Full Text
HIGH COURT OF DELHI
Date of Decision: 28th December, 2020
PHELAN ENERGY INDIA R J PVT LTD ..... Petitioner
Through: Mr. Sujit Kumar Ghosh, Advocate
Through: Mr. Manish Sharma, Adv. for R-1.
Mr. Bharat Sangal, Sr. Advocate with Ms. Babita Kushwaha, Advocate for
R-2.
JUDGMENT
1. This hearing has been done by video conferencing.
2. The present petition has been filed seeking return of the amounts, to the extent of Rs 1,92,00,000/-, received by Respondent No.2, due to encashment of the bank guarantee which was issued by Respondent No.1.
3. The brief background of the petition is that vide order dated 24th December, 2020, a ld. Single Judge of this Court had restrained the invocation of the bank guarantee given by Petitioner in favour of Respondent No.2 from Respondent No.1. The operative portion of the said order reads as under:
4. Ms. Sujit Ghosh, ld. counsel appearing for the Petitioner, submits that the said order was passed at about 1:00 p.m. in the presence of the ld. counsels for IndusInd Bank and Respondent No.2. Ld. counsel submits that he had on the same day at about 1:11pm, also informed the Bank that there has been a stay of the bank guarantee. Another detailed letter is also stated to have been sent in the evening of 24th December, 2020 itself, intimating the same. However, unfortunately, the bank guarantee invocation was given effect to, by the Bank, and an amount of Rs.1.92 crores was disbursed to Respondent No.2, Solar Energy Corporation of India Ltd. Thus, the prayer in this petition is for refund of the entire amount and for reinstatement of the bank guarantee, in terms of the order of the ld. single judge of this court.
5. A perusal of the order dated 24th December, 2020, shows that the same does not brook any ambiguity. It is clear that the bank guarantee could not have been encashed. The Respondent No.2 was also directed not to receive any money from the bank.
6. Mr. Sangal, ld. Senior Counsel, appearing for Respondent No.2 submits that the Respondent No.2 will, by the end of working hours tomorrow i.e., 29th December, 2020, retransmit the entire amount to the Respondent No. 1, IndusInd Bank, in order to enable the Bank to reinstate the Bank Guarantee. However, curiously Ms. Manish Sharma, ld. counsel appearing for Respondent No.1/ IndusInd Bank, claims that the Bank Guarantee is still alive.
7. In view thereof, the statement of Mr. Sangal, ld. Senior Counsel, is taken on record and the Respondent No.2 is directed to ensure that the entire amount received by Respondent No. 2 is repaid to the Respondent No.1/ IndusInd Bank by end of banking hours tomorrow i.e., 29th December 2020.
8. Further, in view of the fact that invocation of a bank guarantees can adversely affect the financial standing of the entity involved, it is made clear that the present invocation shall not affect the financial standing of the Petitioner in any manner. The bank shall issue a certificate on or before 31st December, 2020, stating that the bank guarantee has been reinstated in favour of Respondent No.2.
9. Ld. counsel for the Petitioner agrees to renew the same in terms of the contract between the parties. No further orders are called for in this matter. With these observations the present petition and all pending applications are disposed of PRATHIBA M. SINGH, J. (VACATION JUDGE) DECEMBER 28, 2020 dj/Ak