Indian Bank vs Sks Power Generation ...
2021 Latest Caselaw 13674 Bom

                                                            38-IAL-19496-2021 IN SL-18496-2021.DOC




                      Shephali



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION
                                 INTERIM APPLICATION (L) NO. 19496 OF 2021
                                                           IN
                                            SUIT (L) NO. 18496 OF 2021


                      Indian Bank                                                     ...Plaintiff
                            Versus
                      SKS Power Generation (Chattisgarh) Ltd & Ors                ...Defendants


                      Mr Prateek Seksaria, i/b MDP & Partners, for the Plaintiff/
                          Applicant.
                      Mr VR Dhond, Senior Advocate, with Rohaan Cama, Vinodini
                          Srinivasan,, Rashna Khan & Poorva Garg, i/b Mulla & Mulla
                          and Craigie Blunt & Caroe, for Defendant No. 1.

SHEPHALI
SANJAY
MORMARE                                         CORAM: G.S. PATEL, J
Digitally signed by
SHEPHALI
                                                DATED: 22nd September 2021
                      PC:-
SANJAY
MORMARE
Date: 2021.09.23
10:54:57 +0530




                      1.

The Plaintiff bank seeks an injunction against invocation of a bank guarantee. But this comes with a twist. The entity seeking an injunction is the bank that issued the bank guarantee in the first place. It claims that there is a fraud by the beneficiary of the guarantee, the 1st Defendant.

22nd September 2021 38-IAL-19496-2021 IN SL-18496-2021.DOC

2. It is submitted by Mr Dhond for the 1st Defendant that this is a colourable endeavour by the principal borrower (now in liquidation) and its liquidator, to withhold the amounts legitimately due to the 1st Defendant. He reminds me that the principal borrower and the liquidator have attempted this before. The bank at that time was Canara Bank. I rejected the submission by Canara Bank at that time that the bank guarantee should not be invoked, and made absolute the present 1st Defendant's Summons for Judgment in its Commercial Summary Suit against Canara Bank. That order was dated 11th August 2021.1 Even at the hearing of that Summons for Judgment, the principal debtor-in-liquidation and its liquidator attempted to intervene or intercede, ostensibly to 'point out the fraud'. I disallowed that intervention application.

3. Mr Seksaria insists that this case is materially different and the facts are entirely distinct. But given that it is the issuing bank that is seeking the injunction, I believe that at a minimum, the 1st Defendant (the beneficiary of the bank guarantee in question today) must be given a reasonable opportunity of filing an Affidavit in Reply.

4. Affidavit in Reply to be filed and served on or before 14th October 2021. Affidavit in Rejoinder to be filed and served on or before 29th October 2021.

5. List the Interim Application for hearing and final disposal on 24th November 2021.

1 SKS Power Generation (Chhattisgarh) Ltd v. Canara Bank, 2021 SCC Online Bom 1835

22nd September 2021 38-IAL-19496-2021 IN SL-18496-2021.DOC

6. All concerned will act on production of a digitally signed copy of this order.

(G. S. PATEL, J)

22nd September 2021