( 1 ) IN the suit plaintiff filed I. A. No. 12021/2000 under Order 39 Rules 1 and 2 read with Section 151 Civil Procedure code for issue of ad-interim injunction restraining Union of India, defendant No. 2 from encashing financial bank guarantees No. IIBLND/bg/f/96/0008 dated 28/2/1996 as renewed from time to time in the sum of Rs. 1,59,83,000. 00 or in the alternative, restraining Indus Ind. Bank Ltd, defendant No. 1, from releasing any amount to defendant No. 2 against the said financial bank guarantee. In the reply filed to application by defendant No. 2 one of the preliminary objections raised is that plaintiff, concerning the same subject-matter, had instituted Suit No. 564/97 which was withdrawn on 5/03/1998 without seeking liberty to file fresh suit on the same cause of action and the suit is, therefore, barred under Order 23 Rule 1 Civil Procedure code.

( 2 ) I have heard Sh. A. S. Chandhiok, Senior Advocate for plaintiff and Sh. U. Hazarika for defendant No. 2 on the ground of alleged non-maintainability of present suit under Rule 1 (4) of Order 23 as also it being barred by Section 15 of the Telecom regulatory Authority of India Act, 1997 as amended by Act 2 of 2000.

( 3 ) ADMITTEDLY, Suit No. 564/97 filed on 19th Marh 1997 by the plaintiff against indus Ind. Bank Ltd. , and Union and India, defendants was dismissed as withdrawn unconditionally by the order dated 5/3/1998 taking note of the statement made by Sh. Mukul Rohtagi, Senior Advocate that as plaintiff has filed petition before TRAI it does not wish to proceed with the suit. In the decision in Vallabh Das v. Dr. Madan lal and Ors. , (1971) 1 SCR 211 relied on behalf of defendant No. 2 in test laid down by supreme Court as to the expression subject- matter as used in Rule 1 (4) of Order 23 civil Procedure code was that unless the cause of action and relief claimed in second suit are the same as in the first suit it cannot be said that subject-matter of the second suit is same as in the previous suit. For ascertaining if the subject-matter in the present suit and said Suit No. 564/97 is the same or not, a brief reference to the averment made in plaints of this suit and Suit No. 564/97 has become necessary. It is, inter alia, alleged in this suit that plaintiff is a Public Limited Company incorporated under the Companies act, 1956. Union of India in the Department of Telecommunications vide tender No. 44-113/94-MMT invited tenders for the purpose of introducing Radio Paging services in 18 different territorial circles of India including Rajasthan except Jaipur. Due date of submissions of tender was 5/04/1994 which was extended to 10/05/1994. The tender provided for two stage bid. In the first stage, evaluation was to be done on the basis of technical specification, commercial and eligibility conditions. In the second stage, short listed bidders were to submit financial bids indicating the bid amount to be paid to the Department of Telecommunications for the purpose of licence being granted. In case an Indian company was not having experience by itself, the bid contemplated that it could have a foreign partner who may have the requisite experience but such a foreign partner should have an equitable participation in Indian company of atleast 25%. It is alleged that plaintiff qualified at the technical bid stage as also financial bid stage and was awarded licence for Rajasthan circle by issue of letter of intent by the Department of Communications on 27/10/1995. Thereafter on 29/02/1996 a licence agreement was signed between the plaintiff company and Department of Telecommunications initially for a period of 10 years in consideration of payment of licence fee and due performance of the term and conditions of agreement as also observance of mutual covenants. Contents of condition Nos. 1. 4,4. 1, 4. 2, 6, 18. 1 (c) and 18. 1 (e) etc of Part II, Schedule "b" to the licence agreement have been set out. It is further alleged that defendant No. 1 bank ga