Mrs. Sujata V. Manohar, J-Leave granted.
2. The appellant, U. P. State Sugar Corporation entered into an agreement dated 2nd of August, 1989 with the respondent, M/s. Sumac
International Pvt. Ltd. under which the respondent agreed to design, to prepare an engineering lay-out and to manufacture or procure and supply
to the appellant the machinery and equipment for a complete sugar plant for extension and modernisation of the appellant''s existing sugar plant at
Rohana Kalan, District Muzaffarnagar, U. P. The respondent was required to set up a new plant of 2500 TCD at a new site or an adjoining site
close to the existing sugar plant of the appellant. The total contract price was fixed under Clause 2.1 of the contract at ` 1780 lacs.
3. Under the terms of the agreement the respondent was required to set up the plant and make it ready for commercial production by 30th
November, 1990. The agreement stated that in this regard time was of the essence of the contract and if the respondent failed to do so the
consequences were also spelt out in the contract. Under Clause 3 of the contract a month-wise progressive delivery report was to be submitted by
the respondent and a PERT/CPM chart had to be submitted and adhered to. Clause 4 which dealt with delivery required the respondent to
complete all supplies by 15th of November, 1990 so that the plant could be commissioned by 30-11-1990. Under Clause 11.1 the respondent-
seller was entitled to a reasonable extension of time as decided by the purchaser if the purchase order was expressly suspended for no fault of the
seller,
4. Under Clause 15 the respondent-seller was required to furnish to the appellant five bank guarantees as specified therein. These were:
(1) A bank guarantee for timely delivery of plant and machinery as provided in Clause 14.1 representing five per cent. of the contract price
referred to in Clause 2.1. This was required to be furnished within 31/2 months of the signing of the agreement.
(2) The seller was required to furnish a bank guarantee in respect of guaranteed performance of the plant and machinery for an amount
representing 5% of the contract price. This guarantee was required to be furnished eight months before the scheduled date of commissioning
mentioned in Clause 4.1 or within six months from the date of the signing of the agreement or after 21/2 months of the opening of the Letter of
Credit whichever of these dates was earlier.
(3) Three bank guarantees in respect of advance payments to be made by the appellant to the respondent under Clauses 13.2(a) to 13.2(c) were
required to be for ` 89 lacs. ` 178 lacs and Rs 89 lacs respectively, representing 5%, 10% and 5% of the contract price respectively.
5. Under Clause 13.2 on receipt of the first of these bank guarantees for ` 89 lacs the first instalment of advance would be paid within a week from
the date of signing of the agreement. On receipt of the second bank guarantee for ` 178 lacs the second advance would be paid by the appellant to
the respondent within 21/2 months of the signing of the agreement subject to the respondent furnishing various statements, certificates etc. as set
out in that clause. The third bank guarantee for ` 89 lacs was to be furnished against the advance to be paid by the appellant to the respondent
within 31/2 months from the date of the signing of the agreement. These three bank guarantees are thus in respect of the advance payments
required to be made by the appellant to the respondent.
6. Under Clause 15.5 all these bank guarantees are payable on demand. It is expressly provided that it shall not be open to the guarantor to know
the reasons of or to investigate or to go into the merits of the demand invoking the bank guarantee or to question or challenge the demand or to
require the proof of the liability of the seller before paying the amount demanded. It is further provided that the invocation of the bank guarantee
shall be binding on the respondent and that the invocation of the bank guarantee would not be affected in any manner by reason of the fact that any
dispute or disputes had been raised by the respondent with regard to its liability. Nor would it be affected by the fact that proceedings were
pending before any Tribunal. Arbitrator or Court with regard thereto.
7. Accordingly, the respondent furnished, inter alia, four bank guarantees, one being a guarantee for due delivery and the other three being the
bank guarantees in respect of advance payment of price. The total amount covered by the bank guarantees securing advance payments is ` 3.56
crores, which amount was paid by the appellant to the respondent as advance.
8. The contract was not carried out within the time envisaged under the contract. Thereafter, at a meeting held on 1-10-1991 between the
appellant and the respondent, the time for completion of this project was extending up to May. 1992 and a detailed chart was drawn up for the
completion of the project by that date. No further extension of time has been given by the appellant to the respondent thereafter. The respondent,
however, did not complete the said project within the extended period.
9. By their letter dated 6th of September 1995 the State of U. P. through the Special Secretary, Govt. of U. P. informed the Managing Director of
the appellant that it had been decided to transfer the Rohana Kalan (Muzaffarnagar unit) of the appellant to the joint sector. As a result, the
extension project of this unit should be cancelled and appropriate action in accordance with law should be taken. Thereupon the appellant
cancelled the agreement by its letter dated 7th of September, 1995 addressed to the respondent. The appellant claimed a refund of the advance
payment of ` 3, 14,78,093/- as unutilised and unadjusted amount of advance payment. The appellant, by its four letters all dated October 28,
1995 addressed to the respondent invoked the three bank guarantees in respect of advance payments after giving credit to the respondent for
material worth ` 42 lacs which had been supplied till then. The appellant also invoked the delivery guarantee for ` 89 lacs. The bank guarantees so
invoked are:Bank guarantee No. 9/47, dated 10-8-89 for ` 89 lacs. In this bank guarantee credit for ` 42 lacs has been given and the invocation of
the bank guarantee is only for the balance sum of ` 47 lacs. The second bank guarantee so invoked is No. 9/64, dated 20-11-89 for ` 178 lacs.
The third bank guarantee is No. 9/70 of 6-1-90 for ` 89 lacs and the fourth, delivery guarantee is No. 12/88, dated 13-11-1990 for ` 89 lacs.
10. On 5-10-1995 the respondent filed a petition under Section 20 of the Arbitration Act for appointment of an arbitrator since the agreement
between the parties provides for arbitration. The respondent also filed two applications for interim relief under Section 41 (b) of the Arbitration Act
seeking interim stay against encashment of bank Guarantees. The Civil Judge, Senior Division, Muzaffarnagar before whom these applications
were filed, dismissed these applications. In revision, however, these applications have been allowed by the High Court and an injunction has been
granted restraining the appellant from enforcing these bank guarantees. Hence, the appellant has come by way of the present appeal.
11. These bank guarantees which are irrevocable in nature, in terms, provide that they are payable by the guarantor to the appellant on demand
without demur. They further provide that the appellant shall be the sole judge of whether and to what extent the amount has become recoverable
from the respondent or whether the respondent has committed any breach of the terms and conditions of the agreement. The bank guarantees
further provide that the right of the purchaser to recover from the guarantor any amount shall not be affected or suspended by reason or any
disputes that may have been raised by the respondent with regard to its liability or on the ground that proceedings are pending before any Tribunal,
Arbitrator or Court with regard to such dispute. The guarantor shall immediately pay the guaranteed amount to the appellant-purchasers on
demand.
12. 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 or accepted, the beneficiary is entitled to realise 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 realisation of
such a bank guarantee. The Courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very
foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take advantage, he can be restrained from
doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable
harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the
bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be of such an exceptional
and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealings in the
country. The two grounds are not necessarily connected, though both may co-exist in some cases. In the case of U. P. Co-operative Federation
Ltd. v. Singh Consultants and Engineers (P) Ltd.(1988) 1 SCC 174, which was the case of a works contract where the performance guarantee
given under the contract was sought to be invoked, this Court, after referring extensively to English and Indian cases on the subject, said that the
guarantee must be honoured in accordance with its terms. 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.
There are only two exceptions to this rule. The first exception is a case when there is a clear fraud of which the bank has notice. The fraud must be
of an egregious nature such as to vitiate the entire underlying transaction. Explaining the kind of fraud that may absolve a bank from honouring its
guarantee, this Court in the above case quoted with approval the observations of Sir John Donaldson. M. R. in Bolivinter Oil SA v. Chase
Manhattan Bank NA, (1984) 1 All ER 351 at 352. "" The wholly exceptional case where an injunction may be granted is where it is proved that the
bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be
clear both as to the fact of fraud and as to the bank''s knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated
statement of the customer, for irreparable damage can be done to a bank''s credit in the relatively brief time which must elapse between the
granting of such an injunction and an application by the bank to have it charged"". This Court set aside an injunction granted by the High Court to
restrain the realisation of the bank guarantee.
13. The same question came up for consideration before this Court in Svenska Handelsbanken v. M/s. Indian Charge Chrome, (1994) 1 SCC
502 . This Court 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. Irretrievable injury has to be of the nature noticed in the case of Itek Corporation v.
The First National Bank of Boston etc. (566 Fed Supp 1210). On the question of fraud this Court confirmed the observations made in the case of
U. P. Co-operative Federation Ltd. (supra) and stated that the fraud must be that of the beneficiary, and not the fraud of anyone else.
14. On the question of irretrievable injury which is the second exception to the rule against granting of injunctions when unconditional bank
guarantees are sought to be realised the Court said in the above case that the irretrievable injury must be of the kind which was the subject-matter
of the decision in the Itek Corporation case (supra). In that case an exporter in the U.S.A. entered into an agreement with the Imperial
Government of Iran and sought an order terminating its liability on stand by letters of credit issued by an American Bank in favour of an Iranian
Bank as part of the contract. The relief was sought on account of the situation created after the Iranian revolution when the American Government
cancelled the export licences in relation to Iran and the Iranian Government had forcibly taken 52 American citizens as hostages. The U. S.
Government had blocked all Iranian assets under the jurisdiction of United States and had cancelled the export contract. 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
under these circumstances and realisation of the bank guarantee/ letters of credit would cause irreparable harm to the plaintiff. This contention was
upheld. To avail of this exception. therefore, exceptional circumstances which make it impossible for the guarantor to reimburse himself if he
ultimately succeeds, will have to be decisively established. Clearly, a mere apprehension that the other party will not be able to pay, is not enough.
In the Itek case (supra) there was a certainty on this issue. Secondly, there was good reason, in that case for the Court to be prima facie satisfied
that the guarantors i.e. the bank and its customer would be found entitled to receive the amount paid under the guarantee.
15. Our attention was invited to a number of decisions on this issue - among them, to Larsen and Toubro Ltd. v. Maharashtra State Electricity
Board, (1995) 6 SCC 68 and Hindustan Steel Workers Construction Ltd. v. G. S. Atwal and Co. (Engineers) Pvt. Ltd. (1995) 6 SCC 76 as also
to National Thermal Power Corporation Ltd. v. Flowmore Pvt. Ltd., (1995) 4 SCC 515 . The latest decision is in the case of State of
Maharashtra v. M/s. National Construction Company, Bombay, JT 1996 (1) SC 156, where this Court has summed up the position by stating,
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 documents 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 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 other recent decision is in Hindusthan Steel Works Construction Ltd. v. Tarapore and Co., JT 1996 (6) SC 295 .
16. Clearly, therefore, the existence of any dispute between the parties to the contract is not a ground for issuing an injunction to restrain the
enforcement of bank guarantees. There must be a fraud in connection with the bank guarantee. In the present case we fail to see any such fraud.
The High Court seems to have come to the conclusion that the termination of the contract by the appellant and his claim that the time was of the
essence of the contract, are not based on the terms of the contract and, therefore, there is a fraud in the invocation of the bank guarantee. This is all
erroneous view. The disputes between the parties relating to the termination of the contract cannot make invocation of the bank guarantees
fraudulent. The High Court has also referred to the conduct of the appellant in invoking the bank guarantees on an earlier occasion on 12th of
April, 1992 and subsequently withdrawing such invocation. The Court has used this circumstance in aid of its view that the time was not of the
essence of the contract. We fail to see how an earlier invocation of the bank guarantee and subsequent withdrawal of this invocation make the
bank Guarantees or their invocation tainted with fraud in any manner. Under the terms of the contract it is stipulated that the respondent is required
to give unconditional bank guarantees against-advance payment as also a similar bank guarantee for due delivery of the contracted plant within the
stipulated period. In the absence of any fraud the appellant is entitled to realise the bank guarantees.
17. Before us, however, in the course of argument, learned Advocate for the respondent urged for the first time that in this case, there would be
irretrievable injustice to the respondent if the bank guarantees are allowed to be realised because the appellant is a sick industrial company in
respect of which a reference is pending before the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special
Provisions) Act, 1985. The respondent contends that even if it succeeds before Arbitrator it will not be able to realise its claim from the appellant.
The mere fact that a reference under the Sick Industrial Companies (Special Provisions) Act, 1985 is pending before the Board, is in our view, not
sufficient to bring the case in the ambit of the "" irretrievable injustice "" exception. Under the scheme of the said Act the Board is required to make
such inquiry as it may deem fit for determining whether any industrial company has become a sick industrial company. Under Section 16(4) where
the Board deems it fit to make an inquiry or to cause an inquiry to be made in this connection, it may appoint one or more persons to be special
directors for safeguarding the financial and other interests of the company or in the public interest. Under Section 17 after making an inquiry, if the
Board is satisfied that a company has become a sick industrial company the Board then may decise, by an order in writing, whether it is practicable
for the company to make its net worth exceed the accumulated losses within a reasonable time. If this is practicable, then the Board shall give such
company the opportunity to make its net worth exceed the accumulated losses. Under sub-section (3) of Section 17 if the Board decides that this
is not practicable within a reasonable time, it may adopt measures specified in Section 18 and provide for a scheme for appropriate measures in
relation to that company. There can, therefore, be no presumption that the company will, in no circumstance, be able to discharge its obligations.
18. Under Section 22 on which the respondent relies, where in respect of an industrial company, an inquiry under Section 16 is pending or any
scheme under Section 17 is under preparation or a sanctioned scheme is under implementation or when and appeal under Section 25 is pending,
then no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial
company or the appointment of a receiver in respect thereof can be proceeded with; and no suit for the recovery of money or for the enforcement
of any security against the industrial company shall lie or be proceeded with except with the consent of the Board or as the case may be, the
Appellate Authority. The respondent contends that its right to realise its claim, if established, would be affected by reason of Section 22 of the said
Act, There is no material before us to show that the appellant-company cannot make its net worth positive. No scheme has been framed under the
said Act so far. Even under Section 22 there is no absolute bar against any suit for the recovery of money. The suit cannot be proceeded with
except with the consent of the Board or the Appellate Authority. Therefore, in an appropriate case, the Board or the Appellate Authority is entitled
to give its consent to such a claim being proceeded with. This is not a situation of the kind envisaged in the case of Itek Corporation (supra) where
there was no possibility whatsoever of recovery of any amount from the purchaser. In the present case, there is a good possibility of such recovery
in any case, learned counsel for the appellant hits on instructions very fairly stated that the appellant company undertakes to earmark the amounts
realised from the bank guarantees in question for the purpose of recovery of claims, if any, which the respondent may ultimately be found to be
entitled to recover from the appellant. Any scheme which the Board may frame under the said Act will be subject to this undertaking given by the
appellant to set apart the amounts realised under the bank guarantees in question for meeting any validly adjudicated claims of the respondent
against the appellant under or arising from the said contract. If any scheme is required to be framed, the Board shall take into account this
undertaking, while framing the scheme.
19. Both sides are agreed that for a speedy resolution of their disputes they are willing to refer all their disputes under or arising from the said
contract the sole arbitration of Justice R.M. Sahai (retd.) a retired Judge of this Court. We accordingly refer all disputes between the parties under
or arising from the contract to the sole arbitration of Justice R. M. Sahai (retd.). The arbitrator may fix his remuneration in consultation with the
parties. The parties shall obtain appropriate directions from the learned arbitrator in connection with the filing of claims, replies etc. in accordance
with law. The petition filed by the respondent before the Court of the Chief Judicial Magistrate/Civil Judge, Muzaffarnagar under Section 20 of the
Arbitration Act is disposed of accordingly.
20. The appeal is allowed and the impugned judgment and order of the High Court is set aside and the injunction granted by the High Court is
vacated. Parties will bear their own costs.