( 1 ) APPEAL from order No. 130 of 2002 is at the instance of the original plaintiff in Civil Suit No. 4068 of 2001, which has been filed against the order dated 23rd January 2002 passed by the City Civil Court below Application Exhibit 5 (Notice of Motion) in the Civil Suit No. 4068 of 2001.

( 2 ) APPEAL from Order No. 281 of 2002 has been filed against the order dated 23rd January 2002 passed by the City Civil Court below Application Exhibit 5 (Notice of Motion) in Civil Suit No. 4068 of 2001. This appeal is at the instance of original defendant no. 1 in the aforesaid suit.

( 3 ) SINCE in both the appeals the challenge is against the very same order, both the appeals are heard together and disposed of by this common judgement.

( 4 ) M/s Adani Exports Limited (hereinafter referred to as AEL or plaintiff) had filed Civil Suit No. 4068 of 2001 before the City Civil Court, Ahmedabad against Marketing Services Incorporated (hereinafter referred to as MSI or defendant no. 1), Abu Dhabi Commercial Bank Ltd. (hereinafter referred to as the Bank or defendant no. 2) and Falcon Express Lines Incorporated (hereinafter referred to as FELI or defendant no. 3) praying for declaration that MSI and FELI have defrauded AEL and the Bank by concocting false documents and by mentioning false dates on the Bill of Lading and other documents and therefore, it is not entitled to get released any payment represented by L/c No. ILCU 100012 dated 9. 5. 2001 from the Bank on the maturity date and restrain MSI from receiving any payment and further restraining the Bank from releasing any payment on the said L/c issued by the Bank in favour of MSI amounting to US$ 409024. 50 by a permanent injunction of the Court.

( 5 ) MSI is engaged in the business of selling Reginned Cotton and it has its branch in China. MSI wanted to sell the Reginned Cotton (hereinafter referred to as the said goods) made in USA to AEL and Adani Global Ltd. (hereinafter referred to as AGL) and therefore sent samples of the goods to AGL through its China office prior to 18. 04. 2001. On the basis of the said samples, AGL entered into contract with MSI on 18. 4. 2001 for purchase of 100 MTs of the said goods to be supplied by MSI. Accordingly AEL entered into a contract to buy 500 MTs (+/-5%) of the said goods from MSI on or about 25. 04. 2001. It was agreed by MSI that the goods to be purchased by AEL and AGL would resemble the sample already supplied by MSI. As per the agreement the payment for purchase of the said goods was to be made by irrevocable Letter of Credit.

( 6 ) THUS, according to AEL, since the transaction between the AEL and the MSI is "sale by sample" the MSI was duty bound to permit AEL to have inspection of the goods before supplying the same. The allegation is that MSI has adopted unfair trade practice of sending the goods of the quality which was not in accordance with the sample sent to AEL by MSI and therefore MSI has committed fraud upon the AEL. In view of this the aforesaid suit came to be filed by AEL against MSI and others stating that MSI and FELI have defrauded the AEL as well as the Bank, by concocting false documents and by mentioning false date of bill of lading and other documents. According to AEL, MSI is not entitled to get released any payment represented by Letter of Credit from the Bank on its maturity.

( 7 ) THE AEL has also filed Notice of Motion being Exh. 5/6 praying for interim injunction restraining MSI from receiving any payment and the Bank from releasing any payment on passing of the Letter of Credit issued by the bank in favour of MSI.

( 8 ) THE learned Judge of the City Civil Court by his order dated 23rd January 2002 allowed the notice of motion. The operative part of the said order reads as under: "the Notice of Motion exhibit-5/6 is hereby allowed. The interim order dated 3-9-2001, is made abslute till final disposal of the suit on the following conditions upon the plaintiff:- (1) to continue the validity of the Let