SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Article Pause Article
judgment-img

2015 Supreme(HP) 833

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir and Tarlok Singh Chauhan, JJ.
Himachal Pradesh State Electricity Board Ltd. - Appellant
Versus
Ahluwalia Contracts (India) Ltd. and another - Respondents
Arb. Appeal No. 8 of 2014
Decided On : 05.08.2015.

Advocate Appeared:
For the Appellant :Mr. J.S. Bhogal, Senior Advocate, with Mr. Satish Sharma, Advocate.
For the respondents:Mr. S.K. Maniktala & Ms. Shweta Joolka, Advocates, for respondent No.1. Mr. Sanjay Dalmia, Advocate, for respondent No.2.

Headnote:

The appellant entered into contracts with respondent No.1 for various works and advanced certain amounts, secured by bank guarantees. Respondent No.1 sought an order restraining the appellant from invoking the bank guarantees. The Single Judge granted the relief and directed the bank guarantees to be kept alive till the completion of arbitral proceedings. The appellant contended that there was no exceptional case for the injunction and that a single application for interim relief for two separate arbitration agreements was not maintainable. The Court analyzed the nature and purpose of bank guarantees, citing relevant Supreme Court decisions, and emphasized that bank guarantees are encashable irrespective of pending disputes, except in cases of fraud or irretrievable harm. The Court found that the reasons for granting the injunction did not align with the established legal principles. The respondent's claims of fraud and special equities were dismissed for lack of evidence. The Court held that the dispute should be determined by the Arbitrator and set aside the Single Judge's judgment.

Fact of the Case:

The appellant entered into contracts with respondent No.1 for various works and advanced certain amounts, secured by bank guarantees. Respondent No.1 sought an order restraining the appellant from invoking the bank guarantees. The Single Judge granted the relief and directed the bank guarantees to be kept alive till the completion of arbitral proceedings.

Finding of the Court:

The Court found that the reasons for granting the injunction did not align with the established legal principles. The respondent's claims of fraud and special equities were dismissed for lack of evidence. The Court held that the dispute should be determined by the Arbitrator and set aside the Single Judge's judgment.

Issues: The issues included the maintainability of the injunction application, the nature and purpose of bank guarantees, and the validity of the respondent's claims of fraud and special equities.

Ratio Decidendi: The Court emphasized that bank guarantees are encashable irrespective of pending disputes, except in cases of fraud or irretrievable harm. The Court dismissed the respondent's claims of fraud and special equities for lack of evidence.

Final Decision: The Court set aside the Single Judge's judgment and held that the dispute should be determined by the Arbitrator.

Judgment :

Tarlok Singh Chauhan, J.

This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short ‘Act’) is directed against the judgment passed by learned Single Judge of this Court on 15.9.2014 whereby he allowed the application filed by respondent No.1 under Section 9 of the Act and restrained the appellant from invoking the bank guarantee(s) furnished by respondent No.1. The facts in brief may be noticed.

2. The respondent No.1 had entered into two contracts with the appellant for the Design Engineering, Manufacturing, Testing of Equipment, Erection, Commissioning alongwith other allied works such as Earthmat and Civil Works on turn key basis of 132/33KV, 1x25/31.5 MVA Sub-station at Maliana near Shimla and separate formal agreements were executed between the parties pursuant to two separate letters of award, both dated 18.01.2011. While one award letter related to the supply portion of the works, the other related to the erection, commissioning and civil works.

3. At the time of start of the works, the appellant had advanced certain amounts to respondent No.1 and for securing such amounts, respondent No.1 had given unconditional bank guarantee(s) issued by respondent No.2 bank in favour of the appellant. In addition, respondent No.1 had also furnished the bank guarantee(s) as Performance Guarantee(s) for the contract. The Performance Guarantee(s) were for the amounts of Rs.72,09,680/- and Rs. 28,08,180/- respectively for the works of supply and erection. The guarantees furnished to secure the advance given to respondent No.1 were for the amounts of Rs.42,24,297/- and Rs. 21,99,556/- respectively for the works of supply and erection. Thus, the total amount of the bank guarantees issued by respondent No.2 and furnished by respondent No.1 to the appellant came to Rs.1,64,41,713/-.

4. The respondent No.1 moved an application under Section 9 of the Act in which it sought the following substantive reliefs:

“(a) Pass an order staying operation of the letter dated 04.07.2014 bearing No. SE(D)ES/SSD-273/Maliana/2014-2168, of respondent No.1, levying liquidated damages on the petitioner and further restraining respondent No.1 and its agents, employees, servants etc. from giving any effect thereto; and/or taking any coercive action on the basis thereof;

(b) pass an order restraining respondent No.1 by itself or through its employees, agents, servants etc. from invoking the Bank Guarantees furnished by respondent No.2 Bank on behalf of the petitioner, and as more specifically detailed in para 6 & 7 above, and further restraining respondent No.2 Bank from encashing the said Bank Guarantees furnished by respondent No.2 to respondent No.1 on behalf of the petitioner;

(c) pass ad-interim ex-parte orders in terms of prayers (a) and (b) above, and confirm the same after notice to the respondent s.”

5. The learned Single Judge allowed the application by granting the reliefs (b) and (c) supra and directed the respondents to keep alive the bank guarantees by way of its renewal till the completion of the arbitral proceedings or the issue of revocation thereof is decided by the Arbitrator/Court.

6. It is contended by the appellant that the learned Single Judge has not taken into consideration that there was no exceptional case for grant of injunction made out by respondent No.1. Further, there was no legal ground for restraining the appellant from invoking the bank guarantees especially when admittedly substantial amounts were found due from the respondent No.1 even by the learned Single Judge towards the appellant. It is also contended that a single application for interim relief in respect of two separate arbitration agreements was not maintainable and, therefore, objections ought to have been dismissed on this short score alone.

7. On the other hand, learned counsel for the respondents have supported the order passed by the learned Single Judge. We have heard learned counsel for the parties and have gone through the records of t
































































Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
whatsapp-icon Back to top