Karnataka High Court
Sepco Electric Power vs State Bank Of India on 8 January, 2018
Equivalent citations: 2018 (1) AKR 834, (2018) 184 ALLINDCAS 749 (KAR), (2018) 2 KANT LJ 144, (2018) 2 KCCR 1058
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
1
WP No.53006/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2018 R
PRESENT
THE HON'BLE MR.H.G.RAMESH
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
WRIT PETITION NO.53006/2017 (GM-DRT)
BETWEEN:
SEPCO ELECTRIC POWER
CONSTRUCTION CORPORATION
A COMPANY INCORPORATED UNDER THE
LAWS OF CHINA, HAVING ITS REGISTERED
OFFICE AT NO.150, JINGER ROAD
JINAN, SHANDONG-250 001, CHINA
HAVING ITS INDIA PRINCIPAL PLACE OF
BUSINESS AT: SHRIRAM BHUVAN, 2ND FLOOR
772 TILAK ROAD, OPP. BEST OFFICE
DADAR, T.T., MUMBAI-400 014
MAHARASHTRA, INDIA
HAVING ITS PROJECT OFFICE AT:
VILLAGE KAMALANGA, PS BHUSAN
DISTRICT DHENKANAL-759 001
ORISSA, INDIA, REPRESENTED BY ITS
AUTHORISED SIGNATORY
AND COMMERCIAL MANAGER
MR.WANG FENGLIANG ...PETITIONER
(BY SRI ADITYA SONDHI, SENIOR ADVOCATE FOR
SRI PARTHA MANDAL AND SRI T. RAMESH, ADVOCATES)
AND:
STATE BANK OF INDIA
A BANKING CORPORATION CONSTITUTED
UNDER THE STATE BANK OF INDIA ACT, 1955
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WP No.53006/2017
HAVING ITS CORPORATE OFFICE AT:
STATE BANK BHAVAN, MADAME
COMA ROAD, NARIMAN POINT
MUMBAI-400 021, INDIA
REPRESENTED BY ITS OVERSEAS BRANCH
AT NO.65, ST.MARKS ROAD, LHO COMPOUND
BENGALURU-560 001, INDIA, REPRESENTED BY ITS
AUTHORISED SIGNATORY: MR.C.N.IQBAL
CHIEF MANAGER AND SHANGHAI BRANCH
AT 4206, K WAH CENTRE, 1010, HUAI HAI
ZHONG LU, SHANGHAI-200 031
CHINA, REPRESENTED BY ITS AUTHORISED SIGNATORY
MR.PANKAJ KUMAR, CHIEF MANAGER ...RESPONDENT
(BY SRI K.G.RAGHAVAN, SENIOR ADVOCATE FOR
SRI GANAPATHI HEGDE AND SRI GEORGE JOSEPH,
ADVOCATES FOR M/s.DUA ASSTS. FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER / JUDGMENT DATED 3.11.2017 PASSED BY THE DRAT,
CHENNAI IN THE MISCELLANEOUS APPEAL NO.184/2017 TITLED
AS "SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION
VERSUS STATE BANK OF INDIA" VIDE ANNEX-A, SET ASIDE AND
QUASH THE ORDER DATED 3.10.2017 PASSED ON I.A.1609/2017
BY THE LEARNED DRT-II, BANGALORE IN ORIGINAL
APPLICATION NO.871/2017 VIDE ANNEX-B.
THIS WRIT PETITION, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.12.2017, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY,
P.S.DINESH KUMAR J., PRONOUNCED THE FOLLOWING:-
ORDER
1. This writ petition is presented by a Chinese Company challenging the order dated 3.11.2017 in Miscellaneous Appeal No.184/2017 passed by the Debts Recovery Appellate Tribunal at Chennai ('DRAT' for short), dismissing the appeal presented by the petitioner against a common 3 WP No.53006/2017 order dated 3.10.2017 passed on I.A.No.1609 of 2017 and connected interlocutory applications by the Debts Recovery Tribunal-II, Karnataka, at Bengaluru ('DRT' for short), confirming an order of ad-interim injunction in favour of the respondent-Bank and vacating the Garnishee order.
2. Heard Shri Aditya Sondhi, learned Senior Counsel for petitioner and Shri K.G. Raghavan, learned Senior Counsel for respondent.
3. Finite facts necessary for adjudication of this writ petition are, petitioner entered into certain EPC (Engineering, Procurement, Construction) contracts with an Indian Company called M/s.GMR Kamalanga Energy Limited ('GMRKEL' for short), for designing and constructing a project for setting up a coal based thermal power plant in Kamalanga Village in Odissha. In the course of business, the petitioner obtained 12 local bank guarantees from the respondent, State Bank of India ('SBI' for short), for due performance of the contracts. The bank guarantees were issued by SBI's Overseas Branch situated at Bengaluru, based on 12 counter guarantees issued by SBI, Shanghai 4 WP No.53006/2017 Branch. In turn, SBI, Shanghai Branch, was backed by 12 irrevocable unconditional counter guarantees issued by 3 Chinese Banks [namely, (i) Industrial and Commercial Bank of China, Shandong Provincial Branch, China ("ICBC"); (ii) Shanghai Pudong Development Bank, Jinan Branch, Shanghai, China ("SPDB") and (iii) China Construction Bank ("CCB") in favour of SBI's Shanghai Branch].
4. On 3.11.2014, GMRKEL invoked following bank guarantees, amounting to $ 94,361,218.24 (` 579,26,34,105/-).
Sl. Bank of Guarantee Amount under Amount
No. Number Guarantee invoked &
encashed
(In USD)
1 0686113FG0006959 USD 24,344,829 24,344,829
2 0686113FG0006960 USD 11,290,763 11,290,763
3 0686113FG0006961 USD 47,037,248 47,037,248
4 0686111FG0006001 USD 11,688,378.24
20,611,788.60
Total 94,361,218.24
5. As soon as petitioner learnt about invocation of bank guarantees by GMRKEL, it moved a petition under Section 9 of the Arbitration and Conciliation Act, 1996 in the Court of the District Judge, Dhenkanal, Odisha, for an order 5 WP No.53006/2017 restraining invocation of the remaining bank guarantees. The District Court did not grant the order sought for. The petitioner approached the High Court of Odisha in an appeal. The High Court passed an order of status quo on 12.11.2014. In the meanwhile, SBI had already transferred the aforesaid sum of ` 579,26,34,105/- to GMRKEL.
6. Simultaneously, petitioner also moved the Shandong High People's Court in China seeking suspension of payment under the counter guarantees by the Chinese Bank. The Chinese Court has suspended payment under the counter bank guarantees issued by the Chinese Banks.
7. In these circumstances, SBI, for recovery of ` 579,26,34,105/- equivalent to the value of bank guarantees, filed the instant O.A.No.871/2017 before the DRT. Along with the Original Application, SBI also filed I.A.No.1609/2017 for an order of injunction and I.A.No.1610/2017 for a Garnishee Order. The DRT granted an interim order of injunction on 29.8.2017 and restrained the petitioner from dealing with, selling or transferring interest in it's assets (both moveable and immoveable) in 6 WP No.53006/2017 favour of any third parties and from transferring any trade receivables out of India. The application for Garnishee Order was also allowed.
8. The petitioner filed two separate applications for vacating or modifying the injunction order and the Garnishee Order. These two applications were considered along with two other applications filed by a Company called 'SEPCO-III' for impleadment and vacating the injunction order. The DRT, by it's common order dated 3.10.2017, confirmed the order of injunction, restraining the petitioner from creating any third party interest in the assets or transferring trade receivables out of India. However, the Garnishee Order was vacated. The application for impleadment was also allowed. In this petition, we are concerned only with the order of injunction against the petitioner.
9. Petitioner challenged the common order passed by the DRT before the DRAT in M.A.No.184/2017. By the impugned order dated 3.11.2017, the DRAT has dismissed the appeal. Petitioner is thus before us, assailing DRAT's order. 7 WP No.53006/2017
10. Shri Aditya Sondhi, learned Senior Counsel for the petitioner, submitted that, the impugned order passed by the DRAT, is unsustainable because it has confirmed an irrational order passed by the DRT. Amplifying his submission, he argued that the reasons recorded by the DRT, particularly, in paragraph No.34 are in favour of the petitioner, whereas, the operative portion of the order is against the petitioner. Thus, DRT's order is not in consonance with the reasons recorded. Adverting to the order passed by the DRAT, Shri Sondhi, contended that the Appellate Authority also fell in error and failed to appreciate that DRT's order, was contrary to the reasons recorded.
11. Shri Sondhi, further argued that, SBI, Bengaluru, cannot maintain an Original Application for recovery of money against the petitioner, in as much as, the performance guarantees issued by SBI are counter guaranteed by Chinese Banks. As such, there is no debt recoverable by the SBI from the petitioner. 8 WP No.53006/2017
12. Shri K.G.Raghavan, learned Senior Counsel appearing for the SBI, supporting the impugned order, vehemently contended that, the Bank has honoured invocation of bank guarantees by GMRKEL. As per the Foreign Exchange Management (Guarantees) Regulations, 2000, issued by the Reserve Bank of India, a guarantee in respect of a person, resident outside India, can be given, only if, the said guarantee is backed by a counter guarantee of a Bank of international repute, resident abroad. Thus, in compliance with the extant regulations, SBI has issued Bank guarantees, based on the counter guarantees issued by Chinese Banks. Nonetheless, the fact remains that, the Chinese Court has suspended payment upon invocation of counter guarantees. In the circumstances, SBI is fully justified in filing Original Application before the DRT, seeking recovery of the value of the Bank Guarantees. The petitioner has no tangible asset in the Country. The petitioner has also failed to respond to an application filed by the Bank to disclose it's assets.
9WP No.53006/2017
13. Refuting Mr.Sondhi's contentions that the reasons recorded by the DRT are in favour of the petitioner, Shri Raghavan, submitted that, the DRT has categorically recorded a finding in paragraph No.32 of it's order that the Bank has made out a clear case for allowing the main application even at the threshold stage.
14. Shri Raghavan, further argued that the petitioner, who has entered into contract with GMRKEL, has not made any efforts to resolve the inter se dispute with its principal.
15. We have carefully considered the submissions made by the learned Senior Counsel appearing for the parties and perused the records.
16. In the conspectus of the facts of this case, the question that falls for our consideration is:
"Whether the order of injunction passed by the DRT restraining the petitioner from dealing with it's assets or transferring trade receivable out of India, calls for interference?"
17. At the outset, we may record that though the petitioner has invoked the jurisdiction of this Court under 10 WP No.53006/2017 Articles 226 and 227 of the Constitution of India, this petition can be examined only under Article 227, the supervisory jurisdiction over Tribunals. The scope and ambit of interference in a certiorari proceeding of this nature is limited to examination of the order impugned in a very narrow compass. Unless, the order is demonstrably perverse to an extent that no reasonable person can come to a conclusion arrived at by the Tribunals below, there can be no interference by this Court.
18. Indubitably, GMRKEL has invoked Bank guarantees and SBI has honoured them. Payment by the Chinese Bank to the SBI has been injuncted by the Shandong High People's Court, China.
19. The DRT, while considering the application for vacating the injunction has recorded as follows:-
"32) No doubt, the applicant bank has acted in all fairness with maximum honesty and integrity with utmost bonafides under the situation that is expected of a bank of international repute, in making the payment under the guarantees as promised by it and thereby set a sterling example of what is genuine and reliable banking is all about. Unfortunately, the Chinese banks which are under 11 WP No.53006/2017 similar obligations have not reciprocated with such qualities. The applicant bank has also undoubtedly made out a clear open and shut case for allowing the main application even at the threshold stage and clearly made out a prima facie case against the defendant for an injunction as prayed for in IA No 1609/2017."
(Emphasis supplied)
20. The sheet anchor of Shri Sondhi's submission is that, the findings recorded by the DRT are not in consonance with the final order. To substantiate his contention, he has relied upon paragraph 34 of DRT's order. The relevant portion of the order reads as follows:-
"34) ......................... There is no idea as to what will happen if the order is continued and who all will take advantage of the order to make or break the projects. The bank has also not stated as to how the garnishees will not be prejudiced in any way by the order. Further, it is also not possible to permit only deposits by garnishees with out permitting the defendant company to withdraw monies for its legitimate day to day payments for completing its present projects as the projects are said to be nearing completion and no scheme or suggestion or practical solution is put in place by the bank for monitoring it. The applicant bank has not come forwarded with any workable solution in this regard except to seek a blanket order against garnishees. No 3rd party should be affected by the order. The ld. Senior Counsel Shri.Raghavan appearing for the applicant bank stressed his point very much on the protection of public money. While none, and certainly not 12 WP No.53006/2017 this Tribunal, can have any second opinion about protecting and preserving the public money which means the money belonging to the entire People of this Country and thus stands/placed on a higher pedestal than the rest in terms of protection, preservation and recovery as Country's economy also, to a certain extent, depends on it, it is equally important to see that the projects which are meant for the same public good are not delayed and/or affected. Smooth continuation of public projects said to be worth Rs.60,000/- Crores (not denied by the Bank) are more important than applicant bank's dues of Rs.600 Crores, just in comparison, though protecting, preserving and recovering this amount is also by no means less important from any point of view. As stated above, the applicant bank has got a cast iron case for an order of Injunction/final decree. But this garnishee application is not the answer for it. The bank is protected by the guarantees of the Chinese banks which the applicant bank itself had accepted as good enough and safe and proper security for its exposure and is further protected by the guarantee of the Chinese Insurance company as well.
Whereas no one knows as to what will happen to the projects of Garnishees in India in executing its power projects for Indian public, if the order is continued. In fact, the Ld.Senior Counsel Shri.Raghavan has not met this point which was repeatedly raised by the ld.Senior Counsels Shri.Sondhi and Shri.Sajjan Poovaiah, during the course of arguments. Under the circumstances, I am of the considered view that it is not proper to continue the Garnishee order in its present form and on the basis of present prayer that lacks in details. The applicant bank may renew its application with details of the projects and by stating as to how such orders will not prejudice the 13 WP No.53006/2017 Indian projects and as to how to monitor the outgoings for completion of the projects."
(Emphasis supplied)
21. The emphasized portion of the above extracted order clearly shows that the findings recorded in paragraph No.34 are in two folds. The first with regard to confirmation of injunction order and the second with regard to vacating the Garnishee order.
22. In paragraph No.32 of it's order, the DRT has recorded a categorical finding that the SBI has made out a prima facie case for grant of injunction. This finding is again reiterated in paragraph No.34.
23. With regard to Garnishee Order, the DRT, for the reasons recorded, has held that it is not necessary to continue the same and accordingly vacated it.
24. The DRAT on re-consideration of the material on record, has not dislodged the findings recorded by the DRT. On the other hand, it has held that both prima facie case and balance of convenience lie in favour of SBI. 14 WP No.53006/2017
25. Thus, both the original and the first appellate Tribunals are at one with each other with regard to continuance of injunction and dis-continuance of Garnishee order.
26. On careful perusal of the orders passed by both DRT and DRAT, we are of considered view that, both the Tribunals have bestowed their attention and recorded cogent reasons while arriving at their respective conclusions.
27. Therefore, the principal ground urged in support of this petition, namely, that the order passed by the DRT is not in consonance with the reasons recorded, must fail.
28. The DRAT, has examined the matter in a statutory appeal provided under Section 20 of the Recovery of Debts & Bankruptcy Act, 1993. Such an appeal is 'an appeal on principle' and the appellate Court is vested with power and jurisdiction to dislodge a finding recorded by the Court of first instance. But, in the case on hand, the appellate 15 WP No.53006/2017 Tribunal has concurred with the view taken by the Tribunal at first instance.
29. It is settled that the High Court shall not ordinarily interfere, exercising it's power under Article 227 of the Constitution of India, unless, the order impugned is either without jurisdiction or so perverse that, no man of ordinary prudence can pass such order. We find neither contingencies in place, calling for interference by this Court.
30. In the circumstances, we see no legal infirmity in the impugned order passed by the DRAT confirming DRT's order. Resultantly, this writ petition fails and is accordingly dismissed.
Petition dismissed.
We make no order as to costs.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE cp*