Sks Power Generation ... vs Indian Bank
2022 Latest Caselaw 4172 Bom

                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                               ORDINARY ORIGINAL CIVIL JURISDICTION

                                             SUMMONS FOR JUDGMENT NO. 43 OF 2021
                                                                             IN
                                          COMMERCIAL SUMMARY SUIT NO. 238 OF 2020
                                                                            WITH

                                            THIRD PARTY NOTICE (L) NO. 21470 OF 2021



                        SKS Power Generation (Chattisgarh) Ltd.                          ...     Plaintiff
                                 vs.
                        Indian Bank                                                      ...    Defendant



                        Mr. Venkatesh Dhond, Senior Advocate a/w. Mr. Rohaan Cama a/w. Ms.
                        Vinodini Srinivasan, Ms. Rashna Khan, Ms. Poorva Garg, Mr. Simon
                        Mascarenhas i/b. M/s. Mulla and Mulla CBC for the Plaintiff.


                        Mr. Nishit Dhruva a/w. Mr. Prakash Shinde and Ms. Niyati Merchant i/b.
                        MDP & Partners for Defendant.
                                                                              CORAM : A. K. MENON, J.

DATED : 20th APRIL, 2022

P.C. :

1. Called for ex-parte decree. This is a suit filed by the plaintiff against

defendant bank. The plaintiff seeks a decree upon failure of the defendant to

deposit a sum of Rs. 57,30,00,000/- payable under the suit bank guarantee

Digitally no. 00185IG120000005 dated 3 rd February, 2012. Mr. Dhond appearing in signed by RAJESHWARI RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date:

2022.04.21 11:05:43 +0530

902-SJ-43-2021-COMSS-238-2020-APPL-30897-2021.odt rrpillai support today states that the bank has failed to comply with the order of this

Court disposing Summons for Judgment No. 43 of 2021 dated 22 nd

November, 2021. That order provided for deposit of a sum of Rs.

57,30,00,000/- along with interest @ 9% p.a. However I find from the

prayers in the suit that the rate of interest has been struck off. In fact the

plaintiff simply claims interest on the sum of Rs.57,30,00,000/- and in my

view it is at the discretion of the Court as far as the rate of interest is

concerned, since there is no agreement between the parties to pay interest at

the rate of 9%.

2. Mr. Dhond has today tendered a compilation of documents consisting

of 29 items. Of these items 1 to 16 are the relevant ones. The original bank

guarantee is dated 3rd February, 2012 and that guarantee has been placed on

record. This guarantee is said to have been amended from time to time. Last

of these amendments are found in Sr. No. 16 dated 31 st July, 2017. That

amendment restricts liability of the bank to Rs. 57,30,00,000/-. This

guarantee has since been invoked and upon failure of the bank to pay the

amount, the suit has been filed. The Summons for Judgment has since been

disposed in terms of the order dated 22 nd November, 2021. The registry has

issued a Non-deposit Certificate dated 6 th January, 2022 certifying that the

bank has not deposited the sum of Rs. 57,30,00,000/- along with

interest @ 9%.

902-SJ-43-2021-COMSS-238-2020-APPL-30897-2021.odt rrpillai

3. Today Mr. Dhond appearing in support has submitted that in view of

the deletion of rate of interest from the plaint the court may award such

interest at its discretion on the aforesaid sum of Rs. 57,30,00,000/-. Being a

commercial transaction between parties interest would necessarily have to be

paid by the bank, since the bank was liable to pay the amount on demand and

first demand was made on 5th September, 2017. The suit is thereafter seen to

be filed on 5th February, 2020. According to Mr. Dhond interest may be

directed to be paid from the date of lodgment of the plaint.

4. Mr. Dhruva seeks to oppose the passing of the decree by seeking

sometime to obtain instructions. I am afraid that stage has long gone by. Mr.

Dhruva further states that an appeal has been filed which is no reason to

decline passing of the decree. The record indicates that a Special Leave

Petition came to be filed by the plaintiff being aggrieved by the order passed

in Summons for Judgment No. 43 of 2021. The Special Leave Petition was

disposed on 16th March, 2022. In paragraph 2 the Supreme Court observed

that if the amount was deposited, withdrawal of the amount deposited would

be subject to furnishing security failing which decree could be passed.

5. Having heard the learned counsel for the parties, I pass the following

order :

902-SJ-43-2021-COMSS-238-2020-APPL-30897-2021.odt rrpillai

(i) Suit is decreed in terms of clause (a) which is reproduced below :

(a) That this Hon'ble Court be pleased to order and decree the

Defendants to pay to the Plaintiff a sum of Rs. 57,30,00,000/- (Rupees

Fifty Seven Crores Thrity Lakhs) as per Particulars of Claim annexed at

Exhibit-L together with interest on the said sum of Rs. 57,30,00,000/-

(Rupees Fifty Seven Crores Thirty Lakhs) from the date hereof till

payment or realization and for costs.

(ii) Defendant bank will pay interest on Rs.57,30,00,000/- @ 6% p.a.

from 6th February, 2020 till date of payment or realisation and costs

of the suit.

(iii) Draft decree shall be lodged within two weeks from today.

(iv) In view of the disposal of the suit Third Party Notice (L) No. 21470

of 2021 is disposed.

(v) Refund as per rules.

At this stage Mr. Dhruva on instructions seeks stay of the operation

of the decree. The request is declined.

(A. K. MENON, J.)

902-SJ-43-2021-COMSS-238-2020-APPL-30897-2021.odt rrpillai