ANSAL ENGINEERING PROJECTS LTD.versusTEHRI HYDRO DEVELOPMENT CORPORATION LTD. AND ANR.

A                  ANSAL ENGINEERING PROJECTS LTD.
                                         v.
             TEHRI HYDRO DEVELOPMENT CORPORATION
                         LTD. AND ANR.

                                   JULY 31, 1996
B
                fK. RAMASWAMY, S. SAGHIR AHMAD AND
                              G.B. PATTANAIK, JJ.]

          Arbitration Act, 1940:
c
         Ss. 20. and 41 read with Schedule II-Bank guarante&-Letter of ill-
  vocation-Application by contractor for injunction to restrain the respondent
  Coporation fron1 invoking the bank guarantee contending that aniount due
  and payable should be detemiined-Held bank guarantee is an independe!lt
  alld disti!lct contract between bank and beneficimy and is not qualified by the
D underlying transaction and validity of p1in1a1y contract between the 11ar-
  ties-U!lless fraud or special equity is pleaded and plima facie established by
    strong evidence as a lliable issue, beneficia1y cannot be restrained froni
    encashing bank guarantee even tf a dispute hqd a1isen in pe1fonnance of
    contract or execution of lvork undertaken-In tenns of bank guarantee the
E   be!leficia1y is entitled to invoke bank guarantee and seek ellcaslunent of the
    an1ount specified in bank guarantee-Fina/ adjudication is not a pre-condi-
    tion to invoke bank guarantee and that is not a ground to issue injunction
    restraining the beneficiary to enforce bank guarantee-Liability of bank is
    absolute and unequivocal; it is not concen1ed with ultbnate decision of a
    cowt or a tlibunal as to the amount due and payable to the beneficimy-'4ny
F   paymellf by bank would be subject to the final decision by the cowt or
                                                                                     j
    llibunal-No case of fraud or special injwy is made out for imeiference by        ;

    way of injunction-High Cowt was 1igltt in refusing injunction.

           Bank guarallfee---lnvocation of-Discussed.
G           Hindustan Steel W01kers Constmction Ltd. v. G.S. Atwal & Co. (En-
     gineei>) Pvt. Ltd., [1995) 6 SCC 76 and Hindustan Steel Works Constmction
     Ltd. v. Tarapore & Co. & Anr., JT (1996) 6 SC 295, relied on.

          CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
                                   \
H    No. ~5878 of 1996.
                               226
       ANSALENGG. PROJELlS LTD. v. TEHRI HYDRO DEV. CORPN. LTD. 227

          From the Judgment and Order dated 17.1.96 of the Delhi High Court    A
    in Suit No. 990 of 1995.

         Nageswar Rao, Makarand D. Adkar, S.D. Singh and Sudhanshu
    Atreya for tho petitioner.

          The following Order of the Court was delivered :                     B

            This Special Lea\"e Petition arises from the order of the learned
     Single Judge uf the Delhi High Court dated January 17, 1996 made in Suit
     No. 990/95. The petiti01,er had sought for injunction under Section 41 read
     with Schedule II of the Arbitration Act, 1940 (for short, the 'Act') to
     restrain the respondent from invoking the bank guarantee No. 33/1991
                                                                               c
     dated February 13, 1991 to encash Rs. 57,57,970 pursuant to the letter of
     invocation dated April 5, 1995. The facts mentioned therein are that
      petitioner had entered into contract on March 30, 1991 pursuant to a
      tender submitted by him to construct 108 residential quarters at Kalharia,
      Bhagirath Puram, Tehri. The construction was to be completed within D
      stipulated period but was not completed. In terms of the contract, the first
      respondent had terminated it. The petitioner availed of the remedy under
     Section 20 of the Act for appointment of an arbitrator for reference of the
      dispute in terms of the contract. Pending consideration thereof, he filed an
      application to restrain the respondent to encash the bank guarantee. The E
      respondent after termination of the contract had issued a letter of invoca-
      tion dated April 5, 1995 calling upon the UCO Bank to pay the aforesaid
      amount in terms of the bank guarantee. It was contended in the High Court
    . that the amount due and payable by the petitioner should be determined
      in the suit. The bank guarantee could not be invoked till then and the
      payment thereof could not be made. The respondent had played fraud on F
      the petitioner in entering into the contract and seeking extension of the
      time. There are exceptional circumstances which necessitated the
      petitioner to seek relief of injunction pending determination of the amount
      due and payable by the petitioner. The High Court rejected the contentions
      and dismissed the petition. Thus, this special leave petition.
                                                                               G
          Admittedly, the bank guarantee given by the UCO Bank on behalf
    of the petitioner reads as under :

             "On production of a Bank Guarantee for the above principal
             amount and interest due thereon, we, UCO Bank, 5, Parliament      H


1
    228                  SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A           Street, New Delhi (hereinafter referred to as "the Bank") at the
            request of Ansal Engineering Projects Limited Contractor (s) do
            hereby undertake to pay to the Corporation an amount not exceed-
            ing Rs. 57,57,970 plus interest as aforesaid against any loss or
            damage caused lo suffered or would be cauced to or suffered by
            the Corporation by reason of any breach by the said Contractor
B
            (s) of any of the terms or conditions contained in the said Agree-
            ment.

               We, UCO Bank, 5, Parliament Street, New Delhi do hereby
            undertake to pay the amount due and payable under this guarantee
                                                                                   -
c           \vithout any den1ur, n1erely on a demand from the Corporation
            stating that the amount claimed is due by way of loss of damage
            caused lo or would be caused to or suffered by the Corporation
            by reason of breach by the said eoniractor (s) of any of terms or
            conditions contained in the said Agreement or by reason of the
            Contractor (s) failure to perform the said Agreement. Any such
D           demand made on the bank shall be conclusive as regards the
            amount due and payable by the bank under this guarantee. How-
            ever, our liability under this guarantee shall be restricted to an
            amount not exceeding Rs. 57,57,970 plus interest due on the
            outstanding balance of mobilisation advance @ 18% p.a.
E
                We undertake lo pay to the Corporation money so demanded
            notwithstanding any dispute or disputes raised by the Contractor
            (s)/Supplier (s) in any suit or proceeding pending before any Court
            or Tribunal relating thereto. Our Liability under this present being
            absolute and unequivocal."
F
          The letter of invocation of the respondent is thus :

            "We hereby invoke subject Bank Guarantee and demand the
            amount detailed herein after as the amount claimed is due by way
            of loss and damage caused to or would be caused to or suffered
G           by THDC/ourselves by reason of breach by Your customer of the
            terms and conditions contained in the said agreement and also by
            reason of your Customer's failure to perform the said agreement.

               THDC/We are limiting our claim against you to the extent of
H           the principal amount of mobilisation advance lying outstanding
       AN SAL ENGG. PROJECTS LTD. v. TEHRI HYDRO DEY. CORPN. LID. 229

            against your customer plus interest due on the outstanding balance      A
            of mobilisation advance @ 18% per annum. You are as such,
            requested to pay the following amounts :

            (a) Outstanding amount of mobilisation advance due and payable
            by M/s. Ansal Engineering Project Limited, in terms of the Bank
            Guarantee in question. Rs. 51,02,658.                                   B

            (b) Balance interest@ 18% per annum calculated on the outstand-
            ing mobilisation advance upto 30th October, 1994, Rs. 13,89,625.

            (c) Interest @ 18% per annum on the outstanding mobilisation
            advance of Rs. 51,02,658 w.e.f. 31.10.1994 till the date of payment     c
            by you.

            This notice of demand may be treated as fresh a demand lo pay
            the above noted amounts in terms of order dated 1.9.1994 passed
            by the Hon. High Court of Delhi at New Delhi in O.M.P. No.              D
            39/1994 titled as M/s. Ansal Engineering Projects Ltd. vorsus Tehri
            Hydro Development Corporation Ltd. & Yourself. Photo copy of
            the said order is enclosed herewith for ready reference."

          It is settled law that bank guarantee is an independent and distinct
    contract between the bank and the beneficiary and is not qualified by the       E
    underlying transaction and lhe validity of the primary contract between the
    person at whose instance the bank guarantee was given an<l the beneficiary.
    Unless fraud or special equity exists, is pleaded and p1ima facie established
    by strong evidence as a triable issue, the beneficiary cannot be restrained
    from encashing the bank guarantee even if dispute between the beneficiary       F
    and the person at whose instance the bank guarantee was given by the
    Bank, had arisen in performance of the contract or execution of the works
    undertaken in furtherance thereof. The Bank unconditionally and ir-
    revocably promised to pay, on demand, the amount of liability undertaken
    in the guarantee without any demur or dispute in terms of the bank              G
    guarantee. The object behind is to inculcate respect for free flow of
    commerce and trade and faith in the commercial banking transactions
    unhedged by pending disputes between the beneficiary and the contractor.

          It is equally sellled law that in terms of the bank guarantee the
    beneficiary is entitled to invoke the bank guarantee and seek encashrnent       H




'
    230                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A   of the amount specified in the bank guarantee. It does not depend upon
    the result of the decision in the dispute between the parties, in case of the
    breach. The underlying object is that an irrevocable commitment either in
    the form of bank guarantee or letters of credit solemnly given by the bank
    must be honoured. The Court exercising its power cannot interfere with
    enforcement of bank guarantee/letters of credit except only in cases where
B
    fraud or special equity is p1ima facie made out in the case as triable issue
    by strong evidence so as to prevent irretrievable injustice to the parties.
    The trading operation would not be jettisoned and faith of the people in
    the efficacy of banking transactions would not be eroded or brought to
    disbelief. The question therefore, is : whether the petitioner had made out
c   any case of irreparable injury by proof of special equity or fraud so as to
    invoke the jurisdiction of the Court by way of injunction to restrain the
    first respondent from encashing the bank guarantee. The High Court held
    that the petitioner has not made out either. We have carefully scanned the
    reasons given by the High Court as well as the contentions raised by the
D   parties. On the facts, we do not find that any case of fraud has been made
     out. The contention is that after promise to extend time for constructini\
     the buildings and allotment of extra houses and the term of bank guaran-
     tees was extended, the contract was terminated. It is not a case of fraud
     but one of acting in terms of contract. It is next contended by Shri G.
E    Nageshwara Rao, learned counsel for the petitioner that unless the amount
     due and payable is determined by a competent court or tribunal by mere
    invocation of bank guarantee or letter of credit pleading that the amoun.1 is
    due and payable by the petiti011e1; which was disputed, cannot be held to be
    due and payable in a case. The Court has yet to go into the question and
F   until a finding after trial, or decision is given by a court or tribunal that
    amount is due and payable by the petitioner, it cannot he held to be due
    and payable. Therefore, the High Court committed manifest error of law
    in refusing to grant injunction as the petitioner has made out a plima fade
    strong case. We find no force in the contention. All the clauses of the
    contract of the bank guarantee are to be read together. Bank guarantce/lel-
G   ters of credit is an independent contract between the bank and the
    beneficiary. It does not depend on the result of the dispute between the
    person on whose behalf the bank guarantee was given by the bank and the
    beneficiary. Though the question was not elaborately discussed, it was in
    sum answered by this Court in Hindusta11 Steel Worke!J Constntction Ltd.
H   v. G.S. Atwal & Co. (Engineers) Pvt. Ltd., [1995] 6 SCC 76 at 79. This Court
   ANSAL ENGG. PROJECTS LTD. v. TEHRI HYDRO DEV. CORPN. LTD. 231

 had held in part 6 that the entire dispute was pending before the arbitrator. A
Whether, and if so, what is the amount due to the appellant was to be
 adjudicated in the arbitration proceedings. The order of the learned Single
Judge proceeds on the basis that the amounts claimed were not and cannot
 be said to be due and the bank has violated the understanding between the
respondent and the Bank in giving unconditional guarantee io the appel- B
!ant. The learned .Judge held that the hank had issued a guarantee in a
standard form, covering a wider spectrum than agreed to between the
respondent and the bank and it cannot be a reason to hold that the
appellant is in any way fettered in invoking the unconditional bank guaran-
tee. Similarly, the reasoning of the learned Single Judge that before invok-
ing the performance guarantee the appellant should assess the quantum of
                                                                               c
loss and damages and mention the ascertained figure, cannot be put
forward to restrain the appellant from invoking the unconditional guaran-
tee. This reasoning would clearly indicate that the final adjudication is not
a pre-condition to invoke the bank guarantee and that is not a ground to
issue injunction restraining the beneficiary to enforce the bank guarantee. D
In Hi11dusta11 Steel Works Co11stntctio11 Ltd. v. Tarapore & Co. & A11r., JT
(1996) 6 SC 295, it was contended that a contractor had a cmmter-claim
against the appellant; that disputes had been referred to the arbitrator and
no amount was said to be due and payable by the contractor to the
appellant till the arbitrator declared the award. It was contended therein E
that those were exceptional circumstances justifying interference by
restraining the appellant from enforcing the bank guarantee. The High
Court had issued interim injunction from enforcing the bank guarantee.
Interfering with and reversing the order of the High Court, this has held
in para 23 that a bank must honour its commitment free interference by F
the courts. The special circumstances or special equity pleaded in the case
that there was a serious dispute on the question as to who has committed
the breach of the contract and that whether the amount is due and payable
by the contractor to the appellant till the arbitrator declares the award, was
not sufficient to make the case an exceptional one justifying interference G
by restraining the appellant from enforcing the bank guarantee. The order
of injunction, therefore, was reserved with certain directions with which we
are not concerned in this case.

    A conjoint reading of the bank guarantee and the letter of invocation
demanding payment of amount due and payable by the petitioner would H
    232                   SUPREME COURT REPORTS (1996] SUPP. 4 S.C.R.

A   show that the first respondent had specified and quantified in terms of the
    bank guarantee a total sum with interest due thereon in a sum of Rs.
    57,57,970 as on April 5, 1995. A demand in terms of clause (i) of the bank
    guarantee was made. The bank had irrevocably promised and undertaken
    to pay to the Corporation without any demur or damage an amount not
    exceeding Rs. 57,57,970 plus interest as per terms and conditions contained
B   in the bank guarantee untrammelled by the bi-lateral agreement between
    the petitioner and the first respondent-Corporation stating the amount
    claimed was due and payable on account of loss or damage caused to or
    likely to be caused to or by the Corporation by reason of any breach by
    the said contract or any of the terms and conditions contained in the said
c   agreement notwithstanding any dispute or disputes raised under the con-
    tract in any suit or proceedings pending before any court or tribunal
    relating thereto. The liability of the bank is absolute and unequivocal; it
    would thereby be clear that the bank is not concerned with the ultimate
    decision of a court and a tribunal in its finding after adjudication as to the
D   amount due and payable by the petitioner to the first respondent. What
    would be material is the quantification of the liability in the letter of
    revocation. The bank should verify whether the amount claimed is within
    the terms of the bank guarantee or letter of credit. It is axiomatic that any
    payment by the bank, obviously be subject to the final decision of the court
    or the tribunal. At the stage of invocation of bank guarantee, the need for
E   final adjudication and decision on the amount due and payable by the
    petitioner, would run contrary to the terms of the special contract in which
    the bank had undertaken to pay the amount due and payable by the
     contractor. Thus we hold that there is no question of making out any piima
    facie cause much less strong evidence or special equity or exceptional
     circumstances for interference by way of injunction.
F
           The special leave petition is accordingly dismissed.

    R.P.                                                      Petition dismissed.