2021 INSC 0378 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.4936-4937 OF 2021 (Arising out of SLP (C) NOS. 11476-11477 OF 2021) SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION … Appellant(s) VERSUS POWER MECH PROJECTS LTD. … Respondent(s) O R D E R Since we have not been able to agree, let the matter forthwith be placed before Hon’ble the Chief Justice of India for appropriate directions. ………………………………………………………,J. [INDIRA BANERJEE] ………………………………………………………,J. [V. RAMASUBRAMANIAN] NEW DELHI; AUGUST 24, 2021 1REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 4936-4937 of 2021 (Arising out of SLP(C) Nos. 11476-11477 OF 2021) SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION …...Appellant(s) Versus POWER MECH PROJECTS LTD. ….Respondent(s) J U D G M E N T Indira Banerjee, J. 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 the Appeal being FAO(OS) (COMM) No.136 of 2019, filed by the 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 Act, whereby the Court refused to recall its earlier order dated 09.04.2019, directing the Appellant 2 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 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 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 “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 Scheduled Bank, carrying on business in India, with a Bank Guarantee of equivalent amount issued by a “Scheduled Indian Bank”. 3 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 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 therefrom, are irrelevant to the issues involved in these Appeals. Suffice it to mention that the Arbitration culminated in 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 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. 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 out hereinbelow:- 4“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. 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. 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, 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 expenditure of Rs.30,00,000/- (Thirty Lakhs) approximately towards bank charges for furnishing the Bank guarantee. Furthermore, an amount of 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 Guarantee of equivalent amount from a Scheduled Indian Bank. The relevant paragraphs of the said order are extracted hereinbelow:- 5 “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 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 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. 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 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 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 e xceeding 10 days from the date of the request.” 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. 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 6 (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. 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. 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 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 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 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 7 Scheduled Bank located in India. The Appellant complied with the direction and furnished a Bank Guarantee of a sum of Rs.30,00,000,00/- (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 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. 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 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 Guarantee of 8 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 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 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 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. 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, 9 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 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 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 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. 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 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 10 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 114 read with Order 47 Rule 1 of the Code of Civil Procedure exist. In this case the prerequisites for a review did not exist. The appeal from 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 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 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:“NOW THESE PRESENTS WITNESSETH THAT THE SAID BANK DOTH HEREBY STAND SURETY IN PURSUANCE OF THE SAID ORDER DATED 12 TH FEBRUARY 2019 FOR THE SUM OF RS. 300,00,000/- (RUPEES THIRTY CRORES ONLY) AND THE SAID BANK DOTH HEREBY GUARANTEE TO AND COVENANT WITH THE REGISTRAR GENERAL, DELHI HIGH COURT THAT THE SAID BANK 11SHALL 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 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. 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 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 BANK GUARANTEE GIVEN HEREIN IS IRREVOCABLE AND SHALL NOT BE REVOKED BY NOTICE OR OTHERWISE AND IT IS IN ACCORDANCE WITH THE ORDER DATED 12 TH 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. 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 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 BRANCH NAME OF THE SCHEDULED BANK, BRANCH AND ADDRESS) HAVE EXECUTED THESE PRESENT AT NEW DELHI THIS 22 ND 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 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 less effective. Furthermore, the 12 High Court did not direct the Appellant 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 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 (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 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 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. 13 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 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 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. 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 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. 14 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. 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 45A(a) of the RBI Act are set out hereinbelow for convenience”- “ Section 5(c) of Banking Regulation Act, 19495(c) “banking company” means any company which transacts the business of banking in India ; 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 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 defined in Section 5 of the Banking Regulation Act, 1949, and includes the State Bank of India, any subsidiary bank as 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,...” 15 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 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 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. 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 2. Scheduled Private Sector Banks. 3. Scheduled Small Finance Banks 4. Scheduled Payments Banks 5. Scheduled Regional Rural Banks 6. Scheduled Foreign Banks in India 16 45. In terms of Annexure-1 to the notification dated 13 th April 2020, mentioned in Paragraph 2(b) thereof the following Scheduled Commercial Banks have been included in the Schedule to the RBI Act:- “ Annexure I (Refer to para 2(b) of notification dated April 13, 2020) List of Scheduled Commercial Banks PUBLIC SECTOR BANKS PRIVATE BANKS 1 State Bank of India 1 Axis Bank Ltd. 2 Bank of Baroda (Including Vijaya Bank and Dena Bank) 2 Catholic Syrian Bank Ltd. 3 Bank of India 3 City Union Bank Ltd. 4 Bank of Maharashtra 4 Development Credit Bank Ltd. 5 Canara Bank (Including Syndicate Bank) 5 Dhanlaxmi Bank Ltd. 6 Central Bank of India 6 Federal Bank Ltd. 7 Indian Bank (Including Allahabad Bank) 7 HDFC Bank Ltd. 8 Indian Overseas Bank 8 ICICI Bank Ltd. 9 Punjab National Bank (including Oriental Bank of Commerce and United Bank of India) 9 IndusInd Bank Ltd. 10 Punjab & Sind Bank 10 Jammu & Kashmir Bank Ltd. 11 Union Bank of India (including Andhra Bank and Corporation Bank) 11 Karnataka Bank Ltd. 12 UCO Bank 12 Karur Vysya Bank Ltd. 13 Kotak Mahindra Bank Ltd. 14 Lakshmi Vilas Bank Ltd. 15 Nainital Bank Ltd. 16 Ratnakar Bank Ltd. 17 South Indian Bank Ltd. 18 Tamilnad Mercantile Bank Ltd. 19 Yes Bank Ltd. 20 Bandhan Bank 17 21 IDFC Bank Ltd. 22 IDBI Bank Ltd FOREIGN BANKS 1 The Royal Bank of Scotland N.V. 23 Mizuho Corporate Bank Ltd. 2 Abu Dhabi Commercial Bank Ltd. 24 Oman International Bank 3 Antewerp Diamond Bank N.V. 25 Societe Generale 4 Arab Bangladesh Bank Ltd. (AB Bank) 26 Sonali Bank 5 Bank International Indonesia 27 Standard Chartered Bank 6 Bank of America 28 State Bank of Mauritius 7 Bank of Bahrain & Kuwait B.S.C. 29 JSC-VTB Bank 8 Bank of Ceylon 30 UBS-AG 9 Bank of Nova Scotia 31 American Express Banking Corporation 10 Bank of Tokyo-Mitsubishi Ltd. 32 First Rand Bank Ltd. 11 Barclays Bank 33 Commonwealth Bank of Australia 12 BNP Paribas 34 United Overseas Bank Ltd. 13 China Trust Bank 35 Credit Suisse A.G. 14 Shinhan Bank 36 Sberbank 15 Citibank N.A. 37 Australia and New Zealand Banking Group Ltd. 16 Credit Agricole Corporate and Investment Bank 38 Rabobank International 17 Deutsche Bank 39 National Australia Bank 18 DBS Bank Ltd. 40 Woori Bank 19 Hongkong and Shanghai Banking Corpn. Ltd. 41 Industrial & Commercial Bank of China 20 J.P. Morgan Chase Bank N.A. 42 Sumitomo Mitsui Banking Corporation 21 Krung Thai Bank 43 Westpac Banking Corporation 22 Mashreqbank 44 Doha Bank 46. As a Scheduled Bank and a banking company within the 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. 18 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. 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 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 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 Banker’s Top 1000 World Banks 2018’, ‘The Forbes Global 2000 2019’ and ‘The Fortune Global 500 Sub-list of Commercial Banks’. 19 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 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 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, 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 Limited, Dhanalaxmi Bank Limited, Kotak Mahindra Bank Limited, 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 Guarantee of ICBC in preference to Scheduled Indian Banks nor could he show any 20 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 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 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 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 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 21 on record to give rise to any doubts with regard to the 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 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. 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 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 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 22 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 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) (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. ….……………………………………. J. [INDIRA BANERJEE] New Delhi; August 24, 2021 1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 11476­77 OF 2021 SEPCO ELECTRIC POWER CONSTRUCTION CORPORATION             …              PETITIONER(S) VERSUS POWER MECH PROJECTS LTD.              …              RESPONDENT(S) O R D E R 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 my inability to persuade myself to agree to the view taken   by   my   learned   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   award­debtor   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 2 (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 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. 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:­ “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. (ii) The   list   of   assets   which,   according   to   him, the   valuer   has   not   valued.     In   respect   of   these 3 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 . 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. 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   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.” 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 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 4 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 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   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   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   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.       …                                  …                                …” 7. It   is   relevant   to   point   out   here   that   the   order   dated   09.04.2019 5 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   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 in the said petition was that the non­acceptance 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 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 to doubt in any manner the credentials of   ICBC.     The   record,   however,   shows   that   the 6 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   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. …” 10. Challenging the order  dated 16.05.2019, passed in I.A.No. 7096 of   2019,   the   petitioner   moved   an   intra­court   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 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, 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 7 dismissal of the appeal under section 37 and another challenging the dismissal   of   the   review   petition.   The   SLP   arising   out   of   the   order passed 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. 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 intra­court appeal, much less in an SLP under Article 136. 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   made by  one  of  the parties, especially  by  the  very  same  learned 8 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 the relevant portions of the orders dated 09.04.2019 and 16.05.2019. The order dated 12.02.2019 shows  (i)  that it was not an adjudicatory 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 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 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 9 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 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. 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   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 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) 10 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. 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 senior counsel   for   the   petitioner   that   the   bank   guarantee   was   taken   by   the petitioner   from   ICBC,   upon   payment   of   a   non­refundable   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 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)   six   weeks   time   to   furnish   bank   guarantee   as   indicated   by   the 11 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   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   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 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 12 deserve to be entertained under Article 136 of the Constitution of India in   view   of   the   fact   (i)   that   the   very   same   Judge   who   passed   the   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 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 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   made   by   the   Court   directing   the   petitioner   to 13 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 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.    ……………………………….J. (V. Ramasubramanian) New Delhi August  24, 2021