1 chs-741-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi CHAMBER SUMMONS NO. 741 OF 2011 IN SUIT NO. 1961 OF 2003. Mrs. Mehrunnisa Mohammed Mustafa Basalat Chaudhary. ..Plaintiff. vs. Chaudhary Mohd. Rafiq Shaukat Ali & Ors. ..Defendants. And Bank of Baroda, Fort University Branch, Mumbai. ..Respondent. .... Mr. Jayesh Bhatt, for Plaintiff. Mr. Simil Purohit, i/b. Bilawala & Co., for Defendant Nos. 1 to 4, 6. Mr. Dhanjay N. Palan, Senior Master, Bank of Baroda, Fort University Branch. .... CORAM : S.J. KATHAWALLA, J. DATE : 16TH SEPTEMBER 2011. P.C. : The above Suit is filed by the Plaintiff Mehrunnisa Mohammed Mustafa Basalat Chaudhary on 5th June 2003, for administration of estate of her father Chaudhary Shaukat Hajmulla; for setting aside the Relinquishment Deed dated 1st July 1995 executed by her for release of her share in the lease property; consent terms dated 15th April 1998; Development Agreement dated 22nd January 2002 and the Power of Attorney dated 26th March 1998. The Plaintiff also took out Notice of Motion No. 1922 of 2003 seeking certain interim reliefs. In the said Notice of Motion, the order was passed by the Learned Single Judge dated 5th May 2010 against which an Appeal was preferred being Appeal (Lodging) No. 356 of 2010. The said Appeal was disposed of by an order of the Hon’ble Division Bench 2 chs-741-11 dated 9th September 2010 which reads thus :- “1. Admit. 2. Heard finally by consent of Appellant and Respondent Nos. 30, 31 and 32. By consent of Appellant and Respondent Nos. 30, 31 and 32, the order impugned in the appeal, i.e. Order dated 5.05.2010 passed in Notice of Motion No. 1922 of 2003 in Suit No. 1961 of 2003 is set aside. That Notice of Motion is disposed of in the following terms :- (i) On the Respondent Nos. 30, 31 and 32 depositing in this Court an amount of Rs. 5,00,00,000/- (Rupees Five Crores Only) with due intimation to the Appellant, all interim orders operating against Respondent Nos. 30, 31 and 32 shall cease to operate. (ii) The Appellant shall be free to withdraw the amount deposited by Respondent Nos. 30, 31 and 32, on furnishing bank guarantee to the satisfaction of the Prothonotary and Senior Master of this Court within a period of six weeks from the date of deposit. If the amount is not withdrawn within the aforesaid period, it shall be invested in fixed deposit in a nationalised bank to the credit of Suit No. 1961 of 2003.” 2. Since the Respondent Nos. 30, 31 and 32 deposited the said amount of Rs. 5 crores with the Prothontoary, the interim orders operating against Respondent Nos. 30, 31 and 32 forthwith seized to operate. To enable the Plaintiff to withdraw the sum of Rs. 5 crores deposited with the Prothonotary, the Plaintiff is first required to furnish a Bank Guarantee to the satisfaction of the Prothonotary in the sum of Rs. 5 crores. The problem faced by the Plaintiff is that the banks are not willing to give an unconditional Bank Guarantee unless the Plaintiff first deposits the said amount of Rs. 5 crores with the bank. The Plaintiff has therefore produced a draft of the Bank Guarantee before the Prothonotary on 16th November 2010 which contained the following clause :- 3 chs-741-11 “It is specifically agreed that bank’s liability under these presents arises only when all the formalities with respect to deposit of Rs. 5 crores in fixed deposit are complete with the bank in all respects.” 3. In view thereof, the Prothonotary correctly held that the guarantee offered by the bank was conditional and not to her satisfaction. The Learned Advocate appearing for the Plaintiff thereafter suggested to the Prothonotary that he would persuade the bank to amend the aforestated clause as under :- “It is specifically agreed that the bank’s liability under these presents arises only when the cheque of Rs. 5 crores in the name of the Plaintiff is handed over to the bank’s representative Mr. Dhanjay N. Palan, Senior Manager, Bank of Baroda.” The said suggestion was also not accepted by the Prothonotary. 4. The Plaintiff thereafter filed Notice of Motion No. 923 of 2011 before the Hon’ble Division Bench for the following reliefs :- “(a) The time for furnishing Guarantee by Appellant as per order dated 9-9-2010 may be extended by four weeks. (b) The Prothonotary and Senior Master be directed to accept Bank Guarantee as per draft furnished by Bank of Baroda, Fort University Branch with amendment as proposed by their letter dated 16-3-2011. (c) In the alternative, the Learned Prothonotary and Senior Master be directed to deposit the amount of Rs 5 crores deposited with her by the Respondent Nos. 30 to 32 with Bank of Baroda, Fort University Branch for such period as may be deemed fit with provision for payment of quarterly interest with further direction to the Learned Prothonotary and Senior Master to pay the amount of quarterly interest so received to the Appellant. (d) Such other and further orders may be passed as 4 chs-741-11 deemed fit in the facts and circumstances of the case. (e) Costs.” The said Notice of Motion was disposed of by the Hon’ble Division Bench by order dated 30th March 2011 which reads as under :- “By consent, the Motion is disposed off in the following terms : (i) Time to furnish Bank Guarantee granted by order dated 9 September 2010 is extended by four weeks from today. (ii) In case the amount is already invested, on the Appellant furnishing the Bank Guarantee, the Prothonotary and Senior Master shall pay the amount of Rs. 5 crores to the Appellant and if there is any accrued interest on that amount, due to its investment with the Bank, then that amount shall be paid to Respondents 30 to 32. 2. The Notice of Motion stands disposed off accordingly. There shall be no order as to costs.” 5. Thereafter, a meeting was held before the Prothonotary on 21st April 2011 when the Prothonotary inter alia passed the following order :- “ Heard Learned Counsel. Perused the Order dated 30-03-2011. The matter came up before me for acceptance of Bank Guaratee on 16-11-2010 and for the reasons mentioned in the Order dtd. 16-11-2010, the draft Bank Guarantee as furnished was not accepted. The main contention of Shri Bhatt is that the Bank Guarantee will be given by the Bank only on a cheque for Rs. 5 crores being handed over to them either in the name of the Bank of their representative. The arrangement as sought for by the Ld. Adv. For the Plff. cannot be acceded to as this being a conditional Bank 5 chs-741-11 Guarantee, the undersigned cannot be a party to such arrangement between the Plff. and the Bank. Hence the draft Bank Guarantee as submitted cannot be approved.” 6. The Plaintiff being aggrieved by the order of the Prothonotary dated 21st April 2011 has moved this Court (the Chamber Court) being entitled to under Rule 133 of the Bombay High Court (Original Side) Rules, 1980. 7. I have heard the Learned Advocates for the parties and perused the aforestated orders. The Prothonotary no doubt cannot accept a Bank Guarantee which contains any sort of condition and the Plaintiff is required to provide an unconditional Bank Guarantee. However, from the aforesaid facts, it is clear that the Plaintiff is facing a practical problem in providing such an unconditional Bank Guarantee till such time that the bank receives an amount of Rs. 5 crores. In order to solve this problem and to enable the Plaintiff to provide a Bank Guarantee to the satisfaction of the Prothonotary as directed by the Hon’ble Division Bench in its order dated 30th March 2011, the Plaintiff was asked to direct the Notice of Motion against the bank and to keep an Officer of the bank present in Court. Accordingly, Mr. Palan, Senior Manager, Bank of Baroda, University Branch is present before the Court. This Court has suggested to Mr. Palan that to enable the Bank to give an unconditional Bank Guarantee in the sum of Rs. 5 crores, an undertaking of the Petitioner that she will hand over the cheque of Rs. 5 crores to the said Bank immediately upon receiving the same from the Prothonotary would be recorded. The bank Officer Mr. Palan has agreed to this suggestion and has therefore agreed to furnish an unconditional Bank Guarantee to the Prothonotary at the first 6 chs-741-11 instance. However, the Learned Advocate appearing for the Developers i.e. Respondent Nos. 30, 31 and 32 submits that such an order cannot be passed without the consent of his clients since the original order passed by the Hon’ble Division Bench of this Court dated 31st March 2011 was by consent of the parties. I do not agree with the submission of the Learned Counsel appearing for the Developers. The order dated 30th March 2011 provides that the Plaintiff may withdraw the amount of Rs. 5 crores deposited by the Respondent Nos. 30, 31 and 32 on furnishing the Bank Guarantee to the satisfaction of the Prothonotary. The Plaintiff has furnished a Bank Guarantee to the Prothonotary which according to the Prothonotary is not to her satisfaction. Mr. Palan, the Officer of the Bank who is present before the Court has now agreed to remove certain clauses from the draft Bank Guarantee and provide unconditional Bank Guarantee to the Prothonotary. The Order of the Division Bench that the Bank Guarantee should be to the satisfaction of the Prothonotary is therefore not altered in any manner by this order. By this order, the Court is simply assisting the Plaintiff to work out the modalities of furnishing such an unconditional Bank Guarantee. Therefore, in my view, no further consent of the Respondent Nos. 30, 31 and 32 is required in the matter for providing a unconditional Bank Guarantee to the satisfaction of the Prothonotary. Hence, I pass the following order:- (1) The Plaintiff undertakes that she shall immediately upon receiving the amount of Rs. 5 crores from the Prothonotary hand over the same to Bank of Baroda, Fort University Branch. The undertaking is accepted. (2) The statement of Mr. Palan, Senior Manager, Bank of Baroda, University Branch, Fort, that the Bank shall forthwith issue an unconditional Bank Guarantee in the sum of Rs. 5 crores to the 7 chs-741-11 Prothonotary in view of the above undertaking of the Plaintiff, is accepted. (3) The Prothonotary shall upon receipt of the said unconditional Bank Guarantee from the bank and after being satisfied as regards the same accept the Bank Guarantee and issue a cheque of Rs. 5 crores to the Plaintiff. (4) The Chamber Summons is accordingly disposed of. [ S.J. KATHAWALLA, J. ]