Writ petition was not maintainable to
avoid contractual obligation. Occurrence of
commercial difficulty, inconvenience or hardship in
performance of the conditions agreed to in the
contract can provide no justification in not
complying with the terms of contract which the
parties had accepted with open eyes. It cannot
ever be that a licensee can work out the licence if
he finds it profitable to do so: and he can
challenge the conditions under which he agreed to
take the licence, if he finds it commercially
inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is
complained of, the party complaining of such
breach may sue for specific performance of the
contract, if contract is capable of being specifically
performed. Otherwise, the party may sue for
damages.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9821 OF 2016
(Arising out of S.L.P.(C) No. 7874 of 2016)
GUJARAT MARITIME BOARD
V
L&T INFRASTRUCTURE DEVELOPMENT
PROJECTS LTD. AND ANOTHER
Dated:September 28, 2016.
2. Whether the High Court is justified in exercising its
discretionary jurisdiction under Article 226 of the Constitution
of India for restraining the appellant from invoking an
unconditional bank guarantee executed by the first respondent,
is the main issue arising for consideration in this case.
3. The appellant invited bids for development of
Sutrapada Port. In the process, a Letter of Intent (hereinafter
referred to as ‘LoI’) was issued to the first respondent on
06.02.2008. The relevant conditions of LoI are extracted below:
1.7 The Lead Promoter shall submit a
detailed project report within 12
months of issue of this Letter of
Intent (LOI) and present it to Gujarat
Maritime Board for their approval.
1.8 The Lead Promoter shall obtain all
environment clearances and coastal
regulation zone (CRZ) clearances
and effective financial closure and
all such other clearances and
permissions within 18 months or
issue of this Letter of Intent
1.9 A Performance Guarantee/Bank
Guarantee of Rs 5 Crores (Rupees
Five crores only) shall be submitted
to Gujarat Maritime Board within 4
weeks of issue of this Letter of Intent
in the Performa annexed herewith.
(Annexure1). This performance/bank
guarantee is against the submission
of Detailed Project Report within 12
months and obtaining environment
clearance, coastal regulation zone
clearance and effecting financial
closure within 18 months as
mentioned in para 1.7 and 1.8
above, failing which Gujarat
Maritime Board/Government shall
cancel this Letter of Intent and bank
guarantee shall be forfeited.” Page 3
4. On 07.05.2010, the first respondent requested for
change of location from Sutrapada to Kachchigarh and the bank
guarantee was extended. At the instance of the first
respondent, the Yes Bank Limited furnished a bank guarantee
to the appellant on 26.11.2011 for an amount of Rs.5 crores.
The relevant conditions read as follows:
“
(a) We, YES BANK Ltd. do hereby guarantee and
undertake to pay to GMB an amount not
exceeding Rs 5,00,00,000/- (Rupees Five
Crores only) as against breach by the Lead
Promoter for the development of Kachchigarh
Port. The decision of GMB as to any breach
having been committed and loss/damages
caused or suffered shall be absolute and
binding on us.
(b) We, YES BANK Ltd, do hereby undertake to
without any reference to the Lead Promoter
or any other person and irrespective of the
fact whether any dispute is pending between
GMB and the Lead Promoter or any court of
Tribunal or arbitrator relating thereto, pay the
amount due and payable under this
guarantee without any demur, merely on
demand from GMB stating that the said Lead
Promoter’s failure to perform the covenants
of the same. Any such written demand made
by GMB on the Bank shall be conclusive,
absolute and unequivocal as regards the
amount due and payable by the Bank under
this guarantee. However, Bank’s liability
under this guarantee shall be restricted to an
amount not exceeding Rs 5,00,00,000/-
(Rupees Five Crores only).”
5. It appears, the first respondent could not proceed with
the work even at Kachchigarh, and on such intimation, the
appellant by letter dated 10.03.2015, cancelled the LoI issued
to the first respondent. The communication dated 10.03.2015
cancelling the LoI to the extent relevant, reads as follows:
“This is with reference to your above mentioned
letter informing GMB about your inability to
develop a port at Kachchigarh due to presence of
corals not seeking any further extension of the
LOI.
In this regard, it is hereby informed that your
admission on failure in taking up the Project is in
breach of the conditions set out in the Letter of
Intent dated 6.2.2008. At your request, the
proposal for cancellation of Letter of Intent issued
to M/s. L&T Ltd. for development of Kachchigarh
port was laid before the Board and was further
submitted to GOG for its decision in the matter.
After much deliberations, the Government of
Gujarat has vide its letter dated February 23, 2015
accorded its approval to (a) cancel the Letter of
Intent to M/s L&T Ltd. for development of
Kachchigarh port and (b) forfeit the Bank
Guarantee worth Rs.5 crores submitted by the
Company.
In view of the above direction of the Government,
the Letter of Intent dated 06.02.2008 issued to
you for development of Kachchigarh port (earlier
Sutrapada port) is hereby cancelled. Further, the
issuing Bank of the Bank Guarantee has been
informed about GMB’s claim on the Bank
Guarantee.”Page 5
xxx xxx xxx
xxx”
6. On the same day, the appellant also invoked the bank
guarantee furnished by the Yes Bank Limited at the instance of
the first respondent. The communication reads as follows:
“This is with reference to the above mentioned
Performance Bank Guarantee issued by your bank
on behalf of M/s L&T Infrastructure Development
Projects Ltd.(“the Company”) towards securing the
fulfilment of conditions set out in the Letter of
Intent (“LOI”) dated 15.07.2010 and having its
validity till March 31, 2015 worth Rs.5,00,00,000/-
(Rupees Five crore only) submitted to Gujarat
Maritime Board (GMB).
Whereas, in view of breach of the conditions set
out in the LOI by the Company, the Gujarat
Maritime Board/Government intends to exercise its
right in accordance with Clause 1.9 and has
decided to cancel the Letter of Intent and forfeit
the above Bank Guarantee.
I, undersigned hereby put my claim to forfeit the
Bank Guarantee no. 005GM07113300001 dated
November 26, 2011 worth Rs. Five crores issued
by your bank and to reimburse the amount of the
Bank Guarantee in the account of Gujarat
Maritime Board, Gandhinagar.
It is requested to issue Demand Draft in the name
of Vice Chairman & Chief Executive Officer,
Gujarat Maritime Board payable at Gandhinagar at
the earliest.”
7. The first respondent filed a writ petition before the High
Court challenging the cancellation of the LoI and the invocation
of the bank guarantee. The following are the two main reliefs:
“
(a) That this Hon’ble Court be pleased to issue an
appropriate writ, order or direction and be
pleased to quash and set aside the decision
dated 23.02.2015 of the respondent no. 2 and
the consequential decision of the respondent no.
1 communicated vide letter of 10.03.2015, to
approve the request of the petitioner to cancel
the LoI issued to the petitioner, with the
condition of forfeiting the Bank Guarantee worth
Rs 5 crores, and further command the
respondent no. 1 to cancel the LoI dated
06.02.2008 and return the Bank Guarantee to
the petitioner;
(b) That this Hon’ble Court may be pleased to issue
appropriate writ, order or direction directing the
respondent no. 1 not to encash the Bank
Guarantee No. 005GM07113300001 dated
26.11.2011(extended from time to time) and
command the respondent no. 1 to withdraw the
letter dated 10.03.2015 addressed to Yes Bank
invoking the aforesaid Bank Guarantee.”
8. By the impugned judgment, the writ petition was
allowed. Paragraphs-24, 25 and 26 of the impugned judgment
which deal with the contentions are extracted below:Page 7
“24. Learned counsel for the GMB however, would
place much reliance on the tender conditions in
which the tenderer agreed that the bidder had
made a complete and careful examination to
determine the difficulties in matters incidental to
the performance of its obligations under the
Concession Agreement and to specify the nature
and extent of all difficulties and hazards. Counsel
would therefore, contend that any difficulty or
even impossibility in obtaining environmental
clearances cannot be a defence of the petitioner
to avoid forfeiture of the security deposit. We are
unable to read such condition in such a rigid
manner. If the contract had frustrated on account
of impossibility, we have serious doubt whether
GMB could forfeit security deposit citing the
reason that whatever be the reason, the petitioner
failed to perform its obligations and, therefore,
must be visited with the penalty of forfeiture.
However, there is an additional reason why we
must reject such a contention. We may recall, the
initial project was for construction of port at
Sutrapada. On account of the respondents not
being able to make the land available for such
project, the same had to be shelved. Only as an
alternative, the petitioner suggested Kachchigarh
as a site where the port could be developed.
Surely, the petitioner was not expected to carry
out complete environmental assessment before
coming up with such an alternative suggestion nor
GMB understood the offer of the petitioner as to
one which will irrespective of environment
concerns, be accepted. When there was a
fundamental shift in the initial project envisaged in
the letter of intent, the contention that whatever
be the difficulties in executing the contract,
forfeiture must follow, need to be viewed in the
background of such material changes.
25. The contention that having given unconditional
bank guarantee, the petitioner cannot avoid
encashment thereof, can also not be accepted.
The parameters for avoiding the payment of a
bank guarantee by the bank giving such
guarantee cannot be applied in the present case.
The question in the present case is not so much as
to allowing the authorities to encash the bank
guarantee as much as the authority of the GMB to
retain such amount even if it was so allowed to be
encashed. If the decision of GMB to cancel the
contract and to award the penalty of forfeiture of
Rs 5 crores on the petitioner itself is found to be
erroneous and therefore, set aside, the question of
allowing GMB to encash the bank guarantee would
simply not arise.
26. In the result, petition is allowed. Impugned
communication dated 10.3.2015 is set aside. The
respondents shall not encash the bank guarantee
in question.”
9. Heard Shri Mukul Rohatgi, learned Attorney General for
India, and Shri Tushar Mehta, learned Additional Solicitor
General, appearing for the appellant and Shri Gopal Jain,
learned Senior Counsel appearing for the first respondent.
10. Unfortunately, the High Court went wrong both in its
analysis of facts and approach on law. A cursory reading of LoI
would clearly show that it is not a case of forfeiture of security
deposit “… if the contract had frustrated on account of
impossibility…” but invocation of the performance bank
guarantee. On law, the High Court ought to have noticed that
the bank guarantee is an independent contract between the
guarantor-bank and the guarantee-appellant. The guarantee is
unconditional. No doubt, the performance guarantee is against
the breach by the lead promoter, viz., the first respondent. But
between the bank and the appellant, the specific condition
incorporated in the bank guarantee is that the decision of the
appellant as to the breach is binding on the bank. The
justifiability of the decision is a different matter between the
appellant and the first respondent and it is not for the High
Court in a proceeding under Article 226 of the Constitution of
India to go into that question since several disputed questions
of fact are involved. Recently, this Court in Joshi Technologies
International Inc. v. Union of India and others1
, where one
of us (R.F. Nariman, J.) is a member, has surveyed the entire
legal position on exercise of writ jurisdiction in contractual
matters. The paragraphs which deal with the situation relevant
to the case under appeal, read as follows:
“68. The Court thereafter summarised the legal
position in the following manner: (ABL
International Ltd. Case (2004) 3 SCC 553)
“27. From the above discussion of ours,
following legal principles emerge as to the
maintainability of a writ petition:
(a) In an appropriate case, a writ petition
as against a State or an instrumentality of a
State arising out of a contractual obligation is
maintainable.
1
(2015) 7 SCC 728
(b) Merely because some disputed
questions of facts arise for consideration,
same cannot be a ground to refuse to
entertain a writ petition in all cases as a
matter of rule.
(c) A writ petition involving a consequential
relief of monetary claim is also maintainable.
28. However, while entertaining an objection
as to the maintainability of a writ petition under
Article 226 of the Constitution of India, the court
should bear in mind the fact that the power to
issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provisions of the
Constitution. The High Court having regard to
the facts of the case, has a discretion to
entertain or not to entertain a writ petition. The
Court has imposed upon itself certain
restrictions in the exercise of this power. (See
Whirlpool Corpn. v. Registrar of Trade Marks.
[(1998) 8 SCC 1]) And this plenary right of the
High Court to issue a prerogative writ will not
normally be exercised by the Court to the
exclusion of other available remedies unless
such action of the State or its instrumentality is
arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14 or for other
valid and legitimate reasons, for which the
Court thinks it necessary to exercise the said
jurisdiction.”
69. The position thus summarised in the
aforesaid principles has to be understood in the
context of discussion that preceded which we have
pointed out above. As per this, no doubt, there is
no absolute bar to the maintainability of the writ
petition even in contractual matters or where
there are disputed questions of fact or even when
monetary claim is raised. At the same time,
discretion lies with the High Court which under
certain circumstances, it can refuse to exercise. It
also follows that under the following
circumstances, “normally”, the Court would not
exercise such a discretion:
69.1. The Court may not examine the issue
unless the action has some public law character
attached to it.
69.2. Whenever a particular mode of
settlement of dispute is provided in the contract,
the High Court would refuse to exercise its
discretion under Article 226 of the Constitution
and relegate the party to the said mode of
settlement, particularly when settlement of
disputes is to be resorted to through the means of
arbitration.
69.3. If there are very serious disputed
questions of fact which are of complex nature and
require oral evidence for their determination.
69.4. Money claims per se particularly arising
out of contractual obligations are normally not to
be entertained except in exceptional
circumstances.
70. Further, the legal position which emerges
from various judgments of this Court dealing with
different situations/aspects relating to contracts
entered into by the State/public authority with
private parties, can be summarised as under:
70.1. At the stage of entering into a contract,
the State acts purely in its executive capacity and
is bound by the obligations of fairness.
70.2. State in its executive capacity, even in
the contractual field, is under obligation to act
fairly and cannot practise some discrimination.
70.3. Even in cases where question is of choice
or consideration of competing claims before
entering into the field of contract, facts have to be
investigated and found before the question of a
violation of Article 14 of the Constitution could
arise. If those facts are disputed and require
assessment of evidence the correctness of which
can only be tested satisfactorily by taking detailed
evidence, involving examination and
cross-examination of witnesses, the case could not
be conveniently or satisfactorily decided in
proceedings under Article 226 of the Constitution.
In such cases the Court can direct the aggrieved
party to resort to alternate remedy of civil suit,
etc.
70.4. Writ jurisdiction of the High Court under
Article 226 of the Constitution was not intended to
facilitate avoidance of obligation voluntarily
incurred.
70.5. Writ petition was not maintainable to
avoid contractual obligation. Occurrence of
commercial difficulty, inconvenience or hardship in
performance of the conditions agreed to in the
contract can provide no justification in not
complying with the terms of contract which the
parties had accepted with open eyes. It cannot
ever be that a licensee can work out the licence if
he finds it profitable to do so: and he can
challenge the conditions under which he agreed to
take the licence, if he finds it commercially
inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is
complained of, the party complaining of such
breach may sue for specific performance of the
contract, if contract is capable of being specifically
performed. Otherwise, the party may sue for
damages.”
11. It is contended on behalf of the first respondent that the
invocation of Bank Guarantee depends on the cancellation of
the contract and once the cancellation of the contract is not
justified, the invocation of Bank Guarantee also is not justified.
We are afraid that the contention cannot be appreciated. The
bank guarantee is a separate contact and is not qualified by the
contract on performance of the obligations. No doubt, in terms
of the bank guarantee also, the invocation is only against a
breach of the conditions in the LoI. But between the appellant
and the bank, it has been stipulated that the decision of the
appellant as to the breach shall be absolute and binding on the
bank.
12. An injunction against the invocation of an absolute and
an unconditional bank guarantee cannot be granted except in
situations of egregious fraud or irretrievable injury to one of the
parties concerned. This position also is no more res integra. In
Himadri Chemicals Industries Limited v. Coal Tar
Refining Company2
, at paragraph -14:
“14. From the discussions made hereinabove
relating to the principles for grant or refusal to
grant of injunction to restrain enforcement of a
bank guarantee or a letter of credit, we find that
the following principles should be noted in the
matter of injunction to restrain the encashment of
a bank guarantee or a letter of credit:
(i) While dealing with an application for
injunction in the course of commercial dealings,
and when an unconditional bank guarantee or
letter of credit is given or accepted, the
beneficiary is entitled to realise such a bank
guarantee or a letter of credit in terms thereof
irrespective of any pending disputes relating to
the terms of the contract.
2
(2007) 8 SCC 110Page 14
(ii) The bank giving such guarantee is bound
to honour it as per its terms irrespective of any
dispute raised by its customer.
(iii) The courts should be slow in granting an
order of injunction to restrain the realisation of a
bank guarantee or a letter of credit.
(iv) Since a bank guarantee or a letter of
credit is an independent and a separate
contract and is absolute in nature, the existence
of any dispute between the parties to the
contract is not a ground for issuing an order of
injunction to restrain enforcement of bank
guarantees or letters of credit.
(v) Fraud of an egregious nature which would
vitiate the very foundation of such a bank
guarantee or letter of credit and the beneficiary
seeks to take advantage of the situation.
(vi) Allowing encashment of an unconditional
bank guarantee or a letter of credit would result
in irretrievable harm or injustice to one of the
parties concerned.”
13. Guarantee given by the bank to the appellant contains
only the condition that in case of breach by the lead promoter,
viz., the first respondent of the conditions of LoI, the appellant
is free to invoke the bank guarantee and the bank should
honour it … “without any demur, merely on a demand from
GMB (appellant) stating that the said lead promoter failed to
perform the covenants…”. It has also been undertaken by the
bank that such written demand from the appellant on the bank
shall be … “conclusive, absolute and unequivocal as regards
the amount due and payable by the bank under this
guarantee”. Between the appellant and the first respondent, in
the event of failure to perform the obligations under the LoI
dated 06.02.2008, the appellant was entitled to cancel the LoI
and invoke the bank guarantee. On being satisfied that the first
respondent has failed to perform its obligations as covenanted,
the appellant cancelled the LoI and resultantly invoked the
bank guarantee. Whether the cancellation is legal and proper,
and whether on such cancellation, the bank guarantee could
have been invoked on the extreme situation of the first
respondent justifying its inability to perform its obligations
under the LoI, etc., are not within the purview of an inquiry
under Article 226 of the Constitution of India. Between the bank
and the appellant, the moment there is a written demand for
invoking the bank guarantee pursuant to breach of the
covenants between the appellant and the first respondent, as
satisfied by the appellant, the bank is bound to honour the
payment under the guarantee.
14. Therefore, the appeal is allowed and the impugned
judgment is set aside. However, we make it clear that this
judgment will not stand in the way of the first respondent
working out its grievances in appropriate proceedings as
permitted under law.
........................................J.
(KURIAN JOSEPH)
.......………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
September 28, 2016.
Print Page
avoid contractual obligation. Occurrence of
commercial difficulty, inconvenience or hardship in
performance of the conditions agreed to in the
contract can provide no justification in not
complying with the terms of contract which the
parties had accepted with open eyes. It cannot
ever be that a licensee can work out the licence if
he finds it profitable to do so: and he can
challenge the conditions under which he agreed to
take the licence, if he finds it commercially
inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is
complained of, the party complaining of such
breach may sue for specific performance of the
contract, if contract is capable of being specifically
performed. Otherwise, the party may sue for
damages.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9821 OF 2016
(Arising out of S.L.P.(C) No. 7874 of 2016)
GUJARAT MARITIME BOARD
V
L&T INFRASTRUCTURE DEVELOPMENT
PROJECTS LTD. AND ANOTHER
Dated:September 28, 2016.
2. Whether the High Court is justified in exercising its
discretionary jurisdiction under Article 226 of the Constitution
of India for restraining the appellant from invoking an
unconditional bank guarantee executed by the first respondent,
is the main issue arising for consideration in this case.
3. The appellant invited bids for development of
Sutrapada Port. In the process, a Letter of Intent (hereinafter
referred to as ‘LoI’) was issued to the first respondent on
06.02.2008. The relevant conditions of LoI are extracted below:
1.7 The Lead Promoter shall submit a
detailed project report within 12
months of issue of this Letter of
Intent (LOI) and present it to Gujarat
Maritime Board for their approval.
1.8 The Lead Promoter shall obtain all
environment clearances and coastal
regulation zone (CRZ) clearances
and effective financial closure and
all such other clearances and
permissions within 18 months or
issue of this Letter of Intent
1.9 A Performance Guarantee/Bank
Guarantee of Rs 5 Crores (Rupees
Five crores only) shall be submitted
to Gujarat Maritime Board within 4
weeks of issue of this Letter of Intent
in the Performa annexed herewith.
(Annexure1). This performance/bank
guarantee is against the submission
of Detailed Project Report within 12
months and obtaining environment
clearance, coastal regulation zone
clearance and effecting financial
closure within 18 months as
mentioned in para 1.7 and 1.8
above, failing which Gujarat
Maritime Board/Government shall
cancel this Letter of Intent and bank
guarantee shall be forfeited.” Page 3
4. On 07.05.2010, the first respondent requested for
change of location from Sutrapada to Kachchigarh and the bank
guarantee was extended. At the instance of the first
respondent, the Yes Bank Limited furnished a bank guarantee
to the appellant on 26.11.2011 for an amount of Rs.5 crores.
The relevant conditions read as follows:
“
(a) We, YES BANK Ltd. do hereby guarantee and
undertake to pay to GMB an amount not
exceeding Rs 5,00,00,000/- (Rupees Five
Crores only) as against breach by the Lead
Promoter for the development of Kachchigarh
Port. The decision of GMB as to any breach
having been committed and loss/damages
caused or suffered shall be absolute and
binding on us.
(b) We, YES BANK Ltd, do hereby undertake to
without any reference to the Lead Promoter
or any other person and irrespective of the
fact whether any dispute is pending between
GMB and the Lead Promoter or any court of
Tribunal or arbitrator relating thereto, pay the
amount due and payable under this
guarantee without any demur, merely on
demand from GMB stating that the said Lead
Promoter’s failure to perform the covenants
of the same. Any such written demand made
by GMB on the Bank shall be conclusive,
absolute and unequivocal as regards the
amount due and payable by the Bank under
this guarantee. However, Bank’s liability
under this guarantee shall be restricted to an
amount not exceeding Rs 5,00,00,000/-
(Rupees Five Crores only).”
5. It appears, the first respondent could not proceed with
the work even at Kachchigarh, and on such intimation, the
appellant by letter dated 10.03.2015, cancelled the LoI issued
to the first respondent. The communication dated 10.03.2015
cancelling the LoI to the extent relevant, reads as follows:
“This is with reference to your above mentioned
letter informing GMB about your inability to
develop a port at Kachchigarh due to presence of
corals not seeking any further extension of the
LOI.
In this regard, it is hereby informed that your
admission on failure in taking up the Project is in
breach of the conditions set out in the Letter of
Intent dated 6.2.2008. At your request, the
proposal for cancellation of Letter of Intent issued
to M/s. L&T Ltd. for development of Kachchigarh
port was laid before the Board and was further
submitted to GOG for its decision in the matter.
After much deliberations, the Government of
Gujarat has vide its letter dated February 23, 2015
accorded its approval to (a) cancel the Letter of
Intent to M/s L&T Ltd. for development of
Kachchigarh port and (b) forfeit the Bank
Guarantee worth Rs.5 crores submitted by the
Company.
In view of the above direction of the Government,
the Letter of Intent dated 06.02.2008 issued to
you for development of Kachchigarh port (earlier
Sutrapada port) is hereby cancelled. Further, the
issuing Bank of the Bank Guarantee has been
informed about GMB’s claim on the Bank
Guarantee.”Page 5
xxx xxx xxx
xxx”
6. On the same day, the appellant also invoked the bank
guarantee furnished by the Yes Bank Limited at the instance of
the first respondent. The communication reads as follows:
“This is with reference to the above mentioned
Performance Bank Guarantee issued by your bank
on behalf of M/s L&T Infrastructure Development
Projects Ltd.(“the Company”) towards securing the
fulfilment of conditions set out in the Letter of
Intent (“LOI”) dated 15.07.2010 and having its
validity till March 31, 2015 worth Rs.5,00,00,000/-
(Rupees Five crore only) submitted to Gujarat
Maritime Board (GMB).
Whereas, in view of breach of the conditions set
out in the LOI by the Company, the Gujarat
Maritime Board/Government intends to exercise its
right in accordance with Clause 1.9 and has
decided to cancel the Letter of Intent and forfeit
the above Bank Guarantee.
I, undersigned hereby put my claim to forfeit the
Bank Guarantee no. 005GM07113300001 dated
November 26, 2011 worth Rs. Five crores issued
by your bank and to reimburse the amount of the
Bank Guarantee in the account of Gujarat
Maritime Board, Gandhinagar.
It is requested to issue Demand Draft in the name
of Vice Chairman & Chief Executive Officer,
Gujarat Maritime Board payable at Gandhinagar at
the earliest.”
7. The first respondent filed a writ petition before the High
Court challenging the cancellation of the LoI and the invocation
of the bank guarantee. The following are the two main reliefs:
“
(a) That this Hon’ble Court be pleased to issue an
appropriate writ, order or direction and be
pleased to quash and set aside the decision
dated 23.02.2015 of the respondent no. 2 and
the consequential decision of the respondent no.
1 communicated vide letter of 10.03.2015, to
approve the request of the petitioner to cancel
the LoI issued to the petitioner, with the
condition of forfeiting the Bank Guarantee worth
Rs 5 crores, and further command the
respondent no. 1 to cancel the LoI dated
06.02.2008 and return the Bank Guarantee to
the petitioner;
(b) That this Hon’ble Court may be pleased to issue
appropriate writ, order or direction directing the
respondent no. 1 not to encash the Bank
Guarantee No. 005GM07113300001 dated
26.11.2011(extended from time to time) and
command the respondent no. 1 to withdraw the
letter dated 10.03.2015 addressed to Yes Bank
invoking the aforesaid Bank Guarantee.”
8. By the impugned judgment, the writ petition was
allowed. Paragraphs-24, 25 and 26 of the impugned judgment
which deal with the contentions are extracted below:Page 7
“24. Learned counsel for the GMB however, would
place much reliance on the tender conditions in
which the tenderer agreed that the bidder had
made a complete and careful examination to
determine the difficulties in matters incidental to
the performance of its obligations under the
Concession Agreement and to specify the nature
and extent of all difficulties and hazards. Counsel
would therefore, contend that any difficulty or
even impossibility in obtaining environmental
clearances cannot be a defence of the petitioner
to avoid forfeiture of the security deposit. We are
unable to read such condition in such a rigid
manner. If the contract had frustrated on account
of impossibility, we have serious doubt whether
GMB could forfeit security deposit citing the
reason that whatever be the reason, the petitioner
failed to perform its obligations and, therefore,
must be visited with the penalty of forfeiture.
However, there is an additional reason why we
must reject such a contention. We may recall, the
initial project was for construction of port at
Sutrapada. On account of the respondents not
being able to make the land available for such
project, the same had to be shelved. Only as an
alternative, the petitioner suggested Kachchigarh
as a site where the port could be developed.
Surely, the petitioner was not expected to carry
out complete environmental assessment before
coming up with such an alternative suggestion nor
GMB understood the offer of the petitioner as to
one which will irrespective of environment
concerns, be accepted. When there was a
fundamental shift in the initial project envisaged in
the letter of intent, the contention that whatever
be the difficulties in executing the contract,
forfeiture must follow, need to be viewed in the
background of such material changes.
25. The contention that having given unconditional
bank guarantee, the petitioner cannot avoid
encashment thereof, can also not be accepted.
The parameters for avoiding the payment of a
bank guarantee by the bank giving such
guarantee cannot be applied in the present case.
The question in the present case is not so much as
to allowing the authorities to encash the bank
guarantee as much as the authority of the GMB to
retain such amount even if it was so allowed to be
encashed. If the decision of GMB to cancel the
contract and to award the penalty of forfeiture of
Rs 5 crores on the petitioner itself is found to be
erroneous and therefore, set aside, the question of
allowing GMB to encash the bank guarantee would
simply not arise.
26. In the result, petition is allowed. Impugned
communication dated 10.3.2015 is set aside. The
respondents shall not encash the bank guarantee
in question.”
9. Heard Shri Mukul Rohatgi, learned Attorney General for
India, and Shri Tushar Mehta, learned Additional Solicitor
General, appearing for the appellant and Shri Gopal Jain,
learned Senior Counsel appearing for the first respondent.
10. Unfortunately, the High Court went wrong both in its
analysis of facts and approach on law. A cursory reading of LoI
would clearly show that it is not a case of forfeiture of security
deposit “… if the contract had frustrated on account of
impossibility…” but invocation of the performance bank
guarantee. On law, the High Court ought to have noticed that
the bank guarantee is an independent contract between the
guarantor-bank and the guarantee-appellant. The guarantee is
unconditional. No doubt, the performance guarantee is against
the breach by the lead promoter, viz., the first respondent. But
between the bank and the appellant, the specific condition
incorporated in the bank guarantee is that the decision of the
appellant as to the breach is binding on the bank. The
justifiability of the decision is a different matter between the
appellant and the first respondent and it is not for the High
Court in a proceeding under Article 226 of the Constitution of
India to go into that question since several disputed questions
of fact are involved. Recently, this Court in Joshi Technologies
International Inc. v. Union of India and others1
, where one
of us (R.F. Nariman, J.) is a member, has surveyed the entire
legal position on exercise of writ jurisdiction in contractual
matters. The paragraphs which deal with the situation relevant
to the case under appeal, read as follows:
“68. The Court thereafter summarised the legal
position in the following manner: (ABL
International Ltd. Case (2004) 3 SCC 553)
“27. From the above discussion of ours,
following legal principles emerge as to the
maintainability of a writ petition:
(a) In an appropriate case, a writ petition
as against a State or an instrumentality of a
State arising out of a contractual obligation is
maintainable.
1
(2015) 7 SCC 728
(b) Merely because some disputed
questions of facts arise for consideration,
same cannot be a ground to refuse to
entertain a writ petition in all cases as a
matter of rule.
(c) A writ petition involving a consequential
relief of monetary claim is also maintainable.
28. However, while entertaining an objection
as to the maintainability of a writ petition under
Article 226 of the Constitution of India, the court
should bear in mind the fact that the power to
issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provisions of the
Constitution. The High Court having regard to
the facts of the case, has a discretion to
entertain or not to entertain a writ petition. The
Court has imposed upon itself certain
restrictions in the exercise of this power. (See
Whirlpool Corpn. v. Registrar of Trade Marks.
[(1998) 8 SCC 1]) And this plenary right of the
High Court to issue a prerogative writ will not
normally be exercised by the Court to the
exclusion of other available remedies unless
such action of the State or its instrumentality is
arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14 or for other
valid and legitimate reasons, for which the
Court thinks it necessary to exercise the said
jurisdiction.”
69. The position thus summarised in the
aforesaid principles has to be understood in the
context of discussion that preceded which we have
pointed out above. As per this, no doubt, there is
no absolute bar to the maintainability of the writ
petition even in contractual matters or where
there are disputed questions of fact or even when
monetary claim is raised. At the same time,
discretion lies with the High Court which under
certain circumstances, it can refuse to exercise. It
also follows that under the following
circumstances, “normally”, the Court would not
exercise such a discretion:
69.1. The Court may not examine the issue
unless the action has some public law character
attached to it.
69.2. Whenever a particular mode of
settlement of dispute is provided in the contract,
the High Court would refuse to exercise its
discretion under Article 226 of the Constitution
and relegate the party to the said mode of
settlement, particularly when settlement of
disputes is to be resorted to through the means of
arbitration.
69.3. If there are very serious disputed
questions of fact which are of complex nature and
require oral evidence for their determination.
69.4. Money claims per se particularly arising
out of contractual obligations are normally not to
be entertained except in exceptional
circumstances.
70. Further, the legal position which emerges
from various judgments of this Court dealing with
different situations/aspects relating to contracts
entered into by the State/public authority with
private parties, can be summarised as under:
70.1. At the stage of entering into a contract,
the State acts purely in its executive capacity and
is bound by the obligations of fairness.
70.2. State in its executive capacity, even in
the contractual field, is under obligation to act
fairly and cannot practise some discrimination.
70.3. Even in cases where question is of choice
or consideration of competing claims before
entering into the field of contract, facts have to be
investigated and found before the question of a
violation of Article 14 of the Constitution could
arise. If those facts are disputed and require
assessment of evidence the correctness of which
can only be tested satisfactorily by taking detailed
evidence, involving examination and
cross-examination of witnesses, the case could not
be conveniently or satisfactorily decided in
proceedings under Article 226 of the Constitution.
In such cases the Court can direct the aggrieved
party to resort to alternate remedy of civil suit,
etc.
70.4. Writ jurisdiction of the High Court under
Article 226 of the Constitution was not intended to
facilitate avoidance of obligation voluntarily
incurred.
70.5. Writ petition was not maintainable to
avoid contractual obligation. Occurrence of
commercial difficulty, inconvenience or hardship in
performance of the conditions agreed to in the
contract can provide no justification in not
complying with the terms of contract which the
parties had accepted with open eyes. It cannot
ever be that a licensee can work out the licence if
he finds it profitable to do so: and he can
challenge the conditions under which he agreed to
take the licence, if he finds it commercially
inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is
complained of, the party complaining of such
breach may sue for specific performance of the
contract, if contract is capable of being specifically
performed. Otherwise, the party may sue for
damages.”
11. It is contended on behalf of the first respondent that the
invocation of Bank Guarantee depends on the cancellation of
the contract and once the cancellation of the contract is not
justified, the invocation of Bank Guarantee also is not justified.
We are afraid that the contention cannot be appreciated. The
bank guarantee is a separate contact and is not qualified by the
contract on performance of the obligations. No doubt, in terms
of the bank guarantee also, the invocation is only against a
breach of the conditions in the LoI. But between the appellant
and the bank, it has been stipulated that the decision of the
appellant as to the breach shall be absolute and binding on the
bank.
12. An injunction against the invocation of an absolute and
an unconditional bank guarantee cannot be granted except in
situations of egregious fraud or irretrievable injury to one of the
parties concerned. This position also is no more res integra. In
Himadri Chemicals Industries Limited v. Coal Tar
Refining Company2
, at paragraph -14:
“14. From the discussions made hereinabove
relating to the principles for grant or refusal to
grant of injunction to restrain enforcement of a
bank guarantee or a letter of credit, we find that
the following principles should be noted in the
matter of injunction to restrain the encashment of
a bank guarantee or a letter of credit:
(i) While dealing with an application for
injunction in the course of commercial dealings,
and when an unconditional bank guarantee or
letter of credit is given or accepted, the
beneficiary is entitled to realise such a bank
guarantee or a letter of credit in terms thereof
irrespective of any pending disputes relating to
the terms of the contract.
2
(2007) 8 SCC 110Page 14
(ii) The bank giving such guarantee is bound
to honour it as per its terms irrespective of any
dispute raised by its customer.
(iii) The courts should be slow in granting an
order of injunction to restrain the realisation of a
bank guarantee or a letter of credit.
(iv) Since a bank guarantee or a letter of
credit is an independent and a separate
contract and is absolute in nature, the existence
of any dispute between the parties to the
contract is not a ground for issuing an order of
injunction to restrain enforcement of bank
guarantees or letters of credit.
(v) Fraud of an egregious nature which would
vitiate the very foundation of such a bank
guarantee or letter of credit and the beneficiary
seeks to take advantage of the situation.
(vi) Allowing encashment of an unconditional
bank guarantee or a letter of credit would result
in irretrievable harm or injustice to one of the
parties concerned.”
13. Guarantee given by the bank to the appellant contains
only the condition that in case of breach by the lead promoter,
viz., the first respondent of the conditions of LoI, the appellant
is free to invoke the bank guarantee and the bank should
honour it … “without any demur, merely on a demand from
GMB (appellant) stating that the said lead promoter failed to
perform the covenants…”. It has also been undertaken by the
bank that such written demand from the appellant on the bank
shall be … “conclusive, absolute and unequivocal as regards
the amount due and payable by the bank under this
guarantee”. Between the appellant and the first respondent, in
the event of failure to perform the obligations under the LoI
dated 06.02.2008, the appellant was entitled to cancel the LoI
and invoke the bank guarantee. On being satisfied that the first
respondent has failed to perform its obligations as covenanted,
the appellant cancelled the LoI and resultantly invoked the
bank guarantee. Whether the cancellation is legal and proper,
and whether on such cancellation, the bank guarantee could
have been invoked on the extreme situation of the first
respondent justifying its inability to perform its obligations
under the LoI, etc., are not within the purview of an inquiry
under Article 226 of the Constitution of India. Between the bank
and the appellant, the moment there is a written demand for
invoking the bank guarantee pursuant to breach of the
covenants between the appellant and the first respondent, as
satisfied by the appellant, the bank is bound to honour the
payment under the guarantee.
14. Therefore, the appeal is allowed and the impugned
judgment is set aside. However, we make it clear that this
judgment will not stand in the way of the first respondent
working out its grievances in appropriate proceedings as
permitted under law.
........................................J.
(KURIAN JOSEPH)
.......………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
September 28, 2016.
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