Delhi High Court
Phelan Energy India R J Pvt Ltd vs Indusind Bank & Anr. on 28 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:28.12.2020
22:59:08
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28th December, 2020
+ W.P.(C) 11213/2020 & CM APPLs. 34987-88/2020
PHELAN ENERGY INDIA R J PVT LTD ..... Petitioner
Through: Mr. Sujit Kumar Ghosh, Advocate
versus
INDUSIND BANK & ANR. ..... Respondent
Through: Mr. Manish Sharma, Adv. for R-1.
Mr. Bharat Sangal, Sr. Advocate with
Ms. Babita Kushwaha, Advocate for
R-2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done by video conferencing.
2. The present petition has been filed seeking return of the amounts, to
the extent of Rs 1,92,00,000/-, received by Respondent No.2, due to
encashment of the bank guarantee which was issued by Respondent No.1.
3. The brief background of the petition is that vide order dated 24th
December, 2020, a ld. Single Judge of this Court had restrained the
invocation of the bank guarantee given by Petitioner in favour of
Respondent No.2 from Respondent No.1. The operative portion of the said
order reads as under:
"7. I have considered the submissions made by the
learned counsels for the parities. The Circular
dated 18.06.2019 regarding setting up of a Dispute
Resolution Mechanism and the procedure
prescribed by the Circular dated 20.09.2019
issued by the respondent no.1 clearly show that the
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Digitally Signed
Signing Date:28.12.2020 22:26
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:28.12.2020
22:59:08
Dispute Resolution Committee is an intermediate
step to ensure settlement of disputes between the
developers of the solar/wind power units and the
respondent no.4. While such disputes are pending
before the respondent no.3, Clause 12 of the
Procedure reproduced hereinabove, restrain the
respondent no.4 from taking any coercive action
against such developers during the pendency of the
appeal before the respondent on.3. The intent
clearly been that the developer is protected till the
decision is taken by the respondent no. 3 and that
would entail supplying a copy of the decision of
the respondent no. 3 to the developer/petitioner.
8. In view of the above, the respondent no.1 is
directed to supply the final decision on the appeal
filed to the petitioner within two days from today.
The petitioner shall thereafter, be entitled to seek
appropriate legal remedy against the decision in
accordance with law.
9. Subject to any orders being passed by the Court
of competent jurisdiction, the respondent no.4
shall not receive any amount from the respondent
no. 5 based on the invocation of the Bank
Guarantee for a period of two weeks from today,
for the petitioner to avail of its legal remedy. The
petitioner shall inform about this order to the
respondent no.5 for ensuring compliance.
10. It is made clear that this Court has not
expressed any opinion on the merits of the dispute
between the petitioner and the respondent no.4,
which shall be adjudicated before an appropriate
forum"
4. Ms. Sujit Ghosh, ld. counsel appearing for the Petitioner, submits that
the said order was passed at about 1:00 p.m. in the presence of the ld.
counsels for IndusInd Bank and Respondent No.2. Ld. counsel submits that
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Digitally Signed
Signing Date:28.12.2020 22:26
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:28.12.2020
22:59:08
he had on the same day at about 1:11pm, also informed the Bank that there
has been a stay of the bank guarantee. Another detailed letter is also stated to
have been sent in the evening of 24th December, 2020 itself, intimating the
same. However, unfortunately, the bank guarantee invocation was given
effect to, by the Bank, and an amount of Rs.1.92 crores was disbursed to
Respondent No.2, Solar Energy Corporation of India Ltd. Thus, the prayer
in this petition is for refund of the entire amount and for reinstatement of the
bank guarantee, in terms of the order of the ld. single judge of this court.
5. A perusal of the order dated 24th December, 2020, shows that the
same does not brook any ambiguity. It is clear that the bank guarantee could
not have been encashed. The Respondent No.2 was also directed not to
receive any money from the bank.
6. Mr. Sangal, ld. Senior Counsel, appearing for Respondent No.2
submits that the Respondent No.2 will, by the end of working hours
tomorrow i.e., 29th December, 2020, retransmit the entire amount to the
Respondent No. 1, IndusInd Bank, in order to enable the Bank to reinstate
the Bank Guarantee. However, curiously Ms. Manish Sharma, ld. counsel
appearing for Respondent No.1/ IndusInd Bank, claims that the Bank
Guarantee is still alive.
7. In view thereof, the statement of Mr. Sangal, ld. Senior Counsel, is
taken on record and the Respondent No.2 is directed to ensure that the entire
amount received by Respondent No. 2 is repaid to the Respondent No.1/
IndusInd Bank by end of banking hours tomorrow i.e., 29th December 2020.
8. Further, in view of the fact that invocation of a bank guarantees can
adversely affect the financial standing of the entity involved, it is made clear
that the present invocation shall not affect the financial standing of the
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Signing Date:28.12.2020 22:26
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:28.12.2020
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Petitioner in any manner. The bank shall issue a certificate on or before 31st
December, 2020, stating that the bank guarantee has been reinstated in
favour of Respondent No.2.
9. Ld. counsel for the Petitioner agrees to renew the same in terms of the
contract between the parties. No further orders are called for in this matter.
With these observations the present petition and all pending applications are
disposed of
PRATHIBA M. SINGH, J.
(VACATION JUDGE)
DECEMBER 28, 2020
dj/Ak
Signature Not Verified
Digitally Signed
Signing Date:28.12.2020 22:26
