Delhi High Court - Orders
Kkspun India Ltd vs Ofb Tech Private Limited & Ors on 13 May, 2022
Author: Amit Bansal
Bench: Amit Bansal
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 323/2022
KKSPUN INDIA LTD. ..... Plaintiff
Through: Mr. Darpan Wadhwa, Senior
Advocate with Ms. Meghna Mishra,
Mr. Jatin Mongia, Mr. Ankit
Rajgarhia, Mr. Tarun Mehta, Mr.
Abhishek Grover and Mr. Amer Vaid,
Advocates
versus
OFB TECH PRIVATE LIMITED & ORS. .... Defendants
Through: None
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 13.05.2022 I.A.7706/2022 (for Exemption)
1. Subject to the plaintiff filing clear, original copies of documents sought to be relied upon, within four weeks, exemption is granted for the present.
2. The application is disposed of.
I.A.7707/2022 (for exemption from filing Court Fees)
3. Subject to the plaintiff filing the requisite court fees within one week, the application is allowed.
I.A. No.7705/2022 (permission to file additional documents)
4. Subject to filing additional documents within four weeks, the application is allowed.
Signature Not Verified Digitally Signed By:MAMTA ARYA Signing Date:13.05.2022 18:11:45CS(COMM) 323/2022
5. Let the plaint be registered as a suit.
6. Summons be issued to the defendants through all modes. The summons shall state that the written statement(s) shall be filed by the defendants within thirty days from the date of the receipt of summons. Along with the written statement(s), the defendants shall also file affidavit of admission/denial of the documents of the plaintiff, without which the written statement(s) shall not be taken on record.
7. Liberty is given to the plaintiff to file replication(s), if any, within fifteen days from the receipt of the written statement(s). Along with the replication(s) filed by the plaintiff, affidavit of admission/denial of the documents of the defendants be filed by the plaintiff.
8. The parties shall file all original documents in support of their respective claims along with their respective pleadings. In case parties are placing reliance on a document, which is not in their power and possession, its detail and source shall be mentioned in the list of reliance, which shall be also filed with the pleadings.
9. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
10. List before the Joint Registrar on 22nd August, 2022 for completion of service and pleadings.
I.A.7704/2022 (O-XXXIX Rule 1 and 2)
11. The present suit and the application have been taken up on urgent mentioning at 3.30 P.M. By way of the present application, the plaintiff seeks an injunction restraining the invocation and encashment of 24 bank Signature Not Verified Digitally Signed By:MAMTA ARYA Signing Date:13.05.2022 18:11:45 guarantees totalling a sum of Rs.41,21,57,263/- provided by the plaintiff to the defendant no.1.
12. The defendant no.1 placed six purchase orders upon the plaintiff for supply of construction equipments, details whereof are given in paragraph 4 of the plaint. In terms of the said purchase orders, the goods were to be supplied within 12 months from the date of purchase orders, extendable with mutual consent of the parties. In terms of the purchase orders, the defendant no.1 was to provide Mobilization Advance to the plaintiff against advance bank guarantee received from the plaintiff. The plaintiff duly provided advance bank guarantees and the performance bank guarantees in terms of the aforesaid purchase orders totalling a sum of Rs.41,21,57,263/- as per details in document no.7 filed on behalf of the plaintiff.
13. Mr. Darpan Wadhwa, senior counsel appearing on behalf of the plaintiff submits that in terms of the aforesaid purchase orders goods worth Rs.81,86,32,711/- have been duly supplied by the plaintiff to the defendant no.1. However, instead of adjusting the Mobilization Advance pro-rata against the goods supplied, the defendant no.1 seeks to adjust the entire amount of the Mobilization Advance against the goods supplied by the plaintiff to the defendant no.1.
14. It is further submitted by the senior counsel for the plaintiff that on 10th May, 2022, the defendant no.1 has issued demand letters to the defendants no.2 to 6 banks seeking to invoke the advance bank guarantees and performance bank guarantees on the ground that the plaintiff has failed to fulfil its commitments in accordance with the purchase orders. It is submitted on behalf of the plaintiff that the timeline fixed for the supply of purchase orders is not yet over and therefore, it is wrong to state that the Signature Not Verified Digitally Signed By:MAMTA ARYA Signing Date:13.05.2022 18:11:45 goods have not been supplied by the plaintiff in terms of the purchase orders. Therefore, it is submitted that the bank guarantees have been wrongly invoked by the defendant no.1.
15. Advance copy of the plaint and the application has been sent by way of email to the defendants today itself. However, none appears on behalf of the defendants.
16. Issue notice.
17. Notice be served through all modes including dasti.
18. Plaintiff has made a prima facie case in its favour. Grave and irreparable harm and injury would be caused to the plaintiff if the subject bank guarantees are invoked and encashed. Balance of convenience is in favour of the plaintiff. It is stated on behalf of plaintiff that the bank guarantee given by defendant No.5 bank has already been encashed. Consequently, till the next date of hearing, there shall be an ex parte ad interim injunction restraining defendants no.2, 3, 4 and 6 from releasing any amounts under the aforesaid bank guarantees as mentioned in Document 7 filed with the plaint.
19. Compliance report under Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (CPC) be filed within three days from today.
20. List on 18th May, 2022.
21. A copy of this order be given dasti to counsel for the plaintiff under the signature of the Court Master.
AMIT BANSAL, J.
MAY 13, 2022 dk Signature Not Verified Digitally Signed By:MAMTA ARYA Signing Date:13.05.2022 18:11:45