ASHOK KUMAR TIWARI, J.
(1.) This appeal has been filed under Section 96 of the Code of Civil Procedure against the decree of 10th Additional District Judge, Indore granted in Original Civil Suit No. 85-B/88 vide which the suit filed by the appellant/ plaintiff under Order 37 of Code of Civil Procedure has been dismissed.
(2.) Plaintiffs case is that Defendant No. 1 Dena Bank, Indore executed bank guarantee for Rs. 4,50,725/- on 31-5-1978 in favour of plaintiff in lieu of cash deposit required from M/s. Surana Commercial Company, Indore (hereinafter referred to as 'contractor'). Thereafter, the bank guarantee was renewed from time to time. The contractor defaulted in due performance of the contract, therefore, the defendants were asked to release the guarantee amount, but the defendants wilfully and illegally avoided the payment in respect of the aforesaid bank guarantee. Hence, the suit was filed to recover the amount of Rs. 4,50,725/- being the amount of the guarantee and Rs. 2,50,152.37p/- being the interest at the rate of 18% on the aforesaid amount from 27- 10-1978 to 27-11-1981 and Rs. 100/- as notice fees and expenses.
(3.) Defendant entered into appearance and applied for leave to defend, which was granted on 17-7-1985 and 23-8-1985 was fixed for filing the written statement. On 23- 8-1985 defendant, instead of filing the written statement, filed an application under Section 34 of the ARBITRATION ACT, 1940. Thereafter, plaintiff filed reply to the aforesaid application on 24-2-1988 and case was fixed on 8-4-1988 for arguments on the application.
(4.) While the case was pending for arguments on the application filed under Section 34 of the ARBITRATION ACT, 1940, defendant filed photostat copies of the award dated 5-4- 1988 and the order dated 7-4-1989 passed by the Delhi High Court. Thereafter, defendant/Respondent No. 1 filed an application under Section 32/33 of the ARBITRATION ACT, 1940 and learned Lower Court vide impugned order dated 4-3-1993 dismissed the suit of plaintiff/appellant holding in the light of award and the order of Delhi High Court that the suit is not maintainable.
(5.) From the above discussion, it appears that the learned lower Court has adopted a strange procedure in deciding the suit. Defendant No. 1 applied for leave to defend and leave was granted and he was directed to file written statement. Written statement was never filed and instead of filing written statement, defendant filed application under Section 34 of ARBITRATION ACT, 1940 which remained pending for sufficiently long time and without that application being disposed of, another application under Section 32/33 of ARBITRATION ACT, 1940 was filed and learned lower Court dismissed the suit holding that contract entered in between the plaintiff Food Corporation of India and M/s. Surana Commercial Company has been concluded, therefore, the suit is not maintainable.
(6.) It is evident from the above discussion that there is no legal evidence to arrive at the conclusion at which learned lower Court has arrived. No evidence of any kind has been adduced even the written statement was not filed while the defendant was directed to file written statement. Any document has not been proved. The finding of the learned lower Court seems to be, based on the photostat copies of the award and the order of the Delhi High Court, which have not been even exhibited. Thus, the order passed by the learned lower Court is not based on any legal evidence and is liable to be set aside.
(7.) Hence, this appeal is allowed. The order and decree passed by the 10th Additional District Judge, Indore is set aside and the case is remanded to the lower Court for disposing it in accordance with the law. However, no order as to costs is made. Plaintiff shall remain present on 27-1-2004 before the trial Court. The Court shall issue notice to respondent and proceed to decide the case in accordance with the law as expeditiously as possible.Appeal allowed.
