SEPCO ELECTRIC POWER CONSTRUCTION CORPORATIONversusPOWER MECH PROJECTS LTD.

                         [2021] 12 S.C.R. 259                               259


SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                               A
                                   v.
                 POWER MECH PROJECTS LTD.
                (Civil Appeal Nos. 4936-4937 of 2021)
                          AUGUST 24, 2021                                   B
 [INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]
      Arbitration and Conciliation Act, 1996 – ss. 9, 37 –
Commercial Courts Act, 2015 – s.13(1A) – Reserve Bank of India
Act, 1934 – Bank Guarantee from a ‘schedule Bank’ and a ‘schedule
                                                                            C
Indian Bank’ – The appellant, an entity in corporate in China was
awarded contracts in relation to coal based power projects in India
and the respondent, a company incorporated in India was engaged
as a sub-contractor of the appellant –Dispute arose between the
parties – Arbitration clause invoked – Arbitration Award was passed
of approximately Rs.1,42,00,00,000 (One hundred and forty two               D
crores) in favour of the respondent – Appellant filed an application
u/s.34of the Act challenging the Arbitral Award before the
Commercial Division of the High Court – Respondent also filed an
application u/s. 9 of the Arbitration Act seeking, inter alia, directions
to secure the amount of the Arbitral Award – On 12.02.2019, Single
                                                                            E
Judge of the High Court directed the Appellant to furnish to the
Registry, a Bank Guarantee for a sum of Rs.30 Crores, from a
Scheduled Bank located in India – On 22.03.2019, appellant got
Industrial and Commercial Bank of China Limited (ICBC) to issue
an unconditional, irrevocable Bank Guarantee for a sum of Rs.30
Crores – However, on 09.04.2019 the Single Bench directed the               F
appellant to substitute the Bank Guarantee issued by ICBC, by a
Bank Guarantee of equivalent amount from a “Scheduled Indian
Bank” – Appellant filed an application for recall of the order of the
Commercial Division (Single Bench) of the High Court directing
the Appellant to substitute the Bank Guarantee – Application
                                                                            G
dismissed by the High Court – On appeal, held: Per Indira Banerjee,
J: ICBC is also a Scheduled Bank within the meaning of s.2 (e) of
the RBI Act – The RBI Act only defines ‘Scheduled Banks’ which
includes Scheduled Foreign Banks operating in India – There is no
definition of Scheduled Indian Bank in the RBI Act – The Court
may legitimately disapprove a Bank Guarantee of a bank with a               H
                                  259
260            SUPREME COURT REPORTS                       [2021] 12 S.C.R.


A     history which raises doubts with regard to its credibility – In the
      instant case, there is nothing on record to give rise to any doubts
      with regard to the credibility of ICBC or its financial ability or
      willingness to honour guarantees – Therefore, the High Court erred
      in directing the Appellant to replace the Bank Guarantee of ICBC –
      Per V. Ramasubramanian, J.: This is a case where the petitioner,
B
      after making a clear offer to furnish a bank guarantee of a
      scheduled Indian bank, has chosen to take advantage of a mistake
      that crept in the order passes by Single Bench which was rectified
      later on –The order dated 09.04.2019 was to correct a mistake that
      had inadvertently crept in – The question whether there exists
C     statutorily, a distinction between “a Scheduled Indian Bank” and
      “a Scheduled Bank located in India” does not arise for
      consideration in this case, as the dispute primarily revolves around
      what was offered in Court by one of the parties, what was accepted
      in Court, and what was recorded in the Order and clarified later –
      Therefore, the Special Leave Petitions are dismissed – No
D
      interference u/Art.136 of the Constitution required – Since, both
      the Judges have not been able to agree, the matter to be placed
      before the Chief Justice of India for appropriate directions.
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.4936-
      4937 of 2021.
E
            From the Judgment and Order dated 12.03.2021 of the High Court
      of Delhi at New Delhi in Review Petition No.5 of 2021 in FAO (OS)
      (COMM) 136 of 2019.
            K. V. Vishwanathan, Sr. Adv., Satvik Varma, Ranjit Prakash,
      Apoorv Singhal, Gaurav Lavania, Harsh Gokhale, Pai Amit, Adv. for the
F     appellant.
            Dr. Abhishek Manu Singhvi, Sr. Adv., Dharmesh Misra, Prateek
      Gupta, Krishna Dev Jagarlamudi, Sahil Garg, Vishal Singh, Advs. for the
      respondent.
            The following Judgment and Order of the Court were delivered :
G                                JUDGMENT
            INDIRA BANERJEE, J.
            1. Leave granted.
            2. These appeals are against a judgment and order dated
      27.11.2020, passed by the Division Bench of Delhi High Court, dismissing
H
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                  261
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

the Appeal being FAO(OS) (COMM) No.136 of 2019, filed by the                   A
Appellant under Section 37 of the Arbitration and Conciliation Act 1996,
hereinafter referred to, in short, as the “A & C Act” read with Section
13(1A) of the Commercial Courts Act 2015, and affirming an order
dated 16.05.2019 passed by the Commercial Division of the Delhi High
Court in OMP(I)(COMM) No.523/2017 under Section 9 of the A & C
                                                                               B
Act, whereby the Court refused to recall its earlier order dated
09.04.2019, directing the Appellant to substitute an irrevocable Bank
Guarantee, issued by the Industrial and Commercial Bank of China
Limited (ICBC), Mumbai Branch for Rs.30 Crores furnished pursuant
to an order dated 12.02.2019 of the Court, with a Bank Guarantee of a
“Scheduled Indian Bank” of the same amount. The Appellant has also             C
impugned a judgment and order dated 12.03.2021 passed by the Division
Bench dismissing Review Petition No.5/2021 filed by the Appellant for
review of the said judgment and order dated 27.11.2020 dismissing the
Appeal.
       3. The short question in these Appeals is, whether the High Court       D
was right in refusing to accept a legally valid irrevocable Bank Guarantee
of Rs.30 Crores, issued by the Industrial and Commercial Bank of China
Limited, Mumbai, hereinafter referred to as ‘ICBC’ which is a Scheduled
Bank included in the Second Schedule of the Reserve Bank of India
Act, 1934, and insisting that the Appellant should furnish a fresh Bank
Guarantee of the same amount, with identical terms, issued by a                E
“Scheduled Indian Bank”, notwithstanding the expenditure incurred by
the Appellant in obtaining the Bank Guarantee from ICBC.
       4. These Appeals are restricted only to the question of legality of
the direction of the High Court, requiring the Appellant to substitute a
legally valid irrevocable Bank Guarantee, issued by ICBC, which is a           F
Scheduled Bank, carrying on business in India, with a Bank Guarantee
of equivalent amount issued by a “Scheduled Indian Bank”.
       5. The Appellant, an entity incorporated in China was awarded
contracts in relation to various coal based power projects in India and
the Respondent, a company incorporated in India was engaged as a               G
sub- contractor of the Appellant. Disputes and differences between the
Respondent and the Appellant were referred to Arbitration. The details
of the contract between the Appellant and the Respondent, or the disputes
and differences that arose there from, are irrelevant to the issues involved
in these Appeals. Suffice it to mention that the Arbitration culminated in     H
262            SUPREME COURT REPORTS                        [2021] 12 S.C.R.


A     an Award dated 17.10.2017 of approximately Rs.1,42,00,00,000 (One
      hundred and forty two crores) in favour of the Respondent.
             6. On 03.12.2017, the Appellant filed an application under Section
      34 of the A & C Act being O.M.P. (COMM) No. 432 of 2017 challenging
      the Arbitral Award dated 17.10.2017 in the Commercial Division of the
B     Delhi High Court, which is pending.
             7. On the other hand, the Respondent filed an application being
      OMP (I) (COMM) No. 523/2017 in the Commercial Division of the
      High Court under Section 9 of the A & C Act seeking, inter alia,
      directions on the Appellant to secure the amount of the Arbitral Award.
C            8. On 12.02.2019, a Single Bench of the Commercial Court of the
      High Court passed an order in O.M.P.(I) (COMM.) No. 523/2017
      directing the Appellant to furnish to the Registry of the High Court, a
      Bank Guarantee for a sum of Rs.30 Crores, from a Scheduled Bank
      located in India. The operative part of the order dated 12.02.2019 is set
D     out hereinbelow:-
            “3. ….. It is ordered accordingly.
            4. The Judgment Debtor will file the affidavit within two (2)
            weeks; with a copy being furnished to the counsel for the
            Decree Holder.
E
            5. Insofar as the bank guarantee is concerned, it will be
            furnished within 6 weeks as indicated by the counsel.
            6. Further, the bank guarantee in the sum of Rs.30 crores will
            be that of a scheduled bank located in India.
F           7. Renotify the matter on 31.7.2019.
            8. In the meanwhile, the Judgment Debtor will continue to
            make deposit with the Registry of this Court in terms of the
            order dated 24.7.2018.”
            9. On 22.03.2019, the Appellant got ICBC to issue an unconditional,
G     irrevocable Bank Guarantee for a sum of Rs.30 Crores payable on
      demand to the Registrar General of the Delhi High Court. An electronic
      copy of the Bank Guarantee was filed in the Registry on 26.03.2019.
            10. Mr. K.V. Vishwanathan, learned Senior Counsel appearing
      on behalf of the Appellant submitted that the Appellant incurred
H     expenditure of Rs.30,00,000/- (Thirty Lakhs) approximately towards bank
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                             263
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

charges for furnishing the Bank guarantee. Furthermore, an amount of      A
Rs.36,40,00,000/- was frozen in the Bank Account of the Appellant with
ICBC in China.
       11. However, by an order dated 09.04.2019, the Single Bench
directed the Appellant to substitute the Bank Guarantee issued by ICBC,
which had been filed in the Registry of the High Court, by a Bank         B
Guarantee of equivalent amount from a Scheduled Indian Bank. The
relevant paragraphs of the said order are extracted hereinbelow:-
      “5. Furthermore, Mr. Sethi says that in compliance of the order
      dated 12.02.2019 which required the respondent to furnish a
      bank guarantee of a Scheduled Bank, the respondent has              C
      complied with the same and submitted a bank guarantee of
      Industrial and Commercial Bank of China Limited (in short
      “ICBC”).
      6. However, a careful perusal of the order would show that
      Mr. Sethi had offered to furnish a bank guarantee of a
                                                                          D
      Scheduled Indian bank and that while dictating the operative
      part of the order, I had indicated that it would be a scheduled
      bank located in India, therefore, the confusion, if any caused
      is now removed. The respondent will substitute the bank
      guarantee filed with a guarantee of a Scheduled Indian bank
      of an equivalent value.                                             E
      7. Pending the substitution, the Registry will hold on to the
      bank guarantee already submitted and the respondent will
      ensure that the same is kept alive.
      8. As to whether the bank guarantee already filed is valid,
      the matter will be placed before Joint Registrar (Judicial) on      F
      23.04.2019.
      8.1 It is made clear that as and when the respondent is ready
      to replace the bank guarantee furnished by ICBC with a bank
      guarantee of a Scheduled Indian Bank, on a request being
      made in that behalf via an appropriate application, the Joint       G
      Registrar (Judicial) will release the bank guarantee furnished
      by ICBC provided the request is backed by an undertaking
      of the duly authorized representative of the respondent that it
      shall place the bank guarantee of the Scheduled Indian Bank
      on record within a defined time line not exceeding 10 days
      from the date of the request.”                                      H
264            SUPREME COURT REPORTS                          [2021] 12 S.C.R.


A           12. Pursuant to the direction of the Court, the Registrar (Judicial)
      of the High Court scrutinized the Bank Guarantee furnished by the
      Appellant, recorded the statement of Mr. Ayush Ganediwala, Vice
      President of ICBC, who had appeared before him, and passed an order
      dated 03.05.2019, recording that the said Bank Guarantee was valid
      with effect from 22.03.2019 till 19.03.2020.
B
             13. Thereafter, the Appellant filed an application being IA No.7096
      of 2019 for recall of the order dated 09.04.2019 of the Commercial
      Division (Single Bench) of the High Court directing the Appellant to
      substitute the Bank Guarantee issued by ICBC with a Bank Guarantee
      of equivalent value of a Scheduled Indian Bank.
C
            14. By an order dated 16.05.2019, the learned Single Bench
      dismissed the said application, inter alia observing:-
            “5. I may clarify, at the outset, that it is not this court’s
            endeavour to doubt in any manner the credentials of ICBC.
D           The record, however, shows that the applicant/respondent had
            in fact, on its own, offered to furnish a bank guarantee of a
            Scheduled Indian Bank. The confusion, if any, in the mind of
            the applicant/respondent, as rightly pointed out by Mr. Nigam,
            was removed on 09.04.2019. The applicant/respondent has
            moved this application after nearly four weeks of the
E           clarification issued in that behalf. Thus, having passed an
            order based, essentially, on the offer made by the counsel for
            the applicant/respondent, I do not see any good reason to
            recall the direction.”
             15. From the orders dated 09.04.2019 and 16.05.2019, it appears
F     that the senior Counsel, representing the Respondent in the High Court
      had vehemently objected to the Bank Guarantee of ICBC, arguing
      emphatically, that the Appellant itself had, through Counsel, offered to
      furnish a Bank Guarantee of a Scheduled Indian Bank, but had retracted
      from its offer, taking advantage of an inadvertent typographical error in
G     Paragraph 6 of the order dated 12.02.2019, which read “Further the
      bank guarantee in the sum of Rs.30 crores will be that of a scheduled
      bank located in India”.
            16. The direction in the operative part of the order dated 12.02.2019
      was clear. It required the Appellants to furnish a Bank Guarantee of a
      Scheduled Bank located in India. The Appellant complied with the
H
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                  265
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

direction and furnished a Bank Guarantee of a sum of Rs.30,00,000,00/          A
- (Thirty Crores) from the Mumbai Branch of ICBC.
       17. May be, there was a mistake in passing the order dated
12.02.2019, in the sense that the Court had intended to pass an order in
terms of the offer of the Appellant, to furnish a Bank Guarantee of a
Scheduled Indian Bank. In the order dated 09.04.2019, the learned Judge        B
very fairly stated that while dictating the operative part of the order, the
learned Judge had said that the Bank Guarantee would be of a Scheduled
Bank located in India. That is what the order read. A party cannot be
faulted for acting in terms of the order as issued, particularly when there
was no patent or obvious error in the direction to furnish a Bank Guarantee
of a Scheduled Bank, located in India.                                         C
       18. It is true, that the order dated 12.02.2019 records the oral
offer made on behalf of the Appellant, through Counsel, to submit a
bank guarantee of a Scheduled Indian Bank. However, the direction in
the operative part of the order dated 12.02.2019 gives the impression,
that the offer of the Appellant to furnish a Bank Guarantee may have           D
persuaded the Court to secure the Arbitral Award by directing the
Appellant to furnish a Bank Guarantee of a Scheduled Bank located in
India.
       19. As recorded in the order dated 09.04.2019, there may have
been some confusion by reason of the direction to furnish a Bank               E
Guarantee of a Scheduled Bank located in India. The language and tenor
of the order dated 12.02.2019, as also the fact that the Respondent did
not make any attempt to have the direction to furnish a Bank Guarantee
of a Scheduled Bank located in India rectified and/or altered, shows that
use of the expression ‘Scheduled Indian Bank’ may have been understood
by all concerned parties to include an Indian branch of a Scheduled            F
Bank.
       20. Contrary to the contention of the Respondent, as recorded in
the order dated 16.05.2019 of the Court, there was no typographical
error in the order dated 12.02.2019. One can say that there is a
typographical error when there is an inadvertent mistake in a figure or        G
the spelling of a word by reason of pressing a wrong key of the keyboard
or the omission or duplication of a word or phrase or even a sentence/
sentences. A typographical error is obvious. That was not the case here.
      21. The direction to furnish a Bank Guarantee of a Scheduled
Indian Bank located in India, is perfectly legal. There was no reason for      H
266             SUPREME COURT REPORTS                          [2021] 12 S.C.R.


A     the Appellant to proceed on the basis that the direction had been issued
      by mistake. The Respondent also did not take any steps to get the direction
      rectified or altered. The direction was allowed to remain intact for almost
      two months. In the meanwhile, the Appellant furnished a Bank Guarantee
      of an Indian Branch of ICBC, a Scheduled Bank in India.
B            22. In this case, perhaps the intention of the Court was not
      expressed in the order accurately. However, the order was otherwise
      correctly worded and legally valid. It is not uncommon for Courts to give
      directions, which might be at variance with an oral offer. The Appellant
      having acted in accordance with the order dated 12.02.2019 and changed
      his position to his detriment by incurring an expenditure of about Rs.30
C     lakhs to comply with the said order, it was not appropriate for the Court
      to change the order.
            23. From the order dated 09.04.2019, it is clear that even the
      Single Bench accepted that there was a confusion due to the language
      and tenor of the direction in Paragraph 6 of the said order. Thus the
D     Court, in effect, accepted that there may not have been any deliberateness
      on the part of the Appellant in furnishing a Bank Guarantee issued by
      ICBC.
             24. Being aggrieved by the order dated 16.05.2019 refusing to
      recall the earlier order of the Court dated 09.04.2019, directing the
E     Appellant to replace the Bank Guarantee of ICBC, with a Bank
      Guarantee of a Scheduled Indian Bank, the Appellant filed an appeal
      under Section 37 of the A & C Act, read with Section 13 (1A) of the
      Commercial Courts Act, 2015. The appeal was dismissed by the order
      of the Division Bench dated 27.11.2020 impugned before this Court.
F     The prayer of the Appellant, for review of the Order dated 27.11.2020
      was rejected by an order dated 12.03.2021, which is also under challenge
      before this Court.
             25. There may not be any infirmity in the order dated 12.03.2021,
      rejecting the prayer of the Appellant for review, having regard to the
G     limited scope of an application for review. A matter cannot be re-argued
      in the garb of an application for review. Nor does the Review Court
      exercise appellate powers. All applications for review are governed by
      the principles enshrined in Section 114 read with Order 47 Rule 1 of the
      Code of Civil Procedure, 1908. A court is empowered to review its own
      order only if the conditions precedent for a review, as laid down in Section
H     114 read with Order 47 Rule 1 of the Code of Civil Procedure exist. In
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                267
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

this case the prerequisites for a review did not exist. The appeal from      A
the order dated 12.03.2021, rejecting the application for review, is
therefore, dismissed.
       26. Therefore, the question is whether the Division Bench, after
having held that the order impugned before it was appealable, should
have dismissed the appeal and allowed the direction on the Appellant to      B
substitute the Bank Guarantee of ICBC with a fresh bank guarantee of
a Scheduled Indian Bank, to stand.
      27. Even in the proceedings before the Division Bench, the
Respondent only harped on the offer of the Appellant to furnish a Bank
Guarantee of a Scheduled Indian Bank and further contended that the          C
Bank Guarantee of ICBC being conditional, the Respondent feared that
the purpose of the Bank Guarantee might not be served.
       28. Significantly, there is no finding of the Single Bench that the
bank guarantee is conditional. A copy of the Bank Guarantee is included
in the Paper Book. The Bank Guarantee reads:                                 D
      “NOW THESE PRESENTS WITNESSETH THAT THE SAID
      BANK DOTH HEREBY STAND SURETY IN PURSUANCE OF
      THE SAID ORDER DATED 12TH FEBRUARY 2019 FOR THE
      SUM OF RS. 300,00,000/- (RUPEES THIRTY CRORES ONLY)
      AND THE SAID BANK DOTH HEREBY GUARANTEE TO                             E
      AND COVENANT WITH THE REGISTRAR GENERAL, DELHI
      HIGH COURT THAT THE SAID BANK SHALL FORTHWITH
      PAY THE SAID SUM OF RS. 300,00,000/-(RUPEES THIRTY
      CRORES ONLY) TO THE REGISTRAR GENERAL, DELHI
      HIGH COURT IN TERMS OF THE ORDER/JUDGEMENT OF
      THE HON’BLE HIGH COURT OF DELHI ALLOWING THE                           F
      ENFORCEMENT OF THE ARBITRAL AWARD DATED 17TH
      OCTOBER, 2017 AND AS PER ORDER/DIRECTION/
      JUDGMENT BY THE HON’BLE HIGH COURT OF DELHI
      IN THE MATTER ARISING OUT OF ABOVE MENTIONED
      LEGAL PROCEEDINGS.                                                     G
      AND THE SAID BANK DOTH HEREBY FURTHER
      COVENANT AND DECLARE THAT THE BANK GUARANTEE
      HEREIN SHALL REMAIN IN FORCE UP TO AND INCLUSIVE
      OF A PERIOD OF ONE YEAR AND THE SAID BANK SHALL
      IN CIRCUMSTANCES AS ABOVE, WITHOUT ANY DEMUR
                                                                             H
268            SUPREME COURT REPORTS                      [2021] 12 S.C.R.


A           OR DEMAND, ACTION, NOTICE OR OBJECTION
            FORTHWITH PAY TO THE REGISTRAR GENERAL, DELHI
            HIGH COURT THE SAID AMOUNT OF RS.300,00,000/-
            (RUPEES THIRTY CRORES ONLY).
            AND IT IS HEREBY FURTHER RECORDED THAT THE SAID
B           BANK GUARANTEE GIVEN HEREIN IS IRREVOCABLE AND
            SHALL NOT BE REVOKED BY NOTICE OR OTHERWISE AND
            IT IS IN ACCORDANCE WITH THE ORDER DATED 12TH
            FEBRUARY, 2019 PASSED BY THE HON’BLE HIGH COURT
            OF DELHI IN PETITION NO. O.M.P.(I) (COMM) NO.523/
            2017 TITLED M/S. POWER MECH PROJECTS LTD. VS.
C           SEPCO      ELECTRIC    POWER      CONSTRUCTION
            CORPORATION AND O.M.P. (COMM) NO.432/2017 TITLED
            SEPCO      ELECTRIC    POWER      CONSTRUCTION
            CORPORATION VS M/S. POWER MECH PROJECTS LTD.
            NOTHWITHSTANDING        ANYTHING      CONTAINED
D           HEREINABOVE THE LIABILITY OF THE SAID BANK IS
            RESTRICTED TO THE SUM OF RS.300,00,000/- (RUPEES
            THIRTY CRORES ONLY).
            IN WITNESS WHEREOF WE, INDUSTRIAL AND
            COMMERCIAL BANK OF CHINA LIMITED, MUMBIA
E           BRANCH
            NAME OF THE SCHEDULED BANK, BRANCH AND
            ADDRESS)
            HAVE EXECUTED THESE PRESENT AT NEW DELHI

F           THIS 22ND DAY OF MARH 2019.
            THE GUARANTEE IS SUBJECT TO THE UNIFORM RULES
            FOR DEMAND GUARANTEES(URDG) 2010 REVISION, ICC
            PUBLICATION NO.758.”
             29. The ICBC has unequivocally agreed to honour the Bank
G     Guarantee on an order and/or judgment of the High Court allowing
      enforcement of the Arbitral Award, and as per Order/Direction/Judgment
      by the High Court in the pending legal proceedings. The statement that
      the Bank Guarantee is subject to the Uniform Rules for Demand
      Guarantees (URDG) 2010 Revision, does not dilute the terms of the
      Bank Guarantee. Nor does the URDG render the Bank Guarantee any
H
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                     269
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

less effective. Furthermore, the High Court did not direct the Appellant          A
to furnish an unconditional guarantee.
       30. The Uniform Rules for Demand Guarantees (URDG) 758 is
a set of voluntary contractual rules, published by the International
Chamber of Commerce (ICC) with the aim of regularising and creating
a set standard of international banking practice on demand guarantees             B
and counter demand guarantees.
       31. The URDG balances the legitimate and competing interests
of the applicant, the guarantor and the beneficiary and limits the risk of
unfair calls and demands on guarantors and counter-guarantors, just like
the ICC’s Uniform Customs and Practice for Documentary Credits                    C
(UCP) 600 which applies to Letters of Credit (LCs) and other
documentary credits.
       32. The URDG, being a voluntary instrument, lacks the force of
law, and must thus be expressly incorporated by the parties in order for
it to apply to a demand guarantee or counter-guarantee. Guarantees                D
issued by guarantors and counter-guarantors, which incorporate the
URDG, are entirely subject to their own terms, while incorporating
beneficial terms of the URDG.
       33. It is important to note that the URDG may apply without the
parties expressly including it in certain instances, where it is in the general
                                                                                  E
usage of a particular trade, where the applicable law provides for its
application; or where it has been in consistent use in the course of a
transaction or dealings between the parties.
        34. The provisions of the URDG are limited to the scope of the
matters upon which the contracting parties are free to contract on, and
is subject to mandatory national laws of the governing jurisdiction, which        F
is the law and jurisdiction of the guarantor or counter-guarantor, unless
otherwise agreed by the parties.
       35. Under the URDG, guarantees are completely independent of
any underlying relationship between the applicant and beneficiary, and
subject to only the terms contained in it, thereby limiting the liabilities       G
and rights of the guarantor bank to only matters to which it voluntarily
commits itself.
     36. URDG 758 is a revised version of URDG 458. The revision
was conducted under the aegis of ICC Banking Commission and the
ICC Commission on Commercial Law and Practice.                                    H
270            SUPREME COURT REPORTS                        [2021] 12 S.C.R.


A           37. The ICC Task Force on Guarantees, the standing expert body
      created by ICC in 2003 to monitor international guarantee practice, acted
      as a consultative body to the Drafting Group that produced five
      comprehensive drafts during the two-and-a-half-year revision process.
             38. The resulting URDG 758 were adopted unanimously by the
B     ICC Executive Board at its meeting in New Delhi on 3 December 2009,
      following their endorsement by the members of the two sponsoring ICC
      Commissions. They came into force on 1 July 2010, whereupon a
      considerable number of demand guarantees and counter-guarantees
      started being issued all over the world subject to the new URDG 758.
C            39. It appears that all the concerned parties proceeded on the
      understanding that there was no difference between a ‘Scheduled Indian
      Bank’ and ‘Scheduled Bank located in India’, in the absence of any
      specific definition of the expression ‘Scheduled Indian Bank’ in the RBI
      or the Banking Regulation Act.
D            40. Incorporated on 01.01.1984, ICBC is a Chinese State-owned
      multi national banking company, with capital provided by the Ministry of
      Finance of China. ICBC is a banking company within the meaning of
      Section 5(c) of the Banking Regulation Act, 1949, read with Section
      45A (a) of the Reserve Bank of India Act, 1934, hereinafter referred to
      as the RBI Act. Sections 5(c) of the Banking Regulation Act and Section
E
      45A(a) of the RBI Act are set out hereinbelow for convenience”-
            “Section 5(c) of Banking Regulation Act, 1949
            5(c) “banking company” means any company which transacts
            the business of banking in India ;
F
            Explanation.—Any company which is engaged in the
            manufacture of goods or carries on any trade and which
            accepts deposits of money from the public merely for the
            purpose of financing its business as such manufacturer or
            trader shall not be deemed to transact the business of banking
G           within the meaning of this clause;
              xxx                      xxx                      xxx
            Section 45A (a) of the Reserve Bank of India Act, 1934
            45A(a) “banking company” means a banking company as
H           defined in Section 5 of the Banking Regulation Act, 1949,
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                 271
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

      and includes the State Bank of India, any subsidiary bank as            A
      defined in the State Bank of India (Subsidiary Banks) Act,
      1959, any corresponding new bank constituted by Section 3
      of the Banking Companies (Acquisition and Transfer of
      Undertakings) Act, 1970, and any other financial institution
      notified by the Central Government in this behalf,...”
                                                                              B
       41. ICBC is also a Scheduled Bank within the meaning of Section
2 (e) of the RBI Act, which defines a ‘Scheduled Bank’ to mean a bank
included in the Second Schedule to the RBI Act. ICBC has its branch
office at the Bandra Kurla Complex, Mumbai, India. The Mumbai branch
of ICBC has been granted license by RBI to carry on banking business
                                                                              C
in India pursuant to a Memorandum of Understanding between the
Governments of India and China.
      42. The Mumbai branch of ICBC commenced operations in
September 2011 and was included in the Second Schedule to the RBI
Act by Notification DBOD IBD. No.8137/23.03.026/2011-12 dated
                                                                              D
01.12.2011 published in the Gazette of India (Part III Section 4).
      43. ICBC evidently continues to be in the Second Schedule to the
RBI Act till date. In this context, it may be pertinent to point out that
some banks have been excluded from the Second Schedule to the RBI
Act by Gazette Notifications.
                                                                              E
       44. Banks have been listed in the Second Schedule to the RBI
Act, by Gazette Notifications issued from time to time, under the following
categories:-
       1.    Scheduled Public Sector Banks
                                                                              F
       2.    Scheduled Private Sector Banks.
       3.    Scheduled Small Finance Banks
       4.    Scheduled Payments Banks
       5.    Scheduled Regional Rural Banks                                   G
       6.    Scheduled Foreign Banks in India
      45. In terms of Annexure-1 to the notification dated 13th April
2020, mentioned in Paragraph 2(b) thereof the following Scheduled
Commercial Banks have been included in the Schedule to the RBI Act:-
                                                                              H
272   SUPREME COURT REPORTS                   [2021] 12 S.C.R.


A                                                “Annexure I
      (Refer to para 2(b) of notification dated April 13, 2020)


          List of Scheduled Commercial Banks
B




C




D




E




F




G




H
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                               273
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

                                                                            A




                                                                            B




                                                                            C




                                                                            D




                                                                            E




      46. As a Scheduled Bank and a banking company within the              F
meaning of the Banking Regulation Act, ICBC is governed by the
regulatory provisions of the RBI Act and the Banking Regulation Act
and the Rules, Regulations, Orders, Notifications etc. issued thereunder.
The circulars and directives of the Reserve Bank of India with regard to
Bank Guarantees/ Demand Guarantees are binding on ICBC.
                                                                            G
      47. The RBI Act only defines ‘Scheduled Banks’ which includes
Scheduled Foreign Banks operating in India. The RBI Act or the Second
Schedule thereto does not segregate Scheduled Indian Banks. There is
no definition of Scheduled Indian Bank in the RBI Act. The regulatory
provisions of the RBI Act apply equally to all scheduled banks.
                                                                            H
274             SUPREME COURT REPORTS                           [2021] 12 S.C.R.


A            48. However, since there is a list of Scheduled Foreign Banks in
      India categorized separately in the Second Schedule by Gazette
      Notifications, it may be presumed that all other banks listed in the Second
      Schedule in the various categories except the category of Scheduled
      Foreign Banks, that is, Scheduled Public Sector Banks, Scheduled Private
      Sector Banks, Scheduled Small Finance Banks, Scheduled Payments
B
      Banks, Scheduled Regional Rural Banks are all Scheduled Indian Banks,
      even though Scheduled Indian Banks do not constitute any distinct
      category in the Second Schedule to the RBI Act. Since ICBC has its
      principal branch registered in the People’s Republic of China and is listed
      in the category of Scheduled Foreign Banks in India, the High Court
C     made a distinction between ICBC and a ‘Scheduled Indian Bank’.
            49. The Annexures to the Special Leave Petition filed in this Court,
      which form part of the Paper Book in these appeals show that ICBC is
      not only a Scheduled Bank in India, but it also ranks very high in terms of
      asset value in atleast three extremely authoritative lists being ‘The
D     Banker’s Top 1000 World Banks 2018’, ‘The Forbes Global 2000 2019’
      and ‘The Fortune Global 500 Sub-list of Commercial Banks’.
             50. It is stated by the Appellant that ICBC realized a net profit of
      RMB 298.7 Billion in the year 2018 with the total value of its assets
      assessed at 27,699,540 (in RMB Millions). Mr. Vishwanathan submits
E     that ICBC continues to hold the largest total net profit in the global banking
      industry.
             51. It appears that the Mumbai branch of ICBC has set up a fund
      for an amount of 200 million US Dollars for investment in Indian Micro,
      Small and Medium Enterprises (MSMEs). It is contended on behalf of
F     the Appellant that this establishes the credibility of ICBC within the Indian
      Commercial Market.
            52. In the Second Schedule to the RBI Act, ICBC is listed in the
      same category of Scheduled Foreign Banks in India as Standard
      Chartered Bank, Citi Bank, American Express Banking Corporation,
G     HSBC Limited etc. which are household names in India in the arena of
      banking. On the other hand, Scheduled Indian Bank, as stated above
      would include all categories of banks in the Second Schedule except
      those in the category of Scheduled Foreign Banks. Scheduled Banks
      would therefore, include Scheduled Private Sector Banks such as
      Bandhan Bank Limited, City Union Bank Limited, Ratnakar Bank
H
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                 275
 v. POWER MECH PROJECTS LTD. [INDIRA BANERJEE, J.]

Limited, Dhanalaxmi Bank Limited, Kotak Mahindra Bank Limited,                A
Lakshmi Vilas Bank Limited, Nainital Bank Limited, Yes Bank Limited
etc.
       53. Mr. Abhishek Manu Singhvi, learned Senior Counsel opposing
these appeals on behalf of the respondents could not demonstrate any
real prejudice likely to be caused by reason of furnishing of a Bank          B
Guarantee of ICBC in preference to Scheduled Indian Banks nor could
he show any plausible reason for preference of Scheduled Private Sector
Banks in India to Scheduled Foreign Banks like ICBC.
       54. As pleaded in the appeal being FAO (OS) (COMM) No.136
of 2019 the Respondents have not been able to advert to a single instance     C
of default, fraud or any other malpractice of ICBC which could cast any
doubt over ICBC’s ability or inclination to honour the Bank Guarantee
issued by it.
       55. It is incomprehensible why Scheduled Private Banks in India
should be preferred to Scheduled Foreign Banks in India with high global      D
rating, even though, some Scheduled Private Sector Banks have not
even been running well. It would perhaps not be out of place to take
judicial notice of reports that in March, 2020, Yes Bank, a private Sector
bank, which was on the brink of complete financial collapse, had to be
placed under a moratorium by RBI. Yes Bank has been cited by this
Court as an example only to illustrate the fallacy of insistence upon the     E
Bank Guarantee of a Scheduled Indian Bank in preference to that of
Scheduled Foreign Bank in India, and not to cast any aspersion on the
present functioning of Yes bank or any other Scheduled Bank in the
Private Sector in India.
       56. There can be no doubt that the Court has the discretion to         F
insist on a Bank Guarantee from any specific bank or class of banks to
safeguard the interests of the beneficiary of the Bank Guarantee. The
Court may legitimately disapprove a Bank Guarantee of a bank with a
history which raises doubts with regard to its credibility. In this case,
there is nothing on record to give rise to any doubts with regard to the      G
credibility of ICBC or its financial ability or willingness to honour
guarantees.
       57. In the absence of any adverse material against ICBC and in
the light of a plethora of reports showing its financial soundness, I am of
the view that the High Court erred in directing the Appellant to replace
                                                                              H
276             SUPREME COURT REPORTS                             [2021] 12 S.C.R.


A     the Bank Guarantee of ICBC, already furnished pursuant to an order of
      Court passed on 12.02.2019, with another Bank Guarantee, oblivious of
      the practical realities in the arena of banking activities, specially the
      difficulties in obtaining a Bank Guarantee from banks with which the
      applicant has no transaction and ignoring the cost already incurred by
      the Appellant by way of bank charges for obtaining the guarantee.
B
             58. Mr. Singhvi, more as an argument in desperation, submitted
      that the Petitioner would not have incurred so much expenditure if it had
      complied with the order dated 09.04.2019 instead of taking recourse to
      different proceedings before Court. Prompt compliance with the order
      of 09.04.2019 may have saved the Appellant the costs of renewal of the
C     Bank Guarantee. However, the initial amount of about Rs.30 lakhs had
      already been spent long before the order dated 09.04.2019 was passed.
             59. As discussed above, all that is required for invocation of the
      Bank Guarantee is an order of the High Court in the proceedings relating
      to the Arbitral Award. The statement that the guarantee is subject to the
D     URDG does not dilute the guarantee or make it conditional. Mr. Singhvi’s
      client has not been able to demonstrate how the URDG can cause any
      prejudice to the beneficiary of the Bank Guarantee. Having passed an
      order on 12.02.2019 which directed “..Further, the bank guarantee in
      the sum of Rs.30 crores will be that of a scheduled bank located in
      India...” on the basis of which the Appellant altered its position to its
E     detriment by extending Rs.30 lakhs in obtaining a Bank Guarantee of
      ICBC. The High Court was not justified in altering and/or modifying the
      said direction after almost two months and after its compliance.
             60. For the reasons discussed above, the appeal from the impugned
      judgment and order of the Division Bench dated 27.11.2020 in FAO(OS)
F     (COMM) No. 136 of 2019 is allowed. The impugned judgment and order
      of the Division Bench dated 27.11.2020 in FAO(OS) (COMM) No. 136
      of 2019 and orders dated 09.04.2019 and 16.05.2019 in OMP (I)
      (COMM) 523/2017 are set aside.
                                      O R D E R*
G            1. Despite a fine analysis by my learned sister, of the relevant
      provisions of the Reserve Bank of India Act, 1934 and the Banking
      Regulation Act, 1949 and the fine distinction that the Hon’ble Judge has
      brought out between a ‘scheduled Bank’ defined in the Act, in contrast
      to a ‘scheduled Indian Bank’ not defined anywhere statutorily, I regret
H     *Ed. Note : Order passed by Hon’ble Mr. Justice V. Ramasubramanian
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                   277
          v. POWER MECH PROJECTS LTD.

my inability to persuade myself to agree to the view taken by my learned        A
sister. In my considered view, the special leave petitions deserve to be
dismissed. The reasons are provided herein below.
       2. As pointed out by my sister, the award-debtor has come up
with these Special Leave Petitions challenging (i) the dismissal of an
appeal under Section 37 of the Arbitration and Conciliation Act, 1996           B
(hereinafter referred to as the ‘Act’); and (ii) the dismissal of a review
petition arising there from. The appeal under section 37 of the Act arose
out of the rejection of a petition for recalling an order passed in an
application for interim measure under Section 9 of the Act.
       3. The petitioner suffered an arbitration award dated 17.10.2017         C
in a sum of Rs.142,41,14,499/-. The award is the subject matter of
challenge in a petition OMP(COMM.)No.432 of 2017 under Section 34
of the Act. It appears that the petition under Section 34 was accompanied
by an application for stay of execution of the award, but the same has
not yet been finally disposed of.
                                                                                D
       4. However the respondent filed an independent petition under
Section 9 of the Act, and sought a direction to the petitioner to secure
the award amount. In the said petition in I.A.No.11128 of 2018 in OMP
(I)(COMM.)No.523 of 2017, an order was passed on 12.02.2019. Since
the genesis of the dispute before us could be traced to the said order, it
is extracted as follows:-                                                       E

      “1. Mr. Sethi, learned senior counsel for the respondent, says that
      he will file an affidavit stating therein the following:
             (i) The list of assets which find mention in the valuers’ report
             along with their location and valuation given by the valuer.       F
             (ii) The list of assets which, according to him, the valuer
             has not valued. In respect of these assets their location and
             approximate valuation will also be given.
             (iii) Furnish a bank guarantee in the sum of Rs.30 crores
             of a scheduled Indian bank.                                        G
      2. Learned senior counsel says that on account of the spring festival
      in China, it could take at least six (6) weeks to furnish the bank
      guarantee.
      3. Mr. Sethi says, however, the affidavit can be furnished within
      the next two (2) weeks. It is ordered accordingly.                        H
278             SUPREME COURT REPORTS                         [2021] 12 S.C.R.


A           4. The Judgment Debtor will file the affidavit within two (2) weeks;
            with a copy being furnished to the counsel for the decree holder.
            5. Insofar as the bank guarantee is concerned, it will be furnished
            within 6 weeks as indicated by the counsel.
            6. Further, the bank guarantee in the sum of Rs.30 crores will
B           be that of a scheduled bank located in India.
            7. Renotify the matter on 31.7.2019.
            8. In the meanwhile, the Judgment Debtor will continue to make
            deposit with the Registry of this Court in terms of the order dated
            24.7.2018.”
C
            5. Pursuant to the aforesaid order, the petitioner furnished a bank
      guarantee issued by the Industrial and Commercial Bank of China Limited,
      Mumbai Branch dated 22.03.2019 (hereinafter referred to ICBC).
             6. It appears that thereafter the respondent moved another
D     application in I.A.No.5185 of 2019 in OMP(I)(COMM.) No.523 of 2017
      seeking Garnishee Orders in respect of the amounts that the petitioner
      was entitled to receive under a settlement agreement entered into with
      one of their customers. While dealing with the said application, the learned
      Judge found that instead of furnishing a bank guarantee of a scheduled
      Indian bank, the petitioner had furnished bank guarantee of ICBC, in
E     view of the confusion created in paragraph 6 of the order dated
      12.02.2019. Therefore, by an order passed on 09.04.2019, in I.A.No.5185
      of 2019, the learned Judge directed the petitioner to substitute the bank
      guarantee of ICBC, with a bank guarantee of a scheduled Indian bank.
      The relevant portion of the order passed by the learned judge in
F     I.A.No.5185 of 2019 dated 09.04.2019 reads as follows:-
            “… … …
            5. Furthermore, Mr. Sethi says that in compliance of the order
            dated 12.02.2019 which required the respondent to furnish a bank
            guarantee of a Scheduled Bank, the respondent has complied with
G           the same and submitted a bank guarantee of Industrial and
            Commercial Bank of china Limited (in short “ICBC”)
            6. However, a careful perusal of the order would show that
            Mr. Sethi had offered to furnish a bank guarantee of a
            Scheduled Indian bank and that while dictating the operative
H           part of the order, I had indicated that it would be a scheduled
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                  279
          v. POWER MECH PROJECTS LTD.

      bank located in India, therefore, the confusion, if any caused           A
      is now removed. The respondent will substitute the bank
      guarantee filed with a guarantee of a Scheduled Indian bank of
      an equivalent value.
       … … …”
       7. It is relevant to point out here that the order dated 09.04.2019     B
was passed by the very same Judge who passed the order dated
12.02.2019. The learned Judge was thus aware of what transpired in
court on 12.02.2019 and hence recorded in the order dated 09.04.2019
as to what happened in court on 12.02.2019. It is needless to emphasize
that what is recorded in a judicial order about what transpired during the     C
hearing in court, is to be taken to be a correct reflection of what
transpired.
       8. However, the petitioner filed an application in I.A.No.7096 of
2019 seeking to recall the directions contained in paragraph 6 of the
order dated 09.04.2019. The main grievance as projected by the petitioner      D
in the said petition was that the non-acceptance of the bank guarantee
furnished by ICBC may be taken as a reflection on the reputation of the
bank.
      9. But by an order dated 16.05.2019, the learned Judge dismissed
I.A.No.7096 of 2019, clarifying that the credentials of ICBC are not at        E
all doubted and that what was sought to be done by the order dated
09.04.2019, was merely to correct an error that crept in the order dated
12.02.2019. Paragraph 5 of the order dated 16.05.2019 reads as follows:-
      “… … …
      5. I may clarify, at the outset, that it is not this court’s endeavour   F
      to doubt in any manner the credentials of ICBC. The record,
      however, shows that the applicant/respondent had in fact,
      on its own, offered to furnish a bank guarantee of a
      Scheduled Indian Bank. The confusion, if any, in the mind of
      the applicant/respondent, as rightly pointed out by Mr. Nigam,
                                                                               G
      was removed on 09.04.2019. The applicant/respondent has moved
      this application after nearly four weeks of the clarification issued
      in that behalf. Thus, having passed an order based, essentially, on
      the offer made by the counsel for the applicant/respondent, I do
      not see any good reason to recall the direction. …”
                                                                               H
280             SUPREME COURT REPORTS                          [2021] 12 S.C.R.


A            10. Challenging the order dated 16.05.2019, passed in I.A.No.
      7096 of 2019, the petitioner moved an intra-court appeal in
      FAO(OS)(COMM.)No.136 of 2019 under Section 37 of the Act read
      with Section 13 of the Commercial Courts Act, 2015. This appeal was
      dismissed by the Division Bench by an order dated 27.11.2020 primarily
      on the ground that the order under appeal was an interim one which is
B
      largely discretionary and that the scope and power of the appellate court
      in appeals against interim orders is limited to certain factors.
             11. The petitioner thereafter moved an application for review in
      R.P.No.5 of 2021 seeking a review of the order dated 27.11.2020. The
      review petition was dismissed by an order dated 12.03.2021. Therefore,
C     challenging the dismissal of the appeal and the dismissal of the review
      petition, the petitioner has come up with these Special Leave Petitions.
              12. Thus we have 2 Special Leave Petitions, one challenging the
      dismissal of the appeal under section 37 and another challenging the
      dismissal of the review petition. The SLP arising out of the order passed
D     in the review petition deserves to be thrown out without much ado, since
      the refusal of a court to review its order due to the absence of the
      parameters prescribed in Order 47 Rule 1 CPC, cannot give rise to a
      substantial question of law of public importance, warranting our
      interference under Article 136.
E            13. In so far as the other SLP challenging the order passed in the
      appeal under Section 37 of the Act is concerned, the same arises out of
      an interim order passed under Section 9 of the Act. As rightly observed
      by the Division Bench of the High Court, interim orders are discretionary
      and there is no question of interference with the exercise of the discretion,
      even in an intra-court appeal, much less in an SLP under Article 136.
F
              14. All that the learned Judge did on 09.04.2019, was to correct a
      mistake that inadvertently crept in his order. The correction that the
      learned Judge sought to make, was in tune with the very offer made by
      the petitioner at the first instance on 12.02.2019. When an interim order
      has been passed particularly in a fact situation arising out of an offer
G     made by one of the parties, especially by the very same learned Judge,
      I fail to understand how the case can be elevated to the status of one
      raising a substantial question of law warranting our interference under
      Article 136.
             15. I have extracted in full, the first order dated 12.02.2019 and
H     the relevant portions of the orders dated 09.04.2019 and 16.05.2019.
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                    281
          v. POWER MECH PROJECTS LTD.

The order dated 12.02.2019 shows (i) that it was not an adjudicatory             A
order but passed entirely on the basis of an offer made by the petitioner
herein; and (ii) that paragraphs 4 and 5 of the order gave two weeks
time to the petitioner to file an affidavit and six weeks time to furnish
bank guarantee. The statement of the learned senior counsel for the
petitioner to file an affidavit is recorded in paragraph 1 of the order
                                                                                 B
dated 12.02.2019. Paragraph 1 of the order dated 12.2.2019 indicates
three items with respect to which the petitioner undertook to file an
affidavit. Item no. (iii) of paragraph 1 is very specific that one of the
contents of the affidavit should be to furnish a bank guarantee in a sum
of Rs.30 crores of a ‘scheduled Indian bank’. Paragraph 5 directs
the petitioner to furnish bank guarantee within six weeks ‘as                    C
indicated by the counsel’.
       16. To a pointed question whether an affidavit containing all the
three items mentioned in paragraph 1 was filed or not, as directed in
paragraph 4 of the order dated 12.02.2019, the reply of Mr. K.V.
Vishwanathan, learned senior counsel for the petitioner was that an              D
affidavit containing the matters indicated in Item Nos. (i) and (ii) of
paragraph 1 of the order was filed and that in view of the directions
contained in paragraph 6 to furnish a bank guarantee of a scheduled
bank located in India, there was no necessity to incorporate in the affidavit,
the matter covered by Item No.(iii) of paragraph 1.
                                                                                 E
       17. But I do not agree. If a party to a proceeding invites an order
by making an offer, he is obliged to honour the commitment made in the
form of the offer. The contention of Mr. K.V. Vishwanathan that his
client’s offer in paragraph 1(iii) of the order dated 12.02.2019 to furnish
a bank guarantee of a scheduled Indian bank stood modified by paragraph
6 of the order, is not acceptable. This is for the reason that the very          F
same learned Judge from whom the order dated 12.02.2019 was invited,
clarified on 09.04.2019 that what he had in mind was what was actually
offered by the petitioner. Once the same learned Judge has clarified that
there was no intention to accept the offer made by the petitioner with a
modification, it is not open to the appellate court to upset the discretion      G
exercised by the learned Judge.
       18. Both in the orders dated 09.04.2019 and 16.05.2019, the very
same learned Judge had clarified (i) as to what transpired in court; (ii)
as to what was offered; and (iii) as to what was the purport of the order
dated 12.02.2019. Therefore, the matter should be allowed to rest there.         H
282             SUPREME COURT REPORTS                           [2021] 12 S.C.R.


A           19. Even the contention that the credentials of ICBC will be taken
      to have been doubted, was considered by the learned Judge in his order
      dated 09.04.2019 and the matter was clarified. Therefore, the question
      of any harm to the reputation of ICBC does not arise.
             20. Lastly it is contended by Mr. K.V. Vishwanathan, learned
B     senior counsel for the petitioner that the bank guarantee was taken by
      the petitioner from ICBC, upon payment of a non-refundable charge of
      Rs.30 lakhs and that therefore assuming that there was a mistake on the
      part of the Court, it cannot be corrected by the Court resulting in a
      financial loss of Rs.30 lakhs to the petitioner. The maxim “actus curiae
      neminem gravabit” is sought to be invoked by the learned senior counsel
C
      for the petitioner.
             21. But in my considered view the petitioner has to blame itself,
      for the loss if any. The order dated 12.02.2019 gave (i) two weeks time
      to the petitioner to file an affidavit incorporating all the three items of
      matters indicated in paragraph 1 of the order dated 12.02.2019; and (ii)
D
      six weeks time to furnish bank guarantee as indicated by the counsel.
      Therefore the petitioner ought to have filed an affidavit containing all the
      three ingredients, before taking the bank guarantee from ICBC. If they
      had done so, the affidavit would have contained a statement, in tune
      either with what was undertaken by them or with what was mentioned
E     in the order. The filing of an affidavit in such a manner, would have
      given a wake up call to the respondents and shown the bonafides of the
      petitioner. But without doing so, the petitioner filed an affidavit containing
      only those matters covered by Items (i) and (ii) of paragraph 1 and
      thereafter furnished a bank guarantee of ICBC. Since the petitioner did
      not adopt a course of action as undertaken by them, it is not open to
F
      them to say that they were misled by the direction in paragraph 6 of the
      order dated 12.02.2019 and that therefore they should not be prejudiced
      on account of a mistake committed by the court.
             22. This is a case where the petitioner, after making a clear offer
      to furnish a bank guarantee of a scheduled Indian bank, has chosen to
G
      take advantage of a mistake that crept in paragraph 6 of the order.
      Therefore, he is not entitled to take advantage of the Latin maxim “actus
      curiae neminem gravabit”.
             23. In my humble considered view, these special leave petitions
      do not deserve to be entertained under Article 136 of the Constitution of
H
SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION                                       283
          v. POWER MECH PROJECTS LTD.

India in view of the fact (i) that the very same Judge who passed the               A
first Order dated 12.02.2019, clarified the same by his subsequent Order
dated 09.04.2019; (ii) that the same learned Judge dismissed on
16.05.2019, the petition to recall the Order dated 09.04.2019; (iii) that
the Commercial Division Bench of the High Court dismissed the appeal
arising out of the Order dated 16.05.2019; and (iv) that the Commercial
                                                                                    B
Division Bench again reiterated its orders, by dismissing the review
petition. We must remember that all this arose out of an interim measure
under Section 9 of the Act and the petitioner is seeking to upset all of this
in a petition under Article 136 of the Constitution as though there is a
substantial question of law of great importance.
        24. The question whether there exists statutorily, a distinction            C
between “a Scheduled Indian Bank” and “a Scheduled Bank located in
India” does not arise for consideration in this case, as the dispute primarily
revolves around what was offered in Court by one of the parties, what
was accepted in Court, and what was recorded in the Order and clarified
later. If without any offer from the petitioner, an adjudication had been           D
made by the Court directing the petitioner to furnish bank guarantee of a
particular type of bank and a dispute had been raised thereafter, it is only
then that a question of law as to the status of such a bank with reference
to the statutory provisions, would have arisen.
       25. Therefore, in my considered view and with the greatest of                E
respect for my learned Sister, I deem it fit to dismiss the Special Leave
Petitions as not giving rise to any substantial question of law warranting
our interference under Article 136 of the Constitution.
                               O R D E R*
       Since we have not been able to agree, let the matter forthwith be            F
placed before the Hon’ble the Chief Justice of India for appropriate
directions.


Ankit Gyan                                Matter to be placed before Hon’ble CJI.
                                                                                    G




*Ed. Note : Common order passed by Hon’ble Ms. Justice Indira Banerjee and
Hon’ble Mr. Justice V. Ramasubramanian.                                             H