{"id":200149,"date":"2000-09-11T00:00:00","date_gmt":"2000-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dcw-home-products-vs-gujarat-heavy-chemicals-ltd-on-11-september-2000"},"modified":"2017-02-05T21:09:20","modified_gmt":"2017-02-05T15:39:20","slug":"dcw-home-products-vs-gujarat-heavy-chemicals-ltd-on-11-september-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dcw-home-products-vs-gujarat-heavy-chemicals-ltd-on-11-september-2000","title":{"rendered":"Dcw Home Products vs Gujarat Heavy Chemicals Ltd. & … on 11 September, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Dcw Home Products vs Gujarat Heavy Chemicals Ltd. & … on 11 September, 2000<\/div>\n
Equivalent citations: 2000 (55) DRJ 362<\/div>\n
Author: S Agarwal<\/div>\n
Bench: S Agarwal<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 S.K. Agarwal, J. <\/p>\n
1.     The  plaintiff  has  filed the suit for a decree  of  declaration  and permanent  injunction praying that the first defendant be  restrained  from invoking\/encashing  two bank guarantees dated 17th February, 2000  executed by   the   second   defendant   towards  the   workers   dues   until   the completion\/transfer  of the lease in favour of the first defendant  by  the Government of Tamil Nadu in terms of the agreement between them. The plaintiff  has  also filed an application under Order 39, Rules 1 and 2  of  the Code of Civil Procedure, 1908 (for short the CPC) for grant of ex parte  ad interim injunction restraining defendant No. 1 from invoking\/encashing  the said  two bank guarantees. The first defendant has filed the reply  to  the application opposing the same, inter alia, on the grounds that suit  itself is  not maintainable as essential conditions for claiming  such  injunction against  encashment of Bank Guarantees namely, fraud or irretrievable  loss and  injury  are  not made out. The second and third  defendants  have  not contested the application.\n<\/p>\n
2.   Briefly  stated  the  facts are: that on 9.10.1998,  a  Memorandum  of Understanding (MoU), was made by plaintiff – DCW Home Products Ltd (herein-after  referred to as the Vendor) and the first defendant –  Gujarat  Heavy Chemicals  Ltd. (hereinafter referred to as the Buyer) whereby  the  Vendor agreed  to sell its salt manufacturing unit in Tamil Nadu and the  business
\nto the first defendant along with all its movable and immovable assets, for lumpsum  consideration of Rs. 450 lacs. Under the MoU, on 23.10.1998 a  sum of Rs. 45 lacs was paid by the Buyer to the Vendor leaving a balance of Rs. 405  lakhs.  There is no dispute about this. Thereafter on  17th  February, 1999 sale agreement for transfer of business of the salt unit was  executed between  the plaintiff (Vendor), the third defendant, DCW Ltd.  (confirming
\nparty  – co-Vendor) and the first defendant (the Buyer) with  some  changes with  regard to the schedule of payments of the said sale consideration  of Rs. 450 lakhs. Clause 13.2, inter-alia, provided deductions under two heads out of the balance of Rs. 405 lakhs: (a) towards the payment to be made  by the  Buyer to the Vendors’ creditors as detailed in the Schedule V and  (b)
\nRs.  24,67,758\/- paid as advance by the Buyer to the Vendors  for  settling the  contractor’s dues, thus leaving the net balance of Rs.  3,28,24,242\/-, which  was agreed to be paid by the Buyer on completion.  Admittedly,  full sale consideration was received by the Vendors and the business of the salt manufacturing  unit was transferred to the Buyer but the lease of the  land
\nof the salt manufacturing unit is yet to be transferred in the name of  the buyer by the Government of Tamil Nadu. It was agreed that in the eventuality of the lease of the salt unit not being transferred by the Government of Tamil  Nadu  in favour of the buyer, the business of the  salt  unit  would revert  back  to the Vendors and the sale consideration of  Rs.  450  lakhs would  be refunded by the Vendors to the Buyer. Clause 14 of the  agreement provided  that  Vendors  shall secure for the Buyer  an  unconditional  and irrecoverable  bank guarantee securing payment of Rs. 450 lacs (total  sale consideration) to the Buyer, in this eventuality.\n<\/p>\n
3.   Clause  15.1 of the sale agreement further provided that liability  on account of Salary, Provident Fund, Gratuity, Leave Encashment,  Superannuation  and other dues etc. of the employees up to the date of  the  transfer shall be that of the Vendors to the extent of Rs. 60,46,000\/-., as detailed in  Schedule VII. The payment of this amount was secured by the Vendors  by another unconditional Bank Guarantee in favour of the Buyer which could  be
\nencashed  in  the  event  the  Vendors  do  not  settle  the  dues  of  the employees\/contract workers at the time of “completion\/transfer of lease” in favour of the Buyer. It is pleaded that the first defendant (Buyer) paid an amount of Rs. 18,61,561\/- to the employees\/contract workers but the Vendors did  not make the payment of this amount to the Buyer claiming  that  under
\nclause  15.1 of the agreement, the lease of the salt unit in favour of  the Buyer  by  the Government of Tamil Nadu, was not effected.  Therefore,  the right  to claim such payment under the agreement had not accrued in  favour of the Buyer.\n<\/p>\n
4.   On  5.6.2000,  while  issuing summons in the suit and  notice  in  the application,  an ex parte ad-interim injunction was granted directing  that “till  the next date, the bank guarantees both dated 17.2.2000 be  not  encashed”.  On  14.7.2000 learned counsel for the plaintiff stated  that  the Bank  Guarantees in question would be kept alive pending further orders  of this court.\n<\/p>\n
5.   I  have  heard  learned counsel for the parties and  have  been  taken through the record.\n<\/p>\n
6.   Learned  counsel for the plaintiff, referring to recital of  the  Bank Guarantee  and Clause 15.1 of the agreement, argued that the  liability  of the  Vendors has not yet arisen; that they would become liable to pay  only when  the  lease of the unit in favour of the Buyer is transferred  by  the Government  of Tamil Nadu and not earlier and in this regard  reliance  was placed  on  the Supreme Court decision in  Hindustan  Construction  Company Limited Vs. State of Bihar and Others . Learned counsel for the  first defendant argued that as per the settled law, bank guarantee  is an independent contract between the bank and the beneficiary; that there is
\nno  allegation  of fraud or irretrievable injury in the suit and  that  the suit itself is not maintainable, therefore, the ex parte injunction is  not liable to be extended.\n<\/p>\n
7.   In order to appreciate the rival contentions, reference to clause 15.1 of the sale agreement in pursuance of which the bank guarantees in question were obtained and executed would be necessary. The same reads as under :\n<\/p>\n
       “15.1. The liability on account of Salary, Provident Fund, Gratuity, Leave Encashment, Superannuation, other such dues, etc.,  of  the  employees  upto the date of transfer shall be  that  of  the  Vendor\/Co-Vendor  as per separate statement of accounts  Schedule   VII  issued by the Vendor\/Co-Vendor. Confirmation in this  regard  of  each  individual  employee and the  same  counter-signed  and confirmed  by the individual employees and  the  Vendor\/Co-Vendor shall be provided to the Buyer by the Vendor\/Co-Vendor. The total
\n     amount,  thus, payable to the extent of Rs. 60,46,000\/-  detailed in  Schedule  VII  annexed  herewith  shall  be  secured  by  the  Vendor\/Co-Vendor by way of an unconditional Bank Guarantee of the  said  amount  in  favour the Buyer. The Buyer shall  be  free  to  encash  the said guarantee in the event the  Vendor\/Co-Vendor  do  not settle the dues of the employees contract workers at the time  of completion\/transfer of Lease in favour of the Buyer.\n<\/p>\n
8.   The Schedule VII referred to above in clause 15.1 reads as under:- <\/p>\n
\n \n\n  S C H E D U L E VII \n Vedaranium \n Outstanding payents to be secured against Bank Guarantees\n                                         Rs. lacs\n     Gratuity Permanent       19.96\n     Harvesting               29.23     49.19\n     Leave pay                          2.88\n     Bonus 1998-99\n     (Permanent & Harvesting)           9.95\n        \n                                        62.02\n\n \n\n<\/pre>\n
9.   The amount mentioned in clause 15.1 (Schedule VII) were secured by two unconditional  Bank  Guarantee executed by the second defendant  (bank)  in favour  of  the  first defendant (Buyer) for Rs. 57,55,000\/-  and  for  Rs. 4,46,645\/-. Clauses of both these bank guarantees are identical, which read as under:-\n<\/p>\n
     “THIS  GUARANTEE is being executed on this 17th day  of  January,      2000  by  Global Trust Bank Limited acting through  their  Bandra      Branch, Mumbai (hereinafter called the `Guarantor’) in favour  of      M\/s.  Gujarat  Heavy Chemicals Limited,  a  company  incorporated under the Companies Act, 1956 and having its registered office at  Bhikubhai  Chambers,  1st Floor, Swastik  Society,  Opp.  Punjabi   Hall,  Navrangpura,  Ahmedabad  –  380  009  (hereinafter  called   “GHCL”).\n<\/p><\/blockquote>\n
     WHEREAS GHCL, has entered into a MOU dated 9th October, 1998 with M\/s.  DCW Home Products Limited, having its Registered Office  at 645,  Anna Salai, Thousand Lights, hennai-600  006  (hereinafter   called the “Seller”)<\/p>\n
     AND  WHEREAS M\/s. DCW Home Products Ltd. (Seller.) on request  of GHCL, has agreed to provide an unconditional and irrevocable Bank  Guarantee to GHCL for an amount of Rs. 7,55,000\/- (Rupees  Fifty Seven  lacs  Fifty  Five Thousand only)  towards  liabilities  on account  of dues to the employees i.e., gratuity,  leave  salary, bonus  payable  to  the employees as provided  in  the  agreement pertaining to Vedaraniam.\n<\/p><\/blockquote>\n
     NOW THIS DEED OF GUARANTEE, witnessed as follows:-\n<\/p><\/blockquote>\n
     1. The amount of this guarantee shall be Rs. 57,55,000\/-  (Rupees Fifty Seven lac Fifty Five Thousand only).\n<\/p><\/blockquote>\n
     2. We do hereby guarantee and undertake to pay unconditionally to  GHCL  immediately on demand in writing any or all moneys  claimed  by  GHCL  under this guarantee without any  demure,  recourse  or  without any reference to the Seller.\n<\/p><\/blockquote>\n
     3.  This guarantee shall be operative and claim payable  unconditionally  without  reference to applicant at  Global  Trust  Bank Limited.\n<\/p><\/blockquote>\n
     4.  This guarantee shall remain in force upto 3 months  from  the date of issue of this Bank guarantee.\n<\/p><\/blockquote>\n
     5.  Unless a demand or claims under this guarantee is made on  us in writing on or before 16.4.2000, all rights of GHCL under  this  guarantee  shall be forfeited and we shall be relieved  and  discharged from liabilities hereunder.\n<\/p><\/blockquote>\n
     6.  This  guarantee shall not be determined or  affected  by  the  liquidation or winding up, dissolution or change in the constitution or insolvency of the Seller or of the antor but shall in  all  respects and for all purpose be binding and operative  until     payment of all moneys payable to GHCL.\n<\/p><\/blockquote>\n
     7. Notwithstanding anything contained herein.\n<\/p><\/blockquote>\n
     (i) Our liability under this Bank Guarantee shall not exceed  Rs. 57,55,000\/- (Rupees Fifty Seven Lac Fifty Five Thousand only).\n<\/p><\/blockquote>\n
     (ii) This Bank Guarantee shall be valid upto 16.4.2000.\n<\/p><\/blockquote>\n
     (iii)  We  are liable to pay the guaranteed amount or  any  party thereof under this Bank Guarantee only and only if you serve upon us a written claim or demand on or before 16.4.2000.\n<\/p><\/blockquote>\n
10.  The above noted two unconditional and irrevocable bank guarantees were executed  by  the bank – defendant No.2, in favour of the Buyer  to  secure payment  towards  the liabilities of the plaintiff; amount payable  to  the employees  i.e.  gratuity, leave salary, bonus payable  to  the  employees. Clause  15.1  of  the agreement provided that the Buyer shall  be  free  to
\nencash  the bank guarantee in the event the Vendor\/Co-Vendor do not  settle the   dues   of   the   employees\/contract   workers   at   the   time   of “completion\/transfer”  of lease in favour of the Buyer. The operative  portion of clause 15.1 provides:\n<\/p>\n
       “The  Buyer  shall be free to encash the said  guarantee  in  the  event the Vendor\/Co-Vendor do not settle the dues of the  employees\/contract  workers at the time of completion\/transfer  of  the lease in favour of the Buyer.”\n<\/p>\n
11.  The  stroke,  a  vertical or oblique line, is a  grammatical  sign  to
\nindicate  the  two  alternatives. The stroke  (\/)  between  the  expression completion\/transfer”  indicates that it envisaged two  alternative  situations.  One,  the “completion” and other the “transfer of the  lease”.  The completion is defined in the agreement itself to mean completion of  transaction including the sale and purchase of assets in the salt works.  Admittedly, the entire amount of sale consideration of Rs. 450 lacs has  already been received by the Vendors. The liability on account of salary, provident fund,  gratuity,  leave encashment, superannuation and other  dues  of  the employees payable by the Vendors were quantified in Schedule VII. The  sale and purchase of the business of the salt manufacturing unit stood completed on  the date when the possession of the said salt unit was handed  over  by the  Vendors and full nsideration was accepted by them. Thus,  the  first stage  envisaged  in  the clause 15.1 was reached. If the  payment  to  the workers\/employees,  for the period the salt unit was with the Vendors,  was to be held up until transfer of lease, there was no necessity of  providing the  other alternative. It would have been enough to say that  this  amount would become payable on ransfer of the lease of the salt unit in favour of the  Buyer  by the Government of Tamil Nadu and not arlier. It  could  not have been possible because statutory payments towards us\/Gratuity\/Provident Fund etc. could not wait till the lease is transferred in the name  of
\nthe  Buyer. It is admittedly the liability of the Vendors who have  already received full sale consideration. Under the facts and circumstances of  the case, these payments could not wait up till that stage.\n<\/p>\n
12.  It is true that the agreement provides that in case the Government  of Tamil  Nadu does not transfer the lease of the salt unit in favour  of  the Buyer, the entire unit would revert to the Vendors and they would be liable to  return the entire sale consideration. This amount is also secured by  a separate  Bank  Guarantee but this has no bearing on the liability  of  the
\nVendors to make good the payments made by the Buyer to the  workers\/employees  towards their onus\/provident fund\/gratuity etc. for and on behalf  of
\nthe  Vendors. Therefore, the argument of the learned counsel of the  plain-\n<\/p>\n
tiff  that the Vendors would become liable to pay the dues of  the  workers
\nonly  on the transfer of the lease in favour of the Buyer, is  not  acceptable.\n<\/p>\n
13.  Law with regard to the grant of injunctions against the encashment  of bank guarantees is now well settled by several authoritative pronouncements of  the  Apex  Court. In Uttar Pradesh State Sugar  Corporation  Vs.  Sumac International Limited,  the Supreme Court held:-\n<\/p>\n
  “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 realize 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 realization 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 the 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
\n     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.”\n<\/p>\n
14.  While  dealing with the question of fraud it has been held that  fraud has  to  be an established fraud. The following observations  of  Sir  John Donaldson, M.R. in Bolivinter Oil SAVs. Chase Manhattan Sank ,(1984) 1  All FR 351 CA were approved:\n<\/p>\n
  …The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand  for payment already made or which may thereafter be made will clearly  be  fraudulent.  But the evidence must be clear, both as  to  the  fact of fraud and as to the bank’s knowledge. It would  certainly  not normally be sufficient that this rests on the  uncorroborated statement of the customer, for irreparable damage can be done  to
\n     a  bank’s credit in the relatively brief time which  must  elapse  between the granting of such an injunction and an application  by  the bank to have it discharged”.\n<\/p>\n
15.  In  this  case there is no allegation of fraud, irretrievable  harm  or injustice.  The terms of the bank guarantee are clear and unambiguous.  The recital portion of the bank guarantee only refers to the MOU and the Agreement.  The recital is in the nature of preamble showing  the  circumstances under  which  the bank guarantees were being secured. The  bank  guarantees start with “Now this deed of guarantee witnesseth as follows”. By clause  2 of the bank guarantee, the bank undertook to provide to the first defendant –  GHCL,  the amount under the bank guarantee without any  demu*,  resource without  reference to the seller. Clause 3 of bank guarantee provided  that the guarantee shall be operative and claim payable unconditionally  without reference to the applicant (the plaintiff) by the Global Trust Bank.\n<\/p>\n
16.  The facts of the case in Hindustan Construction Company Limited’s case (supra) relied upon by the learned counsel for the plaintiff, were entirely different. The terms of the bank guarantee were held to be conditional upon the  happening  of a particular eventuality. That  eventality  having  not happened, it was held that the invocation of the bank guarantee itself  was not  proper.  However  in the present case recital of  the  bank  guarantee reveals  that  it referred to MoU dated 9th October, 1998 to  indicate  the background under which the same was secured by the Vendors in favour of the Buyer.  Under  clause 2, the bank unconditionally undertook to pay  to  the Buyer  immediately  on  demand in writing all moneys claimed  by  GHCL  the beneficiary  (first  defendant), under the guarantee,  without  any  demur,
\nrecourse  or  without  any reference to the seller. Clause 3  of  the  bank guarantee  further clarified that the guarantee shall be operative and  the claim payable unconditionally without reference to the applicant  (Vendors) by the bank. The bank guarantee represents an independent contract  between the bank and the beneficiary and both the parties are bound by the terms.\n<\/p>\n
17.  For  the  foregoing reasons the plaintiff has failed to make  out  any case  for continuing the ad interim injunction, restraining the  first  defendant,  its employees, agents, servants etc. from encashing\/invoking  the bank guarantee dated 17.2.2000 issued by the bank\/second defendant.  Therefore, ex-parte interim injunction dated 5.6.2000 in favour of the plaintiff is vacated. It may be mentioned here that on 14.7.2000 the plaintiff undertook  to  keep  the bank guarantees alive. Accordingly,  the  plaintiff  is directed  to  keep  the bank guarantees alive till further  orders  of  the court.\n<\/p>\n
18.  With the above directions the application is disposed of. No order  as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Dcw Home Products vs Gujarat Heavy Chemicals Ltd. & … on 11 September, 2000 Equivalent citations: 2000 (55) DRJ 362 Author: S Agarwal Bench: S Agarwal ORDER S.K. Agarwal, J. 1. The plaintiff has filed the suit for a decree of declaration and permanent injunction praying that the first defendant be restrained […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-200149","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nDcw Home Products vs Gujarat Heavy Chemicals Ltd. & ... on 11 September, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dcw-home-products-vs-gujarat-heavy-chemicals-ltd-on-11-september-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dcw Home Products vs Gujarat Heavy Chemicals Ltd. & ... on 11 September, 2000 - 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