies on Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others reported in (2009) 10 Supreme Court Cases 84 which held that an amendment can only be allowed where the Court has to determine the real question in controversy and where a party faces potential prejudice or injustice.

4. Upon considering the submissions of learned counsel appearing for the parties, two issues are