Judgment:
C.K. Buch, J.
1. Both these petitions have been moved invoking jurisdiction of this court under Articles 226/227 of the Constitution of India seeking appropriate relief by the rival parties of Special Civil Suit No. 202 of 2003 (herein after referred to as the said Suit) pending in the court of learned Civil Judge (SD) at Vadodara in reference to one order passed by the learned Judge below exh.39 and an order passed below exh.1- the plaint in reference to one withdrawal purshis exh.20, filed on 5.5.2003.
2. The petitioner of SCA No. 14998 of 2003 is the original plaintiff of the said suit filed seeking a declaration and permanent injunction against encashing bank guarantees, wherein the plaintiff had also prayed for temporary injunction. The petitioner of SCA No. 15050 of 2003 is the original defendant no.1 no.1 in the said suit. For the sake of convenience petitioner of SCA No.14998 of 2003 is referred as plaintiff and respondent no.1 i.e. petitioner of SCA No. 15050 of 2003, is referred as defendant no.1 in this judgment.
3. The defendant no.1 had preferred caveat application No. 4786 of 2003 on 10.10.2003. But thereafter it has moved a substantive petition. Both these petitions centres around a limited dispute and point of law and therefore the learned counsel for the parties submitted that both these petitions may be heard and decided finally at the admission stage only and appropriate orders may kindly be passed , because the order of admission and in turn granting or refusing ad-interim relief in the petition filed by the plaintiff, shall touch the fate of both these petitions. The plaintiff,today is, protected by the interim relief and it is contended that the interim order passed directing parties to maintain status quo , is still in force. On the other hand the contention of the defendant no.1-Rajasthan Urban Infracture Development Project (hereinaftrer referred to as the said Project) is that the interim protection was never in existence after 5.5.2003 till the impugned order below exh.39 came to be passed by the learned Civil Judge on 8.10.2003, and issuance of such direction and that too after rejecting the say of the plaintiff vide ordeer below exh.20 is a grave error of law.
4(i). In order to appreciate the say of both the petitioners on the point of controversy between them, it is ecessary to state the facts relevant for the purpose of this judgment.
4(ii). The plaintiff is a contractor-engineer approved by the Government and doing its business activities at Vadodara and it is a limited company. The defendant no.1-said Project invited tenders for the construction of Railway Over Bridges (ROB for short) on in Dungerpur near Dalda factory and another at Sanganer Road. Original defendant no.1s nos, 2,3 and 4 of the said suit are the bankers with whom bank guarantee has been raised in favour of the defendant no.1 no.1. The bank guarantees given by defendant no.1 no.2- Global Trust Bank, defendant no.1 no.3 IDBI Bank and defendant no.1 no.4 Punjab National Bank, are the subject matter of the said suit. It is prayed in the said suit that there is a dispute which requires to be referred to arbitration and that may take atleast 90 days for appointment of an arbitrator and commencement of arbitration proceedings. So, till those proceedings were initiated, defendant no.1 no.1 should not encash the bank guarantees. It is also prayed that the court should declare that the defendant no.1 no.1 has no right to recover the liquidated damages, till the same are not decided by the arbitrator encashing bank guarantees from defendant no.1s nos 2,3 and 4. It is also the say of the plaintiff that defendant no.1 no.2,3 and 4 cannot realised the bank guarantees till the final isposal of dispute between the plaintiff and defendant no.1 no.1 by arbitrator. The order granting ad-interim relief was served on all the defendant no.1. Pending the suit, negotiations were going on between the parties and ultimately meetings between the plaintiff and defendant no.1 no.1 were held on 8.4.2003 and 18.4.2003 and as per the minutes of the said meetings , a compromise was arrived at and as agreed, on account of the settlement between the plaintiff defendant no.1 no.1, the plaintiff was supposed to withdraw the above said suit. The plaintiff then, as per the settlement, submitted withdrawal purshis on 5.5.2003.
4(iii). It seems that as per the agreement arrived at between the parties, in view of the minutes drawn, defendant no.1 no.1 was not to encash the bank guarantees as the defendant no.1s had agreed that all the disputes can be settled as per the contract clause i.e. through arbitration proceedings. The plaintiff, apprehending the wrong that may be played by defendant no.1 no.1 by encashing bank guarantees, approached the learned Civil Judge (SD) at Vadodara moving an application/purshis exh.20 on 26.9.2003. The learned Civil Judge, ignoring the said application/purshis filed by the plaintiff has passed the order accepting the withdrawal purshis exh.13 dated 5.5.2003 and consequently passed the order below exh.1 on 8.10.2033 holding that withdrawal purshis exh.13 filed on 5.5.2003, is a ithdrawal in fact as well as in law and thereby the suit stands disposed of as withdrawn by the plaintiff. According, a further order that 2/3rd court fee refund certificate be issued in the name of the plaintiff or its advocate. These orders are challenged by present petition.
4(v) The plaintiff was allotted the contract of construction of 2 ROBs in Rajasthan and the work in respect of both the ROBs was to be completed by 18.6.2003 against the mobilisation advance being 10%, initial contract price was released by the defendant no.1 no.1 and the plaintiff furnished bank guarantees of Rs. 36,87,167.00 and Rs. 38,25,706.00 and also gave performance guarantee for Rs. 73,74,333.00. Said Suit was filed on 31.3.2003 and subsequently on 8.4.2003, and 18,4,2003, meetings between the plaintiff and defendant no.1 no.1 had taken place at Jaipur whereby the defendant no.1 no.1 agreed to grant further time of 3 months to the plaintiff. Thereafter, as agreed, the plaintiff filed withdrawal purshis exh.13 dated 5.5.2003. The withdrawal was conditional. The grievance of defendant no.1 no.1 is that for a very long time, there was no substantial progress in the work. It is on record that ion 26.9.2003 vide exh.20 defendant no.1 moved for revocation of the withdrawal , but as mentioned earlier, the learned Civil Judge treated the said disposed of as withdrawn with effect from 5.5.2003. Inspite of passing the order below exh.1-the plaint, the learned Civil Judge was requested to pass appropriate relief vide application exh.39 by the plaintiff and the learned Judge directed both the parties to maintain status quo with respect to the bank guarantees.
5. The say of the plaintiff before this court is that the impugned order dated 8.10.2003 passed below exh.1 is bad because it is the privilege of the plaintiff to withdraw the withdrawal submitted under Order 21 Rule 1 of Civil Proc. Code so also the formal orders that may be passed as regards the ad-interim relief, on account of the withdrawal purshis. Undisputedly there was no formal order below exh.1 nor purshis exh.13 and the suit was on the file of the learned Judged when application exh.20 was moved.
5(i) The say of defendant no.1 is that as per the settled law, it is entitled to encash the Bank Guarantees and when the contract contained an arbitration clause, the suit was not maintainable. Even otherwise, if the alleged cause of action can be said to have arisen, then also it was within the jurisdiction of the Court at Jaipur. Considering the scheme of Section 9 of the Arbitration and Conciliation Act 1996 , the court defined in sub-clause (e) of section 2 section (read with section 9 of the said Act,) is the court established at Jaipur. It is submitted that there was no suit pending from 5.5.2003 with the Court of learned Civil Judge (SD) at Vadodara and after passing appropriate orders below exh.1 treating the suit disposed of as withdrawn on 8.10.2003, learned Civil Judge (SD) at Vadodara had no jurisdiction to pass any directory or prohibitory order against any of the parties, including original defendants of the suit below exh.39. Therefore, the order below exh.39 is ex-facie bad and illegal and without jurisdiction from both the angles. The concerned Bank Guarantees are given for a stipulated period and therefore, the petitioner cannot be prevented from invoking the encashment of the said Bank Guarantees. So the order passed below exh.39 by the learned Civil Judge (SD) at Vadodara may be quashed in exercise of the jurisdiction vested with the court under Article 227 of the Constitution of India.
6. The SCA No.14998 of 2003 was listed for admission hearing on 16.10.2003 and after hearing the learned counsel for the petitioner and the learned counsel appearing on behalf of defendant no.1, (on caveat), this court (Coram: A.R.Dave-J) hasd passed the following orders: 'Notice to the respondents returnable on 7th November 2003. Learned advocate Shri Amar Bhatt waives service of notice for respondent no.1. Ad-interim relief in terms of paragraph 9(c) on a condition that period of the bank guarantee shall be extended up to 31st December 2003 and the original bank guarantee shall be furnished to the respondent on or before 1st November 2003.
To be heard with Special Civil Application No.15050/2003.
Direct Service is permitted so far as respondents nos 2,3 and 4 are concerned.' On that very day the court permitted the defendant no.1 to join all the above 3 banks as party respondents in the petition moved by it. Reply affidavits have been filed and an affidavit in rejoinder on behalf of the original plaintiff has also been tendered along with the annexures in SCA No.14908 of 2003. Out of the three respondent banks, only IDBI Bank has filed affidavit in reply in SCA No. 14998 of 2003 and it is contended that as per the terms of the Bank Guarantees referred to in the affidavit dated 1.10.2002 and 7.6.2002 the bank has agreed to be a guarantor and assured all the responsibility upto to the amount mentioned in the guarantee and the bank has undertaken to pay, on first written demand without cavil or reminder.
7. The Bank Guarantees could not be encashed because the learned Civil Judge had directed the bank to maintain status quo. According to the Bank a guarantee constitutes an independent contract and the bank will not be in a position to ascertain or look into the merits. Both the Bank Guarantees are absolutely unconditional in terms and so the bank is not supposed to analyse , interpret or adjudicate the rival contentions upon various issues. The Role of the bank is confined to the terms of Bank Guarantees.
8(i). In the above background, the rival contentions shall have to be appreciated. Mr. Thakore learned Sr.Counsel appearing with learned counsel Mr. A.R.Majmudar appearing for the petitioner has taken me through the relevant factual aspect and has mainly submitted that, in the suit pending before the learned Civil Judge, (SD) at Baroda, the relief prayed by the plaintiff was limited. The Court is taken throgh the plaint and the cause for the suit. The Bank Guarantees are issued at Vadodara and the respective branches could have been asked to pay against the guarantee at Vadodara only and therefore the learned Civil Judge (SD) had jurisdiction to pass any appropriate order and the relief sought, was for limited period till the arbitrator enters into the dispute raised by the plaintiff for adjudication.
8(ii) According to Mr. Thakore, during the negotiations at Jaipur, a compromise was entered into between the parties and in the minute, it was clearly agreed between the parties as per clause 4 and para 7 of the minutes that ' R.A. bills of February and March 2003 were to be released immediately.' However, they were released only in June 2003 and not immediately . All variations agreed and made were to be approved urgently but they were approved in the end of May 2003 i.e. after approximately 45 days.
8(iii). As discussed in the meeting the site was to be given hindrance free as there were some persons occupying the premises , and those were causing hindrance and they were pfrotected by local civil courts. The plaintiff therefore, on 30.5.2003 had written a letter point out all his grievances and difficulties in getting the work complete. From the sequence of correspondence, Mr. Thakore also placed reliance on one letter, dated 16.10.2003 and the proceedings held under the Chairmanship of Secretary of Project, on 5.7.2003. Placing the development to the notice of the court, it is submitted that on 2.8.2003, the plaintiff had written a letter to the Superintending Engineer of defendant no.1 disclosing the fact that 14 drawings were released only on 28.7.2003. So, considering the totality of facts and circumstances which were taking shape, the plaintiff had approached the Civil Court at Vadodara that it may be permitted to withdraw, the withdrawal purshis exh.13 dated 5.5.2003 that too because no formal order was passed.
9(i). The back bone of the argument advanced by Mr. Thakore is that it is open to the plaintiff to withdraw his application( i.e. request) for withdrawal of its suit so long as the withdrawal has not become effective by an order of the court. In the present case, withdrawal purshis exh.13 was submitted to the court but the learned Civil Judge (SD), at Vadodara had not taken any cognizance of the intention of withdrawal expressed before the court nor any formal order was passed below exh.1- the plaint, disposing it as withdrawn. The plaintiff has to approach the court for withdrawal of the suit under order 23 Rule 1 Civil Proc.Code, and such application requires to be granted, under a permission, till grant of that permission , the plaintiff is at liberty to withdraw his withdrawal and can continue with the suit. In this connection, some observations made by the Apex Court in the case of Executive Officer, Arthanareshwarar Temple vs. R. Sathyamoorthy & ors. reported in AIR 1999 SC 958 is also brought to the notice of the court stating that the defendant no.1 was contemplating to encash the Bank Guarantees without fulfilling obligations firstly the contract and thereafter as per the settlement arrived between the parties. The jurisdiction of civil court, Vadodara has been rightly invoked for limited purpose. The order passed below exh. 39 can be said to the well founded and it simply enables the party aggrieved to approach higher or appropriate forum.
9(ii). Thus according to Mr. Thakore the ratio of the decision of Bombay High Court in the case of Yashwant Govardhan vs. Totaram Avasu & ors . reported in 1958 (Bombay) 28 squarely applicable in the present case and has a binding force.
9(iii). The argument advanced by the learned counsel for the original plaintiff-petitioner in that proceedings is referred to para 7 of the cited decision . It was argued that there is nothing to prevent a plaintiff from withdrawing his withdrawal because to withdraw from the suit, is a matter of the plaintiff's choice and the only thing which the defendant no.1 concerned is to have an order for costs made in his favour as provided in order 23 rule 3 Civil Proc.Code. The Court has held that
'In our opinion, the contention is not correct and cannot be supported. It is true that O.XXIII R.1 does not require in terms that the Court should make an order in case in which the plaintiff withdraws his suit without any permission to bring a fresh suit. But Under O.XXIII, R.1 the Court has to make an order about costs, which suggests that the Court has to make an order about costs, which suggests that the Court has to make an order after plaintiff withdraws his suit. Moreover, the consequence of the plaintiff, withdrawing his suit is to debar the plaintiff from instituting any fresh suit in respect of the subject-matter or part of the claim withdrawn by him. Surely if that is the consequence of a withdrawal, the proceedings before the Court must show that the plaintiff has withdrawn either his suit or part of his claim. In our view, therefore, the Court below was wrong in holding that it was not open to the plaintiff to withdraw his application for withdrawal Exh.6'
10. In para 10 of the cited decision the Bombay High Court has observed that 'Patwardhan contends that the plaintiff has failed to make out his case on the merits of the application. Even if that contention is right, if , in law, the plaintiff is entitled to withdraw his application, for withdrawal, the plaintiff cannot be prevented from making such an application.'
11. Mr. Thakore has also placed reliance on the decision in the case of Thomas George vs. Skaria Joseph & anor. reported in AIR 1973 (Kerala) page 140 where by the Court after reiterating the decision in the case of Smt. Raisa Sultana Begam & ors. vs. Abdul Qudir & ors reported in AIR 1966 (All.) 318 and AIR 1970 (Mysore) 115 has held that the plaintiff can withdraw his application for withdrawal of the suit before the court takes cognizance of earlier withdrawal application. The Kerala High Court has further observed that if any plaintiff can withdraw the withdrawal of the suit, he can equally withdraw his application moved under order 23 rule 1-1 of CPC before it is acted upon. This is more so because even an application is not contemplated for withdrawal. Withdrawal becomes effective when the plaintiff expresses his intention to withdraw in such manner as to be communicated to the court and it is on such intention that the withdrawal becomes effective. The word 'communication' is also explained in the very judgment and the court has stated that 'communication' means bringing the fact of withdrawal to the notice of the court so as to enable the court to act upon it by passing appropriate orders.
12. As per the Sr.Counsel, in the present case till 18.10.2003 no communication was placed before the court for passing appropriate order below exh.1 (plaint) and much prior to it, the application exh.20, withdrawing withdrawal was moved. The learned Judge, while, considering the law propounded by the above referred decision of Bombay High Court, ought not to have ignored the application exh.20. This can be said to be a patent error of law and failure of exercising appropriate jurisdiction and therefore, this court should intervene by quashing the impugned order dated 8.10.2003.
13. Of course Mr. Thakore has taken me through other decisions also including the decision referred to by Kerala High Court i.e. AIR 1966 (All.) The ratio of the decision of Raisa Sultana's case (Supra) is that, on withdrawal of a suit under order 22 Rule 1 CPC, certain orders may be passed by the court but they are not for giving effect to the withdrawal. To give effect to the consquences arising out of the withdrawal under order 29 Rule 1 does not require any formal order. There can be no question of an order, only application/declaration of intention to withdraw is to be made by the plaintiff.
14. While the developing the arguments Mr. Thakore submitted that withdrawal purshis though, indicates unconditional withdrawal but in reality, the withdrawal was on account of some terms which were arrived at in the earlier meetings. When the defendant no.1s were not found complying with the obligations , the plaintiff decided to withdraw the withdrawal of the suit and approached the court. Unconditional withdrawal debars fresh suit and it has its own effect. Undisputedly, till that date, no formal approval for withdrawal was accorded by the court. The plaintiff was authorised to retract from the declaratory statement made before the court and to withdraw the withdrawal. According to Mr. Thakore, the present factual contingency and in the light of the binding decision of the Bombay High Court in the case of Yeshwant Govardhan (Supra), the case of the petitioner falls in the category of cases referred to in the decision of 2003 AIR SCW 3872 in the case of Surya Dev Rai vs. Ram Chander Rai & ors. and therefore, this court in exercise of jurisdiction vested under Articles 226/227 of the Constitution of India should quash the order under challenge rejecting the request to withdraw the withdrawal by the learned Civil Judge. With above referred 3 decisions viz. AIR 1986(Calcutta) 19 (D.B), AIR 1973 (Kerala) 140 and AIR 1988 (Ori.) 30 , the three HighCourts have endorsed the Bombay High Court view. The refusal by the learned Civil Judge, should be held as gross error and this court should hold that the learned Judge has no jurisdiction to permit the plaintiff to retract from withdrawal and the learned Judge has failed in exercising the jurisdiction in the proper perspective.
15. The learned counsel for the defendant no.1 no.1 has placed reliance on the ratio of this very decision of Bombay High Court Yeshwant Govardhan (Supra) and has submitted that right to withdraw has been expressly conferred by Rule 1 of order 23 CPC and there is no provision conferring right to revoke the withdrawal and there is no justification for saying that the right to withdraw includes in itself as right to revoke the withdrawal. The Allahabad High Court in the case of Raisa Sultana (Supra) has considered various decisions including the above referred decision of Bombay High Court cited by the learned counsel Mr. Thakore. The say of the learned counsel for the defendant no.1 no.1 is that the purshis for withdrawal filed on 5.5.2003, there was no need for the defendant no.1 no.1 either to object the application for injunction or to file a formal written statement. The defendant no.1 no.1 was taken by surprise when it was intimated about the order to maintain status quo passed by the learned Civil Judge and the attempt made by the plaintiff to withdraw the withdrawal by filing application exh.20. A suit which had no merit otherwise and a party who has acted upon the agreed terms of compromise and has changed/altered the situation cannot even think of withdrawing the withdrawal of the suit. On the contrary the plaintiff had started taking advantage of the agreed terms arrived at between the parties by the minutes drawn in the above said two meeting. Thereafter, behind the back and taking disadvantage of the non availability of formal order on exh.1 the plaint, the plaintiff has acted with all lack in bonafides and therefore, the learned Civil Judge (SD) has rightly ignored the application exh.20 and pass a speaking order on 8.10.2003. This order does not require any intereference at all. It is absolutely a legal and reasoned order.
16. It is submitted that after the cited decision of Bombay High Court in the case of Yeshwant Govardhan (supra) much water has flown and by observations and decisions the Apex Court has materially over ruled the ratio of the decision of the Bombay High Court in the case of Yeshwant Govardhan (Supra) .
17. In response to the query raised by the court learned counsel for the defendant no.1 has attempted to put some facts before the court by placing certain photographs of both the work sites entrusted to the plaintiff i.e. ROB at Dalda factory Nr. Dungerpur and ROB at New Sangner along with the sketch plan of ROBs at both the places and has attempted to explain that change in design or drawing is allowed by the petitioner has no material bearing and the defendant no.1 found that practically there was no progress in the construction work. The proceedings drawn in the meeting with the Engineers by the plaintiff does not add any strength to the case of the plaintiff so far as present petition is concerned. Para 7 in the compromise formula worked out between the parties, was nothing but a special favour to the plaintiff and sufficient period for completion was extended . The anxiety of the defendant no.1 was to see that the said contractor completes the work or atleast substantial work is done in the given extended period. In the meetings held on 8.4.2003 and 9.4.2003, the plaintiff had assured to complete the project by 25.9.2003. Some amount which was withheld by the defendant no.1 was requested to be released by the plaintiff during the period. But there was no material progress in the work in question. The time between 18.6.2003 and 25.9.2003 was not utilised in satisfactory manner.
18. On the contrary, the letter dated 22.5.2003 received by the defendant no.1 is clear intimation and confirmation as to the withdrawal of the suit filed in Baroda Civil Court and the same was taken as an assurance by the defendant no.1 that the plaintiff would proceed with the work and as per assurances given during the above said meetings. It is submitted that the language of the withdrawal purshis also has been rightly considered by the learned Civil Judge, wherein the plaintiff, without referring the minutes drawn at the end of the meetings between the parties, has mentioned that withdrawal of the suit is because of the settlement of disputes and differences, out of court. I would like to reproduce the withdrawal purshis tendered before the learned Civil Judge on 5.5.2003.
'We the plaintiff state that subject of the suit is settled between both the parties out out of court. Hence the same matter is not continued now and withdrawn as settled out of court. Please order accordingly. 5.5.2003 sd/-plaintiff sd/-advocate for plff. Sd/- defendant no.1'
19. This purshis was tendered on that very day i.e. 5.5.2003 but as the advocate appearing on behalf of the defendant no.1 was not present, the purshis was kept for hearing and order on 16.6.2003. The very purshis has been endorsed by the advocate for defendant no.1 no.3 stating that he has no objection for unconditional withdrawal by the plaintiff. According to defendant no.1, the suit was regarding bank guarantees and there was no suit pending on the file after 5.5.2003 and therefore, obviously there was no interim prohibitory order can be said to have existed or executable injunctory order in force after 5.5.2003. For the first time thereafter, in the month of September, taking advantage of the fact that there was no formal order below exh.1, the plaintiff attempted to revive the suit which may have the effect of restoration of a dismissed/disposed suit along with the revival of interim prohibitory order pending hearing and disposal of the suit or say application exh.20. If the act of the plaintiff is otherwise not justifiable, then this court should not issue any writ.
20. In the present case the plaintiff has failed in establishing two facts i.e. the legal right of the plaintiff is in jeopardy and the relief prayed for by him is competent to attract equitable jurisdiction of this court. The suit filed by the plaintiff at Baroda Court cannot be said to be a suit within the meaning of section 9 of the Arbitration and Conciliation Act 1996. The Baroda Court had no territorial jurisdiction to entertain the suit of the plaintiff. The proceedings initiated by the defendant no.1 by way of a suit at Jaipur under section 9 of the Arbitration and Conciliation Act is pending. All material grievances were redressed by the defendant no.1 as agreed in the meeting. It is argued that in a given case, if the plaintiff is permitted to withdraw the withdrawal purshis, tendered unconditionally, then it may lead to miscarriage of justice. In the present case, the defendant no.1 was put under obligation to take certain altered stand and circumstances and the Civil Judge had granted prohibitory interim order on 30.7.2003. Merely because the defendant no.1 was not ready with written reply on that day, was without justification, as the law qua bank guarantee is very well settled. The gesture to press for interim prohibitory order by the plaintiff can be said to be an action taken surreptitiously because there was no interim protection since 5.5.2003. This is a case of lack of bonafides on the part of the plaintiff.
21. The defendant no.1 is compelled to move the petition under Article 227 of the Constitution of India because the learned Trial Judge has failed in appreciating the facts as well as the relevant law on the date on which the plaintiff attempted to pray for withdrawal of withdrawal purshis. Grave jurisdictional error has been committed by the learned Trial Judge in passing the impugned order dated 8.10.2003, below application exh.39 directing both the parties to maintain status quo as regards bank guarantees for 15 days i.e. upto 22.10.2003.
22. Placing reliance upon two decisions of the Apex court reported in AIR 1991 SC 1994 and 1996 (3) SCC 443 in the case of South East Asia Shipping Co.Ltd. vs. Nav Bharat Enterprises Pvt.Ltd. & Ors., it is rightly argued that filing of the suit at Vadodara and that too against the settled legal proposition in a case of performance guarantee was enough to cloth with territorial jurisdiction of the court. The cause of action consists of bundle of facts. It gives reason to enforce legal injury for redress in a court of law . In the Case of South East Asia Shipping Co.Ltd.(Supra), the Apex Court has observed that:
' The cause of action means, therefore, every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since the absence of such an act no cause of action would possibly accrue or would arise.'
23. The decision of the Bombay High Court in the case of Anil Dinmani Shanker Joshi & anor vs. Chief Officefr, Panvel Municiapl Council reported in AIR 2003 (Bombay) p.238 says that every plaintiff has unconditional right to withdraw the suit and this withdrawal is complete, as soon as the plaintiff intimates his intention of withdrawal to the court. It is not dependent on the order of the court. The court can refuse to allow withdrawal of a suit against one or several defendant no.1s in a given case and on the ground. Of course the facts of this Bombay High Court decision are relevant. It positively accepts the ratio propounded by the Apex Court in the case of Shiv Prasad vs. Durga Prasad reported in AIR 1975 SC 957. It is likely that the learned single Judge of the Bombay High Court while dealing with the Civil Revision Application in the year 2003 may not have been appraised of the earlier decision in the case of Yeshwant Govardhan (Supra) .The alleged right to revoke may be exercised in case of conditional withdrawal before the same is accepted by the court, more so as it is.
24. The ratio of the decision of Allahabad High Court has a persuasive value and when subsequent decisions of the Supreme Court including the decision of the Supreme Court in the case of Shiv Prasad (Supra) have impliedly over ruled the ratio of the decision of 1958 Bombay High Court in the case of Yeshwant Govardhan (Supra), I am not accepting the say of Mr. Thakore that the plaintiff has been wrongly denied the right to withdraw the withdrawal by the learned Civil Judge. The plaintiff is otherwise supposed to establish failure of justice. The natural corollary of Order 23 Rule 1 of Civil Proc.Code is to grant withdrawal. But for such a grant, formal order of granting permission is not required to be passed especially when the defendant no.1 is present and consents the withdrawal purshis. The withdrawal is complete as soon as the intimation of withdrawal is expressed before the Court. As a rule of prudence and to protect the miscarriage of justice the court can expect that such a request is expressed in writing. The withdrawal purshis placed before the court is only required to be recorded and no formal order on withdrawal purshis is necessary. Formal order treating the plaint as disposed of on account of wish to withdraw the suit, is a formality and that formal order can be passed below the plaint, can be passed at any time by the Presiding Officer of the Court being a mere formality.
25. Awarding costs to the defendant no.1 depends on more than one circumstances. Such an order be a consequential order and that will have its own independent effect than the effect of withdrawal. Even for the sake of argument if it is accepted that some obligations which were required to be fulfilled by the defendant no.1, were not fulfilled in stricto senso , in terms of the minutes drawn in the above said meetings, then it would give rise to a cause which can be agitated either by a suit filed under section 9 of the Arbitration Act or by initiating proceedings in terms of clause 21 of the contract between the parties.
26. The decision of Bombay High Court in thecase of Yeshwant Govardhan (supra) does not deal with the distinction that the effect of withdrawal and right to pass consequential order in a given fact situation. If the consequential order awarding cost to the other side is passed, such an order shall have distinct and independent effect and such an order while recording withdrawal passed can be said to be an order having two independent dimensions. Withdrawal shall stand at one place and the award of cost would be an executable order and may give cause to initiate recovery proceedings. Therefore, this court is of the view that the order dated 8.10.2003 of rejecting the application and pass order below exh.1 treating the suit as disposed of on account of withdrawal purshis on 5.5.2003, is a legal and valid order and the learned Civil Judge while passing the that order has not committed any order either legal or jurisdictional. On the contrary it would be appropriate to hold that though the formal order below exh.1-plaint is passed on 8.10.2003, the very order shall have an effect of withdrawal from 5.5.2003, the day on which withdrawal purshis was tendered before the court.
The suit filed by the plaintiff therefore, can be said to have been effectively disposed of as withdrawn on 5.5.2003.
27. In view of the above discussion, the order directing the parties to maintain status qua the bank guarantees cannot sustain. On the contrary while passing the order below exh.39, challenged by the defendant no.1 before this court by an independent petition is an erroneous order. There was no prohibitory relief in favour of the plaintiff after 5.5.2003 and the plaintiff had no legal right to pray such relief in absence of any formal order of extension of the relief till 30.7.2003. On the contrary the language of the letter dated 22.5.2003 confirms the withdrawal . The act of withdrawal of the suit on 5.5.2003 disentitled the plaintiff to pray any prohibitory order qua the same bank guarantees in the very suit and therefore, I am inclined to accept the argument of the learned counsel for the defendant no.1 that while passing this order under challenge directing the parties to maintain status quo, is an error of law and failure on the part of the court in exercise of discretionary jurisdiction properly.
28. In short, the contentions raised and arguments advanced by the learned counsel for the defendant no.1, the SCA No.15050 of 2003 requires to be allowed and the same is accordingly allowed. As a necessary consequence, SCA No.14998 is dismissed. Rule made absolute in SCA 15050 and Rule discharged in SCA 14998 of 2003. The interim protection stands vacated.
29. This court could have awarded costs to the Rajsthan Urban Infrastructure Project. But the delay caused in passing the formal order below exh.1 by the learned Civil Judge and the ratio of the decision of Bombay High Court in the caseof Yashwant Govardhan (Supra) there were some arguable points which have been placed before the court by learned counsel Mr. Thakore. Therefore, the court is not inclined to award any costs in both the petitions.
The registry is directed to keep a copy of this judgment in the companion matter.
30. Mr. Mihir Thakore learned Sr.Counsel appearing with Mr. A.R.Majmudar in Special Civil Application No.14998 of 2003 submits that this court may place this judgment/order under suspension atleast for 15(fifteen) days so that the petitioner can approach appropriate higher forum and the other side, in the meanwhile may be directed by an order of injunction restraining them not to encash the bank guarantees referred to in the petition, especially when such order was operative till today and the date of bank guarantees has been extended upto 31.3.2004.
31. Having considered the resistance and other facts and circumstances which are emerging from the record as well as the reasons assigned by this court in the judgment, I am not inclined to accept the request advanced by Mr. Mihir Thakore learned Senior Counsel.The request is therefore, rejected.