{"id":218870,"date":"1998-05-29T00:00:00","date_gmt":"1998-05-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/uni-steel-corporation-vs-ms-skoda-export-co-ltd-anr-on-29-may-1998"},"modified":"2018-02-27T03:25:04","modified_gmt":"2018-02-26T21:55:04","slug":"uni-steel-corporation-vs-ms-skoda-export-co-ltd-anr-on-29-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/uni-steel-corporation-vs-ms-skoda-export-co-ltd-anr-on-29-may-1998","title":{"rendered":"Uni Steel Corporation vs M\/S. Skoda Export Co. Ltd., & Anr. on 29 May, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Uni Steel Corporation vs M\/S. Skoda Export Co. Ltd., & Anr. on 29 May, 1998<\/div>\n
Equivalent citations: 1998 VAD Delhi 543, 74 (1998) DLT 469, 1998 (46) DRJ 528<\/div>\n
Author: J Goel<\/div>\n
Bench: J.B.Goel<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
J.B. Goel, J. <\/p>\n
1. By this order two applications IA No. 10166\/97 of the plaintiff (Under  Order 39 Rules 1 & 2) and IA No. 11537\/97 of the defendant No.1 (Under  Order 39 Rule 4) of the Code of Civil Procedure (for short the ‘Code’) are  being disposed of.\n<\/p>\n
2. The plaintiff has filed the suit for declaration and injunction  against invocation of performance bank guarantee given by the defendant No.  2 on behalf of the plaintiff in favour of defendant No. 1 in the sum of Rs.  7.60 lakhs (being Bank Guarantee No.43\/95).\n<\/p>\n
3. Briefly the facts are that the work of laying of pipelines known as  Kandla-Bhatinda Pipelines Project had been awarded by Indian Oil Corporation Ltd., (for short IOCL) to the Consortium of defendant No. 1. The  latter in turn had awarded a sub-contract for supply of various steel pipes  of different dimensions, length, materials, standards and class to the  plaintiff, perhaps after inviting quotations and the terms and conditions  for the supplies, delivery period and manner of payments were stipulated in  the contract in writing as per Purchase Order No. KB-D-00-09-PUR-066 dated  15.7.1995, total value being Rs. 62,05,852.60. The plaintiff was required  to give a warranty-cum-performance guarantee in the form of a Bank Guarantee in the prescribed form with twelve months validity from the date of  delivery of the material. Time was of the essence of supplies. Plaintiff  furnished Bank Guarantee No. 43\/95 (copy Annexure 2) in the sum of Rs. 7.60  lakhs issued by Canara Bank, Hauz Qazi (defendant No. 2). It appears that  the supplies were not made within the agreed schedule and defendant No. 1  invoked the Bank Guarantee on 27.10.97. The plaintiff has challenged it. It  is alleged that the defendant had made changes in the purchase order sever- al times about the specifications and quantities to be supplied by amend- ments made on 12.8.95, 31.8.95, 11.9.95, 8.11.95 and 20.3.95 (Copies Annexures 3-7), that the validity of Bank Guarantee was got extended till  30.10.97 by the defendant unreasonably though the plaintiff had completed  the delivery in accordance with the purchase orders as modified, by 12.4.96  without any delay, the Bank Guarantee was valid for a period of 12 months  from this date till 12.4.97 but it was not released inspite of demands made  on 12.4.97 (copy Annexure 8). The supplies were made without any default or  delay on the part of the plaintiff and the delay, if any, was caused due to  acts or omissions on the part of the defendant; first because purchase  orders were amended, secondly they did not inspect the goods in time and  thirdly despatch instructions were not given in time. Time for supply of  the goods because of amendments made ceased to be of the essence of the  contract and was waived. In any case, there was delay only in respect of  very small quantities and the defendant is not entitled to claim whole of  the amount of penalty stipulated for the total supplies to be made. And the  invocation of the Bank Guarantee is illegal, fraudulent and not warranted  in the circumstances.\n<\/p>\n
4. In IA No. 10166\/97 vide order dated November 5, 1997 an ex parte ad  interim injunction was passed restraining the defendant from invoking the  Bank Guarantee which has been extended. The defendant filed written state- ment, reply to plaintiff’s application and IA No. 11537\/97 for vacating the  ex parte injunction, contesting the suit as well as the grant of interim  order on various legal pleas, alleging that the suit is not maintainable,  the plaintiff is guilty of deliberate suppression of arbitration clause,  seeking restraining from invocation of the Bank Guarantee is not proper, it  is against the settled principles of law; the suit is not properly valued  for purposes of court fees and the process of the court has been misused.  On merit it is alleged that no substantial changes were made in the pur- chase order except some insignificant changes in specifications and some  quantity of material to be omitted or reduced and some additional items  added for supply of which time was given. These changes were effected with  mutual consent and other terms and conditions remained unchanged, time  always remained of essence. The contract provided for levy of penalty on  prescribed scale. As the plaintiff did not make supply of the material  during agreed period, and as there is breach of the contract, the defendant  is entitled to impose penalty and to invoke bank guarantee. The plaintiff  has no say in the matter of invocation of the bank guarantee, which is an  independent contract between the defendant and the bank. The invocation has  been made in accordance with the terms of the Bank Guarantee. Interim order  has been passed because of misrepresentation made and the plaintiff is not  entitled to the same.\n<\/p>\n
5. Learned counsel for the plaintiff relying on Charles Rickards Ltd. Vs.  Oppenheim (1950) 1 All E.R. 420 (CA) and M\/s. Mohinder Singh & Co. Vs.  Executive Engineer Jammu & Central Construction Division CPWD & Others AIR  1971 J&K 130 has contended that as the contract of supply as contained in  purchase order dated 15.7.1995 was amended five times as per Annexures 3 to  7 and with the extension of time for supply, the condition of time being of  essence of the contract became unenforceable or was waived and in the  absence of fresh agreement making it again of the essence of the contract,  this condition is not available to entitle the defendant to claim damages  for delay, if any, in the supplies and the bank guarantee stood discharged  and is not enforceable and it was fraudulent on the part of the defendant  to have invoked the same. Also that the whole of the amount of bank guaran- tee cannot be claimed as the delay, if any, was in respect of only some  items and of small quantities. For this reason also, invocation of bank  guarantee is fraudulent and irreparable loss will be caused to the peti- tioner. Further that the supplies were made by 12.4.1996; the bank guaran- tee was for 12 months and it was got extended unreasonably and could be  enforced by 12.4.1997 only and it has been wrongfully invoked on  27.10.1997.\n<\/p>\n
6. To this, learned counsel for the defendant has contended that this is  not correct, first the contract was not materially changed except minor  changes whereby some additional items were added and some were reduced or  cancelled and whenever the purchase order was amended, time for delivery  whenever necessitated was specified and time remained of the essence of the  contract, that the bank having made unconditional and absolute promise to  honour the bank guarantee could not refuse to honour their commitment and  what could not be done directly by the bank, the same cannot be done indi- rectly by the plaintiff. Plaintiff has got no right to interfere in the  invocation as this is an independent contract between the bank and the  defendant, the beneficiary. The principles for issuing injunction order  restraining the enforcement of bank guarantee are well established and no  case is made out for the grant of injunction in this case.\n<\/p>\n
7. The principles governing the grant of injunction against invocation of  the bank guarantee are well established. It was held in M\/s. Tarapore &  Co., Madras Vs. M\/s. V\/O Tractoro Export Moscow & Another   that the opening of a confirmed letter of credit constitutes a bargain  between the banker and the seller of the goods which imposes on the banker  an absolute obligation to pay. It is independent and unqualified by the  contract of sale or other underlying transaction between the buyer and the  seller. The autonomy of an irrevocable letter of credit is entitled to  protection and except in very exceptional circumstances courts should not  interfere with that autonomy. These observations a fortiori apply to a bank  guarantee. Centax (India) Ltd. Vs. Vinmar Impex Inc. & Others .\n<\/p>\n
8. A letter of credit constitutes the sole contract with the banker, and  the bank issuing the letter of credit has no concern with any question that  may arise between the seller and the purchaser of the goods. The rule is  well established that a bank issuing a confirmed letter of credit is not  concerned with the underlying contract between the buyer and the seller.  Duties of a bank under a letter of credit are created by the document  itself but in any case it has the power and is subject to the limitations  which are given or imposed by it, in the absence of the appropriate provisions in the letter of credit. In view of the banker’s obligation under an  irrevocable letter of credit to pay his buyer – customer cannot instruct  him not to pay. The bank which gives a performance guarantee must honour  that guarantee according to its terms. The courts would do their utmost to  enforce it according to its terms. United Commercial Bank Vs. Bank of India  & Others . The scope of this has also been considered by  the Supreme Court in the case of UP Cooperative Federation Ltd. Vs. Singh  Consultants and Engineers Pvt. Ltd.  where his Lordship  Mukharji, J. after referring to the case law both Indian and English ob- served that in order to restrain the operation either of irrevocable letter  of credit or of confirmed letter of credit or of bank guarantee, there  should be a serious dispute and a good prima facie case of fraud and spe- cial equities in the form of preventing irretrievable injustice between the  parties. Commitments of banks must be honoured free from interference by  the courts otherwise trust in commerce – internal and international would  be irreparably damaged. It is only in exceptional cases, that is to say, in  case of fraud or in cases of irretrievable injustice that the Court should  interfere otherwise the very purpose of bank guarantees would be negatived  and the fabric of trading operation will get jeopardised.\n<\/p>\n
9. And in the same judgment his Lordship Shetty, J. also reiterated the  principles as under :-   “Whether it is a traditional letter of credit or a new device   like performance bond or performance guarantee, the obligation of   bank appears to be the same. If the documentary credits are   irrevocable and independent, the banks must pay when demand is   made. Since the bank pledges its own credit involving its reputa-  tion, it has no defense except in a case of fraud. But, the   banker must be sure of his ground before declining to pay. The   fraud should be of an “egregious nature as to vitiate the entire   underlying transaction”. It is fraud of the beneficiary, not the   fraud of somebody else. And in such cases, it would be proper for   the bank to ask the buyer to approach the court for an injunc-  tion. The court, however, should not lightly interfere with the   operation of irrevocable documentary credit. In order to restrain   the operation of irrevocable letter of credit, performance bond   or guarantee, there should be a serious dispute to be tried and   there should be a good prima facie act of fraud.”\n<\/p>\n
10. It was also explained in that case that one cannot do indirectly what  one is not free to do directly. The basic nature of the case relates to the  obligations assumed by the bank under the guarantees given to the appellant. If under the law, the bank could not be prevented by the respondent  from honouring the credit guarantees, the appellant also cannot seek restraint from invoking the guarantee. What applies to the bank must equally  apply to the appellant. It was further held that the question of examining  the prima facie case or balance of convenience does not arise if the Court  cannot interfere with the unconditional commitment made by the bank in the  guarantee.\n<\/p>\n
11. The same principles have been emphasised in Svenska Handelsbanken Vs.  Indian Charge Chrome & Others  where also it has been  laid down that in case of confirmed bank guarantees\/irrevocable letters of  credit, it cannot be interfered with unless there is fraud and irretrieva- ble injustice involved in the case. Fraud has to be an established fraud.  Not only the ground of fraud be pleaded but material and evidence should  also show it. As held in ALN Narayanan Chettyar Vs. Official Assignee, High  Court of Rangoon, AIR 1941 SC 93 [which has been referred to with approval  in Svevska case  :-   “Fraud like any other charge of a criminal offence whether made   in civil or criminal proceedings, must be established beyond   reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture.”\n<\/p>\n
12. Irretrievable injury is of the nature as noticed in the case of Itek  Corpn Bank (566 Fed Supp. 1210, 1217).\n<\/p>\n
13. These principles have been repeatedly reiterated and more recently in  U.P. State Sugar Corpn. Vs. Suman International Ltd.  and  Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd. &  another .\n<\/p>\n
14. Broadly, the facts are, Annexure 1 to the plaint is the Purchase Order  dated 15.7.1995 signed by both the parties. Details of materials to be  supplied is given in it. Total price of the material is Rs. 62,05,852.60;  terms for payment and supply are agreed, the plaintiff was to furnish  warranty for quality and a performance guarantee. Time schedule for supply  of the material item wise was specified. Under Clause VI, time is made of  the essence. Clause XII provided for consequences of delay in making the  delivery on time of any item for which penalty @ 1% of the price of the  purchase order for each week or part thereof subject to a maximum of 10% of  the price of the purchase order was specified. Performance Bank Guarantee  No. 43\/95 dated 4.12.1995 (Annexure 2 to the plaint) given by defendant No.  2 inter alia stipulated that :-   “We Canara Bank, Hauz Qazi, Delhi ……. do hereby uncondition-  ally and irrevocably undertake to pay to the CONTRACTOR ……..   on first demand in writing without protest or demur or proof of   condition any and all amounts from time to time stated as due to   the CONTRACTOR from the SUBCONTRACTOR with reference to the   SUBCONTRACT up to an aggregate limit of INR Rs. 7,60,000\/-   (Indian rupees Seven lac sixty thousand only exactly).”\n<\/p>\n
15. And the bank further agreeing that:-\n<\/p>\n
 “(iv) The amount stated by the CONTRACTOR in any demand claim or   notice as due to the CONTRACTOR from the SUBCONTRACTOR shall as   between the BANK and the CONTRACTOR for the purpose of these   presents be conclusive of the said amount and of the BANK’s   liability to the CONTRACTOR hereunder.\n<\/p>\n
 (v) The liability of the BANK to the CONTRACTOR under this guarantee and or undertaking shall remain in full force and effect   notwithstanding the existence of any difference or dispute be-  tween the SUBCONTRACTOR and the CONTRACTOR the SUBCONTRACTOR and   the BANK and or the BANK and the CONTRACTOR or otherwise howsoev-  er touching or affecting these presents or the liability of the   SUBCONTRACTOR to the CONTRACTOR and notwithstanding the existence   of any instructions or purported instructions by the SUBCONTRAC-  TOR or any other person to the BANK not to pay or for any cause   to withhold or defer payment to the CONTRACTOR under these   presents with the intent that notwithstanding the existence of   such difference dispute or instruction the BANK shall be and   remain liable make payment to the CONTRACTOR in terms hereof.\n<\/p>\n
 The purchase order was amended vide letter dated 12.8.1995 (Annexure 3  to the plaint) duly signed by both the parties thereby replacing Schedule  A-1 by Schedule A-1\/a. By this only one item was added and some changes  were made in the items earlier agreed. It was specifically mentioned in  this amendment that “all other articles according to the basis purchase  order No. KB-D-00-09-PUR-066 dated 15.7.1995 are valid without any  changes.” The purchase order was again amended vide letter dated 31.8.1995  (Annexure 4 to the plaint) whereby Enclosure No. A-1\/a was replaced by  Annexure A-1\/b and thereby some more items were added, some quantities were  reduced or increased, the total price agreed for the amended schedule if  items amended to Rs.70,99,438.60. This also specifically provided that the  terms mentioned in the purchase order dated 15.7.1995 are valid without any  changes. The purchase order was again amended vide letter dated 11.9.1995  (Annexure 5 to the plaint) thereby replacing Schedule A-1\/b by Schedule C-1\/c making similar additions\/deletions in the items to be supplied and the  total price of the purchase order was amended to Rs. 71,91,048.07. This  also specifically provided that the basic terms and conditions agreed in  purchase order dated 15.7.1995 were valid and without any changes. Vide  another letter dated 8.11.1995 (Annexure 6 to the plaint), the purchase  order was further amended thereby replacing Schedule C-1\/c by Schedule D- 1\/d and making following changes :-\n<\/p>\n
 “Item No. 45 quantity is increased by 20m to 20m.\n<\/p>\n
 Item No.81 is increased by 14m to 94m.\n<\/p>\n
 Items No. 88,89,90 are amended …… The total price of amended   pipes is Rs. 4,38,125\/-.\n<\/p>\n
 Further, total purchase order price is also adjusted to   Rs.76,29,173.07.\n<\/p>\n
 Delivery Time   <\/p>\n
 Items No.81 and 88 shall be delivered by 25.12.1995.\n<\/p>\n
 All the other materials are ex-stock and shall be offered for   inspection immediately after the date of signature of this varia-  tion purchase order and will be despatched by 25.12.1995 at the   latest.”\n<\/p>\n
16. This amendment also provided that other terms and conditions of basis  purchase order dated 15.7.1995 are valid without any changes. The purchase  order was further amended on 20.3.1996 (Annexure 7 to the plaint) which was  signed by both the parties and the changes were as under :-\n<\/p>\n
 “Item No. 90 – Pipe 20” : Quantity to be delivered is as per the   despatch clearance yet to be obtained from IOCL but not more than   34m.\n<\/p>\n
 Whichever further balance item\/quantity resulting from the pur-  chase order and undelivered till this day is hereby cancelled   without any liability on either side.”\n<\/p>\n
17. In the circumstances, prima facie, it cannot be said that the contract  between the parties which originally contained the condition of time being  of the essence of the contract was waived or was not specified after the  amendments were made. All the amendments specifically provided that other  terms and conditions remain unchanged which necessarily will include that  the time remained of the essence of the contract. This is not the final  opinion of this Court as the disputes that have arisen between the parties  have to be gone into in accordance with the agreement between the parties  whereby they have agreed in clause XVI that in the event of disputes or  differences between the parties, the same shall be resolved through arbi- tral tribunal as agreed. The terms of the bank guarantee are absolute and  the dispute, if any, between the buyer and seller is not a ground not to  honour the commitment by the Bank.\n<\/p>\n
18. The function of the Court is simply to see whether the bank guarantee  was invoked in accordance with the terms and conditions as agreed in the  bank guarantee. The relevant terms of the bank guarantee have already been  reproduced. These terms are absolute and constitute an absolute obligation  on the part of the bank to honour the same. There is no fraud proved,  involved, nor from this material, it can be said that there was any fraud  on the part of the defendant No.1 when the bank guarantee was given nor it  can be said that any irretrievable loss is being caused by enforcing the  bank guarantee. It is not disputed that the validity of the bank guarantee  had been extended upto 30.10.1997 and the invocation has been made on  27.10.1997, i.e., within the extended period when the bank guarantee was  still valid. The bank was bound to honour it, the plaintiff has no better  right. As noticed above, what cannot be done directly cannot be done indirectly. Plaintiff also is bound and cannot interfere in the invocation of  the bank guarantee. The question\/dispute raised by the plaintiff cannot be  gone into by this Court and would be decided in the forum and by the Tribu- nal as agreed by the parties.\n<\/p>\n
19. In the circumstances, it cannot be said that there is any illegality  or infirmity in the defendant No.1 invoking the bank guarantee No. 43\/95  furnished by defendant No. 2. The plaintiff is not thus entitled to any  interim injunction. Their application I.A. 10166\/97 is accordingly dis- missed and I.A. 11537\/97 of the defendant under Order 39 Rule 4 is allowed  with costs. The interim ex parte injunction dated November 5, 1997 which  has been extended from time to time is hereby vacated. As the defendant No.  2 failed to fulfill its obligation on demand unreasonably, it shall also pay  interest along with the amount of bank guarantee @ 18% per annum from  27.10.1997 till payment to the defendant No.1.\n<\/p>\n
20. Costs for these proceedings assessed at Rs. 5,000\/- to be paid by the  plaintiff to defendant No.1.\n<\/p>\n
21. I.As. 10166\/97 and 11537\/97 are disposed of accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Uni Steel Corporation vs M\/S. Skoda Export Co. Ltd., & Anr. on 29 May, 1998 Equivalent citations: 1998 VAD Delhi 543, 74 (1998) DLT 469, 1998 (46) DRJ 528 Author: J Goel Bench: J.B.Goel JUDGMENT J.B. Goel, J. 1. By this order two applications IA No. 10166\/97 of the plaintiff (Under Order […]<\/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-218870","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nUni Steel Corporation vs M\/S. Skoda Export Co. 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