AUROGLOBAL COMTRADE PVT. LTD Vs. SENIOR MANAGER, SBI

JUDGEMENT

(1.) IN this writ petition, the petitioner, a registered company involved in export of iron ore fines and importing of coal for trading in India, has prayed that the order dated 06.04.2013 passed by the learned Civil Judge (Senior Division), Bhubaneswar, Khurda under Annexure-3 be quashed and the opposite parties, i.e. Paradip Port Trust (for short 'the PPT') be restrained from encashing the bank guarantee till disposal of the Interim Application. The impugned order is passed under Order 39, Rule 3 of the Code of Civil Procedure, 1908 (for short 'the Code'), wherein learned Civil Judge (Senior Division) refused to pass order of ad-interim exparte injunction restraining encashment of bank guarantee.

(2.) THE petitioner's case, in brief, is that the opposite party no.2-PPT issued notice inviting tender on 02.06.2011 for allotment of manual iron ore plot for convergence and export of iron ore. The petitioner being one of the successful bidders was allotted a manual iron ore plot by the PPT. The license period was for 11 months, i.e. from August, 2011 to June, 2012. Pursuant to such allotment, the petitioner was required to furnish a performance bank guarantee for a sum of Rs.31,65,750/-(Rupees thirty one lakh sixty five thousand seven hundred fifty only). It is to be submitted to ensure that the petitioner is able to fulfill the Minimum Guaranteed Throughput (MGT). The PPT has imposed condition of furnishing bank guarantee for MGT during the license period as mentioned above. The petitioner submitted the bank guarantee towards the MGT, vide B.G. No.0665711BG0000207 dated 21.07.2011 for Rs.31,65,750/-. The same was valid till 20.12.2012 and the license period was upto 30.06.2012. The petitioner admits that it was unable to achieve the M.G.T. in the license period between 01.08.2011 to 30.06.2012 for various impediments including Government restriction and adverse market condition. The PPT vide letter dated 19.10.2012, intimated the opposite party no.1-Bank to encash the aforesaid performance bank guarantee as the petitioner has failed to deposit the shortfall wharfage charges. However, the petitioner immediately deposited the shortfall amount. Consequently, the PPT vide letter dated 20.10.2012, requested the Bank not to encash the bank guarantee as the petitioner has deposited the shortfall amount. It is borne out from the letter dated 20.10.2012 that petitioner's liability towards performance bank guarantee has ceased to exist since then. In spite of the aforesaid clearance of shortfall wharfage charges, the PPT insisted for renewal of performance bank guarantee and the petitioner finding no alternative and to save money renewed the same till 20.03.2013. Then, the PPT on 12.03.2013 without any basis and justifiable reason asked the Bank to encash the bank guarantee to which the petitioner objected vide letter dated 16.03.2013 as the wharfage dues had already been paid. The same was admitted by the PPT in it's letter dated 20.10.2012 to the Bank. Subsequently, on 19.03.2013 the PPT requested the Bank not to encash the bank guarantee as the petitioner assured to extend the validity period of the same. The petitioner vide letter dated 19.03.2013 intimated the PPT that it has extended the validity of the bank guarantee till 18.07.2013. Thus, the bank guarantee stands extended till as on date (during pendency of the writ petition the petitioner has been directed to request the Bank to extend the bank guarantee on two occasions and as the matter stands its valid upto 13.08.2013).

(3.) THE opposite party no.2-PPT has filed counter affidavit. It is admitted that land measuring 5500 Sqft. [I-5 (C group)] was allotted in favour of the petitioner on 01.08.2011 for the period of 11 months from 01.08.2011 to 30.06.2012. The M.G.T. for the plot was 1,35,000 matric ton of iron ore for the period for which the petitioner furnished bank guarantee amounting to Rs.31,65,750/- as per clause-4 of the allotment order. The PPT further pleads that the pleadings available on record does not reveal a case for grant of injunction to restrain the PPT from encashing the bank guarantee in question. There is also no allegation of fraud and irretrievable injustice due to which invoking/encashment of bank guarantee may not be restrained. As far as the plea of payment of bank guarantee of Rs.31,65,750/- is concerned, the PPT does not dispute or deny the same. Rather, it states that dues of the petitioner as on 13.05.2013 are to the tune of Rs.3,26,68,191/- but the PPT did not state that the aforesaid amount is in relation to the license period in question.