Bombay High Court
Indian Bank vs Sks Power Generation ... on 22 November, 2022
Bench: K.R. Sriram, Kamal Khata
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH
ANJAKULATH NAIR
NAIR Date: 2022.11.23
15:29:00 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL APPEAL NO.118 OF 2022
IN
SUMMARY SUIT NO.238 OF 2020
WITH
INTERIM APPLICATION (L) NO.14314 OF 2022
WITH
INTERIM APPLICATION (L) NO.15885 OF 2022
Indian Bank ] ... Appellant
Vs.
SKS Power Generation (Chhattisgarh) ]
Ltd. ] ... Respondent
...
Mr. Abhinav Chandrachud with Mr. Nishit Dhruva, Mr. Prakash
Shinde, Ms. Niyati Merchant, Mr. Yash Dhruva and Mr. Harsh
Sheth i/b MDP & Partners for the appellant.
Mr. V. Dhond, senior counsel with Mr. Rohan Kelkar with Ms.
Vinodini Srinivasan and Ms. Poorva Garg i/b Mulla & Mulla &
Craigie Blunt & Caroe for respondent.
...
CORAM : K.R. SHRIRAM &
KAMAL KHATA, JJ.
DATED : 22ND NOVEMBER, 2022.
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P.C.:-
1. Appeal is against a summary decree in favour of
respondent and against appellant.
2. Respondent, who is original plaintiff had filed a summary
suit against appellant, who is original defendant for a decree in
the sum of Rs.57,30,00,000/- along with interest thereon on basis
of a bank guarantee that was received by appellant in favour of
respondent. It was respondent's case that bank guarantee that
was received by appellant was an unconditional and irrevocable
bank guarantee, under which appellant agreed to pay the amount
merely on written demand signed by respondent stating that the
amount claimed is due by way of loss or damage caused or
would be caused to respondents by reason of any default on the
part of Cethar Limited in discharging any of its obligations under
the contract. Bank guarantee had been received on behalf of
Cethar Limited and it came to be renewed from time to time.
3. In view of default on part of said Cethar Limited,
respondent invoked the bank guarantee and requested appellant
to remit full amount under said bank guarantee. There were
certain other events, which we need not go into for the sake of
this order, but when bank guarantee was not honoured,
respondent filed Commercial Summary Suit No.238 of 2020.
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4. At the hearing of summons for judgment, i.e., Summons
for Judgment No.43 of 2021, this court by order dated
22/11/2021 granted appellant conditional leave to defend.
Operative part of the order reads as under:
"i] Leave to defend is granted to the Defendant subject to
deposit of a sum of Rs.57,30,00,000/- along with interest @
9% p.a. from 19th November, 2019 till the date of deposit in
the Court, within a period of five weeks from today.
ii] If the aforesaid deposit is made within the stipulated
period, this suit shall be transferred to the list of
Commercial Causes and the defendant shall file written
statement within a period of four weeks from the date of
deposit;
iii] If this conditional order of deposit is not complied with
within the aforesaid stipulated period, the plaintiff shall be
entitled to apply for an ex-parte decree against the
defendants after obtaining a non-deposit certificate from
the Prothonotary & Senior Master of this Court.
iv] Summons for Judgment stands disposed of accordingly."
5. Against the said order, a special leave petition was filed by
respondent being SLP No.4047 of 2022, which came to be
disposed on 16/03/2022, since the time to deposit had already
expired and respondent was given liberty to move the Single
Judge for further orders. Apex Court passed following order:
"1 Mr Parag P Tripathi, senior counsel appearing on behalf
of the petitioner, submits that:
(i) The bank has not complied with the order of the
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High Court for deposit of Rs 57.30 crores, together
with interest at 9%, as directed; and
(ii) The bank guarantee was unconditional and
irrevocable and all efforts on the part of the bank
to restrain the invocation of the guarantee have
failed.
2 At this stage, we are of the view that the ends of justice
would be met by permitting the petitioner to apply to the
Single Judge of the High Court in pursuance of the
provisions of Order XXXVII of the Code of Civil Procedure
Procedure 1908 and the High Court Rules in that regard
for:
(i) Withdrawal of the amount deposited, in the event
of deposit, subject to furnishing security; or
(ii) For a decree in the event that there is a failure of
compliance.
3 Granting liberty to the petitioner to do so, we dispose of the
Special Leave Petition with a clarification that in the event
that the petitioner is aggrieved by any further order of the
High Court, it would be open to it to move this Court
afresh, including on the grounds which are sought to be
raised in the present proceedings.
4 Pending application, if any, stands disposed of."
6. Notwithstanding the order of the Apex Court, since
appellant did not comply with condition for leave to defend, the
suit came to be decreed by an order dated 20/04/2022, which is
impugned in this appeal.
7. We see no reason to interfere because (a) appellant had to
comply with condition for leave to defend, (b) it has not been
complied with it, (c) even the Apex Court did not interfere and
(d) even as on date, the amount has not been deposited.
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8. Appeal dismissed with costs in the sum of Rs.2 lakhs.
Consequently, all interim applications also stand dismissed.
9. After the order was dictated, Dr. Chandrachud pointed out
that appellant had preferred appeal against order dated
22/11/2021 by which appellant was given conditional leave to
defend and that appeal is still pending. That appeal will be
decided on its own merits.
[KAMAL KHATA, J.] [K.R. SHRIRAM, J.]
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