Delhi High Court - Orders
M/S. Schindler India Pvt Ltd vs M/S. Ncc Ltd & Anr on 4 September, 2023
Author: Jyoti Singh
Bench: Jyoti Singh
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 282/2023
M/S. SCHINDLER INDIA PVT LTD. ..... Petitioner
Through: Mr. Alok Tripathi, Advocate
with Mr. Suresh Kumar, AR.
versus
M/S. NCC LTD & ANR. ..... Respondents
Through: Mr. Harish Pandey, Advocate
for R-1.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 04.09.2023 I.A. 16866/2023 (Exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
O.M.P.(I) (COMM.) 282/2023 & I.A. 16867/2023 (delay of 15 days in refiling)
3. Present petition has been filed by the Petitioner under Section 9 of the Arbitration and Conciliation Act, 1996 seeking the following reliefs:-
"a) pass an order of temporary injunction restraining respondent No. I (NCC), its officers, employees, servants/agents etc. or any other person whomsoever from invoking and/or encashing the Performance Bank Guarantee No.796BGG1502905 dated 20.11.2015 for Rs.73,99,000/- issued by respondent No.2 on behalf of the petitioner; and
b) pass an order of temporary injunction restraining the respondent No.2 (Deutsche Bank AG) its officers, employees, servants/agents etc. or any other person whomsoever from releasing to respondent No.1 (NCC) amount of the Bank Guarantee No.796BGG1502905 dated 20.11.2015;
(c) pass ad-interim ex-parte orders in terms of prayers (a) & (b) above, and confirm the same after notice to the respondents;
(d) award costs of the present proceedings in favour of the petitioner and against respondent No. 1;"O.M.P.(I) (COMM.) 282/2023 Page 1 of 3
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:14:52
4. Issue notice.
5. Mr. Harish Pandey, learned counsel accepts notice on behalf of Respondent No. 1.
6. Learned counsel for Respondent No. 1, appearing on advance notice of the petition, draws the attention of the Court to the letter dated 01.06.2023 filed by the Petitioner and submits that by the impugned letter, the answering Respondent has only requested Respondent No.2/Bank to extend the validity of the Performance Bank Guarantee (PBG) No.796BGG1502905 dated 20.11.2015 for a sum of Rs.73,99,000/- with a condition that if the Bank Guarantee is not extended immediately, the said letter be treated as a letter of invocation and encashment. However, the Bank has intimated vide letter dated 28.06.2023 that the Bank Guarantee has been extended till 30.06.2024 with the claim date as 30.09.2024 and therefore it is incorrect for the Petitioner to contend that Respondent No.1 intends to invoke the said Bank Guarantee. Since there is no invocation at this stage, it is submitted, that the petition is premature.
7. Learned counsel for the Petitioner, on the other hand, submits that the Petitioner has an apprehension that steps will be taken by Respondent No.1 to invoke the PBG and it is for this reason that the petition was filed and it cannot be said that it is premature. It is also submitted that Petitioner has completed the entire work under the contract and there is no justification even for calling upon Respondent No.2 to extend the validity of the PBG.
8. There can be no quarrel on the well settled position of law that Courts have to be extremely slow in granting injunctions against invocation/encashment of unconditional Bank Guarantees except in pleaded and proved cases of egregious fraud, irretrievable harm and injustice and special equities. However, at this stage, the Court is not O.M.P.(I) (COMM.) 282/2023 Page 2 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:14:52 delving into the merits of the case to determine if the invocation of the PBG in question is to be stayed, in view of the stand taken by Respondent No.1 that no decision has been taken to invoke/encash the PBG and the Bank was only instructed to extend the validity, which has been done by the Bank. Therefore, no order is required to be passed in the present petition.
9. At this stage, learned counsel for the Petitioner submits that since the Petitioner has approached this Court, he may be protected by directing Respondent No.1 to put the Petitioner to notice if a decision is taken to invoke or encash the PBG.
10. Petition is accordingly disposed of with a direction that if Respondent No.1 takes a decision to invoke the Bank Guarantee in question, two weeks' advance notice shall be given to the Petitioner. Pending applications stand disposed of.
JYOTI SINGH, J SEPTEMBER 04, 2023/shivam/kks O.M.P.(I) (COMM.) 282/2023 Page 3 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/09/2023 at 16:14:52