CS(COMM) 323/2022

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 19^th September, 2022

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CS(COMM) 323/2022

KKSPUN INDIA LTD

.....Plaintiff

Through:

Mr.

Darpan

Wadhwa,

Senior

Advocate

with

Ms.

Meghna

Mishra, Mr. Jatin Mongia, Mr.

Ankit Rajgarhia, Mr. Tanin Mehta

and

Mr.

Abhishek

Grover,

Advocates.

versus

OFB TECH PRIVATE LIMITED & ORS.

.....Defendants

Through:

Mr. Vikas Singh, Senior Advocate

with

Mr.

Varun

Singh,

Ms.

Deepeika Kalia, Ms. Priyanka

Khosla, Mr. Ytharth Kumar, Mr.

Kapish Seth, Mr. Mrityunjai Singh

and

Ms.

Alankriti

Dwivedi,

Advocates for defendant No.1.

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

J U D G M E N T

(Judgment released on 01.10.2022)

ANUP JAIRAM BHAMBHANI, J.

I.A. No. 7704/2022 & I.A. No. 9797/2022

By way of I.A. No. 7704/2022 filed under Order XXXIX

rules 1 & 2 of the Code of Civil Procedure, 1908 („CPC‟, for

short), the plaintiff seeks an ad-interim order of injunction staying

the operation and effect of demand letters dated 09.05.2022 issued

by defendant No. 1 to defendants Nos. 2 to 6, which (latter) are

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004003

CS(COMM) 323/2022

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banks; and restraining defendant No. 1 from invoking and/or

encashing

24 Nos.

Bank

Guarantees,

aggregating

to

Rs.41,21,57,263/- furnished by the plaintiff to defendant No. 1

under 06 Nos. Purchase Orders.

2.

Since an ex-parte, ad-interim order dated 13.05.2022 was made in

the matter, restraining defendants Nos.2, 3, 4 and 6 from releasing

any amounts against the aforesaid Bank Guarantees, defendant

No.1 has filed I.A. No. 9797/2022 under Order XXXIX Rule 4

CPC seeking vacation of that order.

3.

For completeness, it may be mentioned that before such order was

made, the 01 No. bank guarantee issued by defendant No. 5 had

already been encashed; and therefore no restraint order was made

in respect thereof.

4.

Notice on these applications was issued on 13.05.2022 and

20.06.2022 respectively; whereupon reply and rejoinder have been

filed by the contesting parties viz. by the plaintiff and defendant

No. 1 in the above applications.

Brief Facts

5.

By way of a brief background, the genesis of the disputes between

the parties is as follows:

(a)

Defendant No.1 placed 06 Purchase Orders upon the

plaintiff for manufacture and supply of MH covers and

frame, manholes, IC chambers, RCC pipes, HSC chambers,

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/004003

CS(COMM) 323/2022

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precast boxes, culvert boxes and jacking pipes and also for

manufacture and supply of HDPE T-Grip liners, HDPE

pipes and DWS Pipe-SN8 Class DN, upon certain terms and

conditions;

(b)

In compliance of clause 2.6 of the purchase orders,

defendant No. 1 provided to the plaintiff mobilisation

advance, in lieu whereof the plaintiff furnished to defendant

No. 1 advance bank guarantees; and furthermore, in terms of

clause 2.7 of the purchase orders, the plaintiff furnished to

defendant No. 1 performance bank guarantees; being a total

of 24 bank guarantees in the aggregate sum of

Rs.41,21,57,263/-;

(c)

It is the plaintiff‟s case that it duly supplied goods to

defendant No. 1 of a total value of Rs. 81,86,32,711/-,

against E-invoices and E-way bills as generated on the GST

Portal; however, instead of adjusting the mobilisation

advance pro-rata against the goods supplied, defendant No.

1 sought to adjust the entire amount of the mobilisation

advance, whereby the plaintiff was left with no advance

amount despite having furnished advance bank guarantees

against such advance and also having supplied goods worth

Rs.81,86,32,711/-;

(d)

Subsequently on 10.05.2022 the plaintiff learned that

defendant No. 1 had issued to defendants Nos. 2-6, namely

the banks that had issued the bank guarantees, demand

letters invoking all such guarantees, fa