Bombay High Court
Apar Industries Limited vs Export Import Bank Of India on 6 January, 2023
Author: R.I. Chagla
Bench: R.I. Chagla
8-IAL-224-23.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 224 OF 2023
IN
COMMERCIAL SUIT (L) NO. 222 OF 2023
Apar Industries Ltd. ...Applicant/
Plaintiff
Versus
Export Import Bank of India & Anr ...Defendants
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Mr. Mustafa Doctor, Senior Counsel, Mr. Jehangir Jejeebhoy, Mr.
Areez Gazdar and Ms. Juhi Bahirwani i/b. Veritas Legal for the
Applicant / Plaintiff.
Mr. Vineet Naik, Senior Advocate, Mr. Amod Eklaspur, Mr. Eshaan
Saroop, Ms. Manaswi Agrawal, Mr. Mahesh Dube i/b. Meraki
Chambers for Defendant No.1 - EXIM Bank.
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CORAM : R.I. CHAGLA J
DATE : 6 January 2023
ORDER :
1. Mr. Mustafa Doctor, learned Senior Counsel appearing for the Applicant/Plaintiff has brought to the notice of this Court that the Defendant No. 2 has by way of Structured Financial Messaging System ("SFMS") communicated to the Defendant No. 1 that by letter 1/4 ::: Uploaded on - 07/01/2023 ::: Downloaded on - 07/01/2023 21:21:23 ::: 8-IAL-224-23.doc dated 3rd January 2023 received from the beneficiary, legal action was not to be taken for 14 days from the date of signing the said letter in respect of the Performance Guarantee. It is mentioned in the said SFMS as under :-
"Indicate that for 14 days from the date of signing this letter the beneficiary will not take legal action in connection with the submitted demands for payment under the guarantee in order to enable the subcontractor to obtain and submit ....."
"Accepted guarantees within the above period taking into account the expectations of our entity. The above statement does not constitute a waiver of liabilities main resulting with complex requests amounts requested in relevant writings."
"Please take necessary action at your end. We confirm that our request for payment will remain intact in case of non-fulfillment of the requirement raised by the beneficiary."
2. The SFMS generated on 4th January 2023 along with the letter dated 3rd January 2023 addressed by the beneficiary to the 2/4 ::: Uploaded on - 07/01/2023 ::: Downloaded on - 07/01/2023 21:21:23 ::: 8-IAL-224-23.doc Defendant No. 2 are taken on record and marked "X colly." for identification.
3. Mr. Doctor has submitted that in view of the above communication by SFMS from the Defendant No. 2 to the Defendant No. 1 read with the said letter dated 3rd January 2023, it is clear that for 14 days from the date of signing of letter from the beneficiary, the beneficiary will not take legal action in connection with the demands for payments under the Bank Guarantee in order to allow the subcontractor, who is the Plaintiff herein, to extend the validity of Bank Guarantee to 2031. Accordingly, the Interim Application may be stood over.
4. The Interim Application filed in the above Commercial Suit is being stood over to 17th January 2023, considering that the 14 days period which has commenced from the date of signing of the said letter dated 3rd January 2023 addressed by the beneficiary to Defendant No. 2 expires on 17th January 2023. Further, the invocation of Bank Guarantee and corresponding Counter Guarantee has been kept in abeyance.
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8-IAL-224-23.doc
5. The representative of Defendant No. 2, who has been served, shall remain present in Court on the next date.
6. Notice of this order shall be served by the advocates for the Plaintiff on Defendant No. 2 and Affidavit of Service shall be filed on or before the next date.
7. Stand over to 17th January 2023 at 2.30 p.m.
8. Liberty to the parties to apply in the event the matter has been settled between the parties.
[R.I. CHAGLA J.] 4/4 ::: Uploaded on - 07/01/2023 ::: Downloaded on - 07/01/2023 21:21:23 :::