Gujarat High Court
Centurion Bank Limited vs Lersen And Tubro Limited on 24 March, 2004
Equivalent citations: AIR2004GUJ333, (2004)3GLR1893
Author: R.M. Doshit
Bench: R.M. Doshit
JUDGMENT R.M. Doshit, J.
1. Heard the learned advocates.
2. These four petitions preferred under Article 227 of the Constitution of India arise from the orders refusing to grant leave to defend and the decree passed against the defendant in Special Summary Suits No. 429 of 2001; 430 of 2001; 431 of 2001 and 432 of 2001 respectively. All the four suits arose between the same parties in similar set of facts. The learned advocates agree that these petitions be heard for final disposal. Since all the petitions raise identical question, these petitions are disposed off by this common judgment. For the sake of convenience, facts are recorded as stated in Special Summary Suit No. 429/2001 alone.
3. The plaintiff in the aforesaid suits is Larsen & Tubro Limited, a Public Limited Company [hereinafter referred to as, `the Plaintiff']. The defendant is the Centurion Bank Limited [hereinafter referred to as, `the Defendant']. The plaintiff and one Messrs. KND Engineering Technologies Limited [hereinafter referred to as, `M/s. KND Limited'] had entered into a contract for supply of `Equipment' for construction works site, Digbai, Assam State. In accordance with the terms and conditions of the said contract, the plaintiff had made advance payment in the sum of Rs. 44,31,159=00 in respect of 3% of the cost of the Equipment. M/s. KND Limited had furnished security by way of Bank Guarantee in favour of the plaintiff for the like amount. By letter dated 12th March, 2001 the plaintiff invoked the said Bank Guarantee. On refusal of the defendant to pay the amount agreed under the Bank Guarantee, the plaintiff took out the summons for judgment under Order 37 Rules 1 and 2 CPC. In the said Summons for Judgement, the defendant moved application for leave to defend under Order 37 Rule 3 CPC. The defendant also moved application Ex. 13 under Order 1 Rule 10 CPC to implead M/s. KND Limited as party defendant to the suit. Both the said applications were contested by the plaintiff. By impugned Orders dated 19th January, 2004, both the said Applications came to be rejected. Decree in the suit amount with interest @ 6% per annum from the date of the suit till realization came to be passed in each suit against the defendant. Feeling aggrieved, the defendant has preferred the present petitions.
4. Learned advocate Mr. Vakil has raised a preliminary contention that the present petitions under Article 227 of the Constitution of India against the decree passed in summary suits are not maintainable. He has submitted that the decree passed against the defendant can be challenged in appeal under Section 96 CPC and not in a petition under Article 227 of the Constitution. He has submitted that no petition under Article 227 of the Constitution shall lie in the subject matter where a substantive appeal shall lie under the CPC. In support thereof, he has relied upon the judgment in the matter of Sheth Chand Ratan vs. Pandit Durga Prasad (D) By. LRs. & Ors. [2003 (5) SCC 399]. In the said matter, a writ petition under Article 226/227 of the Constitution against the order of the learned Additional District Judge came to be entertained by the High Court of Madhya Pradesh. Against the said order of the learned Addl. District Judge, the writ petitioner had also preferred Misc. First Appeal. The said First Appeal was time barred, the application filed under Section 5 of the Limitation Act for condonation of delay came to be rejected by the High Court. However, the writ petition was entertained and was allowed. In appeal before the Division Bench of the High Court, the Bench was of the opinion that, `...existence of an alternative remedy does not divest the High Court of its jurisdiction under Article 226 and 227 of the Constitution of India.' The Division Bench accordingly dismissed the Appeal. In appeal to the Hon'ble Supreme Court against the order of the Division Bench, the Hon'ble Court observed that the aforesaid view taken by the Division Bench of the High Court had hardly any application on the facts of the case. It was held that, `...It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and that court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the Court was not before some other forum or tribunal. On the contrary, by virtue of sub-section (3) of Section 27 of the Act, the order passed by the Court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High Court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal." Mr. Vakil has submitted that precise is the case in the present group of petitions. In all the aforesaid suits, a decree has been passed against the petitioner which can be challenged before the High Court in appeal. However, with a view to avoiding payment of court fees, the petitioner has chosen to bye-pass the said remedy of substantive appeal and has preferred the present petition under Article 227 of the Constitution of India.
5. In answer to the above preliminary objection, learned advocate Mr. Soparkar has relied upon the judgment of this Court in the matter of Mohmad Iqbal Mohmad Askinbhai vs. Good Year India Limited [1988 (1) GLH (UJ) 33]. In the said matter, Revision Application under Section 115 CPC [as it stood then] was preferred against the order refusing to grant leave to defend. The learned Judge held that in a case where leave to defend is not granted and a decree has been passed against the defendant, although decree would be appealable, the revision application against the order refusing leave to defend shall be maintainable. In holding so, the learned Judge had relied upon the judgment of the Delhi High Court in the matter of Sri Krishan Bhardwaj v. Manohar Lal Gupta & Anr. [AIR 1977 Del. 226]. Similar view has been taken by the Delhi High Court in the later judgment in the matter of M/s. Skylark Motors (India) & Ors. vs. Lakshmi Commercial Bank Limited [AIR (1997) Del. 46]. The Delhi High Court rejected the contention that, `a decree once passed remains effective till set aside and so, reviving the order by which leave to appear and defend has been refused would be an exercise in futility because the decree will still subsist.' The Court held that, `..When leave is refused to the defendant to appear and defend a suit under Order 37 CPC, the effect of the refusal of leave to appear and defend is that the allegations in the plaint by a deeming provision stand admitted. The allegations in the plaint being admitted, a decree has to follow. This means that the decree follows as a consequence of earlier order of refusal to grant leave to appear and defend. In my opinion, when a subsequent order, even if it be a decree, is a consequential order to an earlier order and the earlier order is set-aside the latter order must also fall and the directions to that effect have to be given."
6. The said view has been followed by Delhi High Court in Messrs. Skylark Motors and Ors. [Supra]. Thus, there is a consistent view taken by this Court and by Delhi High Court that against the order refusing leave to defend and the consequential decree, a revision shall lie. To this, Mr. Vakil has answered that the said view applies to a revision application under Sec. 115 CPC but not to a petition under Article 226/227 of the Constitution. The contention is required to be rejected at the outset. The aforesaid observation made by the Hon'ble Supreme court in the matter of Sheth Chand Ratan [Supra] shall not be attracted in the facts of the present case. What is essentially challenged in the present writ petitions are the orders refusing leave to defend where passing of the decree is a mere consequence. No appeal shall lie against the order refusing leave to defend. Hence, the present petitions against the composite orders refusing leave to defend and passing of decree are maintainable. The preliminary objection raised by Mr. Vakil is, therefore, rejected.
7. Learned advocate Mr. Vakil has also relied upon the judgment of the Hon'ble Supreme Court in the matter of Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. [AIR 1960 SC 941]. He has submitted that the order refusing leave to defend though is not appealable can be challenged in an appeal against the final decree. In the submission of Mr. Vakil, in the present cases, the final decree having been passed against the defendant, against which an appeal shall lie, the defendant can challenge the order refusing leave to defend in such appeal. Therefore also, the present petitions under Article 227 of the Constitution shall not lie. In the said judgment, the Hon'ble Supreme Court was called upon to examine the application of principle of res judicata embodied under section 11 CPC. With respect to orders made in the same litigation at different stages, the Hon'ble Judges of the Supreme Court held that, ".. the principles of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding." It was further held that, "it is open to the appellate Court which had not earlier considered the matter to investigate in an appeal from the final decision grievances of a party in respect of inter locutory orders." Considering the case, the Hon'ble Judges held that, "...It is clear, therefore, that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order." The aforesaid principle laid down by the Hon'ble Supreme Court would enable the defendant to challenge the order refusing leave to defend in substantive appeal against final decree. However, the same does not preclude the defendant from challenging the order refusing leave to defend and the consequential final decree passed against him in a writ petition, if such petition is otherwise maintainable.
8. It is not in dispute that the defendant did give Bank Guarantee in the sum of the suit amount. The learned City Civil Judge has relied upon the settled law that a bank guarantee has to be regarded as independent of the contract between the parties and the same can be enforced without reference to any claim or counter claim arising out of the main contract between the parties. In absence of a case of fraud, misrepresentation, deliberate suppression of material facts, the bank guarantee has to be honoured by the bank. The beneficiary cannot be restrained from enforcement of the bank guarantee. The learned Judge has held that, "there is not triable issue as the bank guarantee is a separate contract between the plaintiff and the defendant-Bank. Moreover, looking to the bank guarantee, it is an unconditional bank guarantee. Therefore, there is no triable issue has been raised. Therefore, defendant Bank cannot raise triable issue." The learned Judge has also rejected the application for impleading M/s. KND Limited as party-defendant on the same ground that the suit Bank Guarantee is an independent contact between the plaintiff and the defendant Bank. The Bank has to pay without demur.
9. The learned advocate Mr. Soparkar has assailed the aforesaid two orders and the observations made by the learned Judge. He has submitted that the above referred settled law with respect to the bank guarantees cannot be invoked in the present cases. He has relied upon the suit Guarantee and the terms & conditions thereof. He has submitted that the suit Guarantee is not absolute guarantee as normally the bank guarantee is. The suit Bank Guarantee was agreed to be adjusted against the progressive bills of payment for supply of the Equipment. The date on which the advance amount was entirely adjusted against the progressive bills for payment furnished by the vendor, the Guarantee would stand cancelled forthwith. Mr.Soparkar has submitted that the suit Guarantee was given at the instance of the vendor M/s. KND Limited as security against the advance payment made by the purchaser-plaintiff. The said amount was required to be adjusted pro rata against the progressive bills for supply of the Equipment. Thus, the value of the suit Guarantee would start diminishing to the extent the amount was adjusted against the progressive bills. He has, therefore, submitted that the suit Guarantee cannot be said to be absolute guarantee in the sum indicated in the said Guarantee. The sum indicated in the suit Guarantee is the maximum amount, the payment of which was guaranteed by the defendant; subject to the adjustments to be made against the progressive bills. A question, therefore, shall arise with respect to the liability of the defendant under the suit Bank Guarantee as on the date of the demand. Unless it is adjudicated by the Court of law how much of the amount was adjusted against the progressive bills since the date of the Guarantee, the defendant's liability under the suit Guarantee cannot be ascertained. A summary suit under Order 37 CPC for an unascertained amount shall not lie. Mr. Soparkar has, therefore, submitted that the defendant had successfully raised triable issue and was entitled to unconditional leave to defend. Similarly, unless M/s. KND Limited were impleaded as party defendant, the amount due and payable under the suit guarantee cannot be ascertained. M/s. KND Limited was, therefore, a necessary party to the suit. The defendant's application Ex. 13 to implead M/s. KND Limited as party defendant made under Order 1 Rule 10 CPC ought to have been allowed. In support of his contentions, Mr. Soparkar has relied upon the judgments in the matters of M/s. Mechalec Engineers & Manufacturers vs. M/s. Basic Equipment Corporations [AIR 1977 SC 577], and of Mrs. Raj Duggal vs. Ramesh Kumar Bansal [AIR 1990 SC 2278].
10. The petitions are contested by the learned advocates Mr. Vakil and Mr. Thakore. They have relied upon the suit Guarantee and have submitted that the suit Guarantee is absolute guarantee. Under the suit Guarantee, the defendant was liable to pay the suit amount on demand by the plaintiff. They have submitted that the law in respect of the bank guarantees is quite well settled. The enforcement of the bank guarantee cannot be interfered by the court. In support thereof, they have relied upon the judgments of the Hon'ble Supreme Court in the matters of Oil & Natural Gas Corporation Limited vs. S.B.I., Overseas Branch, Bombay [(2000) 6 SCC 385]; of Centax (India) Limited vs. Vinmar Impex Inc. & Ors. [1986 (4) SCC 136]; of National Aluminium Co. Limited vs. R.S Builders (India) P. Limited & Ors. [1994 (79) Company Cases 379] and of ITC Ltd. vs. Debts Recovery Appellate Tribunal & Ors. [1998(2) SCC 70]. The learned advocates have also relied upon the evidence on record and the affidavit dated 25th June, 2003 and the additional affidavit filed on behalf of the plaintiff. It is submitted that even after the date of the suit and after application for leave to defend was made by the defendant, the plaintiff and the vendor - M/s. KND Limited had a meeting as recorded by the minutes dated 13th October, 2001. In the said minutes also, there is evidence that no amount was adjusted against the progressive bills. It is, therefore, submitted that the question of adjustment does not arise. The defendant is liable to pay full amount as mentioned in the suit Guarantee. 03.05.2004
11. In the matter of M/s. Mechalec Engineers & Manufacturers [Supra], the Hon'ble Supreme Court had occasion to consider the scope and ambit of Order 37 Rule 3 CPC. The Hon'ble Court took into consideration catena of decisions and has, in paragraph 8 of the judgment, culled the principles on which the application made under Order 37 Rule 3 CPC shall be considered, which read as under :-
(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shews such a state of facts as leads to the iinference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.
(e) If the defendant has no defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence.'
12. In the matter of Mrs. Raj Duggal [Supra], the Hon'ble Supreme Court has discussed the cases in which leave to defend the suit under Order 37 Rule 3 CPC should be granted and when such leave can be declined. It is said that, ST `...leave is declined where the Court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the Court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross examine his witnesses, leave should not be denied. Where also, the defendant shows that even on a fair probability he has a bona fide defence, he ought to have leave.'
13. In the matter of Oil & Natrual Gas Corporation Limited [Supra], it is held that, `..Encashment of an unconditional bank guarantee does not depend upon the adjudication of disputes. Also no distinction can be made between a bank guarantee for due performance of a work contract and a guarantee given towards security deposit for a contract or any other kind of guarantee. Where the beneficiary shall be the sold judge on the question of breach of primary contract, the bank shall pay the amount covered by the guarantee on demand without a demur. In the absence of a plea of fraud, guarantee has to be given effect to.'
14. In the matter of Centax (India) Limited [Supra], a similar view has been expressed with respect to bank's liability under letter of guarantee or indemnity.
15. In the matter of I.T.C. Limited {Supra} the Hon'ble Court has reiterated the aforesaid settled law with respect to the bank's liability to honour the bank guarantee. It is further stated that, "non movement of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff to use the word "fraud" in the plaint and get over any objections that may be raised by way of filing an application under Order 7 Rule 11 CPC."
16. In the matter of National Aluminium Company Limited [Supra] also, the Orissa High Court has held that, `..Court's interference in enforcing bank guarantees must be minimal. It is in the case of fraud or to prevent irretrievable injustice that courts interfere to prevent enforcement of bank guarantees. Of course, a bank guarantee has to satisfy the conditions laid down therein before a bank can be called upon to make payment as per the guarantee. If the terms of the bank guarantee be unconditional, the bank has to pay without demur. The payment under a bank guarantee cannot be made subject to the claims and counter-claims arising out of the main contract between the parties. If a bank guarantee were to state that payment shall be made notwithstanding any dispute between the parties, the bank would be obliged to do so. To determine whether a bank guarantee is conditional or unconditional it is the document of guarantee which is to be scanned.'
17. As to the settled position of law with respect to the liability under the bank guarantee, as discussed in the aforesaid judgments, there could not be any dispute and there is none. It is admitted that in case of an unconditional guarantee, liability of the bank to honour the guarantee is absolute, unaffected by any dispute/s that may exist between the parties to the contract. However, in the submission of Mr. Soparkar, in the present case, the suit Guarantee is not unconditional or absolute. He has submitted that recitals incorporated in the suit Guarantee indicate that the extent of outstanding liability under the suit Guarantee requires to be ascertained at the time the guarantee is invoked. Thus, before the defendant is called upon to honour the suit Guarantee the extent of bank's liability under the suit Guarantee has to be adjudicated. The petitioner is, therefore, entitled to unconditional leave to defend. In the submission of Mr. Vakil and Mr. Thakore, the reading of suit Guarantee by Mr. Soparkar is not correct. The suit Guarantee is absolute and the defendant is bound to honour the same. The relevant recitals relied upon by the learned advocates are :
`(1) The Bank, hereby undertakes to indemnify the Purchaser and keep the Purchaser indemnified to the extent of Rs. 44,31,159/= from and against all losses and damages that may be caused to or suffered by the Purchaser for or in relation to the advance payment to be made by the Purchaser to the Vendor as aforesaid, by reason of any default or defaults on the part of Vendor in the supply of the Equipment, in respect of which such advance payment as aforesaid is to be made by the Purchaser to Vendor and in the event of any default or defaults on the part of the Vendor as aforesaid, the Bank shall forthwith, on demand, pay to the purchaser any sum or sums not exceeding in total the said sum of Rs. 44,31,159/= as may be claimed by the Purchaser to be due from the Vendor by way of refund of such advance payment or any portion of portions thereof, by reason of such default or defaults on the part of the Vendor as aforesaid.' `(4) The Bank further agrees that this Guarantee during its currency and any extension thereof, shall remain in force and continue to have full effect until the said advance payment remains unadjusted against progressive bills of payment for supply of the equipment. Notwithstanding anything contained therein, the date on which the said advance amount of Rs. 44,31,159/= is entirely adjusted against the progressive bills for payment furnished by the Vendor, this Guarantee shall stand canceled forthwith.' `(6) Notwithstanding the maximum limit of the Bank's liability as aforesaid, the maximum limit of liability be progressively reduced upon any adjustment being made by the vendor of the said advance against progressive bills of payment furnished by the Vendor. This Guarantee will cover all the Purchaser's claim or claims against the vendor from time to time only to the extent of unadjusted advance payment.'
18. Mr. Soparkar has laid emphasis on the above clauses. He has submitted that the very nature of the Guarantee suggests that as the work on the contract progresses and Messrs. KND Limited raises bill/s of payment, the amount of guarantee shall reduce proportionately. Thus, the question would arise as to the liability outstanding under the suit Guarantee on the date of demand. Learned advocate Mr. Vakil has laid emphasis on the words, "the bank shall forthwith, on demand, pay to the purchaser in sum or sums not exceeding in total the said sum of Rs. 44,31,159/= as may be claimed by the purchaser, to be due from the vendor by way of refund of such advance payment or any portion or portions thereof, by reason of such defaults on the part of the vendors as aforesaid." Mr. Vakil has submitted that this particular stipulation specifically confers power upon the purchaser i.e., the plaintiff to raise the demand for payment of the amount as may be due from the vendor [M/s. KND Limited]. Hence, it is the plaintiff which has to decide the extent of amount payable under the suit Guarantee. The defendant agreed to pay such amount as may be demanded by the plaintiff not exceeding the amount mentioned in the suit Guarantee. Mr. Vakil has submitted that as recorded in the above referred minutes of the meeting held on 13th October, 2001, in the said meeting, M/s. KND Limited admitted the accounts produced on the record of this petition. In the said accounts also, there is no reference to adjustments made against the advance payment made by the plaintiff. Thus, the entire amount of advance payment made by the plaintiff is recoverable under the suit Guarantee from the defendant.
19. As against that, Mr.Soparkar has relied upon the copies of the progressive bills submitted by M/s. KND Limited, annexed to the petition. He has submitted that in each running bill, there is a proportionate adjustment made against the advance payment made by the plaintiff. The amount guaranteed under the suit Guarantee shall stand reduced to that extent. Mr. Vakil has questioned the genuineness of the said statements and has submitted that the said statements/bills are not approved by the plaintiff.
20. On perusal of the suit Guarantee, it is evident that against the execution of the contract, the plaintiff had made advance payment to the extent mentioned in the suit Guarantee i.e. Rs. 44,31,159/=. The recitals clearly stipulate that the defendant guaranteed payment of the sum not exceeding the amount mentioned in the suit Guarantee. The condition no. 1 reproduced hereinabove mentions, "refund of such advance payment or any portion/ portions thereof." That necessarily means that on the date of demand the amount outstanding under the suit Guarantee may be less than the amount specified. The nature of guarantee given by the defendant is peculiar in as much as the suit Guarantee was given to the plaintiff to indemnify the plaintiff to the extent the amount of advance paid by the plaintiff. However, as the work progresses and actual amount becomes due and payable to the vendor - M/s. KND Limited, there shall be proportionate adjustment against the advance paid by the plaintiff. On such adjustment being made, the liability under the suit Guarantee would diminish to that extent. Thus, the suit Guarantee cannot be said to be an absolute guarantee under which the defendant should make payment of the amount guaranteed on demand. Further, right to make adjustments against progressive bills has been given to the vendor (M/s. KND Limited). It is specifically provided that, "This guarantee will cover all the purchaser's claim or claims against the vendor from time to time only to the extent of unadjusted advance payment." The question of adjustment or the extent of adjustment shall certainly arise. The said question cannot be decided on the basis of the copies of progressive bills produced by the defendant or the copy of the minutes relied upon by the plaintiff. The question would require adjudication after recording evidence. For decision on the said question the presence of the vendor is necessary. I am, therefore, of the opinion that the vendor "KND Engineering Technologies Limited" would indeed be a necessary party to the suit. The defendant had successfully raised triable issue which would require adjudication after recording evidence. The defendant was, therefore, entitled to unconditional leave to defend.
21. In above view of the matter, these petitions are allowed. The impugned orders dated 19th January, 2004 made in Special Summary Suits No. 429 of 2001; 430 of 2001; 431 of 2001 & 432 of 2001 made by learned Civil Judge (S.D.), Vadodara are quashed and set-aside. The consequent decree passed agaisnt the defendant in each of the aforesaid special summary suits is quashed and set-aside. Each suit is restored to the register of the Court below. Application Ex. 13 filed under Order 1 Rule 10 CPC is allowed. The vendor - M/s. KND Engineering Technologies Limited be impleaded as defendant no. 2 in each of the aforesaid special summary suits. The defendant shall file its written statement/s within three months from today.
22. Special Civil Applications stand disposed of in the above terms. The parties shall bear their own cost.
23. Learned advocate Mr. Vakil has submitted that this order be stayed for a period of six weeks. The request is granted. This order shall stand stayed for a period of six weeks from today.