CS(COMM) 151/2017 Page 1 of 15

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment Reserved on: 31^st August, 2022

Judgment Delivered on: 13^th September, 2022

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CS(COMM) 151/2017 & I.A. 2496/2017 (O-XXXIX R-1 & 2 of

CPC), I.A. 5067/2017 (O-I R-10 of CPC), I.A. 9257/2017 (O-

XXXIX R-4 of CPC), I.A. 10220/2017 (O-VIII R-10 of CPC) &

I.A. 9280/2018 (for modification of order dated 27.02.2017)

ELECON ENGINEERING COMPANY LIMITED

..... Plaintiff

Through:

Mr.

Akshay

Makhija,

Senior

Advocate with Mr. Sanjeev K.

Sharma, Mr. Rajiv Dalal, Mr. K.V.

Krishna, Mr. Vikas Bhardwaj, Ms.

Dipti Singh and Mr. Kamal Dalal,

Advocates.

versus

ENERGO ENGINEERING PROJECTS

LIMITED& ORS

..... Defendants

Through:

Mr. Kamal Mehta with Mr. Arun

Upadhyay

and

Mr.

Abhishek

Chauhan, Advocates for D-1 along

with Liquidator.

Ms. Meghna Mishra with Mr. Arjit

Benjamin, Ms. Lakshay Mehta and

Mr. Meeran Maqbool, Advocates for

Adani Power Rajasthan Limited.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

1.

The issue which arises for consideration in the present suit is whether

upon commencement of liquidation proceedings against the defendant no.1

company under the provisions of the Insolvency and Bankruptcy Code, 2016

This is a digitally signed Judgement.

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CS(COMM) 151/2017 Page 2 of 15

(IBC) and Liquidator being appointed, the present suit can proceed or not.

The said issue was noted in the order dated 17^th October, 2019 passed by this

Court. Written submissions have been filed on behalf of the plaintiff as well

as the defendant no.1 company. Oral submissions on behalf of the counsels

have been heard on 23^rd May, 2022, 30^th May, 2022, 18^th August, 2022 and

31^st August, 2022.

2.

The present suit was filed seeking relief of permanent injunction

restraining the defendant no.1 company from encashment of bank

guarantees and for recovery of a sum of Rs.10,69,77,650/- against the

defendant no.1.

3.

It is the case of the plaintiff that the defendant no.1 had wrongfully

and unlawfully invoked/encashed the contract performance bank guarantees

and advance bank guarantees issued by the defendant no.2 and defendant

no.3 respectively.

4.

Vide order dated 27^th February, 2017, while issuing summons in the

suit, this Court had granted an ad interim injunction against payments under

the bank guarantees being made to the defendant no.1. In view of the

insolvency proceedings initiated against the defendant no.1, the present suit

was stayed vide order dated 14^th November, 2017. Subsequently, on 21^st

August, 2018 liquidation proceedings commenced in respect of the

defendant no.1 company.

5.

Senior counsel on behalf of the plaintiff submits that the proceedings

in the present suit shall continue even if liquidation proceedings have

commenced and a Liquidator has been appointed in respect of the defendant

no.1 company. In support of this contention, the senior counsel on behalf of

the plaintiff has highlighted the difference in the language of Section 14 and

This is a digitally signed Judgement.

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CS(COMM) 151/2017 Page 3 of 15

Section 33(5) of the IBC to contend that under Section 33(5) of the IBC the

moratorium is only in respect of institution of fresh suits and does not apply

to pending suits.

6.

He further submits that the present suit was initiated much before the

initiation of proceedings against the defendant no.1 company before the

National Company Law Tribunal (NCLT). During the pendency of the

resolution proceedings, the moratorium under Section 14 of the IBC was

applicable to the presen