Gujarat High Court
Shital Ispat Pvt. Ltd. vs Red Snapper Maritime Limited on 27 November, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/AS/3/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ADMIRALTY SUIT NO. 3 of 2020
With
R/ADMIRALTY SUIT NO. 4 of 2020
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
In R/ADMIRALTY SUIT NO. 4 of 2020
With
R/ADMIRALTY SUIT NO. 5 of 2020
With
R/ADMIRALTY SUIT NO. 7 of 2020
With
R/ADMIRALTY SUIT NO. 8 of 2020
With
R/PETN. UNDER ARBITRATION ACT NO. 8 of 2020
With
R/PETN. UNDER ARBITRATION ACT NO. 9 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 4 of 2020
In R/PETN. UNDER ARBITRATION ACT NO. 9 of 2020
With
R/PETN. UNDER ARBITRATION ACT NO. 10 of 2020
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FLEETSCAPE NSMH LIMITED
Versus
AMIL 14, IMO NO 9371488
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Appearance:
for the Defendant(s) No. 4,5,6
G H VIRK(7392) for the Defendant(s) No. 3
MS PAURAMI B. SHETH(841) for the Defendant(s) No. 1
SENT BY EMAIL for the Defendant(s) No. 2
MR HARSHIT S TOLIA(2708) for the Plaintiff(s) No. 1
MR PARTH S TOLIA(5617) for the Plaintiff(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 27/11/2020
ORAL ORDER
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C/AS/3/2020 ORDER
Heard learned advocate Mr. B.N. Panchal for learned advocate Mr. H.S. Tolia for the plaintiff and learned advocate Mr. G.H. Virk for defendant no.3 through video conference.
Learned advocate Mr. Panchal prays for time as learned advocate Mr. Tolia has some personal difficulty.
Stand over to 18th January, 2021.
Ad interim relief granted earlier in IAAP No. 8, 9 and 10 of 2020 to continue till the next date of hearing.
ORDER IN CA NO.4/2020 in COMM. ARBITRATION PETITION (IAAP) NO.9/2020 :
Heard learned Senior Advocate Mr. R.S.Sanjanwala for learned advocate Mr.Harshada Darji for the applicant, learned Senior Advocate Mr. Saurabh Soparkar for learned advocate Ms. Paurami Sheth, learned advocate Mr. Abhishek Singh, learned advocate Mr. Kunal Vyas, learned advocate Mr. Sanjay Kumar with learned advocate Mr. Nachiket Dave for the respective respondents through video conference.
1. By this application, the Indian Overseas Bank original respondent no.2 has prayed for the Page 2 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER following reliefs :
"(A)Your Lordships may be pleased to allow this Application;
(B) Your Lordships may be pleased to issue appropriate directions securing the LC amount in such manner as may be deemed fit; (C) Your Lordships may be pleased to hold and declare that the Notice dated 14.10.2020 issued by the Opponent No.4 as invalid and infirm;
(D) Your Lordships may be pleased to quash and set aside the Notice dated 14.10.2020 issued by the Opponent No.4;
OR IN THE ALTERNATIVE (A) Your Lordships may be pleased to declare that IOB was within its rights and
constrained by its obligations under the UCP 600 to withhold the LC amount 14.01.2020 till 27.01.2020;
OR IN THE ALTERNATIVE (B) Your Lordships may be pleased to vacate the interim Order dated 27.01.2020 passed in Commercial Arbitration Petition No.9 of 2020 in view of the threats issued by the Opponent No.4 Bank;
(C) Pending hearing and disposal of the present Application, Your Lordships may be pleased to restrain the Opponent No.4 from instituting /continuing with any proceedings against the Applicant before the Courts at New York or any other place in pursuance of the Notice dated 14.10.2020;
(D) Your Lordships may be pleased to grant such other and further reliefs as may be deemed just and proper may kindly be granted;Page 3 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER
(E) Your Lordships may be pleased to award costs of the present Application to the Applicant."
2. Short facts of the case are as under :
2.1) The Opponent No.1 entered into a Memorandum of Agreement ("MOA" for short) dated 30.10.2019 with Opponent No.2 for purchase of Vessels Amil19 and Amil50. As per the terms of the said Memorandum of Agreement, the purchase price of the said Vessels was fixed at USD 1,238,288 payable by means of an irrevocable Letter of Credit from the applicant bank. As per the terms of the said agreement, the opponent No.2 was required to submit various documents including a nonencumbrance certificate issued by the Port of Registry of the Vessel certifying that the vessel is free of all encumbrances, mortgages and maritime liens.
2.2) In pursuance of the said MOA, Letter of Credit dated 26.12.2019 bearing Reference No. 016960119000032 for an amount of USD 1,238,288 ["LC" for short] was opened by the Opponent No.1 in favour of Opponent No.2.
2.3) As per the terms of LC, the beneficiary Page 4 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER was required to send various documents including Nonencumbrance Certificate to the Applicant Bank (Issuing bank) for release of payment. The Vessels were delivered to the opponent No.1 on 06.01.2020. On 07.01.2020, applicant bank informed opponent No.4 bank that physical delivery is taken by the buyer. Under the said LC, opponent No.2 issued the documents to applicant bank through opponent No.4 bank; which the applicant Bank is required to consider for issuance of acceptance of the documents received under the LC. Before receipt of the said documents, the opponent No.1 received notice dated 14.01.2020 from M/s Oaktree Capital Management, informing them of an encumbrance of opponent No.3 herein on the said vessels. In pursuance thereto, opponent No.1 sent a letter dated 16.01.2020, inter alia, stating that the vessels in question were encumbered with charges of opponent No.3 herein. The opponent No.1 further communicated that the opponent No.2 has forged the registration documents. Under such circumstances, the opponent No.1 requested the applicant Bank not to release the amount under the said LC. On 20.01.2020, the applicant bank received the documents from the Opponent No.4 in relation to the Page 5 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER subject LC. Hence, even before the compliance documents were received, the applicant Bank had learnt of there being a potential encumbrance on the vessels.
2.4) Upon receipt of the documents, under the provisions of Article 14 of the Uniform Customs and Practice for Documentary Credits600 ["UCP600" for short], the applicant bank was required to examine the documents within five banking days from the date of presentation. Thus, the applicant bank was required to examine the documents latest by 27.01.2020 (excluding nonworking days). It is the case of the applicant that the applicant examined the said documents and observed an apparent discrepancy insofar as the Nonencumbrance Certificate was concerned in compliance of Article 14(d).
The applicant bank sent a Swift Message on 21.01.2020 to the opponent No.4 Bank intimating that till such time that the said issue is clarified, the applicant bank would hold the documents. It is the case of the applicant that the rejection of the payment under LC by the Applicant Bank was due to the fraud, which was communicated by the applicant prior to the opponent No.4. It is the case of the applicant that the applicant Page 6 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER bank later on learnt that on the same day i.e. 21.01.2020, an order was passed in an Admiralty Suit filed by opponent No.3 herein which records that status quo will be maintained by opponent No.1 herein.
2.5) It is the case of the applicant that the opponent No.4 bank sent a false and vague reply message on 22.01.2020 stating that the documents presented by the opponent No.2 are fully complied with the terms of LC and therefore, called upon the applicant bank to release payment.
2.6) Thereafter, the applicant bank sent a Swift Message on 24.01.2020 at 17:34 GMT to the opponent No.4 Bank stating that the opponent No.3 has already filed Admiralty Suits before this Court on the ground that the said vessels are encumbered and that the opponent No.1 has agreed to maintain status quo. It is the case of the applicant that the applicant bank has also received the Encumbrance Certificate issued by Republic of Palau.
2.7) Thereafter, the applicant bank sent another Swift Message on 24.01.2020 at 20:18 GMT to the opponent No.4 bank stating that Page 7 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER Republic of Palau has issued extract of Preferred Mortgage Certificate dated 17.10.2019 showing that the said vessels are mortgaged. It is the case of the applicant that on such count, the Bill is disputed for payment.
2.8) Thereafter, the opponent No.1 filed the captioned petition praying for an injunction restraining the applicant bank from releasing the amounts under the aforesaid LC on the ground of an apparent fraud of an egregious nature which would vitiate the entire transaction.
2.9) This Court passed an exparte Order on 27.01.2020 in the said petition injucting the applicant bank from making payments under the said LC. The said injunction has been extended from time to time and is continuing as on date.
2.10) Opponent No.4 also filed Civil Application No.2 of 2020 in the captioned Arbitration petition paying for its impleadment in the captioned petition on the ground that it has already made payment to the beneficiary i.e. opponent No.2 herein and therefore, the injunction is as such Page 8 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER affecting its interests. This Court was pleased to pass an Order dated 24.08.2020 permitting the opponent No.4 to be impleaded as a party to the captioned Arbitration Petition.
2.11) Opponent No.4 also filed another application being Civil Application No.3 of 2020 in the captioned Arbitration Petition seeking clarification from this Court to the effect that it is open for the opponent to file any proceedings against the present applicant. This Court vide Order dated 25.09.2020, rejected the said application while observing to the effect that it would always be open to file any proceedings against the present applicant, if permitted by law.
2.12) It is the case of the applicant that the Opponent No.4 has been fully aware of the proceedings of captioned petition which are pending before this Court and also of the interim Orders passed therein and the fact that the applicant is prevented from disbursing any amount by order of this Court. Despite such clear knowledge, the opponent No.4 sent a notice dated 14.10.2020 calling upon the applicant to make payment Page 9 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER of USD 1,301,440.69 including principal amount of USD 1,238,288 and interest of USD 63,152.69 on or before 27.10.2020, failing which, the opponent No.4 has threatened to institute proceedings in Supreme Court at New York claiming the said claim amount, interest thereon as well as alleged losses caused to them on account of the non payment.
2.13) The applicant Bank has sent a reply dated 17.10.2020, interalia, stating that the said notice is wholly untenable in law. The claims raised by the opponent No.4 are refuted in toto. The applicant bank has also communicated that the opponent No.4 having itself sought impleadment in the captioned Arbitration Petition and thus having subjected itself to the jurisdiction of Courts at Gujarat, cannot institute any proceedings at Supreme Court of New York. The applicant bank has further communicated that the interim Order dated 27.01.2020 passed by this Court restraining the applicant from releasing amounts under the aforesaid LC is subsisting and that release of payment would clearly amount to contempt of Order of this Court.
Page 10 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER2.14) Being aggrieved by the aforesaid, the present application is being filed seeking vacating of the interim relief granted on 27.01.2020 in the captioned Arbitration Petition or to pass any appropriate Orders to protect the interests of the Applicant Bank.
3. Learned Senior advocate Mr.Sanjanwala appearing for the applicant bank submitted that the applicant bank is abiding by the order passed by this Court on 27.01.2020 where by this Court (Coram : Hon'ble Mr. Justice A.J.Desai) restraining the applicant bank from making payment of the LC amount to any party. The order dated 27.01.2020 reads as under:
"Notice returnable on 30/01/2020. Ad interim relief in terms of Para 17(a) is granted till then.
Direct service is permitted today. The petitioner is permitted to serve respondent No.1 through Email."
4. Paragraph no. 17(a) of the Commercial Arbitration Petition No.9/2020 reads as under :
"Pass an order of injunction restraining Respondent no.2 Bank, their employees, servants and/or agents or otherwise, from releasing any amount, in any manner, under the letter of credit dated 26.12.2019 bearing reference no. 016960119000032 for an amount of Rs.1,238,288.00 issued in favor of Page 11 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER Respondent no.1 on behalf of the petitioner."
5. It was therefore submitted that the aforesaid order is operating since 27.01.2020. Learned Senior advocate Mr.Sanjanwala thereafter submitted that by order dated 24.08.2020 this Court (Coram : Hon'ble Mr. Justice Biren Vaishnav) allowed the Civil Application (For Joining Party) No.2 of 2020 filed by the opponent no.4 Mashreque bank PSC and accordingly, the opponent no.4 was joined as a party respondent in the proceedings. Learned Senior Advocate Mr.Sanjanwala pointed out that inspite of the respondent no.4 being party to the proceedings, by misinterpreting the order dated 25.09.2020 passed by this Court in Civil Application (For Orders) No.3 of 2020 filed by the opponent no.4, has initiated proceedings in the Supreme Court at New York during the pendency of the proceedings before this Court so as to recover the LC amount which is discounted by the opponent no.4. It was submitted that the opponent no.2 who is not appearing in these proceedings has opened the LC with the applicant bank by producing the forged documents and by misrepresentation stating that the vessels in question was not mortgaged to the opponent no.3 and, therefore, the opponent no.1 herein i.e. Shital Ispat Pvt. Ltd. who has purchased the vessels from opponent no.2 herein has filed this petition under section 9 of the Arbitration and Page 12 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER Conciliation Act,1996 in which the order of stay was granted by this Court as stated herein. In such circumstances, it was submitted that opponent no. 4 could not have initiated separate independent proceedings before the Supreme Court at New York. Learned Senior Advocate Mr.Sanjanwala further submitted that when this Court is seized of the matter and the matter is subjudice and more particularly, when the opponent no.4 is the party to the proceedings by filing an application before this Court seeking permission to file independent proceedings, which was already rejected by order dated 25.09.2020, opponent no.4 could not have initiated any proceedings by misinterpreting the order passed by this Court. Learned Senior Advocate Mr.Sanjanwala invited the attention of this Court to para 33 of the plaint filed before the Supreme Court at New York at page 90 of the compilation which reads as under:
"33 MBNY participated subsequently in the Gujarat High Court proceedings and has obtained an order from the Gujarat High Court allowing MBNY to proceed with litigation against IOB. A copy of such order is attached hereto as Exhibit 17."
Referring to the above disclosure made by the opponent no.4 it was submitted that the opponent no.4 has misrepresented before the Page 13 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER Supreme Court of New York by misinterpreting the order passed by this Court on 25.09.2020 in the Civil Application No.3 of 2020.
6. Learned Senior Advocate Mr.Sanjanwala thereafter submitted that the applicant bank is merely obeying the order passed by this Court and the moment the application under Section 9 of the Arbitration and Conciliation Act, 1996 filed by the opponent no.1 is decided, the applicant bank is duty bound to follow whatever the outcome is arrived at on adjudication of the arbitration petition filed by the opponent no.1 Shital Ispat Pvt. Ltd. Learned Senior Advocate Mr.Sanjanwala thereafter submitted that in view of the peculiar facts of the case and considering the conduct of opponent no.4 which shows that the opponent no.4 who has discounted the LC of the original owner of the vessels, now any how has prejudiced the proceedings before this Court by initiating separate independent proceedings before the Supreme Court at New York.
7. Learned Senior Advocate Mr. Sanjanwala therefore prays that the opponent no.4 is therefore required to be restrained from proceeding further with the proceedings initiated by the opponent no.4 before the Supreme Court of New York during the pendency of this petition and in the alternative, it was prayed that the interim relief which was granted by order dated Page 14 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER 27.01.2020 be vacated so that the applicant bank can make payment to the opponent no.4.
8. On the other hand, learned Senior Advocate Mr. S.N. Soparkar submitted that once the injunction is granted by this Court on 27.01.2020 which is in operation subject to outcome of the arbitration petition filed by the opponent no.1 Shital Ispat Pvt. Ltd., the same cannot be vacated only because the opponent no.4 has approached the Supreme Court of New York by initiating independent proceedings by misinterpreting the order passed by this Court on 25.09.2020.
9. Learned advocate Mr. Soparkar further submitted that the opponent no.4 is very much party before this Court and has applied before this Court voluntarily to be joined as party which was granted by this Court by order dated 24.8.2020 and accordingly, opponent no.4 has submitted to the jurisdiction of this Court voluntarily and therefore, opponent no.4 cannot initiate any proceedings during the pendency of the present proceedings before any other forum for the same subject matter. Learned senior advocate Mr. Soparkar thereafter pointed out that the allegation is made by the opponent no.1original petitioner that there is a fraud committed by opponent no.2 Red Snapper Maritime Limited original owner of the vessels and therefore, Page 15 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER till such issue is adjudicated in the present proceedings, wherein opponent no.4 is a party to the proceedings, no further proceedings should be permitted to be initiated before any other forum during the pendency of these proceedings and Opponent No.4 is required to be restrained from proceeding further in the proceedings initiated by it till the disposal of the pending proceedings before this Court.
10. Learned advocate Mr.Sanjay Kumar appearing with learned advocate Mr.Nachiket Dave for opponent no.4 submitted that the opponent no.4 is not put to notice of any fraud committed by opponent no.2 at the time of payment of the amount of LC by any party and therefore, opponent no.4 is entitled to recover the amount of LC from the applicant bank as per the terms of the LC. It was further submitted by learned advocate Mr.Sanjay Kumar that the order passed by this Court on 25.09.2020 clearly permits the opponent no.4 to initiate proceedings in accordance with law and on the basis of such order, the opponent no.4 has filed a suit for recovery before the Supreme Court at New York as the opponent no.4 is based within the jurisdiction of the Supreme Court at New York. Learned advocate Mr.Sanjay Kumar submitted that opponent no.4 had preferred Civil Application no.3 of 2020 in the present proceedings in which a prayer was made to vacate the interim relief Page 16 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER and in alternative, the prayer was made to clarify that the opponent no.4 is entitled to initiate proceedings before the appropriate forum in accordance with law in order to enforce its legal rights and in such circumstances when this Court has thought it fit not to clarify anything, in the submission of learned advocate Mr.Sanjay Kumar it is understood that the Court has not prevented the opponent no.4 from initiating proceedings before any other forum and accordingly, the opponent no.4 has initiated the proceedings before the Supreme Court at New York.
11. Learned advocate Mr.Sanjay Kumar further submitted that the applicant has made a prayer in the nature of antisuit injunction so as to restrain opponent no.4 from proceeding with the suit filed at Supreme Court of New York. Relying upon the observations made in the decision of Supreme Court in case of Modi Entertainment Network v. WSG Cricket PTE Ltd reported in AIR 2003 SC 1177, it was submitted that none of the three ingredients stipulated by the Supreme Court of India are in existence in the facts of the case and therefore, no injunction can be granted in favour of the applicant bank restraining the Opponent No.4 from proceeding with the suit filed before the Supreme Court of New York which is in nature of antisuit injunction.
Page 17 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER12. Learned advocate Mr. Sanjay Kumar therefore submitted that the opponent no.4 is entitled to pursue its legal remedy in accordance with law, if any, as observed by this Court in order dated 25.9.2020 and therefore, opponent no.4 has initiated proceedings after putting the applicant bank to notice as the applicantbank also is represented by the representatives of the applicantbank in Supreme Court of New York and let the Supreme Court at New York take a decision as to whether to allow the opponent no.4 to proceed with the such proceedings of recovery or not and this Court therefore, should not grant any injunction or prevent opponent no.4 from proceeding any further in the suit filed before the Supreme Court of New York.
13. Having considered the rival submissions and having gone through the materials on records, it emerges that this Court granted the injunction by order dated 27.01.2020 restraining the applicant bank from releasing the amount of Letter of Credit on the ground that prima facie there is a fraud committed by the opponent no.2 original owner Red Snapper Maritime Limited who has chosen not to appear before this Court inspite of issuing notice and service of notice upon the opponent no.2.
14. Moreover, it is also emerging from the Page 18 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER record that the opponent no.4 has approached this Court who has discounted the Letter of Credit issued by the applicant bank and paid the discounted price of the LC to the opponent no.2, has stepped into the shoes of opponent no.2 and therefore, has approached this Court by filing Civil Application No.2 of 2020 to join in the present proceedings which was allowed by this Court by order dated 24.08.2020 with a rider that the application is allowed, subject to the rights and the contentions that may be advanced on behalf of the respective parties at the time of hearing the main arbitration petition. In such circumstances, the opponent no.4 applied again by filing Civil Application No.3 of 2020 by making the following prayers :
"20 (a) Vacate the order dated 27.01.2020 and all subsequent orders passed in this regard whereby an adinterim injunction was granted restraining Respondent No.2 from releasing payments under the Letter of Credit.
(b) Clarify that the order dated 27.01.2020 and all subsequent orders passed in this regard will have no application in so far as Respondent No.4 is concerned and Respondent No.2 can release payment under the Letter of Credit to Respondent No.4.
(c) In alternative to prayer (a) and (b) and strictly without prejudice, pass an order modifying/clarifying the order dated 27.01.2020 and all subsequent orders passed in this regard to the effect that it would not bar Respondent No.4 from availing such Page 19 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER legal proceedings as may be available in law against Respondent No.2 / Indian Overseas Bank for enforcing its claim under the Letter of Credit in question and also the Respondent NO.2 / Indian Overseas Bank from complying with any order passed in those proceedings subject to such legal remedies as may be independently available to Respondent No.2 / Indian Overseas Bank in this regard.
(d) Pass any other order(s) that this Hon'ble Court deems fit in the facts and circumstances of this case."
15. This Court (CORAM : Hon'ble Mr.Justice Biren Vaishnav) passed the following order on 25.09.2020 :
"Heard learned counsel for the
respective parties through video
conferencing.
It is no need to clarify in
paragraph No.20(c) that the applicant needs a clarification for filing a legal proceedings as may be available in law. The order dated 27.1.2020 in no manner prevents any parties from taking recourse to any proceedings which are otherwise available in law. Prayer in terms of para No.20(c) is, therefore rejected.
This application stands disposed of in above terms."
16. It is shocking and surprising that when this Court has categorically rejected the prayer made in terms of Para 20(c) in the order dated Page 20 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER 25.09.2020, the opponent no.4 conveniently misinterpreted the same and made a disclosure in the memo of plaint filed before the Supreme Court at New York in the following terms :
"MBNY participated subsequently in the Gujarat High Court proceedings and Has obtained an order from the Gujarat High Court allowing MBNY to proceed with litigation against IOB."
From the above averments made in the plaint filed before the Supreme Court at New York, it is clear that the opponent no.4 has made a misrepresentation before the Supreme Court at New York by stating that this Court has allowed the opponent no.4 to proceed with the litigation against the applicant bank. It is trite to state that this Court has not granted or clarified the order dated 27.1.2020 and this Court has rejected prayer in terms of Para 20(c) of the Civil Application no.3 of 2020 filed by opponent no.4 in categorical terms. Observations made by this Court that "the order dated 27.01.2020 in no manner prevents any parties from taking recourse to any proceedings which are otherwise available in law" could not have been interpreted to mean that this Court has granted permission to the opponent no.4 to initiate proceedings before any other forum. The order passed by this Court is to be read as whole Page 21 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER inasmuch as the opponent no.4 sought for clarification of the order which was denied and in that circumstances this Court has observed that there is no need for clarification and accordingly, the "Prayer made in para 20(c) is rejected".
17. In such circumstances, the conduct of the opponent no.4 to misrepresent the order passed by this Court in the plaint in the aforesaid Para 33 of the plaint before the Supreme Court at New York is deprecated.
18. With regard to the contention raised by learned advocate Mr.Sanjay Kumar that the prayer made by the applicant bank is in nature of anti suit injunction is not tenable in as much as opponent no.4 is a party before this Court in the present proceedings and it has come before this Court with an application to be joined as a party respondent in the present proceedings. In such circumstances when opponent no.4 is very much party to the proceedings, there is no question of considering the prayer made by the applicantbank in the nature of antisuit injunction. It is a well settled principle of anti suit injunction that when the party is required to be prevented from filing a suit to any other place than only such application of antisuit injunction is required to be made and in that context Hon'ble Supreme Court has laid Page 22 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021 C/AS/3/2020 ORDER down guidelines in the aforesaid case of Modi Entertainment Network (supra).
19. In such circumstances the contentions raised by learned advocate Mr. Sanjay Kumar with regard to the prayer made by the applicant bank in nature of antisuit injunction is rejected.
20. In view of the above facts and circumstances, this application deserves to be allowed and is accordingly allowed. Respondent no.4 is restrained from proceeding from the suit filed by it before the Supreme Court at New York during the pendency of the proceeding before this Court. Respondent no.4 shall produce copy of this order before the competent Court at New York and stay its hands off for further proceedings in the matter during the pendency of the proceedings before this Court, failing which, there shall be proceedings for initiation of breach of order passed by this Court.
21. The Civil Application No.4/2020 is accordingly disposed of. No order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH NAIR Page 23 of 23 Downloaded on : Tue Jan 05 23:35:07 IST 2021