1. ' The brief facts of the case are that this is a Suit for Specific Performance whereby the plaintiff seeks to enforce its Agreement, dated 16-8-1994 whereby they were required to supply a PABX System to defendant No,
1. Under this Agreement the necessary installation of the equipment was to be made by 16-12-1995. However, correspondence attached to the plaint and also the counter- affidavit of the defendant No,1 show that the parties had acquiesced into extending the time for performance of the Contract. There is no document anywhere whereby it could be said that the parties had fixed the time for performance of the contract after process of tacit extension was initiated. No fixed time was agreed upon between the parties for the performance of the agreement. Nevertheless, the plaintiffs had furnished an Insurance Bond for Rs,9,20,000 issued by defendant No,2.
2. ' It appears that there was difficulty and delay as far as one defendant No,1 is concerned in having the equipment installed in view of the various renovation work being carried out in the office. The defendant No,1 subsequently unilaterally issued termination notice to the plaintiff. Learned counsel for the defendant states that the plaintiffs had been negligent in' performance of the agreement and had failed to install the equipment within stipulated period and hence was left with no option but to enter in Agreement with another party. These are disputed facts and it is not possible for me to .Go into the details and the facts of the case at the interlocutory stage. All that I have to see is whether there is prima facie case and in whose favour does the balance of convenience lie and whether any loss is suffered by the plaintiff. Obviously, their is prima facie case inasmuch as the Agreement is not denied and there was no fixed limit for performance. Insofar as balance of convenience is concerned, it is obvious that it lies in favour of the plaintiff inasmuch as the defendant No,2 would stand to loose their security.
3. Nevertheless, the facts of the case are such that it would appear that the suit for specific performance itself is not maintainable in view of the fact that dependents have entered into another contract with some other party and the learned counsel for defendant No,1 states that equipment has already been installed. The learned counsel for plaintiff concedes to this, consequently, I find that this Suit fails and is accordingly dismissed.
4. ' However, plaintiffs have filed yet another Suit No,567 of 1978 for damages against the defendants which is being heard alongwith this suit. Under the circumstances such a suit will be the appropriate remedy for the plaintiffs. But dismissal of this suit means that C.M.A. 4692 of 1997 through which plaintiff seeks to restrain defendant No,2 from encashing the Insurance bond would also fall. This would, obviously, cause hardship to plaintiffs because admittedly defendants have not and will not take any equipment from plaintiffs. Whether plaintiff's suit for damages will succeed or not, cannot be said at the moment but meanwhile there is no reason why plaintiffs should be out of pocket and defendants richer by that much. At the same time defendants must not be deprived of the security till the suit for damages is decided. I, therefore, in the interest of both parties and in the interest of justice direct that the injunction sought by the plaintiffs in this suit restraining defendant No, 2 from encashing security be transferred to Suit No, 567 of 1978 and the defendants are, therefore, restrained from encashing the insurance bond for Rs,9,20,000 till the disposal of the Suit No, 567 of 1998 Suit No, 920 of 1978 as mentioned earlier is dismissed as not maintainable.