Dipenkumar Maheshkumar Patel vs State Of Gujarat on 4 June, 2019

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Gujarat High Court

Dipenkumar Maheshkumar Patel vs State Of Gujarat on 4 June, 2019

Bench: A. P. Thaker

        C/SCA/9900/2019                                      ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 9900 of 2019
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              DIPENKUMAR MAHESHKUMAR PATEL
                            Versus
                     STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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 CORAM: HONOURABLE DR.JUSTICE A. P. THAKER

                            Date : 04/06/2019

                              ORAL ORDER

1. Heard learned advocate Mr.P.P. Majmudar for the petitioner.

2. According to learned advocate Mr.Majmudar, the respondent No.3 - company is involved in playing fraud with the public and without supplying any INDIZEL and without fulfilling the agreement, the respondent No.3 - company moved to encash the bank guarantee. It is submitted that the same fraud has been committed by the respondent No.3 - company in the entire country and at present, the directors of the company are in jail. While referring to the press note and copy of the F.I.R. filed with the matter, it is submitted that if the bank guarantee is invoked by the respondent No.3, irreparable harm would cause to the petitioner and he will lose everything. It is submitted that there is no amount due by the petitioner to the respondent No.3 and the respondent No.3 - company, on one hand, has not supplied the agreed bio-diesel Page 1 of 2 Downloaded on : Tue Jul 02 23:46:47 IST 2019 C/SCA/9900/2019 ORDER even once and on the other hand, is trying to invoke the bank guarantee in an absolutely arbitrary, illegal and fraudulent manner. Learned advocate Mr.Majmudar requests to protect the rights of the petitioner by staying invocation of the bank guarantee No.BG/2017-18/01, which is annexed at Annexure-C to the petition.

3. On perusal of the material placed with the matter, it transpires that the bank guarantee has been invoked by respondent No.3 - company and there is a condition for invoking the bank guarantee. Now, it is well settled that invocation of the bank guarantee cannot be stayed by the Court except (i) in case of fraud and to destroy the very purpose for which, such bank guarantee was issued (ii) in the case where, encashment of the bank guarantee would result into harm or injustice to one of the parties.

4. Considering the facts of the present case, it appears that the respondent No.3 - company has not supplied any material to the petitioner and tried to invoke the bank guarantee.

5. Under the circumstances, let the notice be issued to the respondents, making it returnable on 19.06.2019. Meanwhile, there will be ad-interim stay in terms of para 21(C) of the petition. Direct service today is permitted.

(A. P. THAKER, J) Hitesh Page 2 of 2 Downloaded on : Tue Jul 02 23:46:47 IST 2019

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