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2020 Supreme(Bom) 1277
IN THE HIGH COURT OF BOMBAY
G.S. Kulkarni, J.
ICICI Bank Ltd. - Appellant
Vs.
UD Trading Group Holding Pte. Ltd. and Ors. - Respondent
LD/VC/AS/SJ/Interim Application No. 1 of 2020 in LD/VC/AS/SJ/Appeal from Order No. 3 of 2020
Decided On: 23-06-2020
For the Appellant : Mustafa Doctor and Vividh Tandon i/b Trilegal
For the Respondent:Ravi Kadam, Senior Advocate, Sharan Jagtiani, Gautam Ankad, Karan Bhosale, Sanjay Thakar, Priyanka Dubey and Megha Gupta
Headnote:
Commercial Courts Act 2015 - Code of Civil Procedure ,1908 - Order 43 Rule 1 - Impugned order - Notice of Motion - For interim reliefs in suit - On a reading of the relief as granted by the impugned order it is not in terms of what has been prayed for but the relief which is granted in paragraph 2 of the operative order is quite wider as argued by Mr. Doctor learned senior counsel for the applicant/defendant no. 1 - Learned senior counsel for the applicant/defendant no. 1 would contend that the suit in question was filed by respondent no. 1/plaintiff for a limited relief of a permanent injunction restraining the applicant/defendant no. 1 from invoking the corporate guarantee dated 9 October 2015 issued by respondent no. 1/plaintiff in favor of applicant/defendant no. 1 other prayers in the plaint were interim prayers - Held, Even otherwise considering clause 22.2 of the corporate guarantee, there is no material to point out that the lender (appellant/defendant) had elected Mumbai as Court having jurisdiction. Thus, in my opinion, when wordings of clause 22 were plain, clear and unambiguous, the learned trial Judge could not have construed the clause to attribute a different meaning, something which the parties have not agreed. The first test to be applied in such situation would be to read a clause in a commercial contract as may be understood by the parties in a commercial sense. If this be so, prima facie it is not possible to conceive that the City Civil Court at Bombay could administer the Singapore law as agreed by the parties in Clause 22.1 and for that matter even this Court. Agreement between the parties (Clause 22) clearly conferred jurisdiction with the Court at Singapore in case any dispute was to arise between them under this Contract. It is not a case that the parties by consent are conferring jurisdiction on a Court which it would inherently lack - Ordered accordingly.
G.S. Kulkarni, J.
1. Heard Mr. Doctor, learned senior counsel for the applicant/appellant and Mr. Ravi Kadam, learned senior counsel along with Mr. Sharan Jagtiani, learned senior counsel and Mr. Gautam Ankhad, for respondent no. 1/plaintiff.
2. This appeal under Order 43 Rule 1 of the Code of Civil Procedure is filed by the applicant/original defendant No. 1, being aggrieved by an order dated 8 June 2020 passed by the learned Judge, City Civil Court at Mumbai in Suit No. Commercial Suit (Stamp) 3765 of 2020. By the impugned order, Notice of Motion No. 1224 of 2020 filed by respondent no. 1/plaintiff for interim reliefs in the suit has been allowed in the following terms:
"1. The Notice of Motion Notice No. 1224/2020 is hereby allowed as per prayer clause (B).
2. The Defendant No. 1-ICICI Bank is hereby temporarily restrained from taking coercive action against the plaintiff on the basis of the corporate guarantee dated 9/10/2015 through its agents, servants, officers, or any person claiming through the defendant no. 1 Bank till final disposal of this suit.
3. Defendant No. 1-Bank may submit written statement in details to expedite the hearing.
4. Costs in cause.
5. Notice of Motion No. 1224/2020 is hereby disposed off accordingly."
(emphasis supplied)
3. For convenience, it would be necessary to note the prayers as made in the Notice of Motion, which reads thus:
"(a) pending the hearing and final disposal of the present suit this Hon'ble Court be pleased to restrain the defendant no. 1 bank, its agents, servants, officers and/or any person claiming through Defendant no. 1 bank or under them from invoking the Corporate Guarantee dated 9th October 2015 issued by the plaintiff company and given to defendant no. 1 bank, pursuant to the facilities extended by Defendant no. 1 Bank to UIL Hong Kong Limited pursuant to the bank facility agreement dated 30 September 2010 as amended from time to time, outside India;
(b) pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to restrain defendant no. 1 bank, its agent, servants, officers and/or any person claiming through defendant no. 1 bank from taking any coercive or perspective action against plaintiff by invoking the Corporate guarantee dated 9th October 2015.
(c) interim and ad-interim reliefs in terms of prayer clause (a) and (b) above be granted."
(emphasis supplied)
4. On a reading of the relief as granted by the impugned order it is not in terms of what has been prayed for but the relief which is granted in paragraph 2 of the operative order is quite wider as argued by Mr. Doctor learned senior counsel for the applicant/defendant no. 1.
5. Mr. Doctor, learned senior counsel for the applicant/defendant no. 1 would contend that the suit in question was filed by respondent no. 1/plaintiff for a limited relief of a permanent injunction restraining the applicant/defendant no. 1 from invoking the corporate guarantee dated 9 October 2015 issued by respondent no. 1/plaintiff in favour of applicant/defendant no. 1. The other prayers in the plaint were interim prayers. The prayers in the suit read as under:
"(a) this Hon'ble Court be pleased to issue an order of permanent injunction thereby permanently restraining defendant no. 1, its agents, servants, officers and/or any person claiming through defendant no. 1 bank or under them from invoking the Corporate Guarantee dated 9th October 2015 issued by the plaintiff and given to the defendant no. 1 pursuant to the facilities extended by defendant no. 1 to UIL Hong Kong Limited pursuant to the bank facility agreement dated 30 September 2010 as amended from time to time, outside India;
(b) pending the hearing and final disposal of the present suit, this Hon'ble Court be pleased to restrain the defendant no. 1 bank, its agents, servants, officers and/or any person claiming through defendant no. 1 bank or under them from invoking the Corporate Guarantee dated 9 October 2015 issued by the plaintiff company and given to defen
