I D B I Bank v. M/ S Anik Industries

Misc. Application No. 36/2023 Date: 19.05.2023

Present: Shri Alok Ranjan, Advocate holding brief of Shri Pranjal Mehrotra, counsel for the appellant, Shri Satish Agarwal along with Shri V. K. Shukla, Shri Yashvardhan Agrawal and Shri Aditya Nayak, counsels for the respondent,

The present appeal has been filed under section 20 of the RDB Act against the interim order dated 20.01.2023 passed by the DRT, Jabalpur in O.A. No. 497/2017, which is still pending before the Tribunal below and interim order has been passed, which is impugned in the present appeal, whereby liability of the defendant no. 3, who was corporate guarantor, has been released on the ground that the said guarantee was extended by the said defendant for a limited period till the production started. It is not disputed that the production started and conditional time bound guarantee of the defendant no. 3 was not extended, hence the said defendant moved the application before the Tribunal below for releasing his liability and the same has been allowed.

Learned counsel for the appellant states that reference may be heard to the provisions of section 128 of the Contract Act, which deals with surety’s liability and has argued that the proviso to that section to be applicable in the present case and not the principle regarding maintainability of the appeal. It is argued that once the guarantee of the defendant no. 3, who was registered company, was limited for a particular period till productions starts, which is special condition and it should be read as such and said guarantee cannot be made applicable beyond the time for which has been given. Learned counsel for the appellant has relied upon the various judgments, copy of which has been produced before the Court, which is taken on record.

It is further argued by the counsel for the appellant that the present appeal is barred by time as the order impugned is dated 20.01.2023, but the certified copy of which was applied by the appellant on 22.02.2023 for the first time and reference in this regard has been drawn to the page no. 52 of the paper book. It is further argued that after lapse of the 30 days, the appellant had applied for certified copy of the order. It is further argued that apart from the above, the appellant was served with the certified copy of order impugned on 21.01.2023, which was duly served upon the Bank by the appellant with an application for implementing the same, and thus it cannot be said that the appellant has no knowledge of the said order.