1989 Supreme(Cal) 504

High Court Of Calcutta
BIMAL CHANDRA BASAK, AMARENDRA CHANDRA SENGUPTA
N.T.P.C.LTD. - Appellant
Versus
HIND GALVANIZING AND ENGG.CO.LTD. - Respondent
Appeal 427  Of  1987
Decided On : 11/22/1989

Headnote:

BIMAL CHANDRA BASAK, J. ( 1 ) THIS appeal is directed against a judgment and order dated 6th April, 1987, passed by the trial Court in an interlocutory application whereby the plaintiff-petitioner made the following prayers:-" (A) Injunction restraining the defendant No. 1 whether by itself or its servants or agents or otherwise howsoever from receiving any payment from the defendant No. 2 under any of the said three bank guarantees contained in Annexures A, B and C hereof or attempted to do so and from making any demand for payment thereunder; (b) Injunction restraining the defendant No. 2 from making or attempting to make any payment under the defendant No. 1 or any amount under any of the said three bank guarantees contained in Annexures, A, B and C whether in pursuance of the demand made by the defendant No. 1 by letter dated 6th March, 1987, or otherwise or at all; (c) Ad interim order in terms of prayers (a) and (b) above; (d) Costs of and incidental to this application be paid by the defendants; (e) Such further or other order or orders be made and direction or directions be given as to this Hon'ble Court may deem fit and proper. "

Fact of the Case:

( 2 ) IT is to be pointed out that the petition on the basis of which such prayer for interim order was made consisted of only 8 paragraphs which is set out hereinbelow. It is to be pointed out that paragraphs 1, 2 and 3 were verified as true to knowledge and the rest as submissions. "1. In or about 12th March, 1989, your petitioner has filed a suit in this Hon'ble Court against the respondent abovenamed. A copy of the plaint in the said suit is annexed hereto as a part hereof and marked "a". 2. Statements contained in the plaint are all true and correct. ( 3 ) THE relevant documents in connection with the matters stated in the plaint are annexed hereto chronologically and collectively marked "b". The statements made by the plaintiff in the plaint and hereinafter would be substantiated clearly by the said documents. ( 4 ) IN the circumstances your petitioner states and submits that it is fit and proper that orders of injunction should be passed as prayed for. It is a fit case for an ex parte ad interim order of injunction. If the defendants are given notice of this application, payment would be made and received over night and your petitioner's suit and application would become totally infructuous. ( 5 ) THE object of the suit and the application would be fully defeated unless an ex parte order is passed. ( 6 ) THE balance of convenience is overwhelmingly in favour of your petitioner and against the defendants. The bank guarantees are still valid and would continue to be valid till 31st May 1987, 30th June 1987 and 15th July 1988 in any event. ( 7 ) UNLESS an order is made as prayed for herein, your petitioner will suffer irreparable loss and injury. ( 8 ) THIS application is made bona fide and for the ends of justice. "

Finding of the Court:

( 27 ) IN our opinion, there is no good prima facie case for fraud or special equities made out in this case as envisaged by the decision of the Supreme Court in the case of U. P. Co-operative Federation Ltd. v. Singh Consultants and Engineers (P.) Ltd. (1988-1 SCC 174) (supra) and Tarapore and Co. , Madras v. M/s. V/o Tractors Export, Moscow (AIR 1970 SC 891) (supra ).

Issues: None

Ratio Decidendi: None

Final Decision: ( 28 ) WE have considered the matter and accordingly we pass the following order. The appeal is allowed and the judgment is set aside. The defendant bank is directed to make full payment in respect of the three Bank Guarantees referred to above in terms of the demand made. In view of the order of injunction and stay order the appellant was prevented from obtaining payments from the Bank and this payment should not be further delayed. Accordingly we direct that such payment be made within a fortnight from the communication of this order by or on behalf of the appellant herein. Out of the money received the appellant shall keep in a separate account the following amounts subject to further orders of this Court and/or any other Court of competent jurisdiction:- (1) A sum of Rs. 8,20,000/- referred to in the affidavit in opposition (paragraphs 16 and: 17) regarding the "supply Advance Guarantee" for Rs. 46,17,614/-; (2) A sum of Rs. 2. 96 lakhs referred to in the affidavit in opposition by the appellant so far as the "erection Advance Guarantee" for Rs. 6,48,000/- is concerned. The appeal is disposed of accordingly. Prayer for stay of the operation of the order is rejected. Let the operative portion of the judgment be given to the parties. We make it clear however that the operative portion of the order is in respect of a reasoned judgment given. Some confusion has been sought to be created in some other cases before the Supreme Court regarding supply of operative portion of an order in which a reasoned judgment was delivered. ( 29 ) AMARABHA SENGUPTA, J :- I agree.