:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2451 OF 2007 HDFC Bank Ltd. and anr. ..Petitioners. Vs. Union of India and ors. ..Respondents. Mr. Harshad Hidayatulla, Sr. Counsel i/by Kanga & Co. for the Petitioners. Mr.M.I.Sethana,Sr. Counsel with Mr.R. Ashokan & Mr. H.P.Chaturvedi for the Respondents. CORAM : F.I. REBELLO & R.S. MOHITE, JJ. DATED : 22ND FEBRUARY, 2008 ORAL ORDER : ( PER R.S. MOHITE, J.) 1. This is a petition filed by the HDFC Bank Ltd. (hereinafter referred to as "Petitioner No.1") and Petitioner No.2 who is one of its share holder seeking relief of return/redeposit of Rs.987.24 lacs along with interest thereon at the rate of 18% per annum from the date of recovery till payment. 2. The brief facts of the case are that the company by name Core Healthcare Limited (hereinafter referred to as "CORE") was issued EPCG licence No.2556101 dated 9th October, 1995 for import of capital goods worth Rs.2,212.82 lacs. As per the licence and prevailing law CORE was required to issue bank guarantee in favour of the Customs authorities and at the request of the CORE in or about 1996 the Petitioner had issued two bank :2: guarantees as security for fulfilment of export obligation of CORE. Two bank guarantees were bearing No. 5962215102 dated 8th August, 1996 for an amount of Rs.10,79,894 and No.5952844254 dated 11th October, 1996 for an amount of Rs.976.44 lacs. 3. That by letter dated 7th December, 2001 the Respondent No.4-Asstt. Commissioner of Customs invoked the aforesaid two bank guarantees for default committed by CORE. The default as mentioned in the letter was that CORE had not furnished evidence of export for fulfilment of export obligation under its EPCG licence in terms of condition No.5 of Customs Notification No.111/95 dated 5th Sept. 1995. 4. On invoking the bank guarantees, the petitioner had paid an amount of Rs.10,79,894/- by a pay order dated 14th January, 2002 and another amount of Rs.9,76,43,736/- by another pay order also dated 14th January, 2002 5. It is the petitioner’s case that on an application dated 8th April,2004 made by CORE to the Government of India, Ministry of Commerce and Industry, extension was granted for fulfilment of export obligation upto 8th October,2007. In short, it is the case of the :3: petitioner that in view of this extension which was granted, CORE could no longer be said to be a defaulting party and in the circumstances, monies paid by them to the Customs Authorities were liable to be refunded. 6. We find no substance in this petition. The petitioner has not made the CORE as a party to this petition. Merely because an extension was granted on 14.12.2004, it cannot be assumed by us that CORE had fulfilled its export obligation even during the period of extension. Apart from this, the two bank guarantees were invoked in the year 2001. This was done on the ground that CORE was a defaulting party. It is not the case of the petitioner that on the date when the bank guarantees were invoked, CORE has satisfied its export obligation. If at all, any party had any grievance and a claim for return of money, it was CORE and it is significant that CORE has not made any attempt to recover the amounts paid to the Custom authorities. Remedy if any of the petitioner No.1 is to proceed against the CORE. 7. The counsel appearing for the revenue has relied upon the judgment of the Division Bench of Gujarat High Court in the case of Elecon Engineering Co. Ltd.Vs. Union of India reported in 2002 (146) E.L.T. 301 (Guj.). In the said case, the petitioner could not fulfill its obligation to provide relevant evidence :4: showing that it had fulfilled export obligation. In the circumstances, the Division Bench held that it was not possible to accept the contention that a show cause notice and final adjudication were necessary before the Bank Guarantee could be encashed. Reliance was also placed upon the judgment of the Single Judge of the Madras High Court in the case of Dyna Lamps and Glass Works Ltd. Vs. Union of India reported in 2002 (146) E.L.T. (Mad.), wherein it was held that the petitioner failed to fulfil the export obligation. It was held in that case that the bank guarantees had been rightly invoked as at that time the Bank guarantee could be enforced and the bank was bound to pay the amount of the bank guarantee without reference to the petitioner and Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985 would not apply at that stage. 8. Further, on perusal of Condition No.5 of the Notification No.111/95-Customs, we find that there was a legal requirement to discharge a minimum of 25% of the export obligation prescribed for any particular block of two years for two consecutive blocks and if there was default in the said requirement, then importer was liable to pay whole of the duties of customs leviable on the goods imported. These are issues which only CORE could meet or contest, They are not before us. The fact remains that the petitioner was bound to make payment to the Respondent on demand. The petitioner’s have a right :5: to claim the amount from CORE. CORE at the highest can make the claim on the respondent but not the petitioner. 9. In our view, therefore, for all the reasons this is not a fit case for us to exercise our extraordinary jurisdiction as the prayer is essentially for recovery of money. In the circumstances, we are not inclined to entertain the petition. Hence, petition is summarily rejected. (R.S. MOHITE, J.) (F.I. REBELLO, J.)