Ellenbarrie Industrial Gases Ltd vs Hdfc Bank Ltd And Anr on 21 January, 2025

Calcutta High Court

Ellenbarrie Industrial Gases Ltd vs Hdfc Bank Ltd And Anr on 21 January, 2025

OCD-4

                                   ORDER SHEET

                        IN THE HIGH COURT AT CALCUTTA
                             COMMERCIAL DIVISION
                                 ORIGINAL SIDE

                                  CS-COM/9/2025

                      ELLENBARRIE INDUSTRIAL GASES LTD
                                     VS
                           HDFC BANK LTD AND ANR

   BEFORE:
   The Hon'ble JUSTICE KRISHNA RAO

Date: January 21, 2025.

Appearance :

Mr. Rishav Banerjee, Adv.

Mr. Ritoban Sarkar, Adv.

Ms. Prena Saha, Adv.

Mr. Aishwarya Kumar Awasti, Adv.

…for the plaintiff

Mr. Sourojit Dasgupta, Adv.

Mr. A. Choudhury, Adv.

Ms. Uma Bagree, Adv.

…for the defendant no. 2

The Court: Mr. Rishav Banerjee, learned counsel, is appearing for the

plaintiff.

Mr. Sourojit Dasgupta, learned counsel, is appearing for the

defendant no. 2.

The plaintiff has filed the present suit for declaration that the bank

guarantees dated 26th December, 2022 and 13th July, 2023 furnished by the

defendant no. 1 on the request of the plaintiff to the defendant no. 2 are

required to be returned and allied prayers including prayer for perpetual

injunction.

The plaintiff has prayed for leave under Section 12A of the

Commercial Courts Act as well as leave under Order XII Rule 2 of the CPC.

Counsel for the plaintiff submits that though the arbitration

proceeding has been initiated and the plaintiff has filed an application before

the learned Arbitrator under Section 17 of the Arbitration and Conciliation Act
2

but the Arbitrator was not inclined to take the same on record and as such the

plaintiff has withdrawn the said application and filed the present application.

Counsel for the plaintiff submits that in terms of the earlier order

passed by the co-ordinate Bench in AP-COM/695/2024 wherein the interim

order has been passed for the period of three months and that is valid till 6 th

February, 2025 and if at this stage, the plaintiff will initiate for the pre-

mediation process, there is every chance that the pre-mediation process will

take further time and in the meantime defendant will invoke the bank

guarantees. Due to said reason, the plaintiff has shown the urgency for

presentation of plaint without initiation of pre-mediation process.

Counsel for the plaintiff further submits that though the plaintiff has

filed the present suit in urgent manner and as such there is every chance that

further relief of compensation can arise and as such, if the leave under Order II

Rule 2 of the CPC is not granted, the plaintiff will suffer irreparable loss and

injury in future to claim further claim.

Considered the submission made by the counsel for the plaintiff.

Perused the pleadings.

This Court finds that sufficient cause has been shown for non

initiation of the pre-mediation process and the plaintiff prayed for urgent relief.

Thus leave under Section 12A of the Commercial Courts Act as well

as under Order II Rule 2 of the CPC is granted.

Plaint is admitted subject to scrutiny by the department.

(KRISHNA RAO, J.)

DB