Calcutta High Court
Bmw Industries Limited vs Bank Of India & Anr on 13 February, 2009
Author: Patherya
Bench: Patherya
GA No. 3733 of 2008
CS No. 241 of 2008
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
BMW INDUSTRIES LIMITED
VS.
BANK OF INDIA & ANR.
BEFORE
THE HON'BLE JUSTICE PATHERYA
DATED : 13. 2. 2009
Mr. Jishnu Chowdhury appears for the plaintiff
Mr. P.K. Jhunjhunwala appears for the defendant no.2
Mr. D. B. Das appears for the defendant no.1
THE COURT : The parties are desirous of settling their
disputes and terms have been signed by the Advocates-on-Record of
the plaintiff and the defendant no.2. An order was passed on 24th
November, 2008 restraining the defendant no.2 from invoking the
bank guarantee furnished and forfeiting the sums thereunder. The
defendant no.2 has agreed to receive a sum of Rs.4,63,20,000/-
from the plaintiff. For such purposes the parties seek vacation of
the order dated 24th November, 2008. Accordingly the order dated
24th November,2008 is vacated and the following order passed.
A sum of Rs.2,63,20,000/- is to be received from the
respondent no.1 and the balance sum of Rs.2 crores will be paid
directly by the petitioner to the defendant no.2 as agreed between themselves.
Mr. Bhoopesh Sharma, Advocate is appointed as a Receiver. The defendant no.2 shall forthwith hand over the 2 original bank guarantee of the defendant no.1 for Rs.9,45,70,000/- to the Receiver for cancellation.
The plaintiff shall also forthwith hand over the bank drafts of Rupees two crores drawn in favour of the defendant no.2 and payable at New Delhi to the Receiver. The parties shall also make over the original Terms of Settlement to the Receiver.
Immediately upon receipt of the bank guarantee and the bank drafts of Rupees two crores, the Receiver shall go to the defendant bank and shall return the original bank guarantee for Rs.9,45,70,000/- to the defendant bank for cancellation upon the defendant bank making over the bank drafts of Rs.2,63,20,000/- (Rupees two crores sixty three lacs twenty thousand only) issued in favour of the defendant no.2 and payable at New Delhi.
Upon receipt of the bank drafts of Rs.2,63,20,000/- from the defendant bank the Receiver shall make over the same along with the bank drafts of Rupees two crores deposited by the plaintiff, to the defendant no.2 simultaneously upon the defendant no.2 signing the Terms of Settlement and delivering the vacant possession of the properties and documents as stated in the Terms of Settlement. Thereafter the Receiver shall hand over the original Terms of Settlement to the plaintiff's Advocate on record and upon such handing over the Receiver shall stand discharged.
Upon notice to the defendant no.1 Counsel for the defendant no.1 appears and submits that it has no objection to the 3 settlement arrived at between the petitioner and the defendant no.2 except that the defendant no.1 be held not liable in respect of the bank guarantee furnished.
It is made clear that in respect of the bank guarantee issued by the defendant no.1 as mentioned hereinabove the parties will have no claim against the defendant no.1 nor will the defendant no.1 be liable in respect of such bank guarantee issued.
The Receiver and all parties shall forthwith act on the basis of a copy of this order countersigned by the Advocate-on- Record of the plaintiff and the defendant no.2.
Receiver and all parties to act on a xerox signed copy of this order on the usual undertakings.
( PATHERYA, J. ) pa 4