Full Text
HIGH COURT OF DELHI
Date ofdecision:29"'November,2019 O.M.P.(I)
(COMM.)428/2019 MADHUCN PROJECTS LTD.
Petitioner
Through: Mr. Dayan Krishnan, Sr. Adv. with Mr. Amitabh Chaturvedi, Mr.Suryadeeep Singh, Mr. Sumit Kumar Shukla and Ms. Radha R.
Tarkar,Advs.
Through: Ms. Padrna Priya and Mr. Dhruv Nayar,Advs.for R-1.
JUDGMENT
1. The present petition-'has^heem by the petitioner with the following prayers: "In view ofthe aforegoingfacts arid circumstances, it is most respectfully prayed that this Hon'ble Court may graciously bepleased to: a. restrain the respondent No.1 during the pendency and until conclusion ofthe Arbitralproceedings, by way ofa temporary order and injunction,from encashing/ invoking or taking any precipitative steps or receiving any monies under the Performance Bank Guarantee of OMP(I)(COMM)428/2019 Page1of18 2019:DHC:7654 Rs.29,77,12,501/-, numbered as 16340100003675 issued on 16.6.2015 (valid till 30.11.2021) and the Retention Money Bank Guarantee ofRs.4,36,62,265/-numbered as 16340100007637 issued on 03.10.2017 (valid till 30.12.2019) issued by Axis Bank Ltd, f Floor No.6- 879-B, Green Lands, Begumpet Road, Hyderabad- 500016 infavour ofthe Chairman, National Highways Authority ofIndiafor the Project Work as per Letter of Acceptance dated 17.03.2015 along with Contract Agreementdated 08.04.2015; b. restraining the respondent No.2 Bank from releasing any funds to the-respondent No.l Authority under the Performance; Bank Guarantee of Rs.29,77,12,501/-, nurhbered as 16340100003675 issued on 16.6.2015 (validJill 30,11.2921) and the Retention Money Bank Guaranteb bfRs.%3l[5],62,265/-numbered as 16340100007637 jssjed;:ppfi03.10.2017 (valid till 30.12.2019) issued by Axis Bank Ltd, P'Floor No.6- 879-B, Green Lands, Begumpet:Road, Hyderdbad- 500016 infavour oftkie'Chairman, National Highways Authority ofIndia, Bank Guarantees being numbered as 16340100005308 in favour ofthe Chairman, National Highways Authority ofIndia till thefinal disposal ofthe arbitration proceedings between the petitioner and the respondentNo[1]; OMP(I)(COMM)428/2019 Page2of18 c. direct the respondent Nos.1/2 to release/return the said Bank Guarantee i.e. the Performance Bank Guarantee of Rs.29,77,12,501/-, numbered as 16340100003675 issued on 16.6.2015 (valid till 30.11.2021) and the Retention Money Bank Guarantee ofRs.4,36,62,265/-numberedas 16340100007637issued on 03.10.2017 (valid till 30.12.2019) issued by Axis BankLtd, P'Floor No.6-879-B, Green Lands,Begumpet Road, Hyderabad-500016 in favour of the Chairman, National Highways Authority ofIndia for the Project Work as per Letter of Acceptance dated 17.03.2015 along with ContractAgreementdated08.04.2015; d. grantad interim ex-parte reliefin terms ofthe above prayer; e. grant costs cftins:pei^on^and ofthe proceedings initiated thereunder;qndii 'ffff. grant any other orfurther relief that this Hon'ble High Court deems fit and proper in the facts and circumstances ofthe case rridy^also be granted infavour ofthepetitioner andagainstthe respondents. Prayed accordingly."
2. Mr. Dayan Krishnan, learned Sr. Counsel appearing for the petitioner submits that underthe contractofApril 8,2015,petitioner was required to provide three types of bank guarantees to NHAI as mentioned below: OMP(I)(COMM)428/2019 Page3of18 (a) Performance Bank Guarantee; To secure the performance ofthe contract as per Clause 7.1. (b) Advance Bank Guarantee: To secure the advances given by the NHAI to the petitioner to enable it to carry out the project under Clause 19.2.3.
(c) Retention Money Bank Guarantee: To secure the release of monies released, which were otherwise to be held back as retention monies in terms ofclause 7.5.1.
3. He fairly stated that the present petition confines only to Performance Bank Guarantee of^^29,77,12,501 and Retention Money Bank Guarantee of ^4,36,62,265/- as the third Advanced Bank Guarantee furnished by the petitioner fdf approximately ?35 Crores has already been encashed by the NHAI on August 28,2018. He stated that I - in relation to Performance Bank Guarantee as given by the petitioner in terms of clause 7.[1] ofthe hpritrdGtappre^^^ invocation ofthe said Performance Bank Guarantee,the petitionerhad approached this court in OMP(I)COMM 397/2018. The said\petition was disposed ofvide order ^ dated October 8, 2018 recording the understanding that NHAI would issue a notice of one week to the petitidnef before invoking the Bank Guarantee. He submitted that the said order had also recorded that NHAI would consider the petitioner's representation for the proportionate reduction of performance security from ?29.77 Crores to ^21.35 Crores as there has been descoping in the project due to conversion of rigid payment to flexible payment and removal of Thiruvarur Bypass causing a reduction of the contract value from ^396.95 Crores to ^280.12 Crores. He stated that the NHAI has not OMP(I)(COMM)428/2019 Page4of18 accepted or rejected the petitioner's representation for proportionate reduction of performance security to ?21.35 Crores. Be that as it may, he also stated that there are numerous breaches on the part ofthe NHAI in facilitating the completion ofthe project and the same was brought to the notice of NHAI by the petitioner vide letter dated September 26,
2018. He stated that in the light ofthese circumstances, the petitioner was of the opinion that the force majeure circumstances in terms of clause 21 had arisen and accordingly, the petitioner had initiated the process oftermination ofthe contract under clause 21 inasmuch as vide letter dated February 4,2019,petitioner invoked 15 days' notice period for termination in terms of clause.21.[7] giving notice of intention to terminate. Finding no response,finally'oh February 21,2019, after the period of15 days,the petitioner terraihated the contract.
4. It was the endeavour of Mr. Krishnan to state that the petitioner having already terminated the contract dn account ofbreaches ofNHAI, the correctness and incorrectness;df.theftemiination by the petitioner and the payment due to the pbtitipner4asl^^^^^^^ by the Arbitral Tribunal. He stated that the petitionerimmediately after the termination A ofthe contract on February 21,2019 had asked the respondent NHAIfor returning of the Performance.Bahk^^^ and Retention Money Guarantee in terms of clause 23.6.[2] vide letters dated April 23, 2019; June 13,2019;July 10,2019;July 22,2019 and July 30,2019. In fact,it has been his endeavour to submit that NHAI has accepted the termination by the petitioner and had also resumed the dispute resolution mechanism and in that regard, NHAI vide its letter dated July 8, 2019 had requested the petitioner to refer the dispute to NHAI Engineer for mediation and to assist the party in arriving at an amicable settlement in OMP(I)(COMM)428/2019 Page5of18 terms of clause 26.2. Since, NHAI failed to respond to requests for mediation despite initial instances on the same by the NHAI on July 8, 2019,petitioner nominated its Arbitrator and had requested the NHAI to appoint its Arbitrator. Surprisingly, despite earlier termination of the contract by the petitioner on February 21,2019 and pending process of dispute resolution between the parties suddenly on November 19,2019, NHAI issued a notice for termination to the petitioner merely 9 months after the termination ofthe contract by the petitioner. He submitted that on coming to know about the inclination of NHAI to invoke the Performance Bank Guarantee from the bank officials on November 20, 2019 withoutinforming the petitioner in terms oforder dated October 8, 2018,the petitioner immediately wrote to NHAI on November 20,2019. Accordingly,the presentpetition haabeen filed by the petitioner.
5. The submission ofIVfr. Kfishn regard to the invocation of the Performance Bank Guarantee and the Retention Bank Guarantee was that it primarily amounts:to fr^d.-;^ regard, he stated that the contract between the parties stood terminated by the petitioner on February 21,2019 and that as indicated from the correspondence above, NHAI had itself resorted to the dispute resolution mechanism, then NHAI cannot be allowed to re-terminate the contract only to facilitate the invocation of bank guarantees by the NHAI. That apart, he stated that once the contract was terminated by the petitioner on February 21, 2019, NHAI cannot be allowed to re-terminate claiming breach of performance by the petitioner as the disputes and claims from termination ofthe contract by the petitioner as on February 21,2019 has to be adjudicated by the Arbitral Tribunal. That apart, it was his submission that the bank guarantees can only be invoked for non- OMP(I)(COMM)428/2019 - Page6of18 perfonnance by the petitioner and once the contract is terminated,there is no question ofany performance ofthe contract by the petitioner. That apart, he stated that despite clear obligation in the contract under clause 23.6.2, requiring NHAI to return the bank guarantees and NHAI failing to do so cannot be allowed to use the device oftermination to invoke the bank guarantees. In substance,it was his plea that the invocation ofthe bank guarantees by NHAI is malafide and amounts to fraud. That apart, he also stated that irretrievable harm or injury or injustice ofsuch nature shall be caused to the petitioner that would not leave the petitioner with any legal remedy adequate to compensate its injuries as even the realization or recovery ofthe amotiht which is reflected in the said bank guarantees, by the petitioner from the respondent NHAI in the event of the petitioner succeeding in the arbitfation, would not be sufficient. • Further, existence of special equities in favour of the petitioner and against the respondent are mad,e put in the peculiar facts and circumstances ofthe case.;Mnii^shn relied upon thejudgment of the Supreme Court in theidase^ Company vs. State ofBihar1999(8)SCG436in supportofhis submission.
6. On the other hand, Ms. Padma Priya, learned counsel for the respondent NHAI would >6ppdsd'thejp^itiori by stating that so-called termination effected by the petitioner is no termination in the eyes of law,inasmuch as the petitioner as per the clause 21.7.[1] ofthe agreement was require to give 15 days' time notice, which was not given. It was her submission that the invocation of clause 21.7.[1] ofthe agreement is for force measure event and not for reasons attributable to the respondents. OMP(I)(COMM)428/2019 Page 7of18./
7. That apart,she stated thatthe bank guarantees being separate and independent contractfrom the main agreement,it is only the terms ofthe bank guarantees which need to be seen tojustify that the invocation has been done by the Competent Authority, whose satisfaction is paramount, properly. It was her submission that invocation being in terms of the conditions of the bank guarantees, the same cannot be interdicted. In this regard,she has relied upon thejudgment ofthe Supreme Courtin the case of Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co., (2007)8see110.
8. That apart,it was her submission thatthe bank guarantees having been furnished in relation to infrastructure project,in view ofSection 41 (ha)ofthe Specific Relief Act,this Court would not like to interdict the invocation ofthe bank guarantees as it'is specifically barred under that section.; V
9. That apart, it was her submissipn that the three conditions laid down by the Supreme Court!Top.inte^^ invocation are that the invocation has not been nfadeydniterrh^9^ihe bank guarantees;fraud of an egregious nature has been played which would vitiate the very ^ foundation of such a bank guarantee and allowing encashment of an unconditional bank guarantee wbiild result in irretrievable harm,have to co-exists for the petitioner to succeed in this petition. She submits,none ofthe conditions have been pleaded in this case.
10. She stated that even the case offraud pleaded by the petitioner is superficial without any substance. It was her submission that the fraud has to be ofsuch nature which would vitiate the very foundation ofbank guarantee, which is not the case herein. In fact as per her,submissions made by Mr. Dayan Krishnan, are relatable to the main contract which OMP(I)(COMM)428/2019 Page8of18 VD this Court shall not consider, when the issue regarding invocation of bank guarantees is being considered. She also submitted,the invocation is pursuant to the termination of the agreement effected by the respondent. In the end,she submits thatthe invocation being in terms of the bank guarantees, is justified. This Court will not interfere with the impugned action ofthe respondents.
11. In rejoinder, Mr. Dayan Krishnan has controverted the submissions made by the learned counsel for the respondent NHAI. He has drawn my attention to the reply given by the petitioner to the cure notice issued by the respondent NHAI and more specifically at page 548 ofthe documents to highlightthe stand ofthe petitioner in that regard.
12. Having heard the learned counsel for the parties, the only issue which arises for consideration in this petition is whether the invocation of advance bank guarantee arid retentibri money bank guarantee by the respondent NHAI is justified. Before Iranswer the issue, it is necessary to cull out the position'vbfvia^pwith<^^^ to invocation of bank guarantees. The Supreril^. GpjirtiT^ of Himadri Chemicals IndustriesLtd.(supra),has held as urider: "10. The law relating to grant or refusal to grant injunction in the mdtfer ■^ of a Bank Guarantee or a Letter ofCredit is now well settled by a plethora ofdecisions not only ofthis court but also ofthe different High Courts in India. In UP. State Sugar Corporation Vs. SumacInternationaTLtd.[(1997)1 SCC 568], this court considered its various earlier decisions. In this decision, the principle that has been laid down clearly on the enforcement of a Bank guarantee or a OMP(I)(COMM)428/2019 Page9of18 Cxi) Letter ofCredit is that in respect ofa Bank Guarantee or a Letter of Credit yvhich is sought to be encashed by a beneficiaty, the bank givingsuch a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. Accordingly this Court held that the courts should be slow in granting an order of injunction to restrain the realization of such a Bank Guarantee. It has also been held by this court in that ^ decision that the existence ofany dispute between the parties to the contract is not a ground to restrain the enforcement of Bank guarantees or Letters of Credit. However this court made two{exceptionsfor grant ofan order ofinjunction to restrain the enforcementofa Bank Guarantee or a Letter ofCredit, (i) Fraud committed in the notice of the bank which would vitiate the vkry foundation ofgiigrahieejfiifjhjustice ofthe kind which would make it impossiblefor the'/guarantor to reimburse himself. -
11. Except under these circumstances, the courts should notreadily issue injunction tofestrdin the realization ofa Bank Guarantee or a Letter ofCredit. Sofar as thefirst exception is concerned, i.e. offraud,one has to satisfy the court that the'fraud in connection with the Bank Guarantee or Letter of Credit would vitiate the very foundation ofsuch a Bank Guarantee or Letter ofCredit. Sofar as the second exception is concerned, this court has held in that decision that it relates to cases where OMP(I)(COMM)428/2019 ^ Page10of18 allowing encashment ofan unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. While dealing with the case of fraud, this court in the case of U.P. Coop. Federation Ltd. Vs. Singh Consultants and Engineers(P)Ltd.(1988) 1 see 174 heldasfollows: Thefraud must be ofan egregious nature such as to vitiate the entire underlying transaction. While coming to a conclusion as to what constitutes fraud, this court in the above case quoted with approval the observations of Sir John Donaldson, M.R. in Bolivinter Oil SA V/s. Chase.Manhattan Bank (1984) 1 AllER 351 atp. 352g-h which is asfollows: "The wholly exceptional case where an injunction may be granted is wherejt is proved that the bank knows that qhy d' eptanffg^payment already made or which mayfkereafjier m^ will clearly be fraudulent. Butthe evidence must be clear both as to thefact offraud and as to the bank's knowledge.It would certdirily ndfhdrmqily'h^ sufficient that this rests on the uncorroborated statement of the customer,for irreparable damage can be done to a bank's Credit in the relatively brieftime which must elapse between the granting ofsuch an injunction andan application by the bankto have itcharged." (Emphasissupplied) OMP(I)(COMM)428/2019 Page11 of18
13. Similarly, in Vinitec Electronics Private Ltd. v. HCL Infosystems Ltd., (2008) 1 SCC 544, the Supreme Court has held as under: "11. The law relating to invocation ofbank guarantees is by now well settled by a catena ofdecisions ofthis Court. The bankguarantees which provided that they arepayable by the guarantor on demand is considered to be an un- conditional bank guarantee. When in the course ofcommercial dealings, unconditional guarantees have been given or accepted the beneficiary is entitled to realize such a bank guarantee in terms thereofirrespective ofany pending disputes. In U.P. State Sugar Corporation v. Sumac International Ltd. MANU/SC/0380/1997:AIRI997SC1644:, this Court observed that: The law relating to inyocatidh ofsuch bankguarantees is by now well settled. When in the course ofcommercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in:jekfm)fhere0 irrespective of any pending disputes,jThelfank gndpgesuch a guarantee is bound to honour it ds^per.'4^SrI0ms irrespective ofany dispute raised by its cusfdmer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts should,;:ther^^^ be slow in granting an injunction to resti^aih the realization ofsuch 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 ofsuch a bank guarantee. Hence ifthere is such afraud ofwhich the beneficiary seeks to take advantage, he can be restrainedfrom doingso. Thesecond 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 OMP(I)(COMM)428/2019 Page12of18 I J concerned. Since in most cases payment ofmoney under such a bank guarantee would adversely affect the hank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be ofsuch an exceptional and irretrievable nature as would over ride the terms ofthe guarantee and the adverse effect ofsuch 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 wellsettled 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 ofno consequence. In BSES Limited(Now Reliance Energy Ltd.) V. Fenner India Ltd.''and.Anr.,MANU/SC/0741/2006: AIR2006SC1148 this Courtheld/; ■
10. There are, hOw^vekFt^p dfd^jpns to this Rule. The first is when thereds a^cldqfjrauyi/dfwhich the Bank has notice and afraud ofthe beneficiaryfrom which itseeks to benefit. Thefraud must be ofan egregious nature as to vitiate the entire undeHying transaction. The second exception to thegeneralrule Sfridh- intervention is when there are 'special equities' infavour ofinjunction, such as when 'irretrievable injury' or 'irretrievable injustice' would occur ifsuch an injunction were notgranted. The general rule and its exceptions has been reiterated in so manyjudgments ofthis Court, that in U.P. State Sugar Corporation v. Sumac International Ltd. MANU/SC/0380/1997: AIR1997SC1644 (hereinafter 'U.P. State Sugar Corpn) this Court, correctly declare that the law was 'settled'. OMP(I)(COMM)428/2019 Page13of18 oD>
13. In Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company MANU/SC/3256/2007:AIR2007SC2798, this Court summarized the principlesfor grant ofrefusal to grant of injunction to restrain the enforcement of a bank guarantee or a letter ofcredit in thefollowing manner: 14...
(i) While dealing with an applicationfor injunction in the course of commercial dealings, and when an unconditional bankguarantee or letter ofcredit is given or accepted, the Beneficiary is entitled to realize such a ^ Bank Guarantee or a Letter ofCredit in terms thereof irrespective ofanypending disputes relating to the terms ofthe contract.
(ii) The Bankgivingsuch guarantee is bound to honour it as per its terms irrespectiveIpfany dispute raised by its customer.. (Hi) The courts should be slowfn granting an order of injunction to restrain the reqlizdtibn ofa bank guarantee or a Letter ofCrecUt.^ ^
(iv) Since a Bank Guarahlee^pfa-L^ ofCredit is an j independent and a separate contract and is absolute in nature, the existence ofany dispute,between the parties to the contract ik not a groun^^^ an order of injunction to restrain enforcementofBank Guarantees or Letters ofCredit. (v)Fraud ofan egregious nature which would vitiate the veryfoundation ofsuch a Bank Guarantee or Letter of Credit and the beneficiary seeks to take advantage ofthe situation.
(vi) Allowing encashment of an unconditional Bank
Guarantee or a Letter of Credit would result in OMP(I)(COMM)428/2019 Page14of18 irretrievable harm or injustice to one of the parties concerned.
14. In Mahatama Gandhi Sahakra Sakkare Karkhane v. National Heavy Engg. Coop. Ltd. and Anr. MANU/SC/2980/2007: AIR2007SC2716, this Court observed: Para 22. 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 isfurnished by the bank cannot be prevented by way of an injunction from enforcing the guarantee on the pretext that the conditionfor enforcing the bank guarantee in terms ofthe agreement entered between the parties has not,beenfulfilled. Such a course is impermissible. The seller cannot raise the dispute of whatsoever nature and- preyeht the purchaser from enforcing the bankguarantee byway ofinjunction except on the groundof fraudppd.irretri:evable injury. Para 28. What isfeleydnt'are'thf.Ierms incorporated in the guarantee executed^hy 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 respondeHhfiherefore, cannot be allowed to raise any dispute and prevent the appellant from encashing the bank guarantee. The merefact that the bank guarantee refers to the principle agreement without referring to any specific clause in the preamble ofthe deed ofguarantee does not make the guarantee furnished by the bankto be a conditionalone."
14. Having noted the law laid down by the Supreme Gourt, the submissions made by Mr.Dayan Krishnan can be summed up as under: OMP(I)(COMM)428/2019 Page15of18
(i) The petitioner having already tenninated the contract on account of breaches of NHAI and the correctness and incorrectness of the termination by the petitioner need to be adjudicated by the Arbitral Tribunal.
(ii) The petitioner immediately after the termination ofthe contract had asked the NHAI for returning of the perfonnance bank guarantee and retention money guarantee.
(iii) The NHAThas accepted the termination by the petitioner and had also resumed the dispute resolution mechanism.
(iv) Despite earlier teimination ofthe contract by the petitioner and pending dispute resolution process, the NHAI issued notice of termination/re-termination ofthe contract Which is impermissible.
(v) In any case, the invocation of the.bank guarantee and retention money bank guarantee inVthe facts, amounts to fraud. The bank guarantees can only be invoked for hph performance by the petitioner and once the contract is termihated;,thef^ no question ofperformance ofthe contract by the petMonefi;:,,.
(vi) There is a clear obligation on the part ofthe NHAI in terms of clause 23.6.[2] ofthe agreement to return the bank guarantees. The NHAI failing to do so cannot allow the invocation bank guarantees which is a motivated exercise and amounts to fraud.
15. From the submissions made by Mr. Dayan Krishnan, it is noted that the same primarily relate to the main contract, which have no bearing on the invocation, as it is settled law, as noted above,the same has to be seen from the perspective ofthe terms ofbank guarantee. The only submission ofMr.Dayan Krishnan which need to be looked into is whether the invocation of the bank guarantees in the facts ofthis case OMP(I)(COMM)428/2019 Page16of18 I amounts to fraud. The answer to this plea has to be in the negative for the simple reason that the fraud should be such, which vitiates the very foundation ofsuch bank guarantees. The bank guarantees are ofthe year 2015 when the agreement was entered into between the parties. They have been furnished with open eyes,in terms ofthe obligation under the contract. The bank guarantees remained valid,for almostfour years. No attempt was made by the petitioner to get the bank guarantees cancelled. It is not the case of the petitioner that the bank guarantees have been acquired in the year 2015 by playing fraud. So,it cannot be said thatthe very foundation ofthe bank guarantees has been vitiated.
16. It was the contention.of Mr. Dayan Krishnan that after the termination ofthe agreement by the petitipher,the respondent was liable to return the bank guarantees to.it arid riot giving the bank guarantees to it shall amount to fraud. I ammot iri;agreement with this contention as the respondent NHAI is relying on its own termination letter and justifying invocation as per the.fermsioT^ Surely,whetherthe invocation by terminatingthebprdra^ shall be decided by the Arbitral Tribunal. - - i ^ - J 17. It wasthe plea ofMr.Dayan Krishnanthatinterms ofthe bank guarantees,the invocation can bpduring the Construction period/ defects liability period and maintenance period and the agreement havirig been terminated, it cannot be invoked,is also without merit. In this regard,I may only state that the bank guarantees being unconditional and irrevocable guarantees were for due arid faithful performance of the contractors obligation during the construction period/defects liability period and maintenanceperiod and there is an obligation on the bank to pay, to the Authority upon its first written demand, without demur, OMP(I)(COMM)428/2019 Page17of18 J ■-V reservation, recourse, contest or protest and without any reference to the contractor, the sums payable under the guarantees and, it is the case of the respondent NHAI that the petitioner has defaulted in performance of its obligations during the currency of the contract.
18. Even the plea that irretrievable injury shall be caused to the petitioner, is also without any merit, inasmuch as it is not the case of the petitioner that if in the eventuality the award is given in its favour, it cannot be executed against the NHAI.
19. Insofar as the judgment relied upon by Mr. Dayan Krishnan in. the case ofHindustan Construction Co. Ltd. v. State ofBihar and Ors., (1999) 8 see 436 is concerned, the same would not be of any help, inasmuch as the plea therein was in fact that the invocation of bank guarantee is not in terms therepf as the same was furnished to the Chief Engineer however invoked'by| the Executive Engineer, which is not the case herein. In view of my above discussion, I do not find any merit in the petition, the same is disMsSed:,.;^;:? ^
20. No.costs. ■ > V.KAMESWARRAO, J NOVEMBER 29, 2019/fl/b^ OMP(I) (COMM) 428/2019 Page 18 of18