Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1227/2020 in Comm. Suit (Stamp) No. 3774/2020. 1 Order.
MHCC010034102020
Presented on : 22-05-2020
Registered on : 22-05-2020
Decided on : 19-03-2021
Duration : 0 years, 9 months, 28 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1227 OF 2020
IN
COMMERCIAL SUIT (STAMP) NO. 3774 OF 2020
M/s Starlift Services Private Limited )
(Earlier known as ABG Kolkata Container )
Terminal Private Limited) )...Plaintiff
Versus
Principal Commissioner of Customs (Port) )
and Another )...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 19th MARCH, 2021.
Ms. Payoja Gandhi and Ms. Sukanya Bhaumik, Advocate for Plaintiff.
Mr. Dhananjay Deshmukh, Advocate for Defendant No.1.
None for Defendant No.2.
ORDER
This is a motion taken out by plaintiff for issuance of
temporary injunction
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N/m No. 1227/2020 in Comm. Suit (Stamp) No. 3774/2020. 2 Order.
(a) restraining defendant no.1 i.e. Custom
Department from encashing the bank
guarantee and invocation of the bank
guarantee,
(b) Injunction against defendant no.2 bank from
making any payment to the defendant no.1 by
encashing the bank guarantee.
2. Perused replycumwritten statement of defendant no.1
vide Exh.7. Suit is proceeded exparte against defendant no.2 J & K
Bank Limited.
3. Learned Adv. Payoja Gandhi and Sukanya Bhaumik for
plaintiff submits that an agreement dated 02/04/2004 was executed for
the period of ten years. The impugned project of import export came to
be completed in 2014. All relevant documents about completion of the
project came to be submitted by the plaintiff to the defendant no.1 in
2014. However, plaintiff is unable to search the record. The bank
guarantee dated 30/12/2009 came to be issued for the period of ten
years by the defendant bank. According to plaintiff, the validity of bank
guarantee came to be over in December2019. The letter of invocation
of the bank guarantee issued by the defendant no.1 dated 11/03/2020
is without any legal support. It is prayed for temporary injunction
against defendant no.1 from invocation of bank guarantee and
injunction against defendant no.2 for issuance of payment to the
defendant no.1.
4. Learned Adv. Dhananjay Deshmukh for defendant no.1
Commissioner of the Customs (Port) submits that execution of bank
guarantee is an independent contract. It is requested to compare bank
guarantee given to the defendant attached on page no.28 of Exh.7.
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N/m No. 1227/2020 in Comm. Suit (Stamp) No. 3774/2020. 3 Order.
Column no.8 and 9 from the bank guarantee of plaintiff annexed on
page no.18 of the plaintiff is different. It was agreed by the plaintiff
that he will not change the name of firm and in violation of any
condition he will pay the exemption amount to the defendant no.1 with
interest at the rate of 15% p.a. It is added that defendant no.2 bank has
joined hands with plaintiff as there is substantial difference in bank
guarantee clause no.8 and 9 given to the defendant no.1 and bank
guarantee annexed by the plaintiff alongwith the plaint. It is prayed to
reject the motion.
REASONS FOR ORDER
5. Plaintiff is a private limited company deals in the business
of port handling services. Plaintiff had entered into agreement with
Kolkata Port Trust on 02/04/2004 for the period of ten years. Plaintiff
has availed benefit of scheme of the central government namely “Export
Promotion Capital Goods” (hereinafter referred as “EPCG Scheme”). In
synopsis alongwith plaint following are the material averments of the
plaintiff :
“a) The Plaintiff fulfilled all its obligations under
the Agreement and completed the project
successfully in 2014.
b) The Plaintiff has fulfilled all its obligations
under the Agreement dated April 2, 2004 as
well as all its export obligations under EPCG
Authorisation. The Plaintiff has submitted all
the documents in support of fulfilling its
export obligations to the Defendant No.1 from
time to time.”
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6. It is pertinent to note that in respect of completion of the
project and submission of the report, upon availing the benefits of the
EPCG Scheme, plaintiff was directed to produce the record. For said
compliance, plaintiff has availed time of two weeks. However, plaintiff
could not produce the record. Therefore, it is apt to note at the
inception that plaintiff do not have any document to submit compliance
report in view of EPCG scheme.
7. Upon comparison of bank guarantee submitted by the
plaintiff on page no.18, it bears single signature of a Manager of J & K
Bank, Worli, Mumbai. However, the copy of bank guarantee annexed
by the defendant at page no.29, it bears signatures of two managers of J
& K Bank dated 30/12/2009. It clearly indicate difference between
both bank guarantee by bare eyes. On minute perusal of bank
guarantee given to defendant no.1, it bears nine columns, however,
bank guarantee submitted by the plaintiff bears eight columns. The
column no.8 alongwith plaint bears roman (i) to (iii) clause. However,
there is no such clause no.8 (i) to (iii) in a copy of bank guarantee given
to the defendant no.1 by the plaintiff. There is no explanation
advanced on behalf of plaintiff in respect of aforesaid difference in both
bank guarantees. Therefore, there is a prima facie ground to believe
that the copy of bank guarantee furnished to the defendant no.1 dated
30/12/2009 appears to be submitted with a motive to commit mischief.
8. It would be appropriate to peruse para nos.4 and 5 of the
bank guarantee. It runs as follows :
“4. That this guarantee shall remain in force for
ten years till 30122019 and shall be
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renewed from time to time at least one month
in advance from the date of expiry till
finalization of the matter.
5. If this guarantee is not duly renewed by the
said importer or not stand discharged in
writing by the Customs, the bank of its own
shall pay the entire amount of the guarantee
to the Government immediately after the
expiry of the guarantee even in absence of any
demand from the government and the
payment will be made by A/C payee Cheque in
favour of “Commissioner Of Customs,
Kolkata”.”
9. In view of aforesaid paragraph nos.4 and 5, plaintiff has
undertook to execute the bank guarantee and invoke the same by the
defendant no.1 at any time, unless he got discharged from the said.
Plaintiff has executed agreement in favour of the Central Government
dated 22/12/2009. Paragraph nos.3 to 5 are reproduced as follows for
sake of convenience :
“3. In the event of failure to fulfill full/part of the
export obligation as specified in the said
notification and the license/we, obligator(s),
hereby undertake to pay the customs duty but
for the exemption and also interest @ 15% p.a.
thereon forthwith and without demur, to the
Government.
4. I/We the obligor(s) shall comply with
conditions and limitations stipulated in the said
import & export policy/Foreign Trade Policy as
amended from time to time.
5. I/We the obligor(s), shall not change the name
and style under which we, the obligator(s) are
doing business or change the location of the
manufacturing premises except with the written
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permission of the government.
If each and every one of the above conditions
is duly complied with by us, the obligor(s), the
above written bond shall be void and of no
effect, otherwise the same shall remain in full
force and effect and virtue.”
10. In view of aforesaid terms, plaintiff has undertook to
compensate exemption on the custom duty with interest at the rate of
15% p.a. in the event of failure to comply export obligation. Plaintiff
has also undertook to not to change name or address of manufacturing
firm.
11. It is to note that earlier company namely ABG Kolkata
Container Terminal Private Limited closed, is changed to “M/s. Starlift
Services Private Limited”. However, it is clear violation of term as
stipulated in agreement.
12. Considering aforesaid discussion, there is no prima facie
case in favour of plaintiff. Plaintiff is failed to submit compliance report
for the benefit obtained under EPCG Scheme. Plaintiff is also failed to
prove difference in both bank guarantees, as discussed above. Plaintiff
has violated the condition by change in the address and change in the
name of plaintiff firm. In short, there is no substance in the motion.
Hence, the order :
ORDER
1. Notice of Motion No. 1227/2020 stands dismissed.
2. Written statement is already on record, both side may file
draft issues and insist for expedite hearing.
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3. N/m No. 1227/2020 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 19/03/2021. Mumbai.
1. Dictated on : 19/03/2021.
2. Transcribed on : 24/03/2021.
3. Signed on : 26/03/2021.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/03/2021. 2.05 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 19/03/2021.
Judgment/Order signed by P.O. on 26/03/2021.
Judgment/Order uploaded on 26/03/2021.
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