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Supreme Court of India
Atlanta Infrastructure Ltd. … vs Delta Marine Company on 19 July, 2021Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Hemant Gupta
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2876 OF 2021
[Arising out of SLP (C) No. 14979 of 2020]
ATLANTA INFRASTRUCTURE LTD. ……APPELLANT
(RECHRISTENED AS ATLANTA LTD.)
VERSUS
DELTA MARINE COMPANY & ORS. ….RESPONDENTS
JUDGMENT
SANJAY KISHAN KAUL, J.
1. Leave granted. Learned counsel for the respondent accepts notice.
2. Heard learned counsel for the parties.
3. The fate of a suit against encashment of bank guarantee still hangs in
balance after almost two decades! It is only as a result of the push given by
this court that the suit culminated in a dismissal order on 8.11.2019.
Signature Not Verified
Digitally signed by Dr.
Mukesh Nasa
Date: 2021.07.23
18:14:26 IST
Reason:
4. Respondent No.1, the original plaintiff, preferred an appeal before the
learned Addl. District Judge, Khurda. On 18.11.2019, the appellate court
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passed an interim order restraining the release of payment of bank
guarantee, which order was confirmed on 19.11.2020. On 6.1.2020, this
court passed an order in SLP(C) No.6394/2017 directing disposal of the
appeal within a period of three months from the next date i.e. 24.1.2020.
Meanwhile, respondent No.1 moved an application under Order 41 Rule 27 of
the CPC seeking admission of copy of the report of expert opinion dated
4.12.2019 under Section 45 of the Evidence Act. They sought to place on
record some documents of the appellant with an objective of signature
comparison. Such a request was rejected by the learned ADJ, Khurda vide
order 18.02.2020. Respondent No.1 then filed an appeal CMP 285/2020 on
12.3.2020 against the said order and in terms of order dated 16.03.2020,
notice was issued and further proceedings pending before learned ADJ were
stayed.
5. The aforesaid fact was brought to the notice of this court on
27.10.2020. Noticing the mockery made out of the proceedings, for stay of
encashment of bank guarantee, a report was called. On 2.11.2020, the High
Court vacated the stay observing that the order of this court dated 6.1.2020
was not brought to the knowledge of the High Court. In terms of the
impugned judgment dated 4.11.2020, the order dated 18.2.2020 of learned
ADJ was set aside and the matter was remitted back to learned ADJ to
consider the application under Order 41 Rule 27 CPC afresh at the time of
hearing of the appeal.
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6. On conspectus of the arguments of learned counsel for the parties, we
find the impugned order unsustainable. The suit had been filed for a decree
of permanent injunction restraining the appellant from encashment of bank
guarantee and to the bank from making payment. A further prayer was also
made for a decree of declaration of the agreement dated 16.2.2001 including
the arbitration clause, null and void and unenforceable. The application
under Order 41 Rule 27 CPC preferred by the respondent was predicated on a
reasoning that some interrogatory had been put to the appellant which
would show that a fraud was sought to be played on the Court. And that is
the reason the opinion of the handwriting expert was sought for comparison
of signatures on admitted documents marked as exhibits with the signatures
made on the reply to the interrogatories and the vakalatnama. The report
had been received only on 4.12.2019.
7. In our view, the argument of the respondent No.1 is fallacious. It is trite
to say that as a bank guarantee is an independent contact, there is a limited
scope for interference in case of encashment of bank guarantee as
enunciated by various courts including this Court from time to time. One of
the reason for interference could be egregious fraud. The fraud must be
relatable to the bank guarantee. Learned counsel for the respondent No.1
admits that what he was trying to show is that the signatures of the officers
of the appellant on documents do not match with the vakalatnama or some
other documents which would in turn show that the appellants had been
acting fraudulently in a different matter. However, this has nothing to do
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with the issue relating to the signatures of the representatives of the
appellant, which they do not deny. We perceive this to be another
endeavour on part of the respondent No.1 to unnecessarily keep prolonging
the issue and somehow prevent encashment of the bank guarantee.
8. In view of the aforesaid, we set aside the impugned order and dismiss
the appeal filed by respondent No.1 before the High Court against the order
of the first appellate court rejecting their application for production of
additional documents. The appeal is, accordingly, allowed leaving the
parties to bear their own costs.
……..……………………………….J.
[SANJAY KISHAN KAUL]
……..……………………………….J.
[HEMANT GUPTA]
NEW DELHI.
JULY 19, 2021
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