Order 3

Order Details: Notice of Motion
Pdf Text: N/m No. 2138/21 in Comm. Suit No. 3/19. 1 Order.
MHCC010070672021
Presented on : 20-09-2021
Registered on : 20-09-2021
Decided on : 09-12-2021
Duration : 0 years, 2 months, 19 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 2138 OF 2021
IN
COMMERCIAL SUIT NO. 3 OF 2019
Metro Ortem Limited ...Plaintiff
Versus
Maharashtra State Road Transport Corporation ...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 9th DECEMBER, 2021.
Mr. Rajesh Singh, Advocate for the plaintiff.
Ms. P.M.Bhansali, Advocate for the defendant.
ORDER
1. The defendant has filed the present notice of motion for
extending the period of bank guarantee No. 0429818BG0000061 dated
27/04/2017 which was expired on 26/04/2020 and also for revival and
extending the tenure of the said bank guarantee and alternatively for
direction to the plaintiff to submit fresh bank guarantee for the
equivalent sum.
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N/m No. 2138/21 in Comm. Suit No. 3/19. 2 Order.
2. Perused notice of motion and affidavit in reply filed by the
plaintiff. Heard learned counsel Ms. P.M.Bhansali for the defendant
and learned counsel Shri Rajesh Singh for the plaintiff.
3. Learned counsel Ms. P.M.Bhansali for the defendant
submitted that the plaintiff has prayed for releasing the performance of
the bank guarantee issued by the SBI, Nehru Place Branch, New Delhi.
The plaintiff had filed Notice of Motion No. 1707/2019 for granting
relief of temporary injunction restraining the defendant from invoking
the bank guarantee and the defendant has objected prayer in it. The
court had granted interim relief on 04/04/2019 temporarily restraining
the defendant from invoking the bank guarantee. The court had
continued the stay as per order dated 24/04/2019. Meanwhile, the
bank guarantee expired on 26/04/2020. Then, Notice of Motion No.
1707/2019 is decided on 08/04/2021. As the bank guarantee expired
on 26/04/2020, the said notice of motion was disposed off having
become infructuous. By pointing out these developments in the matter,
she submitted that the products were not supplied by the plaintiff and
the defendant was constrained to purchase the products from other
sources. She further submitted that statusquo ante should be restored
because right of the defendant to invoke bank guarantee will be taken
away. She relied upon citation of Nanasaheb V/s. Dattu and others
(Civil Revision Application No. 877/1990 decided by Hon'ble
Bombay High Court, Bench at Aurangabad on 19/12/1990) in which
it is observed in Para 9 that the court has power to grant injunction
even in circumstances not covered by Order 39 of the CPC and it is also
well settled that inherent powers of the Code can be utilized for issuing
temporary injunctions but it should not be either to nullify statutory
provision or to bypass what is expressly provided. By relying upon this
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N/m No. 2138/21 in Comm. Suit No. 3/19. 3 Order.
citation, she submitted that the court can invoke inherent powers if it is
not otherwise provided. She submitted that notice of motion may
kindly be allowed.
4. On the other hand, learned counsel Shri Rajesh Singh for
the plaintiff submitted that the suit is based upon the rate contract
(Exh.D) in which clause 19 provides remedy by allowing the parties to
purchase the goods from others and to recover damages for breach of
contract. He further referred clause 26 in Exh.D as per which the
contract can be withdrawn or cancelled. According to him, bank
guarantee is placed on record at Page No.90 with the plaint and it is
conditional guarantee. According to him, failure to perform by the
plaintiff is essential for invoking the bank guarantee. It is his
contention that the defendant failed to demonstrate failure of the
plaintiff. He further submitted that nothing has been done by the
defendants. The defendant did not invoke the bank guarantee. The
plaintiff filed the suit for recovery of money and other consequential
reliefs. He further submitted that the defendant did not appear after
10/01/2020. Notice of Motion No. 1707/2019 is decided on
08/04/2021. As the bank guarantee expired, the court cannot revoke
its own order. The defendant had knowledge of expiry date of the bank
guarantee. The defendant did not file suit or make counterclaim for
seeking relief of injunction. According to him, no relief can be granted
to the defendant. He also relied upon Section 73 and 74 of the Contract
Act to state that compensation for loss or damage caused by breach of
contract can be claimed. He pointed out that Hon'ble High Court had
denied the relief to the defendant in the citation of Nanasaheb V/s.
Dattu and others relied by the defendant. He prayed for dismissal of
the notice of motion.
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N/m No. 2138/21 in Comm. Suit No. 3/19. 4 Order.
5. Considering rival contentions and developments taken
place in the matter, it is clear that the rate contract is the basis of
transaction between the parties. The plaintiff had given the bank
guarantee in consonance with the contract between the parties. The
bank guarantee expired while the interim relief granted by this court
was in operation. Subsequently, notice of motion filed by the plaintiff
for temporary injunction restraining the defendant from invoking the
bank guarantee came to be disposed off due to expiry of bank
guarantee.
6. The defendant did not approach the court before expiry of
the bank guarantee for seeking reliefs claimed in the present notice of
motion. The defendant has filed written statement (Exh.7) in which no
counter claim is made. The defendant has relied upon the citation of
Nanasaheb V/s. Dattu and others as referred above. The said citation
deals with the exceptional circumstances warranting the court to
exercise inherent powers in the interest of justice. Case of the
defendant does not fall in that category. The defendant could not
justify the circumstances making him to move present notice of motion
at belated stage of the matter and without seeking any relief either in
the form of set off or counterclaim. My learned predecessor has noted
in order in Notice of Motion No. 1707/2019 that the bank guarantee
expired on 26/04/2020 and the said notice of motion became
infructuous. Rights of the parties can be decided on merit with the help
of available material on record. In the case in hand, there is no scope to
undo the things, which have already happened, as a corollary of lapse of
time. Ultimately, interest of both sides is protected by virtue of Section
144 of the CPC depending upon decision in the matter. For want of
prima facie case and diligent action on the part of the defendant,
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N/m No. 2138/21 in Comm. Suit No. 3/19. 5 Order.
present notice of motion is liable to be dismissed. Hence, I pass the
following order :
ORDER
1. Notice of Motion No. 2138/2021 is dismissed.
2. The proceeding of N/m No. 2138/21 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 09/12/2021. Mumbai.
1. Dictated online on : 09/12/2021.
2. Signed on : 10/12/2021.
3. 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
10/12/2021. 5.46 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 09/12/2021.
Judgment/Order signed by P.O. on 10/12/2021.
Judgment/Order uploaded on 10/12/2021.
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