Delhi High Court
Apeco Infrastructure India Pvt ... vs Bharatheavy Electricals Limited ... on 24 November, 2020
$~14 (original side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 378/2020
APECO INFRASTRUCTURE INDIA PVT LTD ..... Petitioner
Through : Ms.Amrita Panda and
Ms.Mansa Shukla, Adv.
versus
BHARAT HEAVY ELECTRICALS LIMITED (BHEL)
& ANR. ..... Respondent
Through : Mr.Atul Shanker Mathur
with Ms.Priya Singh,
Advs. for R-1.
Ms.Gurmeet Binda, Adv.
for R-2 -Kotak Mahindra
Bank.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 24.11.2020
(Video-Conferencing)
IA No.10916/2020 (for exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
O.M.P.(I) (COMM.) 378/2020
1. This petition under, Section 9 of the Arbitration & Conciliation
Act, 1996 (hereinafter referred to as "The Arbitration Act, 1996")
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seeks certain pre-arbitral interim reliefs. The prayer clause, in the
petition, reads as under:-
"a. Restrain the Respondents from taking any step towards
encashment of bank Guarantee bearing No.
4574OBG19004415 dated 28.02.2019 for an amount of
Rs.7,06,526/- issued by the Respondent No. 2; and
b. Direct the Respondent No. 1 to provide security to the
extent of Rs. 2.8 Crores before this Hon'ble Court in order to
secure the amount in dispute; and
c. Pass any other order(s) as this Hon'ble Court deems
fit."
2. Though there is no prayer, for ad interim relief, and no separate
application, for ad interim relief pending disposal of this petition has
been preferred, I have heard Ms. Amrita Panda, learned counsel for
the petitioner on her prayer for grant of ad interim relief in terms of
prayers (a) and (b) in the petition.
3. Insofar as prayer (a) in the petition for restraining the
respondents from taking any steps towards encashment of bank
guarantee no. 4574OBG19004415 dated 28th February, 2019 for an
amount of ₹7,06,526/- is concerned, no case, for grant of any such
injunction can be said to be made out.
4. The law, on the issue of grant of interim relief by way of stay of
invocation of bank guarantees, is now well settled. This Court has had
occasion to examine the law and distil the principles that have
emerged in that regard, in a recent decision in CRSC Research &
Design Institute Group Company Ltd. v. Dedicated Freight Corridor
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Corporation of India Ltd 1. Paras 22 to 31 of the said decision may be
reproduced for ready reference thus:-
"Power to stay invocation of a Bank Guarantee
22. On the issue of the power of the court to stay
invocation of bank guarantees, the learned Solicitor General
has placed reliance on Himadri Chemicals v, Coal Tar
Refining Co., (2007) 8 SCC 110, Vinitec Electronics v. HCL
infosystems Ltd. (2008) 1 SCC 544, N.H.A.I. v. Ganga
Enterprises (2003) 7 SCC 410 and State of Maharashtra v.
National Construction Co. (1996) 1 SCC 735. Additionally,
the learned Solicitor General has submitted that Itek Corpn. v.
First National Bank of Boston 566 Fed Supp 1210 (1983),
in fact, advanced the case of the respondent, rather than that
of the petitioner.
23. Himadri Chemicals is an important judgement, in this
canon. Para 14 of the report, in the said case, enumerates the
following six principles, governing the grant of injunction
against the invocation of unconditional bank guarantees:
"(i) While dealing with an application for
injunction in the course of commercial dealings,
and when an unconditional Bank Guarantee or
Letter of Credit is given or accepted, the
Beneficiary is entitled to realize such a Bank
Guarantee or Letter of Credit in terms thereof
irrespective of any pending disputes relating to
the terms of the contract.
(ii) The Bank giving such guarantee is bound
to honour it as per its terms irrespective of any
dispute raised by its customer.
(iii) The Courts should be slow in granting an
order of injunction to restrain the realization of
a Bank Guarantee or Letter of Credit.
MANU/DE/1803/2020
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(iv) Since a Bank Guarantee or Letter of
Credit is an independent and a separate contract
and is absolute in nature, the existence of any
dispute between the parties to the contract is not
a ground for issuing an order of injunction to
restrain enforcement of Bank Guarantee or
Letter of Credit.
(v) Fraud of an egregious nature which
would vitiate the very foundation of such a
Bank Guarantee or Letter of Credit and the
beneficiary seeks to take advantage of the
situation.
(vi) Allowing encashment of an
unconditional Bank Guarantee or Letter of
Credit would result in irretrievable harm or
injustice to one of the parties concerned."
24. The learned Solicitor General also placed reliance on
Vinitec Electronics which, in turn, took note of the earlier
decisions in U.P. State Sugar Corporation v. Sumac
International (1997) 1 SCC 568, B.S.E.S. Ltd. v. Fenner
India Ltd., (2006) 2 SCC 728, Himadri Chemicals and
Mahatma Gandhi Sahakara Sakkare Karkhane v. National
Heavy Engineering Coop. Ltd. (2007) 6 SCC 470, and
proceeded to hold thus (in paras 11, 12 and 14 of the report):
"11. The law relating to invocation of bank
guarantees is by now well settled by a catena of
decisions of this Court. The bank guarantees
which provided that they are payable by the
guarantor on demand is considered to be an
unconditional bank guarantee. When in the
course of commercial dealings, unconditional
guarantees have been given or accepted the
beneficiary is entitled to realise such a bank
guarantee in terms thereof irrespective of any
pending disputes. In U.P. State Sugar
Corpn. v. Sumac International Ltd., (1997) 1
SCC 568 this Court observed that: (SCC p. 574,
para 12)
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"12. The law relating to invocation of such
bank guarantees is by now well settled. When in
the course of commercial dealings an
unconditional bank guarantee is given or
accepted, the beneficiary is entitled to realise
such a bank guarantee in terms thereof
irrespective of any pending disputes. The bank
giving such a guarantee is bound to honour it as
per its terms irrespective of any dispute raised
by its customer. The very purpose of giving
such a bank guarantee would otherwise be
defeated. The courts should, therefore, be slow
in granting an injunction to restrain the
realisation of such a bank guarantee. The courts
have carved out only two exceptions. A fraud in
connection with such a bank guarantee would
vitiate the very foundation of such a bank
guarantee. Hence if there is such a fraud of
which the beneficiary seeks to take advantage,
he can be restrained from doing so. The second
exception relates to cases where allowing the
encashment of an unconditional bank guarantee
would result in irretrievable harm or injustice to
one of the parties concerned. Since in most
cases payment of money under such a bank
guarantee would adversely affect the bank and
its customer at whose instance the guarantee is
given, the harm or injustice contemplated under
this head must be of such an exceptional and
irretrievable nature as would override the terms
of the guarantee and the adverse effect of such
an injunction on commercial dealings in the
country. The two grounds are not necessarily
connected, though both may coexist in some
cases."
12. It is equally well settled in law that bank
guarantee is an independent contract between
bank and the beneficiary thereof. The bank is
always obliged to honour its guarantee as long
as it is an unconditional and irrevocable one.
The dispute between the beneficiary and the
party at whose instance the bank has given the
guarantee is immaterial and of no consequence.
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In BSES Ltd. v. Fenner India Ltd. [(2006) 2
SCC 728] this Court held: (SCC pp. 733-34,
para 10)
"10. There are, however, two exceptions to
this rule. The first is when there is a clear fraud
of which the bank has notice and a fraud of the
beneficiary from which it seeks to benefit. The
fraud must be of an egregious nature as to
vitiate the entire underlying transaction. The
second exception to the general rule of non-
intervention is when there are 'special equities'
in favour of injunction, such as when
'irretrievable injury' or 'irretrievable injustice'
would occur if such an injunction were not
granted. The general rule and its exceptions has
been reiterated in so many judgments of this
Court, that in U.P. State Sugar
Corpn. v. Sumac International Ltd., (1997) 1
SCC 568 this Court, correctly declared that the
law was 'settled'."
*****
14. In Mahatma Gandhi Sahakra Sakkare
Karkhane v. National Heavy Engg. Coop. Ltd.,
(2007) 6 SCC 470 this Court observed: (SCC p.
471b-d)
"If the bank guarantee furnished is an
unconditional and irrevocable one, it is not open
to the bank to raise any objection whatsoever to
pay the amounts under the guarantee. The
person in whose favour the guarantee is
furnished by the bank cannot be prevented by
way of an injunction from enforcing the
guarantee on the pretext that the condition for
enforcing the bank guarantee in terms of the
agreement entered into between the parties has
not been fulfilled. Such a course is
impermissible. The seller cannot raise the
dispute of whatsoever nature and prevent the
purchaser from enforcing the bank guarantee by
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way of injunction except on the ground of fraud
and irretrievable injury.
What is relevant are the terms incorporated in
the guarantee executed by the bank. On careful
analysis of the terms and conditions of the
guarantee in the present case, it is found that the
guarantee is an unconditional one. The
respondent, therefore, cannot be allowed to
raise any dispute and prevent the appellant from
encashing the bank guarantee. The mere fact
that the bank guarantee refers to the principal
agreement without referring to any specific
clause in the preamble of the deed of guarantee
does not make the guarantee furnished by the
bank to be a conditional one."
(Paras 22 and 28)"
(Underscoring supplied; italics in original)
25. The following principles clearly emerge from the
decision in Vinitec Electronics:
(i) Bank guarantees, which are payable on demand
by the guarantor, are unconditional bank guarantees.
(ii) Unconditional bank guarantees entitled the
guarantor to realisation thereof, irrespective of any
pending disputes. In fact, disputes between the
guarantor, and the parties, at whose instance the bank
has given the guarantee, are immaterial and of no
consequence. Enforcement of the guarantee cannot be
injuncted on the pretext that the condition for
enforcing the bank guarantee, in terms of the
agreement between the parties, has not been fulfilled.
What is relevant are the terms incorporated in the
guarantee (and not those in the agreement between the
parties). The mere fact that the bank guarantee refers
to the principal agreement, without referring to any
specific clause, does not make the bank guarantee
conditional.
(iii) Courts should, therefore, be slow in injuncting
realisation of unconditional bank guarantees.
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(iv) The only exceptions, to this general rule, are
where there exist/exists
(a) fraud of an egregious nature, or
(b) irretrievable injustice resulting to the
parties, at whose instance the bank gave the
guarantee, were the injunction not granted, or
(c) special equities, of which the possibility
of irretrievable injustice is itself one.
(v) "Irretrievable injustice", for this purpose, has to
be of such an exceptional nature as would override the
terms of the guarantee and the adverse effect of the
grant of such injunction on commercial dealings in the
country.
26. The Court, in Vinitec Electronics proceeded,
thereafter, to examine whether the bank guarantee, forming
the subject matter of the controversy before it, was
conditional or unconditional, and the discussion, in the
judgement, on this aspect, is instructive. Paras 17, 18 and 19
of the report deserve, in this context, to be reproduced in
extenso:
"17. The relevant clause in the bank guarantee dated
10-8-2001 furnished by the appellant is to the
following effect:
"Whereas M/s Vinitec Electronics Pvt. Ltd., H-
33, Bali Nagar, New Delhi (hereinafter called
'the supplier') supplied their Vinitec online
UPS systems of various capacities pursuant to
their agreement dated 10th May, 2000 and PO
No. 4500011730 dated 30-5-2000 (hereinafter
called 'the Company') for the final purchaser
President of India through the Director,
National Crime Records Bureau, Ministry of
Home Affairs, Government of India, New Delhi
(hereinafter called 'the purchaser').
Whereas in terms of Clause 15 of the agreement
for receiving the entire balance payments of Rs
49,99,335 from the company, the supplier has
agreed to provide a performance bank guarantee
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equivalent to Rs 16,81,238.50 as 10% of the
value of the contract to be kept valid till the
warranty period during which time the supplier
is required to perform their warranty obligations
to the purchaser; and
Whereas pursuant to the application made by
the supplier, we, Oriental Bank of Commerce,
Kirti Nagar, New Delhi (hereinafter called 'the
Bank') have accordingly agreed to give the
supplier a bank guarantee for the aforesaid
purpose.
Therefore, we, the Bank, hereby affirm that we
are guarantors and responsible on behalf of the
supplier up to a total of Rs 16,81,238.50
(Rupees sixteen lakhs eighty-one thousand two
hundred thirty-eight and paise fifty only) and
we undertake to pay any sum or sums within the
limit of Rs 16,81,238.50 (Rupees sixteen lakhs
eighty-one thousand two hundred thirty-eight
and paise fifty only) as aforesaid upon receipt of
written demand from the purchaser and
Company within the validity of this bank
guarantee establishing the supplier to be in
default for the performance of their warranty
obligations under the contract.
We, the Bank, affirm that our liability under this
guarantee is limited to the total amount of Rs
16,81,238.50 (Rupees sixteen lakhs eighty-one
thousand two hundred thirty-eight and paise
fifty only) and it shall remain in full force up to
and including 31st August, 2003 and shall be
extended from time to time for such further
period(s) as desired by the purchaser, Company
and supplier on whose behalf this guarantee has
been given."
18. Thereafter by a letter dated 20-8-2001, the bank
guarantee was amended and Para 4 of the bank
guarantee dated 10-8-2001 was substituted and the
same reads as under:
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"Therefore, we, the Bank, hereby affirm that we are
guarantors and responsible on behalf of the supplier up
to a total of Rs 16,81,238.50 (Rupees sixteen lakhs
eighty-one thousand two hundred thirty-eight and
paise fifty only) and we undertake to pay any sum or
sums within the limit of Rs 16,81,238.50 (Rupees
sixteen lakhs eighty-one thousand two hundred thirty-
eight and paise fifty only) as aforesaid upon receipt of
written demand from the Company within the validity
of this bank guarantee."
19. In the unamended bank guarantee the Bank
affirmed that they are guarantors and responsible on
behalf of the supplier up to a total of Rs 16,81,238.50
(Rupees sixteen lakhs eighty-one thousand two
hundred thirty-eight and paise fifty only) and had
undertaken to pay any sum or sums within that limit
upon receipt of written demand from the purchaser
within the validity of bank guarantee provided it is
established that the supplier be in default for the
performance of their warranty obligations under the
contract. This makes it abundantly clear that what was
furnished was a conditional bank guarantee and the
bankers were liable to pay the amounts only upon
establishing the fact that the supplier was in default for
the performance of their warranty obligations under
the contract. But by the subsequent letter dated 20-8-
2001, the relevant clause in bank guarantee was
amended whereunder the Bank stood as guarantor and
responsible on behalf of the supplier up to a total of Rs
16,81,238.50 (Rupees sixteen lakhs eighty-one
thousand two hundred thirty-eight and paise fifty only)
and had undertaken to pay any sum or sums within that
limit "upon receipt of written demand from the
Company within the validity of this bank guarantee".
This amended clause makes it abundantly clear that the
Bank had undertaken to pay amounts up to a total of
Rs 16,81,238.50. The condition that the amounts shall
be paid only upon establishing the supplier to be in
default for the performance of their warranty
obligation under the contract has been specifically
deleted. In our considered opinion, the bank guarantee
as amended replacing Para 4 of the original bank
guarantee makes the bank guarantee furnished as
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unconditional one. The bankers are bound to honour
and pay the amounts at once upon receipt of written
demand from the respondent."
(Emphasis supplied)
27. These paras illustrate, lucidly, the distinction between
a conditional bank guarantee and an unconditional bank
guarantee. The judgement in Vinitec Electronics makes it
abundantly clear that the first aspect, to be taken into
consideration, is the bank guarantee itself, and the terms
thereof. If the bank guarantee is conditional, then, if the
conditions have not been fulfilled, injunction, against
encashment and invocation, may unquestionably follow. If,
however, the bank guarantee is unconditional, then injunction
can be granted only if egregious fraud, irretrievable injustice,
or special equities, exist, and not otherwise.
28. The issue was revisited, by the Supreme Court, in its
more recent decision in Standard Chartered Bank v. Heavy
Engineering Corporation Ltd, 2019 SCC OnLine SC 1638.
The terms of the bank guarantees, in that case, contemplated
their invocation "against any loss or damage caused to or
suffered by the Corporation by reason or any breach or failure
by the said supplier, in due performance of the aforesaid
contract". The specifics of the controversy between the
parties need not detain us. Suffice it to state that the Supreme
Court held the bank guarantees to be "unconditional" and
"specific in nature". Thereafter, the Supreme Court, relying
on its earlier decisions Ansal Engineering Projects Ltd v.
Tehri Hydro Development Corporation Ltd (1996) 5 SCC
450, Hindustan Construction Co. Ltd v. State of Bihar
(1999) 8 SCC 436, State Bank of India v. Mula Sahakari
Sakhar Karkhana Ltd (2006) 6 SCC 293, Himadri
Chemicals (2007) 8 SCC 110 and Gujarat Maritime Board v.
Larsen & Toubro Infrastructure Development Projects
Ltd(2016) 10 SCC 46, reiterated the principles already set out
hereinabove, and emphasised, additionally, that fraud or
special equities had, to support the prayer for stay of
invocation of bank guarantees, to be "pleaded and prima facie
established by strong evidence as a triable issue".
29. The above legal position stands reiterated in Yograj
Infras. Ltd. V. Ssangyong Eng. & Construction Co. Ltd
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2012 (2) SCALE 58 and Adani Agri Fresh Ltd v. Mahaboob
Sharif (2016) 14 SCC 517.
30. Thus far, the position in law appears to be crystal clear.
31. Some scope for debate, however, arises, on the concept
of "special equities". The decisions of the Supreme Court -
perhaps, advisedly - do not delineate, in precise contours, the
ambit of the expression. Significantly, Fenner India Ltd.
(2006) 2 SCC 728 regards "irretrievable injustice" as a specie
of the "special equities" genus, whereas Standard Chartered
Bank v. Heavy Engineering Corporation Ltd, 2019 SCC
OnLine SC 1638, treat "special equities" and "irretrievable
injustice" as distinct circumstances, either of which would
justify injuncting the invocation of a bank guarantee.
"Irretrievable injustice", to reiterate, has to be of such a
magnitude as would override the twin considerations of the
express terms of the guarantee and the adverse effect, from
the grant of injunction, on commercial dealings in the
country. "Special equities", too, must, therefore, be so
"special" so as to prevail over these two considerations,
otherwise paramount while examining a prayer for injunction
against invocation of a bank guarantee. While, therefore,
examining whether "special equities" exist, so as to justify the
grant of a prayer for injuncting invocation of a bank
guarantee, the Court has to tread warily, and cannot confer, on
the expression "special equities", so elastic a construction, as
would snap the rule. "
(Emphasis as in original)
5. The bank guarantee, numbered 4574OBG19004415, dated 28th
February, 2019, of which stay is sought in the present petition, has
been executed between the Kotak Mahindra Bank and the respondent-
Bharat Heavy Electricals Limited (BHEL). The covenants of the bank
guarantee are clear and unequivocal. Clause 2, which deals with the
liability of the respondent no.2 (hereinafter referred to as the "Bank")
on bank guarantee on demand, reads as under:
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"2. The Guarantor hereby undertakes to pay the amounts
due and payable under this guarantee without any demur,
merely on demand from the Company intimating that the
amount claimed is due by way of loss or damage caused to or
suffered or would be caused or suffered by the contractor of
any terms contained in the said order/contract. Any such
demand made on the guarantor shall be conclusive as regards
the amount due and payable by the Guarantor irrespective of
the fact whether the Contractor/contractor admits or denies. "
(Emphasis supplied)
6. A reading of the extract of clause 2 of the bank guarantee
reveals that the bank is required to pay the amounts due and payable
under the guarantee without demur merely on the demand from the
BHEL intimating that the amount claimed is due by way of loss or
damage caused to or suffered or would be caused or suffered by the
contractor of any terms contained in the contract. The clause further
ordains that any such demand made on the petitioner would be
conclusive as regards the amount to be paid, irrespective of whether
the petitioner admits or denies its liability.
7. In view of the expressed terms of the bank guarantee, and the
law laid down by various decisions on the issue, this Court cannot
restrain the invocation of the bank guarantee. The bank guarantee
constitutes an independent contract between the bank and the
beneficiary of the bank guarantee. The right of BHEL to invoke the
bank guarantee has not been made conditional on performance, or
non-performance, of the contract between the petitioner and BHEL.
All that is required is a demand from BHEL, to the bank, to the effect
that there has been loss or damage caused to or suffered by it, owing
to an act of the petitioner. If such a demand is made, that demand
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would be conclusive against the petitioner, and the bank guarantee
would be invocable, irrespective of whether the petitioner admits or
denies the allegation of non-performance or breach of the contract.
8. In such circumstances, the law does not empower this Court,
ceased with the application of stay of the bank guarantee, to peer
behind the bank guarantee and enter into the dispute whether there
has, or has not, been breach of the contract. In fact, the position in law
is that the guarantor cannot even plead that the stage for invocation of
the bank guarantee, as contemplated in the contract, has not arisen.
9. If, however, the bank guarantee was to stipulate that the liability
of the bank under the guarantee is made conditional to non-
performance of the contract by the contractor, then it may be possible
for the contractor to seek a stay of the invocation of the bank
guarantee on the ground that there has been no non-performance.
That is, however, different from a case such as the present, in which
the contractor cannot dispute the allegation of non-
performance/breach of the contract, if a demand, by BHEL, alleging
loss to have occurred on that ground to it, is made.
10. In somewhat better circumstances, this Court had in CRSC
Research & Design1, refused to stay the invocation of the bank
guarantees in that case.
11. Ms. Amrita Panda, while fairly acknowledging this position,
seeks to plead that the present case involved "special equities".
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12. Regarding special equities, she points out, in this regard that the
petitioner is an MSME and that, therefore, though the amount of the
bank guarantee is not large, given the scale of the petitioner enterprise,
it would result in irretrievable injury to the petitioner.
13. As para 31 of the report of CRSC Research & Design1 reveals,
"Special Equities" can be pleaded as a ground to stay invocation of
bank guarantee only if they are truly "Special Equities", to the extent
which would essentially require the establishment of "equitable
injustice" , which is so irretrievable as to override the considerations
of the expressed terms of the guarantee and the adverse effect on
public interest, of grant of injunction on commercial dealings in the
country.
14. I am unable to convince myself that, in the present case, special
equities of such a magnitude, exist, as would justify stay of invocation
of the bank guarantee. The amount of bank guarantee is, at a plain
₹
glance, not large and is merely 7,06,526/-. Even if the bank
guarantee were to be invoked, and the petitioner were to succeed in
arbitration, at a later and more appropriate stage, a direction to BHEL
to liquidate the amount covered by the bank guarantee could always
be passed at that stage. This factor, coupled with the fact that the bank
guarantee is only for ₹ 7,06,526/-, compels me to hold that no case of
"special equities" exists, as would justify injuncting the invocation of
the bank guarantee.
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15. As a result, prayer (a) in the petition cannot be granted and is,
accordingly rejected.
16. Issue notice, therefore, limited to prayer (b), returnable on 3rd
February, 2021. Notice is accepted by Mr. Atul Shanker Mathur,
learned counsel for respondent no.1 and Mr. Gurmeet Binda, learned
counsel on behalf of respondent no.2. Counter affidavit, if any, be
filed within four weeks with advance copy to learned counsel for the
petitioner who may file rejoinder thereto, if any, within two weeks
thereof.
17. Before the next date of hearing, the petitioner is directed to
place on record the general conditions of the contract, containing the
arbitration clause.
C.HARI SHANKAR, J
NOVEMBER 24, 2020/aa
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