Calcutta High Court (Appellete Side)
Coal Mines Associated Traders ... vs Union Of India & Ors on 28 February, 2023
Item No.12.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 28.02.2023
DELIVERED ON: 28.02.2023
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 372 of 2023
With
I.A. No.CAN 1 of 2023
Coal Mines Associated Traders Private Limited & Anr.
Vs.
Union of India & Ors.
Appearance:-
Mr. Kishore Datta, Sr. Adv.,
Mr. Arijit Bardhan,
Mr. Sayan Sinha,
Mr. Steven S. Biswas .... for the appellants.
Mr. T. M. Siddique,
Mr. Debasish Ghosh,
Mr. Nilotpal Chatterjee .... for the State.
Mr. Prithu Dudhoria ... for the Union of India.
Mr. Jaweid Ahmed Khan,
Mr. Bhaskar Sengupta,
2
Mr. Talha Ahmed Khan ... for the IOCL.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. This intra-Court appeal by the writ petitioner is directed
against the order dated 23rd February, 2023 passed in WPA
No.15888 of 2021 in and by which the learned Writ Court had
vacated the interim order, which was granted on 7 th October,
2021. The said order states that both the parties were heard
and considering the submissions of the parties, the
respondents/Indian Oil Corporation Limited (for short, "IOCL")
was directed to maintain status quo with regard to the bank
guarantee in question till 15th November, 2021 or until further
order, whichever is earlier. The interim order had been
extended from time to time till it was vacated by the impugned
order dated 23rd February, 2023.
2. From the stay petition as well as from the submissions of
the learned advocates of the respective parties, we are able to
ascertain that the pleadings are complete and the respondents,
both the State and the IOCL have filed their respective
affidavit-in-opposition to which reply has been filed by the
appellant. The Union of India has chosen not to use any
affidavit-in-opposition. In such circumstances, it is to be seen
as to whether the status quo, which was prevailing from 7 th
October, 2021 till 23rd February, 2023 should have been
disturbed, more so when there was no specific prayer made by any
of the respondents seeking for vacating the interim order.
3. The learned Single Bench has rightly noted the legal
position that originally the Courts will be slow in granting an
order of injunction to restrain the working of a bank guarantee.
There will be no quarrel to the said legal proposition.
Nonetheless, the issue involved in the writ petition needs to be
considered and what played in the mind of the learned Writ Court
when it granted the interim order on 7th October, 2021.
4. In the writ petition, the first prayer sought for by the
appellants is to declare Section 150 of the Finance Act, 2021
cannot be given retrospective effect from 28 th March, 2021 and
Section 5 of the General Clauses Act, 1897 would not be
applicable for interpretation of Finance Act, 2021. The second
prayer sought for is to quash the order passed by the Commercial
Tax Officer dated 16th July, 2021 cancelling the Form C
declaration, which was issued to the appellants, who in turn had
submitted to the IOCL. There are other ancillary prayers and
there are also interim orders sought for to restrain the IOCL
and its authorities from giving any effect or further effect to
the letters dated 16th August, 2021 and 24th September, 2021
issued by the Senior Manager, Institutional Business, Durgapur
Divisional Office, IOCL till the disposal of the writ petition.
5. Thus, the interim relief sought for appears to have been
couched in a more comprehensive manner and the learned Single
Bench while considering such prayer thought it fit to direct the
IOCL to maintain status quo with regard to the bank guarantee in
question initially till 15th November, 2021, which was
subsequently extended from time to time in the presence of the
respective parties.
6. Therefore, in our prima facie view, this is not a classical
case where the issue to be considered is whether a bank
guarantee can be injuncted or not. To put it in other words,
the principal challenge is to the cancellation of the Form C
declaration and the consequences that would follow as a result
of such cancellation. Therefore, in our view, a slightly
different approach can be taken in the instant case and
presumably for such reason, the learned Writ Court on 7 th
October, 2021 directed the IOCL to maintain status quo with
regard to the bank guarantee in question. That apart, the
interim order was passed as far back as on 7 th October, 2021 and
it would be inequitable to disturb the said position especially
when the writ petition is ready for hearing. Nothing prevented
the respondents from seeking for vacating the interim order,
which appears to have not been done though the interim order was
in force since 7th October, 2021.
7. Therefore, we are of the view that the interim order should
stand restored till the writ petition is heard and decided or in
the event if the respondents move for vacating the interim order
till such applications are considered by the learned Writ Court.
8. We are informed by the learned Advocates appearing for the
parties that till date though a letter of invocation of the bank
guarantee has been issued but funds have not been transferred.
9. Thus, considering the above aspects, the appeal is allowed.
Consequently, the application being I.A. No.CAN 1 of 2023 is
disposed of. The order passed in the writ petition dated 23rd
February, 2023 is set aside and the respondents / IOCL is
directed to maintain status quo with regard to the bank
guarantee in question and in case, a letter has been given to
the bank for invoking the bank guarantee, IOCL shall forthwith
inform the bank for withdrawal of such letter and the bank
guarantee shall be kept alive by the appellants till the learned
Writ Court takes a decision either in the writ petition or in
the applications for vacating the interim order if the
respondents chose to file the same.
10. There shall be no order as to costs.
11. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
