K.S Gupta, J.— In the suit plaintiff filed I.A No. 12021/2000 under order 39 rules 1 & 2 read with section 151 cpc 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 28th February 1996 as renewed from time to time in the sum of Rs. 1,59,83,000/- 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objections raised is that plaintiff, concerning the same subject-matter, had instituted Suit No. 564/97 which was withdrawn on 5th March 1998 without seeking liberty to file fresh suit on the same cause of action and the suit is, therefore, barred under Order 23 Rule 1 CPC.

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 Mach 1997 by the plaintiff against Indus Ind. Bank Ltd., and Union and India, defendants was dismissed as withdrawn unconditionally by the order dated 5th March 1998 taking note of the statement made by Sh.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 & 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 CPC 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 5th April 1994 which was extended to 10th May 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 27th October 1995. Thereafter on 29th February 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 gave financial bank guarantee No. IIBL/ND/BG/F/96/0008 dated 28th February 1996 for Rs. 1,59,83,000/- at the request of plaintiff in favour of defendant No. 2. By the letter dated 18th March 1997 the defendant No. 2 invoked this bank guarantee for payment of Rs. 99,62,454/- towards quarterly licence fee allegedly falling due on 17th November 1996 and 17th February 1997 together with penal interest thereon. Aggrieved by this letter the plaintiff moved this court by filing Suit No. 564/97 in March 1997 praying that defendant No. 2 be restrained from encashing said financial bank guarantee and, in the alternative, defendant No. 1 be restrained from releasing any amount to defendant No. 2 thereunder. It is pleaded that on 5th March 1998 this suit was withdrawn by the plaintiff to move Telecom Regulatory Authority of India (for short ‘TRAI’) in view of Section 27 of the Telecom Regulatory Authority of India Act, 1997. The plaintiff filed petition No. 9/97 before the said authority praying for stay of aforesaid letter dated 18th March 1997 as also letter dated 11th December 1996 hearing No. 843-68/94-VAS threatening to terminate the licence agreement dated 29th February 1996 in regard to Rajasthan circle. On 5th March 1998 said authority restrained the Union of India from encashing said financial bank guarantee till further orders. However, on 20th January 2000 stay granted on 5th March 1998 was vacated by the authority taking note of the judgment of this court in Union Of India v. Telecom Regulatory Authority Of India., 1998 (46) DRJ 557. Meanwhile, a different authority in place of TRAI has come into existence which is yet to be constituted and presently there is no forum for adjudication of the dispute raised by plaintiff. It is stated that defendant No. 2 has further issued letter dated 15th November 2000 referring to its earlier letters dated 18th March 1997, 18th February 1998 and 17th February 2000 under which they claim to have lodged claim against the said financial bank guarantee dated 28th February 1996. It is asserted that letters dated 18th March 1997 and 15th November 2000 are contrary to law. The defendant No. 2 has failed to performa its part of obligations under the licence agreement dated 29th February 1996 nor had it sent any demand notice before issuing the letter dated 15th November 2000. It is further alleged that as per clause 18.6 of said licence agreement, if due payment was not received in time for a maximum period of 3 months notice of termination of contract would be deemed to have been served on the date the payment became due. Since payment under the licence agreement allegedly became due on 27th November 1996 the licence stood terminated on 27th February 1997. Therefore, defendant No. 2 could not have invoked said financial bank guarantee by aforesaid letters dated 18th March 1997 and 15th November 2000. Moreover, said financial bank guarantee had lapsed on 17th February 2000 as it was not further extended by plaintiff company. Thus on 15th November 2000 when defendant No. 2 invoked the financial bank guarantee there was no bank guarantee in existence in favour of defendant No. 2. It is also alleged that plaintiff applied for SACFA approval well within the time allowed for start of paging service in Rajasthan circle but it did not receive approval upto the date of termination of licence agreement. The plaintiff was thus prevented from implementing the services due to delay on the part of Department of Telecommunications and on this ground also invocation of bank guarantee by said two letters is not in accordance with law. It is further alleged that quality of service to be provided by the licencee under the licence agreement dated 29-02-1996 was intrinsically inter-related with the availability of frequencies desired by the licencee. The plaintiffs made applications to WPC Wing of Ministry of Communications in October and December 1996 and the Ministry has still not allotted the frequency to it. This threw the project of plaintiff company out of gear and delayed commissioning of the project on its part. It is stated that subject financial bank guarantee can be invoked by defendant No. 2 only in case of loss or damage suffered by it and defendant No. 2 which breached the agreement, cannot be said to have suffered any loss or damage. It is maintained that if defendant No. 2 is permitted to encash the bank guarantee the same would result in irretrievable injury to the plaintiff. It was prayed that decree of permanent injunction be passed in favour of the plaintiff and against defendant No. 2 restraining the later from encashing aforesaid bank guarantee dated 28-02-1996. In the alternative, decree of permanent injunction be passed restraining defendant No. 1 from releasing any amount to defendant No. 2 against the said bank guarantee.

4. It is pertinent to mention that allegations made in Paras 8, 9 and 25 of the plaint in present suit are reproduction of the averments made in Paras 3, 4 and 11 of said Suit No. 564/97 with minor additions and/or deletions. Further, some of the sub paras of Para 24 of the plaint in present suit have been bodily lifted from Para 10 of the plaint in Suit No. 564/97. Indus Ind. Bank was impleaded defendant No. 1 while Union of India as defendant No. 2 in said Suit No. 564/97. Prayers made in present suit in Para 33 of the plaint are verbatim reproduction of the prayers made in Para 20 of said Suit No. 564/97.

5. Submission advanced on behalf of plaintiff was that the letter dated 17th February 2000 extinguished the cause of action arising out of earlier invocation of financial bank guarantee in question and the letter dated 15th November 2000 has furnished fresh cause of action to file suit to the plaintiff. During the course of argument copies of letters dated 17th February 2000 and 18th February 1998 have been placed on file on behalf of defendant No. 2. These letters as also said letter dated 15th November 2000 were issued on behalf of defendant No. 2 to defendant No. 1 bank. Omitting immaterial portions, letter dated 17th February 2000 which is material, is reproduced below:—

“Sub: Financial Bank Guarantee No. IIBL/ND/BG/F/96/0008 dated 28.2.96 for Rs. 1,59,83,000/- issued by your Bank on behalf of Modi Korea Telecom Limited, New Delhi-110020.

Kindly refer to this office letter of even No. dated 18.2.1998 on the above subject. We hereby reiterate our claim lodged therein. You must await further instructions from us regarding payment of the proceeds.”

6. Relevant portion of aforesaid letter dated 15th November 2000 (on page 148) which is also material, runs as follows:—

“Sub: Financial Bank Guarantee No. IIBL/ND/BG/F/96/0008 dated 28.2.96 for Rs. 1,59,83,000/- issued by your Bank on behalf of Modi Korea Telecom Limited, New Delhi -110020.

Kindly refer to this Office letter of even Number 183.97; 18.2.1998 and of 17.2.2000 under which we have lodged our claim on the above mentioned guarantee.

2. Now consequent upon termination of the licence agreement retrospectively and finalisation of Accounts, a sum of Rs. 1,30,04,345/- is found outstanding from the above mentioned licencee which you are liable to pay under the terms of the above mentioned guarantee.

3. Accordingly, you requested arrange payment of the same through a Pay Order drawn in favour of “Pay and Accounts Officer (HQ), Department of Telecom” and to send the same to this Office immediately but, in any case, not later than 14.00 hours on 16.11.2000, so as to enable us discharge and return the guarantee document.”

7. Letter dated 17th February 2000 was sent with reference to defendant No. 2's previous letter dated 18th February 1998 which was issued in continuation of letter dated 18th March 1997 by which subject financial bank guarantee was invoked by defendant No. 2. A bare reading of above letter dated 17th February 2000 would show that while reiterating previous invocation of subject financial bank guarantee by defendant No. 2, the defendant No. 1 bank was told to await further instructions from defendant No. 2 regarding remittance of the amount thereof. Submission that this letter extinguished the cause of action arising out of earlier invocation of bank guarantee thus being contrary to the contents thereof, deserves to be repelled being without merit.

8. While elaborating later limb of argument, referred to above, the submission was that aforementioned letter dated 15th November 2000 notices the termination of licence agreement retrospectively, finalisation of accounts, and thereafter amount of Rs. 1,30,4345/- being found payable by the plaintiff to defendant No. 2 and none of these causes were in existence at the time Suit No. 564/97 was instituted by the plaintiff. It was further pointed out that in terms of the letter dated 18th March 1997 financial bank guarantee was invoked for an amount of Rs. 99,62,454/- while in the letter dated 15th November 2000 amount for which bank guarantee is sought to be invoked is Rs. 1,30,4345/-. It is pertinent to note that the subject of letter dated 15th November 2000 is not the invocation of financial bank guarantee in question but only a request is made to defendant No. 1 bank to remit the amount noted therein of the bank guarantee already revoked by defendant No. 2. Further, through another letter dated 18th February 1998 claim for Rs. 60,30,546/- was lodged by defendant No. 2 with defendant No. 1 bank over and above the amount of Rs. 99,62,454/- for which bank guarantee in question was invoked by defendant No. 2 by the letter dated 18th March 1997. Neither said letter dated 18th February 1998 nor termination of licence agreement are the subject-matter of challenge in present suit. Amount referred to in the letter dated 15th November 2000 is lesser compared to that noted in the letter dated 18th February 1998. Therefore, in my opinion, aforesaid letter dated 15th November 2000 would not furnish fresh cause of action to the plaintiff as urged.

9. It was next contended on behalf of plaintiff that Suit No. 564/97 was got dismissed as withdrawn in view of the objection taken by defendant No. 2 in the written statement that suit was not maintainable in view of bar of civil courts under Section 15 of the said Act and objection of non-maintainability of suit under Order 23 Rule 1(4) CPC, if at all, should have been taken by defendant No. 2 in the petition filed by the plaintiff before TRAI. In support of the submission my attention was drawn to the statement made by plaintiff's counsel as recorded in the order dated 2nd March 1998 in Suit No. 564/97 that the plaintiff wanted to file appropriate application before TRAI in the matter. Reliance was further placed on two decisions in Ram Mal v. Upendra Dutt and another, AIR 1928 Lahore 710 and Mangi Lal and another v. Radha Mohan and another, AIR 1930 Lahore 599(2). Ratio of both these decisions is to the effect that provision of Rule 1 of Order 23 CPC cannot be read so as to bar a suit which had already been instituted before the other suit had been abandoned or dismissed. By the time suit No. 564/97 was got dismissed as withdrawn by the plaintiff, it had already filed petition No. 13/97 before TRAI. Assuming that provisions of Order 23 CPC apply to TRAI, objection regarding bar of said petition under Rule 1(4) of said Order could not have been raised on behalf of defendant No. 2 in view of the ratio in both the said decisions.

10. By way of passing remarks it may be mentioned that said petition No. 13/97 is still pending before TRAI. Challenge to vacation of interim order on 20th January 2000 by TRAI cannot be made by means of present suit nor I.A being No. 12357/2000 filed under Section 8 of Arbitration and Conciliation Act, 1996 by defendant No. 2 during the pendency of this suit which was not pressed for the time being on behalf of defendant No. 2, can have any relevance at this stage.

11. In my opinion, the subject-matter in both the suits is invocation of financial bank guarantee dated 28th February 1996 through the letter dated 18th March 1997. Reliefs sought in present suit are similar to that claimed in Suit No. 564/97. Applying the test laid down in Vallab Das's case (supra) present suit is clearly barred under Rule 1(4) of Order 23 CPC as pleaded by defendant No. 2.

12. Having reached the said conclusion, I need not examine aforementioned another objection taken on behalf of defendant No. 2.

13. For the foregoing discussion, the suit is dismissed being barred by Rule 1(4) of Order 23 CPC.