-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 111 OF 2008 IN NOTICE OF MOTION NO. 4093 OF 2006 IN SUIT NO. 3252 OF 2006 Petroleum India International ..Appellants vs. Bank of Baroda and others ...Respondents Mr. D.D. Madon, Senior Advocate, with Mr. G.R. Joshi and Ms. Jyoti Ghag, instructed by M/s. Thakore Jariwala & Associates, for the appellants. Mr. Pradeep Sancheti, Senior Advocate, with Mr. K.A. Shroff, instructed by M/s. Singhi & Co., for respondent No.1. CORAM: P.B. MAJMUDAR & ANOOP V. MOHTA, JJ. DATE: OCTOBER 20, 2010. P.C. This appeal is directed against the order of the learned single Judge dated 4th February, 2008 in Notice of Motion No. 4093 of 2006 in Suit No. 3252 of 2006. By the impugned order, the learned single Judge rejected the Notice of Motion taken out by the present appellant, who is the original plaintiff in the suit, and vacated the ad-interim injunction granted against encashment of the bank guarantee in question. -2- 2. Mr. Madon, learned senior counsel appearing for the appellants, vehemently submitted that the ad-interim injunction which was granted since 2006 continued to remain in force as of date. It is submitted that the third respondent had committed a fraud and in view of the fraudulent conduct, the appellant had informed the first respondent Bank not to proceed further and not to part with the money of the basis of such bank guarantee in any manner. Mr. Sancheti, learned Senior Counsel appearing for the first respondent, on the other hand, submitted that the bank guarantee is executed by the first respondent bank in favour of respondent No.2, the Saudi British Bank and respondent No.2 has already parted money in favour of the ultimate beneficiary i.e. third respondent. 3. During the course of hearing, Mr. Sancheti, frankly submitted that respondent No.1 would like to place additional material on record to point out that since there was no injunction against respondent No.2, respondent No.2 has parted money in favour of respondent No. 3 and that the bank guarantee executed by respondent No.1 in favour of respondent No.2 is an independent contract between respondent Nos. 1 and 2 and, therefore, such injunction could not have been granted. Mr. Madon submitted that no material is placed before the learned single Judge in this behalf as to whether any payment is made by respondent No.2 to respondent No. 3 and in fact the point argued here was not argued in the aforesaid manner before the learned single Judge. Mr. Madon -3- further submitted that in that view of the matter, the matter may be sent back to the learned single Judge. Since there is a consensus prevailing between the appellant and respondent No.1, we would not like to go in detail by discussing the nature of the transaction and to go deep as to whether it is a case of fraud or not. However, we permit the first respondent to place additional material and argue the matter before the learned single Judge de novo as to whether injunction can be granted or not or whether question of fraud has any relevance so far as bank guarantee given by respondent No.1 to respondent No.2 is concerned. Mr. Madon in his turn submits that if additional material is produced, the appellant may also be permitted to deal with the same either by filing appropriate reply or by placing any other document available at his command. 4. Considering the aforesaid aspect of the matter, the impugned order is set aside by remitting the matter to the learned single Judge to decide Notice of Motion No. 4083 of 2006 afresh. The first respondent herein is permitted to place additional material in the Notice of Motion within two weeks from today. The appellant is permitted to have his say within a further period of two weeks thereafter. The learned single Judge is requested thereafter to dispose of the Notice of Motion latest by 10th December, 2010. Both the sides have assured the Court that they will co-operate with the early hearing of the Notice of Motion . -4- 5. The Appeal is accordingly allowed to the aforesaid extent. Till the Notice of Motion is decided, the interim injunction granted by the Division Bench shall continue to operate. No costs. P. B. MAJMUDAR, J. ANOOP V. MOHTA, J.