Suit Draft

BEFORE THE LEARNED DISTRICT JUDGE, SAKET COURTS
AT NEW DELHI
CS(Comm.) No. ____ 2019
IN THE MATTER OF:
M/S CICO TECHNOLOGIES LIMITED …. PLAINTIFF
VERSUS
KOTAK MAHINDRA BANK LTD. AND ANR. …DEFENDANTS
INDEX
S.NO. PARTICULARS PAGE NO.

1. Memo of Parties
2. Court Fees
3. List of Dates & Synopsis
4. Suit for Permanent Injunction with supporting
affidavit.
5. Statement of Truth
6. List of Documents with Documents
7. Affidavit under Section 65-B of the Indian
Evidence Act.
8. Application under Order XXXIX Rule 1 and 2
read with Section 151 of the Code of Civil
Procedure, 1908 seeking injunction against
Defendants No.1 and 2 alongwith Affidavit
9. Vakalatnama
PLAINTIFF
THROUGH COUNSEL
ABHINAY/UTSAV TRIVEDI/HIMANSHU
COUNSEL FOR THE PLAINTIFF
P-2A, JANGPURA EXTENSION,
NEW DELHI – 110014
9205137094
PLACE: NEW DELHI
DATE: __.09.2019
AT NEW DELHI
CS(Comm.) No. ____ 2019
IN THE MATTER OF:
VERSUS
COURT FEES
AT NEW DELHI
CS(Comm.) No. ____ 2019
IN THE MATTER OF:
VERSUS
SYNOPSIS
Plaintiff herein, i.e. CICO Technologies Ltd. is a construction chemical

company. Defendant No. 1, i.e. Kotak Mahindra Bank Ltd. is the bank,
which has issued the Bank Guarantee in favour of the Defendant No. 2,
for and on behalf of the Plaintiff. The Defendant No. 2 i.e. Kirloskar
Brothers Limited (hereinafter referred as KBL) is a construction
company.
The Defendant No. 2 issued a work order on 21.08.2008 in favour of the

plaintiff to carry out certain civil works at its project site. The total value
of the Work order was approximately about Rs. 3.17 crores. Under the
terms of the work order, plaintiff was to furnish Bank Guarantee in
favour of Defendant No. 2 equal to 10% of the total value of the Contract.
Accordingly, the Plaintiff furnished a Bank Guarantee of Rs. 10,61,610/-
to the Defendant No. 2.
It is the case of the Plaintiff that as per the terms of the Work Order, the
Bank Guarantee ought to have been released by the Defendant No. 2.
However, the same was continuously renewed by the Defendant No. 2
year after year on the pretext of its impending Arbitration with a third
party, with whom the plaintiff has no privity of contract.
However, the Defendant has not acceded to the multiple requests made
by the Plaintiff. Currently, the claim period of this Bank Guarantee is
expiring on 15.09.2019. Instead of releasing the same, the Defendant No.
2 has sent a communication to the Defendant No. 1 to either extend the
Bank Guarantee or encash the same if the Plaintiff fails to extend it by
10.09.2019.
While extending the Bank Guarantees beyond the contractually

stipulated time, the Plaintiff has also incurred huge sums as bank
charges, which have resulted in diminishing profit margins from the
instant project.
Therefore, left with no option, your humble plaintiff has approached this
Ld. Court seeking an injunction against the Defendants from
encashing/invoking the Bank Guarantee furnished by Defendant No. 1
to Defendant No. 2 for and on behalf of the Plaintiff add further seeking
refund of the Bank charges paid by the Plaintiff for renewals of the Bank
Guarantee after 15.08.2011 along with interest.
LIST OF DATES
SR. DATE PARTICULAR

NO.
1. 16.11.2005 Work Order issued by Defendant No.2 to Plaintiff.
2. 24.12.2010 BG issued by the Plaintiff in favour of the Defendant No. 2

from Defendant No. 1 Bank for an amount of Rs.
10,61,610/-.
3. 15.08.2010 Final payment certificate was released by the Defendant

No. 2 in favour of the Plaintiff.
4. 15.08.2011 Defects liability period under the Work Order ended.
5. 2011-2018 Defendant No. 2 kept on writing to the Defendant No. 1

for extension of BG by a period of one year. Accordingly,
BG was extended periodically.
6. 2011-2018 Plaintiff kept on requesting the Defendant No. 2 to release

the BG. However, the same was not done on one pretext
or another.
7. 27.08.2019 The Defendant No. 2 made the current request for

extension of the BG for a period of one year from
15.03.2019 till 15.03.2020 with claim period upto
15.09.2020. It was further stated that if BG is not extended,
till 10th September, Defendant No. 1 should encash BG.
8. 04.09.2019 Plaintiff wrote to Defendant No. 2 stating that under the

terms of the Work Order, it was not required to renew the
BG beyond 15.08.2011. Also reserved its right to claim
amount paid towards bank charges, along with interest
from 15.08.2011.
9. 05.09.2019 Defendant No. 2 responded stating that Counter Claims

by MCD against leakage are pending submission before
the Arbitrator. Hence BG needs to be valid it is resolved.
10. 06.09.2019 Hencethe present Suit.
PLAINTIFF
THROUGH COUNSEL
9205137094
PLACE: NEW DELHI
DATE: __.09.2019
AT NEW DELHI
CS(Comm.) No. ____ 2019
IN THE MATTER OF:
VERSUS
MEMO OF PARTIES
M/S CICO TECHNOLOGIES LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE
MR. SUKANTA MALIK
HAVING ITS OFFICE AT.
C-44/2, 1ST & 2ND FLOORS,
OKHLA INDUSTRIAL AREA PHASE-II,
NEW DELHI 110020 …. PLAINTIFF
VERSUS
1. KOTAK MAHINDRA BANK LTD
THROUGH ITS BRANCH MANAGER
HAVING ITS CONCERNED BRANCH AT:
GROUND FLOOR, SHOP NO. 1, 2, 3, 6 AND 6A,
BASEMENT FLOOR, SHOP NO. B-1,
DEENAR BHAVAN, 44, NEHRU PLACE,
NEW DELHI – 110 019
2. IJM(INDIA) INFRASTRUCTURE LTD.

THROUGH ITS AUTHORISED REPRESENTATIVE
HAVING ITS OFFICE AT:
VASANT SQUARE MALL, 2nd FLOOR
UNIT NO. S-7, SEC-B, PKT-5
VASANTKUNJ, NEW DELHI – 110 070
Also at:
H. No.1-89/1, 3rd and 4th FLOOR
PLOT NO. 42 AND 43, KAUVRI HILLS , PHASE-I
MADHAPUR, HYDERABAD-500 081.
…DEFENDANTS
PLAINTIFF
THROUGH COUNSEL
PLACE: NEW DELHI NEW DELHI – 110014
DATE: __.09.2019 9205137094
AT NEW DELHI
CS(COMM.) No. ____ 2019
IN THE MATTER OF:

M/S CICO TECHNOLOGIES LIMITED
THROUGH ITS AUTHORIZED REPRESENTATIVE
MR. SUKANTA MALIK
HAVING ITS OFFICE AT.
C-44/2, 1ST & 2ND FLOORS,
OKHLA INDUSTRIAL AREA PHASE-II,
NEW DELHI 110020 …. PLAINTIFF
VERSUS
3. KOTAK MAHINDRA BANK LTD
THROUGH ITS BRANCH MANAGER
HAVING ITS CONCERNED BRANCH AT:
GROUND FLOOR, SHOP NO. 1, 2, 3, 6 AND 6A,
BASEMENT FLOOR, SHOP NO. B-1,
DEENAR BHAVAN, 44, NEHRU PLACE,
NEW DELHI – 110 019
4. IJM(INDIA) INFRASTRUCTURE LTD.

THROUGH ITS AUTHORISED REPRESENTATIVE
VASANT SQUARE MALL, 2nd FLOOR
UNIT NO. S-7, SEC-B, PKT-5
VASANTKUNJ, NEW DELHI – 110 070
…DEFENDANTS
The Plaintiff above-named

MOST RESPECTFULLY SHOWETH
SUIT FOR PERMANENT INJUNCTION, DECLARATION AND

FOR RECOVERY OF RS 2,91,594 /- ALONG WITH INTEREST
1. That the Plaintiff herein, i.e. CICO Technologies Ltd. is a

construction chemical company having its registered office at C-
44/2, 1st & 2nd Floor, Okhla Industrial Area, Phase-II, New
Delhi, Delhi – 110020 and is inter alia in the business of
manufacturing of construction materials and is well known
player of the market. Mr. Sukanta Malik of Plaintiff Company is
duly authorized by the Board of Directors meeting to institute,
sign, verify submission of pleadings, affidavits, applications and
other documents, appoint attorneys and do all other things in
relation to the present suit.
2. That the Defendant No. 1, i.e. Kotak Mahindra Bank Ltd. is the
bank, which has issued the Bank Guarantee in favour of the
Defendant No. 2, for and on behalf of the Plaintiff. The
Defendant No. 1 has issued the said Bank Guarantee from its
branch situated at Ground Floor, Shop No. 1, 2, 3, 6 and 6A,
Basement Floor, Shop No. B-1, Deenar Bhavan, 44, Nehru Place,
New Delhi – 110 019.
3. That the Defendant No. 2, i.e. IJM (India) Infrastructure Ltd. is a

construction company having its registered office at 1-89/1,
Plot No.42 & 43,3rd and 4th Floor, Kavuri Hills, Phase-I,
Madhapur, Hyderabad - 500 081 and communication office at
Vasant Square Mall, 2nd Floor Unit No. S-7, Sec-B, Pkt- Vasant
Kunj, New Delhi – 110 070.
4. That the Plaintiff was issued a Work Order dated 16.11.2005

(“Work Order”) for execution of water proofing work of the
project, which was being undertaken taken by the Defendant
No. 2 for the MCD Civic Centre Project at Minto Road, New
Delhi. This Work Order was awarded to the Plaintiff by the
Defendant No. 2 itself.
5. That under the said Work Order, Plaintiff’s scope of work

consisted of the following:
“The scope of work includes Execution of water proofing

works of 3 level basement (bottom level- 13 meters) for
horizontal surfaces below basement rafts, vertical surfaces
behind retaining walls of civic center as per approved
Methodology for water proofing, General Terms and
conditions, Additional Terms and conditions, Additional
Specifications, Bill of quantities and format of Performance
Guarantee Bond enclosed as Annexure 1 to 16.”
6. That as per the terms of the Work Order issued in its favour, the
Plaintiff was under an obligation to furnish a Performance
Guarantee in the form of a Bank Guarantee in your favour, for
an amount of Rs. 10,61,610/- i.e. 10% of the total value of the
work to be done by CICO, i.e. Rs. 1,06,16,109/-.
7. This Performance Bank Guarantee was to be furnished

immediately on award of work. The relevant clause in this
regard is as follows:
“e) Performance Security in the form of Bank Guarantee for

an amount of Rs. 10,61,610/- i.e. 10% of the Total value of
work Rs. 1,06,16,109/- (including cost of materials supplied
by us) will be submitted by you as per approved format of
MCD immediately on award of work. Your Unit rates
include cost of providing this guarantee and nothing extra
shall be payable. No payment shall be released in absence of
the performance guarantee.”
8. That in compliance of the obligations under the Work Order, a

Bank Guarantee was issued by Bank of India for the
aforementioned amount on behalf of the Plaintiff.
9. That the Plaintiff changed its banker in the year 2010, the old
Bank Guarantee by Bank of India was replaced by a new Bank
Guarantee dated 24.12.2010, bearing Bank Guarantee No.
205B215103580005, which was issued by the Defendant No. 1 at
the request of and for the account of the Plaintiff for a value of
Rs. 10,61,610/- (Rupees Ten lakh Sixty One Thousand Six
Hundred and Ten only).
10. That undisputedly, the Plaintiff successfully performed its

obligations as per the terms of the Work Order and the final
payment certificate was issued to the plaintiff on 15.08.2010.
11. Therefore, as on 15.08.2010, the Work Order stood closed as all

the work was completed and payment was made.
12. That as per the terms of the Work Order, the defects liability
period was for a period of one year from the completion of work
and issue of final payment certificate.
13. That since the final payment certificate was issued on
15.08.2010, the defects liability period stood lapsed on
15.08.2011, i.e. one year after the issuance of the defects liability
period.
14. Thus, there should have been no extension of the Performance

Bank Guarantee after lapse of one year from the date of
furnishing of final payment certificate, i.e. 15.08.2011.
15. That the Defendant No. 2 deducted a cumulative amount of Rs.

7,82,635 from all the monthly invoices of the Plaintiff for the
work done by the Plaintiff under the Work Order. This was
done under Clause 7 of the Annexure 1 to the Work Order. The
relevant Clause is extracted hereunder for ready reference:
“7) Security Deposit: Recoverable at rate of 10% of each

monthly bill value subject to maximum of 5% of the contract
value. This security deposit shall be released upon completion
of work and along with final payment certificate. This
security deposit amount may be released against submission
of bank guarantee value entirely at our discretion.”
16. This amount of Rs. 7,82,635 will be retained by the Defendant

No. 2 till 15.09.2021, i.e. ten years from the date of expiry of
maintenance period under the agreement, which is 15.09.2011.
17. That the Plaintiff has also furnished a Guarantee Bond dated
10.02.2014 as per the terms of the Work Order. The relevant
Clause is extracted hereunder for ready reference:
“Ten years guarantee bond in prescribed proforma attached

at annexure II herewith shall be submitted by the contractor
which shall also be signed by both the specialized agency and
the contractor to meet their liability/liabilities under the
guarantee bond. However, the sole responsibility about
efficiency of water proofing treatment shall rest with the
building contractor.”
18. This Guarantee Bond is valid for a period of ten years, i.e. till
10.02.2024.
19. That the Bank Guarantee No. 205B215103580005 dated
24.12.2010, which was issued by the Defendant No. 1 at the
request of and for the account of the Plaintiff for a value of Rs.
10,61,610/- was initially valid till 15.03.2011, with claim period
upto 15.09.2011.
20. That on 03.09.2011 the Defendant No. 2 addressed a

communication to the Defendant No. 1 stating it to extend the
Bank Guarantee No. 205B215103580005 dated 24.12.2010 for a
period of one year from the then existing date of expiry, i.e. the
expiry period of Bank guarantee was requested to be extended
from 15.03.2011 till 15.03.2012 with claim period upto 15.09.2012.
21. Accordingly, the Defendant No. 1 extended the expiry period of

the Bank Guarantee No. 205B215103580005 dated 24.12.2010


from 15.03.2012 to 15.03.2013 with claim period upto 15.09.2013.

period of six months from the then existing date of expiry, i.e.
the expiry period of Bank guarantee was requested to be
extended from 15.03.2013 till 15.09.2013 with claim period upto
15.03.2014.

15.09.2014.

28. That on 10.02.2014, the Plaintiff furnished a Guarantee Bond to

the Defendant No. 2 for a period of ten years and requested the
Defendant No. 2 to release the Bank Guarantee. However, to no
avail.
29. That in March, 2014 the Defendant No. 2 addressed a



15.03.2016.

33. That on September, 2015 the Defendant No. 2 addressed a

15.09.2016.


15.03.2017.
36. The reason for this extension was alleged to be that the “Bank
Guarantee is required to be extend MCD/Client has not
certified/finalized the final bills.”






47. That on 06.03.2019 the Defendant No. 2, for the first time
informed the Plaintiff that there is currently an Arbitration
going on between the Defendant No. 2 and MCD regarding
some leakage issue in the project. Therefore till the time that
arbitration is not finished, the Bank Guarantee will be kept alive
by the Defendant No. 2.

49. That the Plaintiff, who was marked a copy of the

aforementioned letter dated 27.08.2019, addressed a
communication dated 04.09.2019 to the Defendant No. 2 stating
that under the terms of the Work Order, the Plaintiff was not
required to renew the bank guarantee beyond 15.08.2011 and
will not be doing same any further. The Plaintiff further stated
that it has already additional amount as bank charges, due to
unreasonable demand of the Defendant No. 2 after 15.08.2011
and reserved its right to claim the said additional amount paid
towards Bank charges, along with interest.
50. That in response to the above letter dated 04.09.2019, the
Defendant No. 2, vide its email dated 05.09.2019 at 15:08 hours
stated as under:
“The Counter Claims by MCD against leakage is still

pending submission from both parties before the Arbitrator.
Hence BG needs to be valid till such matter is resolved.
Kindly renew the BG and send us the our office by 10th of

September 2019'.
51. That the Plaintiff states that the claim being put up by the
Defendant No. 2 is baseless and devoid of any merit insofar as
the Plaintiff is not responsible for any leakage that may or may
not have taken place at the project site. The plaintiff states that if
anyone is responsible for the leakage, if there is any, it is the
Defendant No. 2 itself.
52. The plaintiff further avers that it has no liability under the Work
Order to make good any deficiency in service.
53. That the Work order specifically provided that the defects
liability period under the same would be for a period of one
year from the completion of work and issue of final payment
certificate, i.e. 15.08.2011. Thus, the plaintiff is not liable for any
defects that may have taken place after 15.08.2011.
54. For all the defects, if any, which took place before 15.08.2011, the
Defendant No. 2 cannot claim any amount from the Plaintiff
since such a claim would be barred by laws of limitation.
55. The Plaintiff further avers that neither is it under any

contractual liability to make good any deficiency in service nor
such a request has ever been made by the Defendant No. 2 till
date.
56. That the Bank Guarantee, which was furnished by the Plaintiff
to the Defendant No. 2 clearly mentioned that the Defendant
No. 1 will pay an amount to the Defendant No. 2 merely on a
demand stating that there are recoveries due or likely to be due
from the Plaintiff. Since there is no liability on the part of the
Plaintiff, there can be no recoveries that are due or that may
likely to be due from the Plaintiff to the Defendant No. 2. In
such a case, the Defendant No. 1 is under no obligation to make
good any amount to the Defendant No. 2.
57. Thus, the request to extend the bank guarantee beyond the
present claim period till 15.09.2019, is completely unjustified
and falls foul of the settled principles of law.
58. That the ground that an Arbitration is pending between MCD

and the Defendant No. 2 can also not be invoked to extend the
bank guarantee since the Plaintiff is neither a party to such an
Arbitration, nor has it ever been produced any
orders/pleadings, etc. with respect to this alleged Arbitration.
Therefore, there is no reason that the Plaintiff should extend the
bank guarantee beyond the present claim period and bear
additional charges.
59. That the Plaintiff states that till date, it has incurred a total
amount of Rs. 1,63,457/- towards Bank Charges after 15.08.2011,
i.e. after the time that the Plaintiff was under no contractual
obligation to extend the Bank Guarantee.
60. That apart from the Bank charges paid till now, the Plaintiff
states that it is also entitled to interest amount on these Bank
charges calculated at the rate of 18% per annum is Rs. 1,28,137/-
as per the general market/commercial practice.
61. That the cause of action arose on 16.11.2005 when the Work
Order was issued by the Defendant No. 2 to the Plaintiff,
24.12.2010 when the BG was given by the Defendant No. 1 to the
Defendant No. 2 at the instance of the Plaintiff, 08.09.2011,
09.03.2012, 14.03.2013, 09.09.2013, 10.03.2014, 04.03.2015,
14.09.2015, 05.03.2016, 06.09.2016, 06.09.2017, 04.09.2018 when
the Defendant No. 1 extended the expiry period of the Bank
Guarantee No. 205B215103580005 dated 24.12.2010 and then on
27.08.2019 when the Defendant No. 2 sent a letter to extend (or
encash) the expiry period of the Bank Guarantee No.
205B215103580005 dated 24.12.2010 and then on 05.09.2019
when the Defedant No. 2 reiterated its stand to renew the BG
and send us the our office by 10th of September 2019. Therefore
the present suit is under the limitation period of 3 years from
the date of last cause of action.
62. That this Learned Court has territorial jurisdiction to entertain

and adjudicate the instant suit since the relevant branch of
Defendant No. 1, from which the bank guarantee has been
issued is in Nehru Place. Further, the Work Order was also
singed in the office of the Defendant No. 2 which was, at the
relevant time was located in Nehru Place. Also, the present
office for of the Defedant No. 2 is situated at Vasant Kunj, at
which address, the Plaintiff is communicating with the
Defendant No. 2.
63. That for the purposes of jurisdiction and court fee, the suit is
being valued at Rs. 13, 53 ,204/- including the amount of Bank
Guarantee and charges incurred in keeping the Bank Guarantee
alive plus interest at 18% from 15.08.2011 until the date of filing
the present suit i.e. 06.09.2019 and court fee of __________ is
affixed thereon.
PRAYER
64. In the aforesaid premises, the Plaintiff most respectfully prays

that this Hon’ble Court may be pleased to:
a) pass a decree of permanent injunction restraining the

Defendant No. 1 from remitting the amounts under the BG
No. 205B215103580005 dated 24.12.2010 for Rs.10,61,610/-
issued by Defendant No. 1 in favour of Defendant No.2;
b) pass an order and decree in favour of the Plaintiff and

against the Defendant No. 2 declaring that the letter dated
27.08.2019 issued by the Defendant No.2 to Defendant No.1
is illegal, void and bad in law;
c) pass a decree of permanent injunction restraining the

Defendant No.2 from invoking and/or encashing and/or
seeking remittance under BG No. 205B215103580005 dated
24.12.2010 for Rs.10,61,610/- issued by Defendant No. 1 in
favour of Defendant No.2;
d) pass a decree of permanent injunction restraining the

Defendant No. 1 from extending the Bank Guarantee No.
205B215103580005 dated 24.12.2010 for Rs.10,61,610/- in
favour of the Defendant No. 2, beyond the expiry date of the
subject Bank Guarantee i.e. 15.09.2019;
e) pass an order and decree in favour of the Plaintiff and

against the Defendant directing the Defendant No. 2 to
withdraw its request for extension of Bank Guarantee No.
205B215103580005 dated 24.12.2010 in favour of the
Defendant No. 2, after the expiry of the present expiry
period, i.e. 15.09.2019;
f) pass an order and decree in favour of the Plaintiff and

against the Defendant directing the Defendant No. 2 to
refund a sum of Rs. 1,63,457 paid by the Plaintiff towards
Bank charges for renewals of the Bank Guarantee after
15.08.2011;
g) pass an order and decree in favour of the Plaintiff and

against the Defendant directing the Defendant No. 2 to pay a
sum of Rs. 1,28,137 towards interest at the rate of 18% per
annum on the Bank charges paid by the Plaintiff for renewals
of the Bank Guarantee after 15.08.2011;
h) pass an order and decree in favour of the Plaintiff and

against the Defendant directing the Defendant No. 2 to pay
interest at the rate of 18% per annum on the Bank charges
paid by the Plaintiff for renewals of the Bank Guarantee after
15.08.2011, from the date of institution of the suit till
realization;
i) Any other or further relief as deemed fit by this Hon’ble

Court.
PLAINTIFF
THROUGH COUNSEL
TAS LAW
9205137094
PLACE: NEW DELHI
DATE: 06.09.2019
VERIFICATION:
I, Sukanta Malik, authorized signatory of the Plaintiff above

named, do hereby verify that the contents of para 1 to 60 are based on
records as well as are true to my knowledge. That the contents of paras
61 to 63 are based on legal advice received and believed to be true and
the last para is a prayer to this Hon’ble Court.
Verified at New Delhi on this 06th day of September, 2019.
PLAINTIFF
AT NEW DELHI
CS(COMM.) No. ____ 2019
IN THE MATTER OF:
VERSUS
AFFIDAVIT
I, Sukanta Mallik son of Debdas Mallik, aged about 54 years, working

for gain at C-44/2, 1st & 2nd Floors, Okhla Industrial Area Phase-II being
authorized representative of M/S Cico Technologies Limited, New
Delhi 110020 do hereby solemnly affirm and declare as under:
1. That I am the authorized representative of the Plaintiff Company and I

am aware of the facts and circumstances leading to the filing of the
instant plaint, on the basis of the records maintained by Plaintiff
Company and as such, am competent to swear to the present affidavit.
2. That I have read the accompanying Plaint and have understood the
contents of the same. I state that the said petition has been drafted by my
counsel under my instruction and I affirm the contents thereof.
3. That the statements made in Paragraph No. 1 to 60 of the petition are
true to my knowledge and belief. That the contents of paras 61 to 63 are
based on legal advice received and believed to be true and the last para
is a prayer to this Hon’ble Court. The legal submissions made in the
petition are based on the legal advice which I believe to be true and
correct. I state that nothing has been concealed from this Hon’ble Court.
DEPONENT
VERIFICATION:
Verified at New Delhi on this 6th Day of September, 2019 that the
contents of the above affidavit are true and correct, and no part of it is
false and nothing has been concealed therefrom.
DEPONENT
AT NEW DELHI
CS(COMM.) No. ____ 2019
IN THE MATTER OF:
VERSUS
STATEMENT OF TRUTH

1. That I am the authorized representative of the Plaintiff

Company and I am aware of the facts and circumstances
leading to the filing of the instant plaint, on the basis of the
records maintained by Plaintiff Company and as such, am
competent to swear to the present affidavit.
2. That I have read the accompanying Plaint and have also

examined all relevant documents and records in relation
thereto.
3. That the statements made in paragraphs 1 to 60 are true to my

knowledge and the statements made in paragraphs to are based
on information received which I believe to be correct and
statements made in paragraphs 61 to 63 and in Prayer clause
are based on legal advice.
4. That there is no false statement or concealment of material fact,

document or record and I have included information that is
according to me, relevant for the present petition.
5. That the documents in my power, possession, control or
custody pertaining to the facts and circumstances of the
proceedings initiated by me have been disclosed and copies
thereof annexed with the petition.
6. That the abovementioned pleading comprises of a total of ____

pages, each of which has been signed by me.
7. That the annexures hereto are true copies of the documents

referred to and relied upon by me.
8. That I am aware that for any false statement or concealment, I

shall be liable for action taken against me under the law.
DEPONENT
VERIFICATION:
Verified at New Delhi on this 6th day of September, 2019 that the
contents of my above affidavit are correct and true to the best of my
knowledge and belief and no part of it is false and nothing material has
been concealed there from.
DEPONENT
AT NEW DELHI
CS(Comm.) No. ____ 2019
IN THE MATTER OF:
VERSUS
LIST OF DOCUMENTS ALONG WITH DOCUMENTS
Sl. Details of Document Original or Mode of Line of Page No.

No. Document(s) & s in photocopy execution / Custody
Parties power, or office issuance or
possessio copy receipt
n, control
and
custody of
1. DOCUMENT -1 Plaintiff Original Issuance Plaintiff
Copy of the
Board Resolution
dated 02.09.2019
in favour of the
Authorised
Signatory
2. DOCUMENT -2 Both the Photocopy By hand Both the
Parties Parties
Copy of the work
order dated
16.11.2005 issued
by Defendant
No. 2 in favour of
the Plaintiff
3. DOCUMENT -3 Both the Photocopy Receipt Both the
parties parties
Copy of the Final
Payment
Certificate dated
24.11.2010 issued
by the Defendant
No. 2 in favour of
the Plaintiff
4. DOCUMENT -4 Both the Photocopy Receipt Defendant
Parties No. 2
Copy of the
original Bank
Guarantee
(replaced) dated
24.12.2010 issued
by the Defendant
No.1 in favour of
Defendant No.2
parties parties
Copy of the Final
Payment
Certificate dated
24.11.2010 issued
by the Defendant
No. 2 in favour of
the Plaintiff
parties Parties
Copy of the letter
dated 03.09.2011
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
08.09.2011 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties Parties
Copy of the letter
dated 01.03.2012
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
09.03.2012 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties Parties
Copy of the letter
dated 13.03.2013
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
14.03.2013 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties Parties
Copy of the letter
dated 03.09.2013
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
09.09.2013 issued
by Defendant
No. 2
parties No. 2
Copy of the
Corporate
Guarantee dated
10.02.2014 issued
by the Plaintiff in
favour of
Defendant No. 2
parties No. 2
Copy of the
extended Bank
Guarantee dated
10.03.2014 issued
by Defendant
No. 2
parties Parties
Copy of the letter
dated 27.02.2015
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
04.03.2015 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
14.09.2015 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties Parties
Copy of the letter
dated 03.03.2016
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
05.03.2016 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties Parties
Copy of the letter
dated 01.09.2016
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
06.09.2016 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties Parties
Copy of the letter
dated 31.08.2017
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
06.09.2017 issued
by Defendant
No. 2 extending
the Bank
Guarantee
parties Parties
Copy of the letter
dated 31.08.2018
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
parties No. 2
Copy of the
extended Bank
Guarantee dated
04.09.2018 issued
by Defendant
No. 2 extending
the Bank
Guarantee
27. 2DOCUMENT -25 Both the Photocopy Receipt Both the
. parties Parties
Copy of the letter
dated 27.08.2019
issued by the
Defendant No. 2
to Defendant No.
1 seeking
extension of the
Bank Guarantee
Copy of the letter parties Parties

dated 04.09.2019
issued by the
Plaintiff to the
Defendant No. 2
PLAINTIFF
THROUGH COUNSEL
9205137094
PLACE: NEW DELHI
DATE: 06.09.2019
AT NEW DELHI
I.A. No. _____ of 2019
CS(Comm.) No. ____ 2019
IN THE MATTER OF:
VERSUS
The Plaintiff abovenamed
APPLICATION FOR INJUNCTION UNDER

ORDERXXXIX RULE 1&2 OF CODE OF CIVIL PROCEDURE, 1908
MOST RESPECTFULLY SHOWETH
1. That the Plaintiff herein, i.e. CICO Technologies Ltd. has filed the
accompanying suit for Injunction, Declaration and Recovery of Dues
amounting to Rs. 2,91,594/- along with interest at the rate of 18% per
annum.
2. That the Plaintiff craves liberty of this Ld. Court to refer to and rely
upon the facts and averments made in the plaint and the same are
not repeated herein for the sake of brevity, unless so required.
PRIMA FACIE CASE
3. That under the Work Order, Plaintiff’s scope of work consisted only
of the following:
“The scope of work includes Execution of water proofing

works of 3 level basement (bottom level- 13 meters) for
horizontal surfaces below basement rafts, vertical surfaces
behind retaining walls of civic center as per approved
Methodology for water proofing, General Terms and
conditions, Additional Terms and conditions, Additional
Specifications, Bill of quantities and format of Performance
Guarantee Bond enclosed as Annexure 1 to 16.”
4. That in compliance of the obligations under the Work Order, a Bank

Guarantee dated 24.12.2010, bearing Bank Guarantee No.
205B215103580005, was issued by the Defendant No. 1 at the request
of and for the account of the Plaintiff for a value of Rs. 10,61,610/-
(Rupees Ten lakh Sixty One Thousand Six Hundred and Ten only).
5. That undisputedly, the Plaintiff successfully performed its

obligations as per the terms of the Work Order and the final payment
certificate was issued to the plaintiff on 15.08.2010.
6. Therefore, as on 15.08.2010, the Work Order stood closed as all the

work was completed and payment was made.
7. That as per the terms of the Work Order, the defects liability period
was for a period of one year from the completion of work and issue
of final payment certificate.
8. That since the final payment certificate was issued on 15.08.2010, the
defects liability period stood lapsed on 15.08.2011, i.e. one year after
the issuance of the defects liability period.
9. Thus, there should have been no extension of the Performance Bank

Guarantee after lapse of one year from the date of furnishing of final
payment certificate, i.e. 15.08.2011.
10. That in response to the letter dated 04.09.2019, the Defendant No. 2,
vide its email dated 05.09.2019 at 15:08 hours has stated as under:

Kindly renew the BG and send us the our office by 10th of

September 2019'.
11. The claim put up by the Defendant No. 2 regarding leakage is

baseless and devoid of any merit insofar as the Plaintiff is not
responsible for any leakage that may or may not have taken place at
the project site.
12. That the Work order specifically provided that the defects liability
period under the same would be for a period of one year from the
completion of work and issue of final payment certificate, i.e.
15.08.2011. Thus, the plaintiff is not liable for any defects that may
have taken place after 15.08.2011.
13. For all the defects, if any, which took place before 15.08.2011, the
Defendant No. 2 cannot claim any amount from the Plaintiff since
such a claim would be barred by laws of limitation.
14. The Plaintiff further avers that neither is it under any contractual
liability to make good any deficiency in service nor such a request
has ever been made by the Defendant No. 2.
15. That the Bank Guarantee, which was furnished by the Plaintiff to the
Defendant No. 2 clearly mentioned that the Defendant No. 1 will pay
an amount to the Defendant No. 2 merely on a demand stating that
there are recoveries due or likely to be due from the Plaintiff. Since
there is no liability on the part of the Plaintiff, there can be no
recoveries that are due or that may likely to be due from the Plaintiff
to the Defendant No. 2. In such a case, the Defendant No. 1 is under
no obligation to make good any amount to the Defendant No. 2.
BALANCE OF CONVENIENCE
16. It is submitted that the Balance of Convenience lies in favour of

granting the injunction since the Defendant No. 2 is well protected
insofar as it already has an amount of Rs. 7,82,635 withheld by it
towards Security Deposit.
17. That the Defendant No. 2 deducted a cumulative amount of Rs.

7,82,635 from all the monthly invoices of the Plaintiff for the work
done by the Plaintiff under the Work Order. This was done under
Clause 7 of the Annexure 1 to the Work Order. The relevant Clause is
extracted hereunder for ready reference:
“7) Security Deposit: Recoverable at rate of 10% of each
monthly bill value subject to maximum of 5% of the contract
value. This security deposit shall be released upon completion
of work and along with final payment certificate. This
security deposit amount may be released against submission
of bank guarantee value entirely at our discretion.”
18. This amount of Rs. 7,82,635 will be retained by the Defendant No. 2
till 15.09.2021, i.e. ten years from the date of expiry of maintenance
period under the agreement, which is 15.09.2011.
19. That the Plaintiff has also furnished a Guarantee Bond dated
10.02.2014 as per the terms of the Work Order. The relevant Clause is
extracted hereunder for ready reference:
“Ten years guarantee bond in prescribed proforma attached

at annexure II herewith shall be submitted by the contractor
which shall also be signed by both the specialized agency and
the contractor to meet their liability/liabilities under the
guarantee bond. However, the sole responsibility about
efficiency of water proofing treatment shall rest with the
building contractor.”
20. This Guarantee Bond is valid for a period of ten years, i.e. 10.02.2024.
21. That in response to the letter dated 04.09.2019, the Defendant No. 2,
vide its email dated 05.09.2019 at 15:08 hours has stated as under:

Kindly renew the BG and send us to our office by 10th of

September 2019'.
22. That the Defendant No. 2 has a security deposit of Rs. 7,82,635 and
also a guarantee bond valid till 10.02.2024. Thus, the above concern is
also addressed.
23. That the ground that an Arbitration is pending between MCD and
the Defendant No. 2 can also not be invoked to extend the bank
guarantee since the Plaintiff is neither a party to such an Arbitration,
nor has it ever been produced any orders/pleadings, etc. with
respect to this alleged Arbitration. Therefore, there is no reason that
the Plaintiff should extend the bank guarantee beyond the present
claim period and bear additional charges.
IRREPARABLE LOSS & INJURY
24. That the Plaintiff states that till date, it has incurred a total amount of
Rs. 1,63,457/- towards Bank Charges after 15.08.2011, i.e. after the
time that the Plaintiff was under no contractual obligation to extend
the Bank Guarantee.
25. The Plaintiff has done the present Contract on a very low profit
margin. If the plaintiff is forced to continue paying charges, specially
when it is not liable and the Defendant No. 2 is well protected, the
profit margin will come even lower.
26. Apart from the above, the Plaintiff is also exposed to an amount of
Rs. 10,61,610/- which it is under no responsibility to pay. If the
injunction is not granted, the Defendant No. 1 will remit the amount
of Bank Guarantee to the Defendant No. 2.
27. Once the amount is remitted to the Defendant No. 1, the Plaintiff will
have to undergo another round of litigation for getting refund of the
amount that should never have been released to the Defendant No. 2.
PRAYER
28. In the aforesaid premises, the Plaintiff most respectfully prays that
this Hon’ble Court may be pleased to:
a) Pass a temporary injunction restraining the Defendant No. 1

from remitting the amounts under the BG No.
205B215103580005 dated 24.12.2010 for Rs.10,61,610/- issued
by Defendant No. 1 in favour of Defendant No.2 in
pursuance of the letter dated 27.08.2019 issued by the
Defendant No.2;
b) Pass a temporary injunction restraining Defendant No.2 from

invoking and/or encashing and/or seeking remittance under
BG No. 205B215103580005 dated 24.12.2010 for
Rs.10,61,610/- issued by Defendant No. 1 in favour of
Defendant No.2 in pursuance of the letter dated 27.8.2019
issued by the Defendant No. 2;
c) Pass a temporary injunction restraining Defendant No. 2

from encashing BG No. 205B215103580005 dated 24.12.2010
for Rs.10,61,610/- issued by Defendant No. 1 in favour of
Defendant No.2;
d) Pass a temporary injunction restraining the Defendant No. 1

from extending the Bank Guarantee No. 205B215103580005
dated 24.12.2010 for Rs.10,61,610/- in favour of the
Defendant No. 2, beyond the expiry period, i.e. 15.09.2019;
e) Pass ex-parte Ad-interim order in terms of prayers a), b) and

c); and
f) Any other or further relief as deemed fit by this Ld. Court.
PLAINTIFF
THROUGH COUNSEL
9205137094
PLACE: NEW DELHI
DATE: 06.09.2019
AT NEW DELHI
I.A. No. _____ of 2019
CS(Comm.) No. ____ 2019
IN THE MATTER OF:
VERSUS
AFFIDAVIT

4. That I am the authorized representative of the Plaintiff Company and I

am aware of the facts and circumstances leading to the filing of the
instant Application under Order XXXIX Rule 1&2 read with Section 151
of the CPC, on the basis of the records maintained by Plaintiff Company
and as such, am competent to swear to the present affidavit.
5. That I have read the accompanying Application and have understood
the contents of the same. I state that the said petition has been drafted by
my counsel under my instruction and I affirm the contents thereof.
6. That the statements made in Paragraph No. 1 to 60 of the petition are
true to my knowledge and belief. That the contents of paras 61 to 63 are
based on legal advice received and believed to be true and the last para
is a prayer to this Hon’ble Court. The legal submissions made in the
petition are based on the legal advice which I believe to be true and
correct. I state that nothing has been concealed from this Hon’ble Court.
DEPONENT
VERIFICATION:
Verified at New Delhi on this 6th Day of September, 2019 that the
contents of the above affidavit are true and correct, and no part of it is
false and nothing has been concealed therefrom.
DEPONENT

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BEFORE THE LEARNED DISTRICT JUDGE, SAKET COURTS

CS(Comm.) No. ____ 2019

IN THE MATTER OF:

M/S CICO TECHNOLOGIES LIMITED …. PLAINTIFF

KOTAK MAHINDRA BANK LTD. AND ANR. …DEFENDANTS

S.NO. PARTICULARS PAGE NO.

CS(Comm.) No. ____ 2019

IN THE MATTER OF:

M/S CICO TECHNOLOGIES LIMITED …. PLAINTIFF

KOTAK MAHINDRA BANK LTD. AND ANR. …DEFENDANTS

CS(Comm.) No. ____ 2019

IN THE MATTER OF:

M/S CICO TECHNOLOGIES LIMITED …. PLAINTIFF

KOTAK MAHINDRA BANK LTD. AND ANR. …DEFENDANTS

Plaintiff herein, i.e. CICO Technologies Ltd. is a construction chemical

The Defendant No. 2 issued a work order on 21.08.2008 in favour of the

While extending the Bank Guarantees beyond the contractually

SR. DATE PARTICULAR

2. 24.12.2010 BG issued by the Plaintiff in favour of the Defendant No. 2

3. 15.08.2010 Final payment certificate was released by the Defendant

4. 15.08.2011 Defects liability period under the Work Order ended.

5. 2011-2018 Defendant No. 2 kept on writing to the Defendant No. 1

6. 2011-2018 Plaintiff kept on requesting the Defendant No. 2 to release

7. 27.08.2019 The Defendant No. 2 made the current request for

8. 04.09.2019 Plaintiff wrote to Defendant No. 2 stating that under the

9. 05.09.2019 Defendant No. 2 responded stating that Counter Claims

10. 06.09.2019 Hencethe present Suit.

M/S CICO TECHNOLOGIES LIMITED …. PLAINTIFF

KOTAK MAHINDRA BANK LTD. AND ANR. …DEFENDANTS

2. IJM(INDIA) INFRASTRUCTURE LTD.

IN THE MATTER OF:

4. IJM(INDIA) INFRASTRUCTURE LTD.

The Plaintiff above-named

SUIT FOR PERMANENT INJUNCTION, DECLARATION AND

1. That the Plaintiff herein, i.e. CICO Technologies Ltd. is a

3. That the Defendant No. 2, i.e. IJM (India) Infrastructure Ltd. is a

4. That the Plaintiff was issued a Work Order dated 16.11.2005

5. That under the said Work Order, Plaintiff’s scope of work

“The scope of work includes Execution of water proofing

7. This Performance Bank Guarantee was to be furnished

“e) Performance Security in the form of Bank Guarantee for

8. That in compliance of the obligations under the Work Order, a

10. That undisputedly, the Plaintiff successfully performed its

11. Therefore, as on 15.08.2010, the Work Order stood closed as all

14. Thus, there should have been no extension of the Performance

15. That the Defendant No. 2 deducted a cumulative amount of Rs.

“7) Security Deposit: Recoverable at rate of 10% of each

16. This amount of Rs. 7,82,635 will be retained by the Defendant

“Ten years guarantee bond in prescribed proforma attached

20. That on 03.09.2011 the Defendant No. 2 addressed a

21. Accordingly, the Defendant No. 1 extended the expiry period of

22. That on 01.03.2012 the Defendant No. 2 addressed a

23. Accordingly, the Defendant No. 1 extended the expiry period of

24. That on 13.03.2013 the Defendant No. 2 addressed a

26. That on 03.09.2013 the Defendant No. 2 addressed a

27. Accordingly, the Defendant No. 1 extended the expiry period of

28. That on 10.02.2014, the Plaintiff furnished a Guarantee Bond to

29. That in March, 2014 the Defendant No. 2 addressed a

30. Accordingly, the Defendant No. 1 extended the expiry period of

31. That on 27.02.2015 the Defendant No. 2 addressed a

32. Accordingly, the Defendant No. 1 extended the expiry period of

33. That on September, 2015 the Defendant No. 2 addressed a

34. Accordingly, the Defendant No. 1 extended the expiry period of

35. That on 03.03.2016 the Defendant No. 2 addressed a