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“Records be called for.

Let a Rule be issued calling upon the opposite parties to show

cause as to why the Order dated 14.11.2019 passed by the learned

District Judge, Dhaka in Arbitration Miscellaneous Case No. 597 of

2015 so far as it relates to fixing the application for extension of ad-

interim order of injunction/status quo filed under Section 151 of the

Code of Civil Procedure along with the application filed under Order IX

Rule 9(A) of the Code of Civil Procedure for restoration of Arbitration

Miscellaneous Case 597 of 2015 to its original file and number on

recalling the order dated 28.10.2019 by which the said case was

dismissed for default should not be set aside and/or such other or further

order or orders passed as to this Court may seem fit and proper.

The Rule is made returnable within 4(four) weeks from date.                                 

Pending hearing of the Rule, the parties are directed to maintain status-quo in respect of the bank guarantee Nos. 03/15, 04/15, 05/15 and 06/15 all dated 03.03.2015 for the amount of USD 5,03,963, USD 4,73,750 USD 5,08,679 and USD 4,73,750 respectively for a period of 6(six) months from date.

The learned Advocate for the petitioner is directed to put in the requisites for service of notices upon the opposite parties in usual course and through registered post within 72(seventy two) hours.”

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Aœ ¢p¢im ¢l¢ine clM¡Ù¹ Hhw eb£ fkÑ¡−m¡Qe¡ Llm¡jzclM¡Ù¹L¡l£ f−r ¢h‘ ¢p¢eul HÉ¡X−i¡−LV Se¡h fËh£l ¢e−u¡N£ Hhw fË¢ah¡c£àu f−r ¢h‘ HÉ¡X−i¡−LV −j¡x Bhc¤e e§l Hl k¤¢š²aLÑ nÐhZ Llm¡jz

f§h¡m£ hÉ¡wL he¡j ¢hH¢X¢p (1982) ¢hHm¢X 17 ®j¡LŸj¡u ®k A¢i ja fÐc¡e Ll¡ q−u−R a¡ ¢e−jÀ A¢hLm Ae¤¢mMe q−m¡x

“The bank has agreed to make an unconditional payment on demand without any further question and without reference to the contract. The words “without any further question and without reference to the contractor” make it clear that the bank is not to be an arbitrator in a dispute between the purchaser and the supplier whether in respect of the performance of the contract or otherwise. On an allegation made by the purchaser that there has been a failure of performance on the part of the supplier, the bank is bound unconditionally to pay the amount on demand. The only condition of the bank guarantee is that the purchaser should make a demand on the bank and when this has been done, the condition of the guarantee has been fulfilled and the bank is bound to make the payment without any further question and without reference to the contractor. As to what the purchaser is entitled to recover from the supplier as liquidated damage and/or penalty for the default of the supplier is a question between the purchaser and the supplier. The bank cannot raise this plea. The question as to what part has not been performed is not also relevant.”  

Ešl¡ hÉ¡wL he¡j ¢Lmh¡eÑ ¢mx [¢hHm¢X 1981 (H¢X) 231] ®j¡LŸj¡u Bf£m ¢hi ¡N A¢i ja fÐc¡e L−le ®k, “No temporary injunction restraining the enforcement of the guarantee.”

…l¦aÅf§ZÑ ¢hd¡u h¡wm¡−cn p¤fУj ®L¡VÑ q¡C−L¡VÑ ¢hi ¡−Nl  Civil Petition for Leave to Appeal No. 275 of 1996  ¢e−jÀ A¢hLm Ae¤¢mMe q−m¡x

“IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Petition for Leave to Appeal No. 275 of 1996 Decided On: 11.08.1996

Appellants: Fatullah Agro-Product Industries

Vs.

Respondent: Bangladesh Agricultural Development Corporation Hon’ble Judges:

A. T. M. Afzal, C. J., Mustafa Kamal, Latifur Rahman, Mohammad Abdur Rouf and Bimalendu Bikash Roy Chowdhury, JJ, Counsels:

For Appellant/Petitioner/Plaintiff: Habibul Islam Bhuiyan, Senior Advocate, Instructed by Md. Sajjadul Huq, Advocate-on-Record. For Respondents/Defendant: Md. Aftab Hossain, Advocate-on- Record.

JUDGMENT

Bimalendu Bikash Roy Chowdhury, J.

1.               In this petition Fatullah Agro-Product Industries, a proprietorship firm owned by one Abul Hashem Dewan seeks leave to appeal from the judgment and order of the High Court Division, dated 18 January 1996 passed in Civil Revision No. 2222 of 1992. discharging the Rule and thereby upholding the order of the Subordinate Judge, Third Court, Dhaka, dated 29 July 1993 dismissing Arbitration Miscellaneous Case No. 481 of 1993. In the year 1990 the respondent, Bangladesh Agricultural Development Corporation, shortly BADC, invited tenders for supply of one lac running feet of upper well casing pipes to be financed by a credit provided by Asian Development Bank. Petitioner’s bid being the highest was accepted and an agreement was executed between the parties on 15 August 1990. In terms of the agreement certain raw materials were imported at the cost of BADC. But the petitioner could not have the consignment cleared for different objections raised by the Customs authority. As a result the petitioner could not manufacture the required upper well casing and deliver the same to BADC within the stipulated time. There having been a failure on the part of the petitioner to comply with the terms of the agreement BADC by its letter dated 21 November 1992 terminated the contract and directed the petitioner to handover the raw materials to them. The petitioner then invoked arbitration clause of the agreement. He also filed Arbitration Miscellaneous Case No. 483 of 1993 in the Third Court of Subordinate Judge, Dhaka under section 41(b) of the Arbitration Act with a prayer for an order of injunction restraining BADC from encashing the Bank guarantee furnished by the petitioner and taking delivery of the raw materials stored in the bonded warehouse.

2.               The respondent contested the case on the grounds inter alia that the case was not maintainable as it was not filed by the proper person, that the petitioner had not prima facie case for injunction and that the balance of convenience and inconvenience was also against him. A further objection was taken that the raw materials were placed in open sky and unless those were immediately released and used for manufacture of upper well casing the production of food grains would suffer for want thereof.
3.               The learned Subordinate Judge sustained the objections of the respondent and dismissed the case by order dated 29 July 193. The petitioner then moved the High Court Division in revisional and a Division Bench of the said Court discharged the Rule.
4.               Both the Court took the view that the petitioner had no prima facie case for injunction. That apart the balance of convenience and inconvenience was also against him and the threatened loss had money compensation.
5.               It is argued on behalf of the petitioner that the High Court Division has acted illegally in refusing the prayer of the petitioner

for injunction in the facts and circumstances of the case. We find no substance in this argument. It is fairly settled that the courts are reluctant to interfere with commercial transactions which have been entered into by the parties through performance of guarantee or letter of guarantee. The arbitration miscellaneous case is in respect of the termination of the agreement of the petitioner by BADC and not in respect of the Bank Guarantee and the raw materials. In case of success of the petitioner in the arbitration proceedings his threatened loss may be adequately compensated by money. We find no cogent reason to differ from the view of the High Court Division in refusing the prayer of the petitioner for injunction.

No error of law is involved in this case. The petition is dismissed.”

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“24. Having heard the arguments and reading the relevant statutory laws plus the case-laws cited from the various Law Journals, it appears to this Court that while the petitioner is seeking to resort to the factual background of the dispute for the purpose of obtaining an interim Order from this Court on encashment of the Bank Guarantees, the PGCB is insisting upon this Court to remain confined only to the legal issue, namely, whether the instant petition is maintainable in the backdrop of operation of URDG-758. Since it has been viewed by this Court hereinbefore that the factual issues would be adjudicated upon by the arbitration tribunal, hence,  this Court’s task is to dwell on the legal issues. And, the apparent legal issues to be dealt with by this Court are (i) what is a Bank Guarantee and whether Bank Guarantee’s payment can be stopped (ii) whether Section 7A of the Arbitration Act mandates this Court to stop encashment of a Bank Guarantee (iii) whether the Bank Guarantees in question are the subject-matter of the ongoing arbitration, (iv) whether the petitioner deserves an interim order of injunction upon encashment of the Bank Guarantees under the provisions of the CPC and (v) whether there is any judicially-sanctioned exceptions to the general rule regarding injunction over encashment of a Bank Guarantee that a Bank Guarantee is an independent and separate contract and the existence of any dispute between the parties to any contract is not a ground for issuance of any injunction Order to restrain enforcement of a Bank Guarantee.

25.           Given that this petition aims at restraining encashment of two Bank Guarantees, therefore, I should, at first, be acquainted with the expression “Bank Guarantee” and, also, I should examine whether its encashment can ever be stopped. The terminology “guarantee” stems from the Spanish word ‘garante’ in the 17th Century, meaning ‘a person giving something as security’. Precisely, thus, when a Bank furnishes any security, the said security is understood as the Bank Guarantee. Broadly, to say, Bank Guarantee is an independent deed of contract between the Bank and the beneficiary albeit the Bank enters into the said contract at the instance of a third party. By entering into contract, the Bank guarantees to the beneficiary that if the third party (at whose request the Bank is issuing the Bank Guarantee) does not pay the debt, or does not pay the bid money required for participation in the tender, or does not return the money taken as advance, or does not pay the rent, or does not perform the contract as per the terms of the contract, then, the Bank shall pay the amount of money guaranteed by it in the deed of Bank Guarantee on demand by the beneficiary. There are, thus, several types of Bank Guarantees, namely, (1) Financial Guarantees (2) Advance or deferred payment Guarantees (3) Bid Bond Guarantees (4) Rental Guarantees (5) Customs Guarantees (6) Guarantee of Warranty Execution and (7) Retention or Performance Guarantees. Therefore, the definition of Bank Guarantee may be formulated as follows: when a Bank or any lending institution ensures/guarantees in writing that if the debtor fails to settle a debt, the Bank shall cover it, the said piece of document may be called Financial Bank Guarantee; when Bank stands as guarantor for returning the advance taken by the seller and paid by the buyer, it may be called ‘Advance payment Guarantee’; when Bank takes the risk of paying the bid money for the purpose of helping its customer for participation in commercial tenders, it may be called ‘Bid Bond Guarantee’, when a tenant of any property approaches the Bank to ensure the land-lord that in case of the tenant’s failure to pay rent, the Bank shall pay it, it may be called ‘Rental Guarantee’; when for releasing goods from the customs authority Bank extends support to its customer it may be called ‘Customs Guarantee’, some time Bank stands as guarantor for execution of warranty, it may be called “Guarantee of Warranty Execution”; And, in case of performance of contract, when a Bank ensures by execution of a deed declaring therein that money shall be paid by it, if its customer fails to meet up the condition/s of the underlying contract regarding time or quality or any other stipulation, the said deed is known as ‘Retention or Performance Bank Guarantee’.
26.           After knowing about the definition of the Bank Guarantee, this Court may now examine whether payment of a Bank Guarantee can be stopped. In order to effectively deal with the petitioner’s argument, I must take into consideration the wordings engraved in the deed of the Bank Guarantees in question, in particular, to see (i) whether the Bank Guarantees in question are independent contracts, (ii) who are the parties of the said contracts, (iii) whether the contracts (Bank Guarantees) are irrevocable and (iv) whether the petitioner has any right, at all, to say anything about the Bank Guarantees in question. Let me look at the contents (particulars as well as the terms and conditions) of the contracts (deed of Bank Guarantees). 

NOT OVER BDT 22,867,203/- ONLY (subsequently increased to BDT 44,247,366)

Retention Bank Guarantee

The Hongkong and Shanghai Banking Corporation Limited, Correspondence Address: …………………………………………..

Beneficiary:

Power Grid Company of Bangladesh Ltd

Date: 17 January 2019

Retention Guarantee No. REBDAK900671

HSBC GUARANTEE NO. REBDAK900671 Date: 17 January 2019 Amount: BDT 22,867,203/- (Bangladeshi Taka Twenty Two Million Eight Hundred Sixty Seven Thousand Two Hundred Three Only).

We have been informed that…………... ABB India Limited having its address…..………..(Contractor)………….At the request of the Contractor, we The Hongkong and Shanghai Banking Corporation Limited, Correspondence Address:…… hereby irrevocably undertake to pay you any sum or sums not exceeding in total an amount: BDT22,867,203/- (Bangladesh Taka Twenty Two Million Eight Hundred Sixty Seven Thousand Two Hundred Three Only) upon receipt by us of your first demand in writing accompanied by a written statement stating that the Contractor is in breach of its obligations under the contract without your needing to prove or to show grounds for your demand or the sum specified therein.

This guarantee shall expire no later than the 30th day of June 2019.

Consequently, any demand for payment under this guarantee must be received by us at this office on or before that date.

This guarantee is subject to the Uniform Rules for Demand Guarantees, ICC Publication No. 758. (underlined by me)

27.           Another Bank Guarantee in question, being the Bank Guarantee No. REBDAK 900674, is for an amount of INR 65,613,906, which subsequently was increased to INR 137,903,838. However, its all other contents (terms and conditions as well as the particulars) are similar to those of the first-one and, thus, their quotations are not needed. 
28.           It is vividly evident from the Bank Guarantee/s quoted above that each Bank Guarantee is an independent contract between the Bank (Guarantor) and the PGCB (beneficiary). And, from the wordings that have been underlined by me, which are in fact the terms and conditions of the Bank Guarantee in question, it is crystal clear that the HSBC Bank has guaranteed in irrevocable terms that upon first demand in writing by the PGCB, the HSBC Bank shall pay the agreed amount to the PGCB, without raising any question. Therefore, in this case, there is no scope for the petitioner to stop encashment of these two Bank Guarantees.

29.           More importantly, Banks across the globe issue all types of Bank Guarantees under the provisions of ICC Uniform Rules for Demand Guarantees (URDG-758). As per Article 4(b) of the URDG-758, once a Bank Guarantee is issued, it is irrevocable and, therefore, whenever the beneficiary would make a demand to encash the Bank Guarantee, the Bank is mandatorily duty bound to instantaneously pay the money. On the other hand, Article 5(a) of URDG-758 stipulates as follows:

A guarantee is by its nature independent of the underlying relationship and the application, and the guarantor is in no way concerned with or bound by such relationship. A reference in the guarantee to the underlying relationship for the purpose of identifying it does not change the independent nature of the guarantee. The undertaking of a guarantor to pay under the guarantee is not subject to claims or defences arising from any relationship other than a relationship between the guarantor and the beneficiary.

30.           However, by virtue of Article 24 of the URDG-758 the Banks are empowered to reject the demand on the ground of discrepancy in the document i.e. in the Bank Guarantee. It follows that as per the provisions of URDG-758, a Bank Guarantee is an independent contract between the Bank and its beneficiary and it cannot be stopped by the guarantor (the Bank), let alone by the third party, except finding any discrepancy in the Bank Guarantee. To put in a simpler version all that this Court intends to state that since a Bank Guarantee is an irrevocable undertaking given by a Bank to pay an amount in favour of its beneficiary as and when the demand is made by the beneficiary without reference to any dispute between the parties to the underlying contract, there is no scope to stop its encashment by the Bank, not to speak of by the third party, save and except raising a dispute by the Bank regarding its authenticity or any other discrepancy.
31.           Even if the Bank raises a dispute showing discrepancy in the Bank Guarantee, the dispute must be resolved through the competent civil Court located within the jurisdiction of the Bank. Article 35(a) of URDG-758 stipulates as follows:

Unless otherwise provided in the guarantee, any dispute between the guarantor and the beneficiary relating to the guarantee shall be settled exclusively by the competent court of the country of the location of the guarantor's branch or office that issued the guarantee.

32.           In this case, no dispute has been raised by either of the parties of these unconditional Bank Guarantees, i.e. the Bank and the PGCB. Even if any dispute is raised, such dispute shall be settled by the Courts. Evidently, since the instant application under Section 7A on the Arbitration Act has been filed by the petitioner, who is not a party to the said Bank Guarantees, the petitioner is not at all competent to raise any dispute. Even the Bank, in this case, is estopped from raising any dispute inasmuch as the Bank Guarantees in question are unconditional and, furthermore, there is no arbitration clause in these Bank Guarantees.

33.           Question was raised, although feebly and that too only in verbal submissions, as to whether ICC Uniform Rules for Demand Guarantees (URDG-758) are mandatorily binding upon the Banks of this country. International Chamber of Commerce (ICC) was founded in the year 1919 by a handful visionary entrepreneurs and internationally reputed business magnets with an aim of fostering international trade and commerce through promoting and protecting open markets for goods and services and the free flow of capital. Its primary activities, among others, are (i) the establishment of rules, (ii) dispute resolution and (iii) policy advocacy. In the year 1923, it established the International Court of Chamber and, then, in 1933, it published the first Rules for the Uniform Customs and Practice for Documentary Credits (UCP) which were subsequently updated on many occasions. In 1936, ICC published the International Commerce Terms, which is popularly known as ‘Incoterms’. With the above background, ICC was granted accreditation to the United Nations Conference on International Organization (UNCIO), through which UN Charter was created. As an affiliated organization of the UN, by now, nearly 5 (five) crore companies of more than 100 (hundred) countries of the world are the members of this UN-affiliated organization and it is unimaginable for our country to carry out international trade, commerce and business without following and obeying the UCP-600, URDG-758 and Incoterm Rules framed by the ICC. In fact, our country has adopted the aforesaid Rules as biblical provisions for running its international business, trade and commerce. Even if, for the sake of argument, the ICC Rules are conceded to be not applicable mandatorily here in this tiny Delta, however, by incorporating the provisions of URDG-758 as the terms of the contracts (the Bank Guarantees in question) by the parties of the contract i.e. Bank and the PGCB, it has become inseparable parts of the Bank Guarantees in question. Therefore, it can safely be concluded that the issue as to whether or not the provisions of URDG-758 are to be abided by mandatorily by Bangladesh is not relevant for adjudication of a case involving examination of the question as to whether a  Bank Guarantee’s encashment can be stopped. Rather, the relevant issue of this kind of case is what are the terms and conditions of the contract in question (i.e. the terms of the Bank Guarantee). Admittedly, the terms of each of these two Bank Guarantees are that (1) the guarantee is irrevocable; (2) the guarantee is by its nature independent of the underlying relationship and the application, and the guarantor is in no way concerned with or bound by such relationship. A reference in the guarantee to the underlying relationship for the purpose of identifying it does not change the independent nature of the guarantee. The undertaking of a guarantor to pay under the guarantee is not subject to claims or defences arising from any relationship other than a relationship between the guarantor and the beneficiary; (3) Unless otherwise provided in the guarantee, any dispute between the guarantor and the beneficiary relating to the guarantee shall be settled exclusively by the competent Court of the country of the location of the guarantor's branch or office that issued the guarantee. If the above-mentioned three terms and conditions are, though the replica of Articles 4(b), 5(a) and 35(a) of URDG-758 respectively, considered as the original version of the contracts (i.e. the Bank Guarantees in question), there would not be any scope to raise the question as to whether URDG-758 is a mandatory law for our country or not.

34.           Let me now take up the second and third issue, namely, whether Section 7A of the Arbitration Act mandates this Court to stop encashment of a Bank Guarantee, and whether the Bank Guarantee is the subject- matter of the arbitration which is to be kicked off very shortly. For this purpose, it would be profitable if the provisions of Section 7A of the Arbitration Act are known and, accordingly, the same are quoted below: Section 7A of the Arbitration Act:

Powers of Court and High Court Division to make interim orders-(1) Notwithstanding anything contained in Section 7 unless the parties agree otherwise, upon prayer of either parties, before or during continuance of the proceedings or until enforcement of the award under Section 44 or 45 in the case of international commercial arbitration the High Court Division and in the case of other arbitrations the Court may pass order in the following matters:-

1.         To appoint guardian for minor or insane to conduct on his/her behalf arbitral proceedings.
2.         To take into interim custody of or sale of or other protective measures in respect of goods or property included in the arbitration agreement.
3.         To restrain any party to transfer certain property or pass injunction on transfer of such property which is intended to create impediment on the way of enforcement of award.
4.         To empower any person to seize, preserve, inspect, to take photograph, collect specimen, examine, to take evidence of any goods or property included in arbitration agreement and for that purpose to enter into the land or building in possession of any party.
5.         To issue ad-interim injunction;
6.          To appoint receiver; and
7.         To take any other interim protective measures which may appear reasonable or appropriate to the Court or the High Court Division.

2.         The similar powers of the Court or the High Court Division as are available in relation to any other legal proceedings shall be available to the Court or the High Court Division as the case may be, while passing orders under subsection (1).
3.         Before passing order upon application received under sub- section (1) the Court or the High Court Division shall serve notice upon the other party:

Provided that if the Court or the High Court Division is satisfied that in the event the order is not passed instantaneously, the purpose of making interim measures shall be frustrated, there shall be no necessity of serving such notice.

4.         If the Court or the High Court Division is satisfied that Arbitration Tribunal has no power to initiate proceedings in any matter under sub-section (1) or the Arbitration Tribunal has failed to pass order in such matter, the Court or the High Court Division as the case may be, shall be competent to pass order under this section.
5.         The Court or the High Court Division if considers appropriate shall be competent to cancel, alter or amend the order passed under this section.
6.         Where any Arbitration Tribunal or any institution or person empowered in any matters relating to orders passed under sub section (1) passed any order in such matters, the order passed by the Court or High Court Division as the case may be, in the same matter, shall be entirely or the relevant part thereof, inoperative.

35.              From a minute perusal of the entire provisions of Section 7A of the Arbitration Act, it appears to me that while Paragraphs (a) to (g) of sub- Section (1) of Section 7A of the Arbitration Act specify the subjects in which this Court is empowered to pass Orders, sub-Section (2) of Section 7A of the Arbitration Act equips this Court with the further powers, which are usually available to a civil Court for dealing with any legal proceedings. There is no mentioning anywhere in the Paragraphs (a) to
    7. of Section 7A(1) of the Arbitration Act about Bank Guarantee. In fact, all the above-mentioned paragraphs are the tools for preserving, protecting and safeguarding the subject-matter/s of the contract.
36.              Here in this case, there are two contracts; the first is the Contract between the petitioner and the PGCB for setting up 10 (ten) power Sub- stations and the second contract is between the PGCB (beneficiary of the Bank Guarantee) and the HSBC Bank (the guarantor of the Bank Guarantee) about ensuring payment of money by the Bank to the PGCB, as and when the latter would demand the money by merely stating that the Bank’s customer is in breach of the terms of the Contract. Evidently, the petitioner is a party to the first Contract (the underlying Contract) and, accordingly, if there is any dispute about the subject-matter of the first Contract, the petitioner is entitled to pray for an appropriate interim Order from this Court for mitigating the exigencies delineated in Paragraphs (a) to (g) of Section 7A (1) of the Arbitration Act. But, in the second contract, (i) the petitioner is not a party to the contract, (ii) there is no arbitration clause in the second contract and, also, (iii) there is no dispute between the parties (Bank and the PGCB) of the second contract (Bank Guarantee). So, evidently the second contract (i.e. Bank Guarantee) is not the subject-matter of this arbitration, which has already been commenced by the parties. Thus, I hold that the provisions of Section 7A are not applicable to the second contract (i.e. for the Bank Guarantee).

37.           Now, let me see whether this petitioner deserves a temporary injunction on encashment of these two Bank Guarantees in question under the provisions of the CPC. The relevant provisions of the CPC are Order XXXIX Rule 1 of the CPC, which are quoted below:

Where in any suit it is proved by affidavit or otherwise-

1.      that any property in dispute in a suit is in danger of      being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
2.      that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors,

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose

of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders. (underlined by me)

38.           From a minute perusal of the above law, it appears that the above provisions of law are applicable in suit. However, for ease of things, let it be presumed that by virtue of the provisions of Section 141 of the CPC, the provisions of Order XXXIX Rule 1 are applicable here in this case. The scheme of the above law, as appears to this Court, is to provide equitable remedy to the applicant as well as to save pending suit/proceedings from being frustrated till its disposal. There have been a significant number of qualitative judicial pronouncements all over the common-law jurisdictions on the above law. The most fundamental ratio laid down by the Courts of all the jurisdictions are that for granting ad-interim injunction, the applicant must satisfy the Court that (i) there is prima facie case, (ii) the balance of convenience and inconvenience is in favour of the applicant and (iii) if the injunction is not granted the applicant shall suffer irreparable loss and injury.
39.           In this case, apparently there is no scope of making out a prima facie case by the petitioner in favour of non-encashment of the said Bank Guarantees, for, when an unconditional Bank Guarantee is given, the beneficiary is entitled to realize such a Bank Guarantee in terms thereof irrespective of any pending disputes relating to the terms of the underlying Contract, and the Bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The Bank Guarantees have been issued under the ICC Uniform Rules for Demand Guarantee, ICC Publication No. 758 and the said URDG-758 mandatorily requires the Banks to make instantaneous payment of the Bank Guarantees whenever asked by the beneficiary of a Bank Guarantee, as has been held hereinbefore. The petitioner is a foreign contractor and only protection accorded to the PGCB is by way of Bank Guarantees and restraining of the same shall make the objective of Bank Guarantee redundant. The balance of convenience and inconvenience, thus, clearly lies in favour of the PGCB. The petitioner also shall not suffer any loss which cannot be compensated in the arbitration and, as such, in case of encashment, the petitioner shall not suffer any irreparable harm and injury. Since there is no prima facie case, this Court does not even need to examine as to whether the balance of inconvenience is in favour of the petitioner or whether the petitioners shall actually suffer any irreparable loss. Thus, this Court holds that the petitioner does not deserve an Order of injunction under the provisions of the CPC.

40.           Now, let me examine the judicially-sanctioned exceptions to the general rule regarding injunction over encashment of a Bank Guarantee. The general rule is that no prohibition order should be passed by a Court over encashment of a Bank Guarantee, as the same is the contractual obligation of the Bank with its beneficiary.
41.           The most established judicially-sanctioned exception is the commission of fraud. Before 1941, the Courts all over the world recognised fraud only about the genuineness of Letter of Credit and Bank Guarantee. But after the case of Sztejn Vs J Heary Schroder Banking Corporation et; 177 Miscelleneous 719, NYS 2d 631 or [1941] 31 NYS 2nd 631, the Courts in the USA and, thereafter, following the case of Discount Records Ltd Vs Barclays Bank Ltd and another [1975] 1 ALL ER 1071, most of the jurisdictions across the world recognised that fraud may exist - not only in preparation and presentation of LC or Bank Guarantee, but also in connection of the underlying contract. The said principle has also been laid down by our Apex Court in the case of Uttara Bank Vs Macneil & Kilburn Ltd 33 DLR (AD) 298. However, since in this case, the petitioner has not sought to base its case on the principle of fraud as an exception, any further discussion and examination thereon (on the principle of fraud exception) may be avoided.
42.           There is no other judicially-sanctioned exception to the above- mentioned general rule regarding prohibition over encashment of Bank Guarantee. However, the learned Advocate for the petitioner has argued that (i) if irretrievable injustice, harm and injury is caused to the applicant, (ii) if invocation of the Bank Guarantee is not in terms of the Bank Guarantee, (iii) if the applicant has substantially performed the contract within the original contractually stipulated time and (iv) if there has been a delay in handing over of site for construction on the part of the employer, in that scenario, the Courts of different foreign jurisdictions have interfered with encashment of a Bank Guarantee by the beneficiary. In an endeavour to substantiate his argument, he has referred to the following cases (i) Svenska Handels Banken Vs Indian Charge Chrome (1994) 1 SCC 502, (ii) Dwarikesh Sugar Industries Ltd Vs Prem Heavy Engineering Works 1997(2) Arb. LR 350, (iii) U.P. State Sugar Corpn Vs Sumac International Ltd (1997) 1 SCC 568, (iv) U.P. Coop, Federation Ltd Vs Singh Consultants and Engineers (P) Ltd (1988) 1 SCC 174, (v) Nangia Construction (India) Ltd Vs International Airport Authority of India, AIR 1992 Del 242, (vi) National Project Const. Corporation Vs G. Ranjan, AIR 1985 Cal 23 and (vii) Hindustan Construction Co. Ltd Vs State of Bihar & Ors AIR 1999 SC 710.

43.             Let me now, take up all the afore-said cases one after another in order to see whether any ratio is laid down therein, so as to consider the said ratio to be judicially-sanctioned exception to the general rule about prohibition on encashment of a Bank Guarantee.
44.             In the case of UP State Sugar Corpn. Vs Sumac International Ltd (1997) 1 SCC 568, when by filing two applications under Section 41(b) of the Indian Arbitration Act, interim stay against encashment of Bank Guarantees was sought, the Civil Judge, Senior Division, Muzaffarnagar dismissed the applications. In revision, the applications were allowed by the High Court and an injunction was granted restraining the appellant from enforcing the Bank Guarantees. However, on appeal against the Judgment of the High Court, the Supreme Court of India held that the law relating to invocation of such Bank Guarantees is by now well - settled. When in the course of commercial dealings an unconditional Bank Guarantee is given or accepted, the beneficiary is entitled to realize such a Bank Guarantee in terms thereof irrespective of any pending disputes. The Bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a Bank Guarantee would otherwise be defeated. The Courts should, therefore, be slow in granting an injunction to restrain the realization of such a Bank Guarantee. It observed that the Courts have, so far, carved out only two exceptions, namely, (i) fraud and (ii) irretrievable harm or injustice. The Court further observed that where a fraud in connection with such a Bank Guarantee would vitiate the very foundation of such a Bank Guarantee, and where allowing the encashment of an unconditional Bank Guarantee would result in irretrievable harm or injustice to one of the parties concerned, the Courts should stop encashment of a Bank Guarantee.
45.             The Court held that to avail of the exception of irretrievable harm or injustice, exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately succeeds, will have to be decisively established. Citing an example, the Court observed that irretrievable injury has to be of the nature noticed in the case of Itek Corporation Vs The First National Bank of Boston etc (566 Fed Supp. 1210), wherein the exporter had sought an order terminating its liability on standby Letters of Credit issued by an American Bank in favour of an Iranian Bank as part of the contract due to commencement of the Islamic Revolution in Iran, and the Court upheld the contention of the exporter that any claim for damages against the purchaser if decreed by the American Courts would not be executable in Iran as there were sanctions imposed by both countries against each other under these circumstances and realization of the Bank Guarantee/Letters of credit would cause irreparable harm to the plaintiff. Thus, the Indian Supreme Court did not find any grievance in this cited-case which would cause irretrievable harm and injury to the applicant. In arriving at the above decision, the Court referred to the case of State of Maharashtra & Another Vs M/S National Construction Company, Bombay  & Another (JT 1996(1) SC 156) and observed that the rule is well established that a Bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of the Bank under a performance guarantee is created by the document itself. Once the documents are in order, the Bank giving the guarantee must honour the same and make payment ordinarily unless there is an allegation of fraud or the like. The Indian Supreme Court has further observed in the afore-cited case that the Courts will not interfere directly or indirectly to withhold payment, otherwise trust in commerce, internal and international, would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle the disputes with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising ex-contractu is not barred and the cause of action for the same is independent of enforcement of the guarantee. The Supreme Court of India, then, in line with the case of Hindustan Steelworks Construction Ltd Vs Tarapore & Co. & Anr. (JT 1996 (6) SC 295), referred the matter to arbitration and set aside the High Court Judgment and vacated the injunction granted by the High Court.

46.           In the case of Himadri Chemicals Industries Ltd Vs Coal Tar Refining Company (2007) 8 SCC 110, it was held that Bank Guarantee is an independent and separate contract and 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 Guarantee. In holding the above-mentioned view, the Court relied on the case of UP Coop. Federation Ltd Vs. Singh Consultants and Engineers (P) Ltd (1988) 1 SCC 174 and the case of UP State Sugar Corporation Vs Sumac International Ltd and dismissed the appeal upon vacating the Order of injunction against Bank Guarantee which was granted by the High Court. In dismissing the appeal, the Indian Supreme Court opined 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 realize such a Bank Guarantee or  a Letter of Credit in terms thereof irrespective of any pending disputes relating to the terms of the contract, (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 realization 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 and (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. In this cited - case, the Indian Supreme Court found that irretrievable injury was not caused to the appellant by a refusal to grant an order of injunction restraining the encashment of the Letter of Credit for two reasons: (i) exceptional circumstances have not been made out by the appellant which would make it impossible for the guarantor to reimburse himself if he ultimately succeeds. A case of apprehension is not acceptable, (ii) interest of the respondent already protected by issuance of Bank Guarantee in an Admiralty Suit in respect of the same set of goods. It is to be noticed here in this cited-case that although the beneficiary of the Bank Guarantee was a foreigner who did not have any asset in India, nevertheless, the Indian Supreme Court held that only because the respondent has no assets in India would not lead the Court to hold that the appellant was entitled to an injunction on the ground that he would suffer an irretrievable injury.

47.           In the case of Omaxe Const. Ltd Vs. UOI-(2004) 2 Arb LR 1985 Cal 23, an application under Order XXXIX Rules 1 and 2 of the CPC was filed seeking an order of temporary injunction in favour of the plaintiff restraining the defendants, their agents and employees from enforcing/encashing the performance guarantee. The Court found that the disputes are connected with the main underlying contract and, therefore, the Court held that they cannot have any relevance to the liability of the Bank under the guarantee given by it. Since the Bank has given unconditional Bank Guarantee, the Bank is under an obligation to pay on demand. Accordingly, the prayer for injunction was rejected by the Court.
48.           In the case of UP Coop, Federation Ltd Vs Singh Consultants and Engineers (P) Ltd (1988) 1 SCC 174, the respondent filed a petition under Section 41 of the Arbitration Act 1940 in the Court of the Civil Judge, Lucknow praying for an order restraining the appellant from realizing and encashing the Bank Guarantees. The learned Civil Judge declined to issue any injunction and dismissed the application. Being aggrieved by the aforesaid decision, the respondent went up before the Allahabad High Court. The learned Single Judge of the Allahabad High Court allowed the revision petition and held that the invocation of the performance guarantees were illegal and further held the contentions of the appellant that the performance guarantees constituted independent and separate contracts between the guarantor Bank and the beneficiary and created independent rights, liabilities and obligations under the guarantee bonds themselves, as being technical pleas. In appeal, against the above Judgment, the Supreme Court of India, after referring extensively to English and Indian cases on the subject, held that the guarantee must be honoured in accordance with its terms. The Supreme Court of India observed that the Bank which gives the guarantee is not concerned in the least with the relations between the supplier and the customer; nor with the question whether the supplier has performed his contractual obligation or not, nor with the question whether the supplier is in default or not. The Bank must pay according to the tenor of its guarantee on demand without proof or condition. The High Court proceeded on the basis that this was not an injunction sought against the Bank but against the appellant. But the net effect of the injunction is to restrain the Bank from performing the Bank Guarantee. That cannot be done. One cannot do indirectly what one is not free to do directly. The respondent was not to suffer any injustice which was irretrievable. The respondent can sue the appellant for damages. There cannot be any basis in the case for apprehension that irretrievable damage would be caused, if any. Accordingly, the appeal was allowed upon setting aside the High Court’s Judgment.

49.           In the case of Svenska Handels Banken Vs Indian Charge Chrome (1994) 1 SCC 502, the Supreme Court of India once again reiterated that a confirmed Bank Guarantee/irrevocable Letter of Credit cannot be interfered with unless there is established fraud or irretrievable injustice involved in the case. It was observed by the Apex Court of India that irretrievable injury has to be of the nature noticed in the case of Itek Corporation Vs The first National Bank of Boston etc. (566 Fed Supp. 1210). On the question of fraud the Court confirmed the observations made in the case of UP Cooperative Federation Ltd and stated that the fraud must be that of the beneficiary, and not the fraud of anyone else. Appeal, resultantly, was accepted by the Supreme Court of India with costs, upon setting aside the Judgment and Order of the High Court.
50.           In the case of Dwarikesh Sugar Industries Ltd Vs Prem Heavy Engineering Works 1997 (2) Arb. LR 350, the Court, upon referring to the case of case of UP State Sugar Corporation, held that fraud has to be an established one. In the absence of established fraud and not a mere allegation of fraud, and that also having been made only in the injunction application, the Court could not, in the present case, have granted an injunction relating to the encashment of the Bank Guarantees. Secondly, irretrievable injury has to be such a circumstance which would make it impossible for the guarantor to reimburse himself, if he ultimately succeeds. This will have to be decisively established and it must be proved to the satisfaction of the Court that there would be no possibility whatsoever of the recovery of the amount from the beneficiary by way of restitution. The Indian Supreme Court further held that in encashment of Bank Guarantee, the applicability of the principle of undue enrichment has no application. The appeal was allowed by the Supreme Court enabling the beneficiary to encash the Bank Guarantee and the Judgment and Order of the Allahabad High Court was set aside.
51.           In the case of Nangia Construction (India) Ltd Vs International Airport Authority of India AIR 1992 Del 242, Bank Guarantee was given in relation to possession of land. The Court held that when the land is with the respondent/authority and there is no hindrance by the petitioner, the Court did not think the Bank Guarantee can be encashed because the Bank could only be made liable if it had been the case of the respondent/authority that the land has not been handed over to the respondent. Since it is stated at the Bar that the possession of the land has been taken over by the respondent/authority, the authority cannot be permitted to enrich itself by also encashing the Bank Guarantee, for which the security was taken. Therefore, taking these factors into consideration, the Court was of the view that special equity is in favor of the petitioner because if the respondent is allowed to encash the Bank Guarantee it would amount to irretrievable injustice to the petitioner. It is opined by this Court that since the Judgment was passed by the Delhi High Court, it is highly likely that an appeal might have been preferred by the Nangia Corporation (petitioner), but the learned Advocate Mr Akhtar Imam could not provide this Court with the information.

52.           In the case of National Project Const. Corporation Vs G. Ranjan AIR 1985 Cal 23, it was a conditional Bank Guarantee and the trial Court injuncted its encashment. However, the Calcutta High Court held that there is no prima facie reason as to why the Bank Guarantee cannot be enforced by the beneficiary subject, of course, to the fulfillment of the conditions as laid down therein. Beneficiary’ right to realize that balance is not dependent upon adjudication of the dispute raised and proposed to be referred to Arbitration. To this extent, the Bank Guarantee can very well be enforced on its own terms irrespective of any other consideration and, accordingly, injunction was vacated by the Court.
53.           In the case of Hindustan Construction Co. Ltd Vs State of Bihar and Others AIR 1999 SC 710, the suit was filed by the beneficiary against the Bank. When the issuing Bank declined to encash the Bank Guarantee on the ground that invocation of Bank Guarantee was not done by the person who is the actual beneficiary, injunction was granted by the Court holding that invocation of Bank Guarantee was done by the wrong person. In view of the scenario of the afore-cited case that the suit was filed by the beneficiary of the Bank Guarantee, not by the third party, and the beneficiary being a party to this separate, distinct and independent contract of Bank Guarantee, the beneficiary was competent to approach the Court invoking civil jurisdiction. He did not invoke Arbitration Act. When the Court found that the Bank Guarantee was furnished to the Chief Engineer and there is no definition of Chief Engineer in the Bank Guarantee, nor is it provided therein that Chief Engineer would also include Executive Engineer, the Bank Guarantee could be invoked by none except the Chief Engineer, the invocation was, thus, wholly wrong and the Bank was under no obligation to pay the amount covered by the “Performance Guarantee” to the Executive Engineer.
54.           After examining all the cases referred to and relied upon by the petitioner, it surfaces that none of the above-examined cases discussed the provisions of the Uniform Rules for Demand Guarantee, ICC Publication No. 758, particularly, Article 4(b) (Bank Guarantee is irrevocable) Article 5 (independence of guarantee) and Article 35 (jurisdiction of Courts). More importantly, all the above cases were referred to by the learned Advocate for the petitioner in a bid to show to this Court that apart from fraud exception, there are other judicially-sanctioned exceptions which permit the Courts to stop encashment of a Bank Guarantee. But, upon carrying out the above meticulous examination, this Court finds (i) fraud and (ii) irretrievable loss as the judicially-sanctioned exceptions to the general rule regarding prohibition upon encashment of Bank Guarantee. In all these cases, it was held that no injunction can be granted against Bank Guarantee unless a clear case of fraud is established and, secondly, encashment shall lead to irretrievable damage which cannot be reimbursed or recovered if ultimately succeeds. The second judicially- sanctioned principle is nothing new in common-law jurisdiction. The Courts of our country unhesitatingly grant injunction over any civil dispute, including contractual nature of civil dispute such as the Bank Guarantee, if the applicant can satisfy the Court that (i) there is an arguable case for the applicant and (ii) the loss cannot be recovered or reimbursed.

55.           In this case, the petitioner’s only plea is that encashment of Bank Guarantees would badly damage its business reputation amounting to irretrievable harm to the petitioner. However, this Court does not find the above plea to be of such a grave nature which would have a severe impact causing crippling of the petitioner’s business entity, because the petitioner would not be blacklisted to participate in the future tender/bid of any country due to encashment of the Bank Guarantees in question. In any event, if the petitioner succeeds in arbitration, he will be compensated for the loss, if any suffered.
56.           Now, let me embark upon the cases of our jurisdiction which were referred to and relied upon by the learned Advocate for the petitioner in an expectation to persuade this Court that since previously all the higher Courts of Bangladesh i.e. the Single Bench as well as the Division Bench of the High Court Division and the Appellate Division of the Supreme Court of Bangladesh, have granted injunction over encashment of the Bank Guarantees in numerous cases, the present presiding Judge of this Single Bench of the High Court Division should not make an exception thereto.   
57.           In the case of Summit Bibiyana Vs Bangladesh 5 CLR (HCD) (2017) 354, a Division Bench presided over by his Lordship Justice Md. Nuruzzaman held that the decisions cited before the Court were passed under Order 39 Rules 1 and 2 of the CPC, not under Section 7Ka(1) (Uma) of the Arbitration Act, 2001. Arbitration law is a special law and shall prevail over general law (para-40). Injunction was granted over encashment of the Bank Guarantee by the Court. It is to be noticed that because of the failure of the learned Advocates to properly assist the Court in the afore-cited case, no issue was framed by the Court on whether the Court is empowered to stop encashment of a Bank Guarantee by issuing an Order of Injunction in an application under Section 7A of the Arbitration Act, 2001; secondly, no discussion on the provisions of the Uniform Rules for Demand Guarantee, ICC Publication No. 758 was made; thirdly, no discussion on Bank Guarantee being independent and separate contract and the fact that any dispute existing in relation to the underlying agreement cannot be a ground for passing an order of injunction to restrain encashment of Bank Guarantee and such encashment of Bank Guarantee shall cause irretrievable harm or injustice to the party concerned, i.e. the beneficiary of the Bank Guarantee were made in this case. Most importantly, the learned Advocates of both the sides utterly failed to place before the Court that our Appellate Division, in the case of Fatullah Agro-product Industries Vs BADC 17 BLD (AD) 49, having dealt with the same fact, i.e. a case arising out of the Arbitration Act, refused to stop encashment of a Bank Guarantee upon holding that;

It is fairly well settled that Courts are reluctant to interfere with commercial transactions entered into by the contending parties through performance of guarantee or Letter of Guarantee. The arbitration case is in respect of the impugned termination of the agreement, not in respect of the Bank Guarantee and the raw materials in question. In case of success of the petitioner in the arbitration proceedings, his threatened loss may be adequately compensated by money and as such there is no case for injunction.

58.           In the case of Desktop Computer Vs ST Electronics 15 BLC 644, a Single Bench of this Court, presided over by his Lordship Justice Syed Refaat Ahmed, found the Bank Guarantees to be conditional and are to a great degree and somewhat inextricably linked with the underlying contractual arrangements between the petitioner and the respondent No. 1 (Para 3). His Lordship found that the Bank Guarantees were ineffective as they were in violation of the relevant laws of Bangladesh and held that the Bank Guarantees are prohibited by law, particularly, the Foreign Exchange Regulation Act and, accordingly, the Court restrained encashment of the Bank Guarantees. It is worthwhile to mention here that in this case, because of the failure of the learned Advocates to properly assist the Court in the afore-cited case, no issue was framed by the Court on whether the Court is empowered to stop encashment of a Bank Guarantee by issuing an Order of Injunction in an application under Section 7A of the Arbitration Act and no discussion on the provisions of the Uniform Rules for Demand Guarantee, ICC Publication No. 758 was made and, consequently, the Court missed to consider the crucial aspect of a Bank Guarantee that it is an independent and separate contract and the fact that any dispute existing in relation to the underlying agreement cannot be a ground for passing an order of injunction to restrain encashment of Bank Guarantee and, also, whether such encashment shall cause irretrievable harm or injustice to the party concerned, i.e. the beneficiary of the Bank Guarantee.
59.           In the case of Drileltee-Maxwell Joint Venture Vs GTCL 21 BLC (HCD) 122, a Single Bench presided over by his Lordship Justice AKM Abdul Hakim, in an application under Section 7A of the Arbitration Act, stopped encashment of Bank Guarantee. In this case as well, because of the failure of the learned Advocates to properly assist the Court in the afore-cited case, there was no findings of the Court on the separablility and independence of Bank Guarantee from the underlying contract and no issue was framed by the Court on whether the Court is empowered to stop encashment of a Bank Guarantee by issuing an order of Injunction in an application under Section 7A of the Arbitration Act. Also, no discussion on the provisions of the Uniform Rules for Demand Guarantee, ICC Publication No. 758 was made and, consequently, the Court missed to give its findings that a Bank Guarantee being independent and separate contract and the fact that any dispute existing in relation to the underlying agreement cannot be a ground for passing an order of injunction to restrain encashment of Bank Guarantee or whether such encashment would cause irretrievable harm or injustice to the party concerned, i.e. the beneficiary of the Bank Guarantee.

60.           In the case of Dhaka Telephone Company Limited Vs Bangladesh and others, (which is an unreported Judgment and Order dated 22.10.2019 passed in Writ Petition No. 11747 of 2015), a Writ Petition was filed challenging cancellation of PSTN license of the petitioner. BTRC issued letter seeking encashment of Bank Guarantee while the writ petition was pending. The petitioner, then, filed application for stay. Since there was a dispute on the amount of claim of BTRC, the Court held that BTRC cannot claim encashment of Bank Guarantee furnished by the petitioner beyond the admitted amount. Although the Court acknowledged that it has been decided by our Appellate Division repeatedly that the Bank Guarantees are separate contracts, but nevertheless the Court partially allowed the application and stayed encashment of Bank Guarantees beyond Tk. 2,20,12,369.00. This is, again, to be mentioned here that because of the failure of the learned Advocates to properly assist the Court in the afore-cited case, no issue was framed by the Court in the cited-case on whether the Court is empowered to stop encashment of a Bank Guarantee by issuing an order of injunction in an application under Section 7A of the Arbitration Act and no discussion on the provisions of the Uniform Rules for Demand Guarantee, ICC Publication No. 758 was made and, consequently, no findings of the Court on Bank Guarantee being independent and separate contract and the fact that any dispute existing in relation to the underlying agreement cannot be a ground for passing an order of injunction to restrain encashment of Bank Guarantee came out. Also, there was no finding as to whether such encashment shall cause irretrievable harm or injustice to the party concerned, i.e. the beneficiary of the Bank Guarantee. 
61.           It follows that the case-laws of our jurisdiction and foreign jurisdiction referred to and relied upon by the learned Advocate for the petitioner do not help the petitioner to obtain an Order of Injunction on encashment of the Bank Guarantees in question for the following reasons:

1.     These two Bank Guarantees in question are independent and separate contracts between the Bank and the PGCB. Since the petitioner is not a party to these contracts (i.e. of the two Bank Guarantees), he cannot challenge the action of a party (the PGCB) to the said contracts (i.e. action of the beneficiary of the Bank Guarantees).

2.     Only the party to a Bank Guarantee (i.e. the Bank) is competent to raise a valid and bonafide dispute on the encashment of a Bank Guarantee, for example, (i) if a wrong person invokes the encashment of the Bank Guarantee or (ii) if the Bank finds any other discrepancy in the Bank Guarantee.
3.     Since all the Banks all over the world usually issue the Bank Guarantees specifically incorporating the conditions that (i) it is irrevocable, (ii) it is a separate and independent contract from the underlying contract, (iii) existence of any dispute between the parties to the underlying contract cannot be a ground by the Bank or its customer (at whose instance the Bank Guarantee was issued) to stop its encashment, (iv) the Bank is in no way concerned with or bound by the underlying relationship and (v) if any dispute arises between the Bank and the beneficiary, it shall be adjudicated upon by the competent civil Court located within the jurisdiction of the Bank, therefore, there is no scope to apply the provisions of Section 7A of the Arbitration Act, unless an arbitration clause is incorporated by the Bank and the beneficiary in the separate contract of Bank Guarantee. The first and foremost requirement for invoking arbitration is to have an arbitration clause in the contract. But in these two Bank Guarantees (contracts), it has specifically been incorporated that the dispute shall be resolved through civil Court and, therefore, there is no scope for even the Bank to commence arbitration if any discrepancy was found by the Bank.
4.     No case of irretrievable harm or irreparable loss was made out in this case to satisfy this Court that the harm or loss is not reimbursable, reparable or recoverable. In fact, this Court found that there would be no harm or loss for the petitioner if the Bank Guarantees are encashed.

62.           It leads me to hold that there is no substance in the arguments placed by the learned Advocate for the petitioner and the Rule is liable to be discharged. Accordingly, as per the terms of the instant Rule, after wrapping up the hearing of this case, the learned Advocate for the petitioner was informed about the decision of this Court by giving an opportunity to pass this Court’s decision onto the petitioner that the petitioner is now at liberty to non-prosecute the Rule, otherwise there shall be a cost of TK. 10,00000/- (ten lacs) as per the terms of the Rule, which is reproduce herein below:

Taking into the consideration the submissions of the learned Advocate for the petitioner for issuance of a Rule and granting interim order, I am of the view that there is apparently no legal issue for examination by this Court by issuing a Rule in this application. However, upon relying on the humble prayer of the learned Advocate for the petitioner that he shall be able to differentiate the facts of this case from the facts of the reported cases, this Court is inclined to issue a Rule subject to the condition that at the time of hearing of the substantive application if the petitioner fails to satisfy this Court regarding maintainability of this application, he shall be under an obligation to non-prosecute the application. If he does not non-prosecute this application and wishes to receive a full- fledged Judgment, in that event, this Court shall slap an exemplary costs of Tk. 10,00,000/- (ten lacs) upon the petitioner. 

Accordingly, let a Rule be issued calling upon the opposite party to show cause within 06.01.2010 as to why they shall not be restrained from en cashing the Bank Guarantees Nos. REBDAK900671 and REBDAK 900674 dated 17.01.2019, and amendments vide letters dated 24.03.2019 and 20.06.2019 respectively (Annexures C, C1, C2 and C3) till disposal of the dispute through arbitration and/or such other or further order or orders passed as to this Court may seem fit and proper.

Pending hearing of the Rule, the opposite party is hereby restrained from en-cashing the Bank Guarantees Nos. REBDAK900671 and REBDAK 900674 dated 17.01.2019 and amendments vide letters dated 24.03.2019 and 20.06.2019 (Annexures C, C1, C2 and C3) for a period of 21 (twenty one) days i.e. till 06.01.2020.

63.           The legal issues concerning prohibition on encashment of a Bank Guarantee and Letter of Credit are no longer a res nova and, therefore, this Court usually, at the time of motion hearing, puts its best efforts to convince the learned members of the Bar not to press the application on the said issue for obtaining a Rule. Given the prevailing trend of the learned members of the Bar to persistently insist upon this Court to issue a Rule, despite this Court’s verbal expression as to not having any merit in the case, this Court, in an endeavour to mitigate the situation, was thinking for long to invent a device to issue Rule, instead of rejecting the petition in limine, so that the members of the Bar cannot complain of destroying their profession. Because, now-a-days, it has been a trend of the learned members of the Bar to castigate an Hon’ble Judge as a closefisted Judge or miser-Judge, (K…cb wePvicwZ) or a rigid-Judge (DKzb evQv wePvicwZ) or an over-intellectual Judge (†ekx cwÛZ wePvicwZ) etc, if a motion is rejected outright by the Court. Against the aforesaid backdrop, this Court, in an endeavour to strike a balance, has introduced issuance of a Rule in the afore-quoted terms, so that after a case is placed by the learned Advocate at length before the Court, if the learned Advocate fails to satisfy the Court about the merit of the case, he voluntarily prays to the Court for non-prosecution the Rule. This Court in the cases of (1) Shanta Chandra Vs Bangladesh 12 ALR 2018(1) HCD 243 (relevant para-30), (2) Chittagong Dry Dock Ltd Vs MT Fadl-E Rabbi 15 ALR 2019(1) HCD 273 (relevant para-31) and (3) Shahabuddin Vs Bangladesh Bank 2019 ALR (HCD) Online 199 (relevant Para-26) gibed the learned members of the Bar for failing to play the expected ideal role as the officers of this Court.

64.           In that line, the above-quoted Rule was issued on 15.12.2019 and the petitioner was allowed 21 (twenty one) days time from the date of issuance of the Rule to show to this Court that the ratio laid down in the latest decisions of this Court, namely, the cases of (1) Southern Solar Power Ltd and another Vs Bangladesh Power Development Board and others reported in 2019(2) 16 ALR (HCD) 91 and (2) Frigo Mekanik Vs Bangladesh Milk Producers’ Cooperative Union Ltd. 2019(2) 16 ALR (HCD) 357, are not applicable in this case. Hence, the petitioner was under an obligation to take necessary preparation accordingly. When the matter appeared in the list after 21 (twenty one) days on 06.01.2020 allotting a time-slot for one hour from 3pm to 4pm, the learned Senior Advocate for the petitioner sought adjournment for taking preparation enabling him contesting the Rule wholeheartedly. Thereafter, on two further occasions, the learned Senior Advocate for the petitioner was allowed time to get fully prepared. Eventually, the learned Senior Advocate having been assisted by his very able junior Ms Rashna Imam came up with a huge bundle of case-laws and this Court with great patience had to go through all these case-laws. In other words, the petitioner was allowed to place his case at length. After hearing his submissions for a number of days, when this Court expressed its view that there is no merit in the Rule and the petitioner may opt to non-prosecute the Rule to save the consequential costs, the learned Advocate for the petitioner Ms Rashna Imam expressed her desire to receive a full-fledged Judgment containing all the statements and submissions made by them as well as recording this Court’s findings and observations in detail on the case-laws referred to by them. That is how, this Court was obligated to pen down this lengthy Judgment on an issue which is well-settled, not only in our jurisdiction but also in most of the common-law countries, that the encashment of a Bank Guarantee cannot be restrained on the ground of financial loss or business reputation, because the financial claim can always be resolved in the arbitration and, more so, the Bank Guarantees being separate and distinct from the underlying contract, there is no scope for a third party to raise a dispute about a Bank Guarantee. Since this Court is being constrained to author this detailed Judgment despite this Court’s earnest effort to avoid it (by making repeated verbal observations in the open-Court in course of this case’s hearing that the issue being no more a res integra, there is no need of de novo hearing for its further examination and consideration by this Court), I find it appropriate to slap costs of TK. 10,00000/- (ten lacs) upon the petitioner as per the terms of issuance of the instant Rule.
65.           Before parting with this Judgment, it should be jotted down here that, in handing down this long Judgment, this Court has immensely been benefitted by the emphatic assistance rendered by the learned Advocate for the PGCB, Mr. Margub Kabir. His written submissions, which were though succinct but applicative, were very useful in rebutting the arguments pleaded by the learned Advocates for the petitioner. 

In the result, the Rule is discharged with a cost of TK. 10,00000/- (ten lacs).  ”

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IN THE COURT OF THE DISTRICT JUDGE, DHAKA (SPECIAL ORIGINAL JURISDICTION)

ARBITRATION MISCELLANEOUS CASE NO. 597 OF 2015 IN THE MATTER OF:

An application under Section 7Ka of the Arbitration Act, 2001.

-AND-

IN THE MATTER OF:

Brandwin Trading Corporation Limited, registered office at Amin Court (7th Floor), 62-63, Motijheel Commercial Area and corporate office of MIDAS Center (7th Floor), House No. 5, Road

No. 16 (New and Old 27), Dhanmondi, Dhaka-1209, represented by Power of Attorney holder, namely Alok Barua.

--------- PETITIONER.

1. Bangladesh Chemical Industries Corporation (BCIC), BCIC Bhavan, 30-31, Dilkusha C/A, Dhaka- 1000. represented by its Chairman;
2. Janata Bank Limited, Foreign Exchange Corporate Branch, 57, Purana Paltan, Dhaka-1000.

--------- OPPOSITE PARTIES. The humble petition of the petitioner above named respectfully-

“1. That the petitioner is a limited company incorporated under the Companies Act, 1994 having its address given at the cause title. The petitioner was incorporated as a limited company with the objective of carrying out various sort of business including supplying fertilizers to the government from abroad or local market. The petitioner is represented by Attorney holder issued by the Managing Director of the Company.

2. That the opposite party No.1 is Bangladesh Chemical

Industries Corporation (BCIC), fully owned by the Ministry of Industries, represented by its Chairman. The opposite party No.2 is the Guarantee issuing bank, Janata Bank Limited and the addresses of the petitioner and opposite parties are stated in the casue tilte which are correct addresses for the purpose of service of notices, affidavit etc.

3. That the opposite party No.1 in course of its business

announced an open tender on 07.07.2014 vide memo No. PUR- 3,2604/2014-2015 for procurment of 1,00,000 MT granular urea fertilizer to be delivered in Chittagong port in maximum 2(two) shipments on liner terms basis and carrying of bagged urea to different goddowns at the risk and responsibility of the bidder.

4. That the petitioner, as local agent of M/S Ruixing Group

Corporation Limited, a fertilizer manufacturer of Ruixing Industrial Park, Dongping, Shandong, China, Participated in the tender, came out as the successful bidder and as such received 4(four) separate work orders from the opposite party No. 1 on 10.09.2014 vide memo  No. PUR-3,2603/2014-2015, No. PUR- 3,2603/2014-2015/565, No. PUR-3,2603/2014-2015/566 and No. PUR-3,2603/2014-2015/567 respectively for supplying the said 25,000 MT granular urea fertilizer though Chittagong port.

5. That it was stated in the above work order bearing memo

No. No. PUR-3,2603/2014-2015/564, No. PUR-3,2603/2014- 2015/565, No. PUR-3,2603/2014-2015/566 and No. PUR- 3,2603/2014-2015/567 respectively all dated 10.09.2014 that the petitioner has to furnish performance security in the form of bank guarantee issued by any schedule bank to the tune of 5% of the total CRF (C) value for satisfactory execution of contract and as such the petitioner, as local agent of the said Ruxing Industrial park has furnished the same within the due time limit; i.e. within 21.09.2014.

6. That the said manufacturer M/S Ruixing Group

Corporation Limited was causing delay to supply the said granular urea fertilizer and so this petitioner was asked to supply the said urea fertilizer. Therefore the petitioner agreed to supply the same and then vide letters dated 21.01.2015 and 22.01.2015 applied to the opposite party No.1 to issue work orders in favour of the petitioner by amending the name of the beneficiary in the letter of credit (L/C) and therefore upon accepting the request of the petitioner the opposite party No.1 issued a letter of acceptance on 26.01.2015 vide memo No.  PUR-3,2603/2604/2605/2606/273 stating that L/C amendments fees amounting to Tk. 44,60,070.50 (Taka forty four lac sixty thousand seventy and paisa fifty) only need to be paid by the petitioner along with an L/C openeing charge of Tk. 75,00,000.00 (Taka seventy five lac) only and also the performance guarantees in the name of the petitioner.

7. That the opposite party No.1 therefore on 23.02.2015

published a notice notifying that shipment for the said urea fertilizer has been extended up to 30.04.2015 and the performance guarantees must be amended in the name of the petitioner and must be submitted to the opposite party No. 1.

8. That the petitioner in accordance with the conditions of

the said letter of acceptance bearing memo No. PUR- 3,2603/2604/2605/2506/273 dated 26.01.2017 submitted 4 performance guarantees No. 03/2015c 04/2015,  05/2015 and 06/2015 all dated 03.03.2015 for the amount of USD 503,963, USD 473,750, USD 508,679 and 473,750 respectively in favour of the opposite party No. 1 from the opposite party No. 2 bank.

9. That the petitioner also notified to the opposite party No.

1 vide letter dated 02.03.2015 that it has submitted the payment order of TK. 44,60,070.50 (Taka forty four lac sixty thousand seventy and paisa fifty) as L/C amendment charge and Tk. 75,00,000.00 (Taka seventy five lac) only as L/C opening charge.

10. (Taka seventy five lac) That after receiving payment of

all the required charges and the said performance guarantees in the form of bank guarantees in the form of bank guarantees from the petitioner, the opposite party No.1 signed 4(four) separate agreements bearing memo Nos. PUR-3,2603/2014-2015/CT- 597(F)/688, PUR-3,2603/2014-2015/CT-597(F)/689, PUR- 3,2603/2014-2015/CT-597(F)/690 and PUR-3,2603/2014- 2015/CT-597(F)/691 respectively all dated 05.03.2015 with the petitioner wherein it was stated that the granular urea fertilizers needs to be shipped within 30.04.2015.

11. That the petitioner thereafter for importing the said

urea fertilizers have opened a number of L/Cs in the opposite party No. 2 Bank (Janata Bank Limited) wherein applicant has been named as BCIC and this petitioner as the beneficiary.

12. That the petitoner for successful importation of the said

urea fertilizer wrote 4 letters all dated 30.03.2015 to the opposite party No.1 seeking some amendments in the L/C as soon as possible but the opposite party No.1 through letter dated 06.04.2015 bearing memo No. 3,2603/2014-2015/1034 refused to amend the L/C stating that inclusion of the new manufacturer’s name in the L/C is beyond the terms of the contract wherein there was no particular clause in the contract which states that such amendment is not allowed.

13. That the petitioner on 07.04.2015 and 12.04.2015 again

sent letters to the opposite party No.1 seeking some amendments in the said L/Cs like inclusion of another 2 Chinese manufactures in the said contract since without such inclusion in the L/C it has become impossible for the petitioner to ship the urea fertilizer in due time. It is pertinent to mention here that the said contract does not bar inclusion of any such manufacturer as long as the country of origin remains the same; i.e. the country of origin remains China.

14. That the petitioner thereafter wrote 2 letters to the

opposite party No.1 both dated 08.04.2015, asking for its confirmation of nomination of the vessel “MV C. FRIEND (EX J. SUDA0” and MV MELPOMENT” since each of the ships will caryy 25,000 MT granular urea from China to Chittagong, Bangladesh.

15. That in reply to the petitioner’s above letters dated

12.04.2015, the opposite party No.1 vide memo No. 3,2603/2014- 2015/1093 dated 12.04.2015 stated that the petitioner needs to name the manufacturer to effect supply under subject nomination and time of starting of the bagging otherwise there would be no positive response from the opposite party No.1’s side. It is pertinent to mention here that the petitioner had already notified about the name of the manufactures vide its letters dated 30.03.2015 and 07.04.2015 but the opposite party No.1 repeatedly kept asking for the names of the manufactures.

16. That the petitioner on 15.04.2015 and 16.04.2015 wrote

separate letters to the opposite party No.1 asking for its confirmation of nomination of the vessel “MV WAN YANG 36”  respectively as each of these ships will carry 25,000 MT granular urea fertilizer from China to Chittagong Bangladesh.

17. That upon receipt of the said L/Cs the petitioner has

opened back to back L/C s from the same bank by keeping lien of the opposite party No.1’s L/Cs paying a huge amount of commission and charges for the same. Therefore, the ultimate suppliers; i.e. the beneficiary of petitioner’s L/Cs have procured the said urea fertilizers and supplied the same to different Chinese ports for shipment to Bangladesh through the nominated vessels.

18. That in reply to the petitioner’s letters dated 15.04.2015

and 16.04.2015 the opposite party No.1 on 16.04.2015 vide Memo No. PUR-3,2603/2014-2015/1117 stated that the opposite party No.1 does not know against which contract the vessels “MV ABM DISCOVERY” and MV WAN YANG 36” have been nominated and therefore asked the petitioner to provide the name of the manufacturer. The opposite party No.1 repeatedly replied to the petitioner’s letters in the same language even though the petitioner had already notified him about the name of the manufactures vide its letters dated 30.03.2015 and 07.04.2015.

19. That the petitioner lastly on 19.04.2015 wrote 2 letters

to the opposite party No.1 asking for its acceptance of the above said vessels alongwith a request to depute approved nominated PSI agent to inspect the fertilizers in different Chinese ports form where shipment of the same will be made to Bangladesh.

20. That the opposite party No.1 after receiving the

petitioner’s letter dated 19.04.2015, replied to the petitiner on 20.04.2015 vide memo No. PUR-3,2603/2014-2015/1128 stating that the opposite party No.1 is unable to accommodate the petitioner’s request since the request made is beyond the mutually agreed terms and conditions of the contract. However, the opposite party No. 1 in any of its letters did not state any reason as to why such request from the petitioner is beyond the scope of the contract or which particular clause of the contract would be breached had this petitioner’s requests were accepted.

21. That the petitioner is supposed to ship the said urea

fertilizer within 30.04.2015 but due to the reluctant attitude of the

opposite party No.1 no such shipment was made till today and as such the petitioner finally wrote to the opposite party No.1 on 22.04.2015 explaning its position and all the events that took place regarding importation of the said fertilizers and requested the opposite party No.1 to accept its proposals for amendment in the L/Cs extend the time for shipment, confirm nomination of vessels and arrenge preshipment inspection through the opposite party No.1’s nominated agent.

22. That the opposite party No.1 vide its letter dated

26.04.2015 bearing memo No. PUR-3,2603/2014-2015/1172 replied to the petitioner’s letter dated 30.04.2015 stating that there is no further scope to consider the requests made by the petitioner.

23. The opposite party No.1 therefore on 30.07.2007 wrote

to the petitioner stating that by failing to supply the said urea fertiliser in the time the petitioner has breached the said contract and also asked the petitioner to show cause within 7(seven) days as to why said contracts, stated above, shall not be terminated and why the bank guarantees submitted by the petitioner shall not be forfeited.

24. That the opposite party No.1 appears to take the view

that the petitioner’s legitimate claim for accept its proposals for amendment in the L/Cs, extend the time for shipment, confirm nomination of vessels and arrange pre-shipment inspection through BCIC’s nominated agend is not acceptable since the opposite party No.1 is of the view that this will cause a breach of the terms of the said contracts which were mutually agreed by the parties. However, the petitioner contends that as a makeshift supplier of the said urea fertilizer the opposite party No.1 is under obligation to accept the legitimate requests of the petitioner for successful execution of the 4(four) agreements. Furthermore, the petitoner also contends that since there are three manufacturers listed in the agreement and country of origin was named China, acceptance of further manufacturers of furtilizers from the same country (i.e China) and shipping the same from different Chinese ports to Chittagong, Bangladesh through the nominated vessels upon proper preshipment inspection would not breach the terms or conditions of the said agreements because the opposite party No.1 in its tender invitations has expressly stated that Request of change of country of origin other than the origin mentioned in the offer shall not be entertained/consider later on. Therefore, a dispute has arisen between the parties which is thereby referred to arbitral triabunal by this petitioner on 05.08.2015 and accordingly served an arbitration notice dated 05.08.2015 under Clause 24 (i.e. arbitration clause) of the said agreements in order to resolve the dispute. However, the opposite party No.1 did not reply to such notice till date.

25. That on 12.08.2015 the officials of the opposite party

No.1, wrote 4 (four) separate letters bearing memo No. (i) BCIC/AC(bank)/404.06/87.212/129,(ii)BCIC/AC(Bank)/404.06/87. 212/132, (iii)BCIC/AC (Bank)/404.06/87.212/132, (iii)BCIC/AC (Bank)/404.06/87.212/132 and (iv) BCIC/AC(Bank)/404.06/ 87.212/130 respectively to the opposite party No.2 seeking encashment of the bank guarantees submitted by the petitioner.

26. That it is stated that all the 4(four) agreements stated

above are identical in terms of the conditions and each of them signed between the parties for supplying 25,000 MT granular urea fertilizer. All the agreements have the following clause incorporated as arbitration clause:

Clause 24 ARBITRATION

24.01 The Purchaser and the Supplier/Contractor and the Supplier/Contractor shall make every effort to resolve amicably by direct informal negotiation any disagreement or dispute arising between them under or in connectgion with the Order/Contract.

24. 02 If the Purchaser and the Supplier/Contractor have not been able to resolve the order/contract dispute amicably through direct negotiation, the dispute may be referred to the award of a sole arbitrator to be agreed by the parties, failing which the same shall be referred to arbitration by 2(two) arbitrators, one to be nominated by the Purchaser and the other by the Supplier/Contractor. In the case of the said arbitrators not agreeing them, the same shall be referred to an umpire to appointed by the arbitrators in writing before proceeding with references. The decision/award of the sole arbitrator or of the arbitrators or of the umpire as the case may be shall be final and binding on the parties. The provisions of Arbitration Act, 2001 and Rules there under and any statutory modification thereof shall be deemed to apply to the said arbitration.

27. That it is submitted that if the opposite

party No.2 accepts opposite party No.1’s request for enchasing the said bank guarantees the arbitration proceedings initiated by this petitiner would be rendered infructurous and therefore interference from this Hon’ble Codurt is necessary for securing ends of justice.

28. That it is submitted that since the parties have

arbitration agreement and the pettioner issued its letter invoking the arbitration agreement (Clause 24 of the said agreements), the learned Court has special statutory jurisdiction under Section 7Ka of the Arbitration Act, 2001 to pass necessary order(s) to preserve the subject matter of the dispute.

29. That it is submitted that the subject matter of the

arbitration would be amongst others, the Bank Guarantee issued by opposite party No. 2 bearing Memo No. 03/2015, 04/2015, 05/2015 and 06/2015 all dated 03.03.2015 for the amount of USD 503,963, USD 473,750, USD 508,679 and 437,750 all dated 03.03.2015 respectively and as such the subject matter of the arbitration may kindly be preserved till conclusion and determination of the dispute between the parties through arbitration proceeding. It is submitted that if the subject matter is not preserved as prayed for, the arbitration

proceeding as well as the instant proceedings shall become infructuous.

30. That it is submitted that the application is bona fide and

has been filed only for the purpose of preservation of the subject matter of dispute till adjudication by an arbitral tribunal in accordance with the procedure set out in Clause 24 (arbitration clause) of the said agreements all dated 05.03.2015. If the order as prayed for is not passed, the whole purpose of resolving the pending dispute through arbitration will be frustrated and the petitioner prejudiced and shall suffer irreparable loss and injury.

31. That it is submitted that the petitioner has a strong

prima facie c ase and balance of convenience and inconvenience is absolutely in favour the petitioner and against the opposite parties No.1 and 2. If the order as prayed for is not passed, the petitioner shall suffer irreparable loss and injury and the whole purpose of arbitration as well as this application shall be frustrated.

32. That the cause of action arose in Dhaka since the said

agreements bearing Memo No. PUR-3.2603/2014-2015/CT- 597(F)/688, PUR-3.2603/2014-2015/CT-597(F)/689, PUR3.2603 /2014-2015/CT-597(F)/690 and PUR-3.2603/2014-2015/CT- 597(F)/691 all dated 05.03.2015 were singed and executed in Dhaka; the bank guarantee have been deposited in favour of the opposite party No.1 having office at Dhaka and those are being kept under the custody of opposite party No.2 at Dhaka; the said 4(four) letters by the opposite party No.1 bearing memo No. (i) BCIC/AC(Bank)/404.06/87.212/129 (ii) BCIC/AC(Bank)/404.06/ 87.212/132, (iii) BCIC/AC(Bank)/404.06/87.212/132 and (iv) BCIC/AC(Bank)/404.06/87.212/130 all dated 12.08.2015 seeking encashment of the said bank guarantees were issued by the Opposite Party No.1 from Dhaka; the Notice to form an arbitral tribunal was delivered at Dhaka and therefore this learned Court has territorial jurisdiction over the subject matter of the dispute.

33. That the petitioner by a separate Firisti has filed a list

of documents which are photocopies in support of this petition. The petitioner craves leave of the Court to swear affidavit by this photocopy of the documents. The petitioner undertakes that it will file all the originals which it is supposed to have in course of business at the time of hearing. The petitioner also craves leave of the learned Court to file additional documents, if required, at the time of hearing.”

…l¦aÅf§ZÑ ¢hd¡u  ICC Uniform Rules for Demand Guarantees (URDG) ICC Publication No. 758 (2010) ¢e−jÀ A¢hLm Ae¤¢mMe q−m¡x

Icc uniform rules for demand guarantees (urdg) Icc publication no. 758 (2010)

INTRODUCTION

The Uniform Rules for Demand Guarantees sets out the roles and responsiblities of all parties at each key stage of a demand guarantee, and reflects “best practice” in the guarantee business. The last publication came into effect on July 1st, 2010 and supersedes the first 1992 rules.