JUDGMENT :

N.ANAND VENKATESH, J.

The second defendant in the suit has filed this second appeal against the judgment and decree dated 30.01.2006 made in AS No.196/2004 on the file of the 2^nd Additional Sub Court, Trichy modifying the judgment and decree passed by the Principal District Munsif, Trichy in OS No.196/2000 dated 13.07.2004.

2. The first respondent/plaintiff filed the suit with a cause of action that they were successful tenderer. Pursuant to which, they entered into a contract with the first defendant on 22.05.1990. As per the agreement, the construction must be completed at a cost of Rs.77,37,814/-. As per the agreement, the Contractor should submit to the Corporation a bank guarantee in the prescribed form and which is equivalent to 5% of the contract value to ensure due and proper execution of the contract. In consonance with the same, the bank guarantee was executed and it was obtained from the appellant bank.

3. There was a dispute between the plaintiff and the first defendant due to delay and non payment of the amounts after the bills were raised. While so, the first defendant started taking steps to invoke the bank guarantee. Hence, the suit came to be filed seeking for the relief of permanent injunction restraining the first defendant from invoking the bank guarantee and receiving the payment from the second defendant and also a permanent injunction restraining the 2^nd defendant bank from making the payment of the amount mentioned in the bank guarantee.

4. The first defendant filed written statement and took a stand that the plaintiff had stopped the work abruptly and as per the agreement, the plaintiff was liable for the damages and loss incurred by the first defendant. Hence, the agreement specifically provided for invocation of the bank guarantee and accordingly, the first defendant has invoked the bank guarantee and that there was no fraud played by the first defendant and accordingly, the first defendant sought for dismissal of the suit.

5. The 2^nd defendant bank took a stand that they acted as per the terms and conditions of the bank guarantee and that they have no say insofar as the dispute between the plaintiff and first defendant.

6. The trial Court passed the judgment and decree dated 13.07.2004 by directing the first defendant to deposit the entire amount towards bank guarantee before the 2^nd defendant bank.

7. Aggrieved by the judgment and decree passed by the trial court, both the plaintiff and the first defendant filed appeals in AS No.196/2004 and 178/2005 respectively.

8. The first appellate Court, by a common judgment dated 31.01.2006, allowed the appeal filed by the plaintiff and directed the second defendant bank to repay back the amount of Rs.3,87,000/- with interest at the rate of 6% per annum from 08.08.1995 till date of actual payment. Insofar as the appeal filed by the first defendant, the same was dismissed. Aggrieved by the judgment passed in favour of the plaintiff in AS No.196/2004, the present appeal has been filed before this Court

9. When the second appeal was admitted, the following substantial questions of law was framed:

“1.Whether the decree of the lower appellate Court by directing the appellant to repay the amount voluntarily paid by the first respondent is according to law?

2. Whether the first respondent is not estopped from claiming the amount from the appellant?

3. Whether the lower appellate Court has got the jurisdiction for granting reliefs to the first respondent without any plea, claim, without framing any issue and without payment of Court fees?”

10. This Court carefully considered the submissions made on either side and perused the materials available on record.

11. The case in hand is one in a kind since it started with a particular cause of action and took a completely different trajectory when the first appellate Court passed judgment wherein the entire scope of the suit was expanded in the name of moulding the relief. The reason for making such a comment will get more cle