FAO 51/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 21^st February, 2022

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FAO 51/2021& CM APPL. 4514/2021

BANK OF BARODA

..... Appellant

versus

UNION BANK OF INDIA & ORS.

..... Respondents

Advocates who appeared in this case:

For the Appellant:

Mr. Arun Aggarwal, Advocate

For the Respondents: Mr. Saurabh with Mr. Rajiv R. Mishra, Advocate for R-1

Mr. Bhaarat Malhotra, Advocate for R-2

CORAM:-

HON’BLE MR. JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J

1.

The hearing was conducted through video conferencing.

2.

Appellant impugns order dated 10.12.2020 whereby the

application filed by the appellant as also by respondent no. 1 under

Order 39 Rule 4 CPC have been dismissed.

3.

Both applications had sought vacation of order dated

25.02.2013 which had been confirmed by the order dated 13.08.2015.

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FAO 51/2021

4.

Notice has been served on respondent No. 3, however, none

appears for respondent no. 3 (defendant No. 2 in the suit). Learned

counsel for the appellant submits that since appellant has already

made the payment of the letter of credit to respondent No. 3,

respondent no. 3 may not be interested in defending the appeal.

5.

In view of the above, respondent no. 3 (defendant no.2 in the

suit) is proceeded ex-parte.

6.

Subject suit was filed by the respondent no. 2 seeking

declaration, cancellation of documents and permanent injunction.

7.

By order dated 25.02.2013 while issuing summons in the suit,

on the application under Order 39 Rules 1 and 2 CPC, the Court had

noticed that an order has been placed upon respondent no. 3 for

supply of industrial oil and payment was to be paid through letter of

credit after 180 days.

8.

Respondent no. 3 had approached the bank for encashment of

letter of credit. The case of the plaintiff was that goods had not been

supplied. As per the plaintiff, the documents attached by respondent

no. 3 with the letter of credit, i.e., invoices and lorry receipts were

forged.

9.

Keeping in view the said submissions on behalf of the plaintiff,

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FAO 51/2021

the Court had granted interim injunction on encashment of letter of

credit. Said injunction continued from time to time till it was

confirmed by order dated 13.08.2015 and the injunction is to continue

during the pendency of the suit.

10.

Thereafter subject application seeking modification of order

dated 25.02.2013 was filed on 14.09.2015 which application has been

dismissed by the impugned order.

11.

The impugned order notes that an application under Order 39

Rule 4 CPC is permissible only if in the application seeking

temporary injunction or in the affidavit supporting such application, a

party has made false and misleading statement in respect to a material

particular and injunction was granted without notice to the opposite

party.

12.

Second proviso to Order 39 Rule 4 CPC lays down that where

an order of injunction has been passed after giving to a party an

opportunity of being heard, said order shall not be discharged, varied

or set aside except where such discharge, variations or setting aside

has been necessitated by a change in the circumstances or unless the

Court is satisfied that the order has caused undue hardship to that

party.

13.

As noticed by the trial court there is no modification or

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FAO 51/2021

variations sought of order dated 13.08.2015 which had confirmed the

initial ad-interim order dated 25.02.2013.

14.

Further, it is noticed that nothing had been brought on record to

show that the appellant had suffered any hardship or that there was

any change in the circumstances.

15.

Trial court has also noticed that no appeal has been filed by the

appellant either against the order of 25.02.2013 or against the order

dated 13.08.2015.

16.

Since the application filed by the appellant does not satisfy the

requirements of the second prov