Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1969/2018 in Suit No.2623/2015
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1969 OF 2018
(CNR NO. MH CC010064782018)
IN
S.C.SUIT NO. 2623 OF 2015
(CNR NO. MH CC010110642015)
M/s. Shanz Powertechs Pvt. Ltd., ]
A company registered under the Indian ]
Companies Act, having its Registered ]
Office at: A17 Ram Rahim Udyog Nagar, ]
Near Sainath Hotel, Sonapur, ]
Bhandup (West), Mumbai 400 078. ]
Through its Authorized representative ]
Mr. Shaikh Noorul Hasan ].. Plaintiff.
V/s.
(1) M/s. Fernas Constructions ]
India Pvt. Ltd., having its registered ]
Office at: Delhi and Corporate office ]
at : JMD Regent Square, 9th Floor, ]
Office No.905, Opp: Sahara Mall, ]
Near M.G. Road Metro Station, ]
Gurgaon – 122 002. ]
(2) Indian Overseas Bank, ]
A Nationalized Bank, having its ]
Office at : Shri Subramania Samaj ]
Temple Complex, Cheda Nagar, ]
Chembur, Mumbai 400 089. ]..Defendants.
Advocate Mr. E. A. Sasi for the plaintiff.
Advocate Ms. Shilpa Kambli for defendant no.2.
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2 N/M No.1969/2018 in Suit No.2623/2015
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.01)
DATE : 26th SEPTEMBER 2018
ORAL ORDER
This Notice of Motion has been taken out by the plaintiff
for giving directions to defendant no.2 to release Bank Guarantee in
favour of the plaintiff, issued by defendant no.2 in the name of
defendant no.1 at the instance of the plaintiff.
2 In support of notice of motion, the plaintiff has filed
affidavit.
3 Defendant no.1 has failed to file reply to notice of motion.
Thus, it appears that defendant no.1 has no objection to the notice of
motion.
4 Defendant no.2 has filed affidavit in reply to the notice of
motion, wherein defendant no.2 has requested to give directions to
defendant no.1 to return the original bank guarantee.
5 Heard the learned advocate for the plaintiff and the learned
advocate for defendant no.2. It appears that the plaintiff has
approached to defendant no.2 Bank for sanction of credit facility against
collateral security. Defendant no.2 by its credit sanction advice letter
dated 25.10.2016, communicated its sanction of credit facilities, as
more particularly mentioned in their said letter, which include interalia
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3 N/M No.1969/2018 in Suit No.2623/2015
Letter of Guarantee for an amount of Rs.1,70,00,000/. As against the
total Bank Guarantee amounting to Rs.1,70,00,000/, the Bank
Guarantee for the amount of Rs.50,06,214/ has been given to
defendant no.1. Bank Guarantee given by defendant no.2 in favour of
defendant no.1 has already expired on 31.10.2015. The net amount for
which Bank Guarantee required on prodata basis is Rs.6,59,329/ as
against which the plaintiff's claim is Rs.31,54,043/. In this background,
the plaintiff has claimed release of amount of Bank Guarantee of
Rs.50,06,214/.
6 Admittedly, there is no claim by defendant no.1 for
releasing any amount against the said Bank Guarantee to defendant
no.2. It appears that the dispute in between the plaintiff and defendant
no.1 is pending before this Court. Therefore,s in view of earlier order
passed by this Court, it is not just and proper to give directions to
defendant no.2 to release the amount of Rs. 6,50,000/ from the said
Bank Guarantee. In respect of the said amount, order will be passed, at
the time of final hearing of the suit on merits. But in respect of
remaining amount of the Bank Guarantee, the plaintiff is entitled to
receive the same from the Bank. Thus, in the interest of just, notice of
motion is to be partly allowed. With this, I proceed to pass the following
order:
ORDER
Notice of Motion No.1969 of 2018 is hereby partly allowed.
2 Defendant no.2 Bank is directed to release the amount of
Bank Guarantee except Rs.6,50,000/ to the plaintiff.
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4 N/M No.1969/2018 in Suit No.2623/2015
3 Notice of Motion No.1969 of 2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 26/09/2018. City Civil Court,
Gr. Bombay.
Dictated on : 26/09/2018
Transcribed on : 27/09/2018
Signed on : 28/09/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29/09/2018 At 03.15 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.01)
Date of pronouncement of
Judgment/Order
26/09/2018
Judgment/Order signed by P.O. on 28/09/2018
Judgment/Order uploaded on 29/09/2018
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