Delhi High Court
Bank Of Baroda vs Union Bank Of India & Ors. on 21 February, 2022
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21st February, 2022
+ FAO 51/2021& CM APPL. 4514/2021
BANK OF BARODA ..... Appellant
versus
UNION BANK OF INDIA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Appellant: Mr. Arun Aggarwal, Advocate
For the Respondents: Mr. Saurabh with Mr. Rajiv R. Mishra, Advocate for R-1
Mr. Bhaarat Malhotra, Advocate for R-2
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
1. The hearing was conducted through video conferencing.
2. Appellant impugns order dated 10.12.2020 whereby the
application filed by the appellant as also by respondent no. 1 under
Order 39 Rule 4 CPC have been dismissed.
3. Both applications had sought vacation of order dated
25.02.2013 which had been confirmed by the order dated 13.08.2015.
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:21.02.2022
Signing Date:22.02.2022 10:01:40 21:34
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
4. Notice has been served on respondent No. 3, however, none
appears for respondent no. 3 (defendant No. 2 in the suit). Learned
counsel for the appellant submits that since appellant has already
made the payment of the letter of credit to respondent No. 3,
respondent no. 3 may not be interested in defending the appeal.
5. In view of the above, respondent no. 3 (defendant no.2 in the
suit) is proceeded ex-parte.
6. Subject suit was filed by the respondent no. 2 seeking
declaration, cancellation of documents and permanent injunction.
7. By order dated 25.02.2013 while issuing summons in the suit,
on the application under Order 39 Rules 1 and 2 CPC, the Court had
noticed that an order has been placed upon respondent no. 3 for
supply of industrial oil and payment was to be paid through letter of
credit after 180 days.
8. Respondent no. 3 had approached the bank for encashment of
letter of credit. The case of the plaintiff was that goods had not been
supplied. As per the plaintiff, the documents attached by respondent
no. 3 with the letter of credit, i.e., invoices and lorry receipts were
forged.
9. Keeping in view the said submissions on behalf of the plaintiff,
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:21.02.2022
Signing Date:22.02.2022 10:01:40 21:34
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the Court had granted interim injunction on encashment of letter of
credit. Said injunction continued from time to time till it was
confirmed by order dated 13.08.2015 and the injunction is to continue
during the pendency of the suit.
10. Thereafter subject application seeking modification of order
dated 25.02.2013 was filed on 14.09.2015 which application has been
dismissed by the impugned order.
11. The impugned order notes that an application under Order 39
Rule 4 CPC is permissible only if in the application seeking
temporary injunction or in the affidavit supporting such application, a
party has made false and misleading statement in respect to a material
particular and injunction was granted without notice to the opposite
party.
12. Second proviso to Order 39 Rule 4 CPC lays down that where
an order of injunction has been passed after giving to a party an
opportunity of being heard, said order shall not be discharged, varied
or set aside except where such discharge, variations or setting aside
has been necessitated by a change in the circumstances or unless the
Court is satisfied that the order has caused undue hardship to that
party.
13. As noticed by the trial court there is no modification or
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:21.02.2022
Signing Date:22.02.2022 10:01:40 21:34
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
variations sought of order dated 13.08.2015 which had confirmed the
initial ad-interim order dated 25.02.2013.
14. Further, it is noticed that nothing had been brought on record to
show that the appellant had suffered any hardship or that there was
any change in the circumstances.
15. Trial court has also noticed that no appeal has been filed by the
appellant either against the order of 25.02.2013 or against the order
dated 13.08.2015.
16. Since the application filed by the appellant does not satisfy the
requirements of the second proviso to Order 39 Rule 4 CPC, the
orders dated 25.02.2013 and 13.08.2015 do not warrant any
modification or vacation under Order 39 Rule 4 CPC.
17. In my view, the trial court has committed no error in rejecting
the application filed by the appellant under Order 39 Rule 4 CPC.
Accordingly there is no merit in the appeal. The appeal is dismissed.
18. It is further noticed that the subject suit is a suit challenging the
invocation of a letter of credit and has been pending since the year
2013. It is directed that trial court shall expedite the proceedings and
endeavour to conclude the same by 31.12.2022.
19. It is further clarified that nothing stated herein shall amount to
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:21.02.2022
Signing Date:22.02.2022 10:01:40 21:34
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
an expression of opinion on the merits of the contentions of either
party.
20. Copy of the order be uploaded on the High Court website and
be also forwarded to learned counsels through email by the Court
Master.
SANJEEV SACHDEVA, J
FEBRUARY 21, 2022
'rs'
Digitally Signed
Signature Not Verified By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:21.02.2022
Signing Date:22.02.2022 10:01:40 21:34
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
