Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Wednesday, September 26, 2018 09:55:19 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Demand for encashment of Bank Guarantee cannot be injuncted

By
07th-Apr-2018       
Comments
Share your thought
Post a comment »
Read all () »

High Court Division :
(Special Original Jurisdiction)
Tariq ul Hakim J
Md Faruque (M  Faruque) J
Judgment
August 23rd, 2016
Akram Hossain................Petitioner in all the Writ Petitioner
Vs
Bangladesh Rural Electrification Board, represented by its Chairman and others ...
............. Respondents
Bank Guarantee
The demand for encashment of Bank Guarantees cannot be injuncted by a Court unless there is clear evidence of fraud and the Bank has notice of it. ......(15)
Continental Construction Ltd. vs Sailuj jal Vidhut Nigam Ltd. a decision of the Indian High Court, 2006 (1) ARBLR 321; Volivintar Oil SA vs Chase Manhattan Bank (1984) 1 All ER 351; Nuvista Pharma Ltd. vs Chairman, National Board of Revenue 65 DLR (AD) 302 and Uttara Bank vs Macneill & Kilburn 33 DLR (AD) 298 ref.
Sk Md Morshed Advocate-For the Petitioner in all the Wirt Petitions.
Shaikh Mohammad Zakir Hossain Advocate-For the Respondent No.1.
Judgment
Tariq ul Hakim J : Rules Nisi were issued calling upon the respondents to show cause why the orders under. Memo Nos. BREB/DP/IF-29-56/2016/756, BREB/DP IF-31-61/ 2016/760, BREB/DP /IF-31-60/2016/759 and BREB/DP/IF-29-57/2016/758 all dated 28-1-2016 (Annexure-II) issued under the signature of the Respondent No.4, Director (CC) (Procurement), Bangladesh Rural Electrification Board ordering forfeiture and encashment of Bank Guarantee Nos. 159/ 2015 dated 6-10-2015, 172/2015 dated 26-10-2015, 171/2015 dated 26-10-2015 and 160/6/2015 dated 0-10-2015 submitted by the petitioner against Tender Sub-Package Nos. IF-29-56, IF-31-61, IF-31-60 and I F-29-57 respectively should not be declared to have been issued without lawful authority and are of no legal effect and why the Respondents should not be directed to refund Bank Guarantee Nos 159/2015 dated 6-10-2015, 172/2015 dated 26-10-2015, 171/2015 dated 26-10-2015 and 160/2015 dated 6-10-2015 to the petitioner and/or pass such other or further order or orders, as to this Court may seem fit and proper.
2. In all these applications under Article 102 of the Constitution it has been stated that Bangladesh Rural Electrification Board invited tenders on 8-9-2015 and 22-9-2015 under Tender Package No. IF-29 and Sub-Package No. IF-29-56, Tender Package No. IF-31 and Sub-Package No. IF-31-61, Tender Package No. IF-31 and Sub Package No. IF·31-60 and Tender Package No. IF-29 and Sub-Package No. IF-29-57 respectively for supply of electrical line construction materials. The petitioner participated in the tenders, by depositing security money amounting to Taka 35,00,000 (thirty five lac) for each of the tenders in the form of Bank Guarantee No. 159/2015 dated 6-10-2015. 172/2015 dated 26-10-2015, 171/2015 dated 26-10-2015 and 160/2015 dated 6-10-2015. After evaluating the tender offers the respondents found the petitioner's offer to be the lowest and by letters under Memo Nos. BREB/DP /IF-29-56/2015/511, BREB/DP /IF-31-61/2015/508, BREB/DP /IF-31-60/2015/513 and BREB/DP / IF-29-57/2015/512 all dated 27-12-2015 issued Notifications of Awards against Sub-Package Nos. IF-29-56, IF-31-61, IF-31-60 and IF-29-57 respectively and requested the petitioner to accept the said Notifications of Awards within 7 days. The petitioner by his letter dated 3-1-2015 accepted the said Notifications of Awards and as per terms of the said Notifications of Awards he was required to submit performance guarantees of various amounts and sign a formal contract. In the meantime on 12-11-2015 the petitioner received a letter from the respondent No.4 seeking clarification about some allegations against him for defalcation of Government revenue stating that until disposal of the aforesaid matter the petitioner's offer for supply of goods under the aforesaid tenders will not be approved by the respondents. The petitioner on the same day submitted a clarification against the allegations raised against him but not having received any confirmation of acceptance of the said clarification he apprehended that he may be harassed and victimized in connection with the said Notifications of Awards relating to the aforesaid tenders. In view of the aforesaid unwarranted and unexpected situation the petitioner was no longer willing to continue with the supply of goods under the aforesaid tenders and requested the respondents to refund the tender security money. Thereafter the respondents by their letters under Memo Nos. BREB/DP /IF-29-56/2016/756, BREB/DP/IF-31-61/2016/760, BREB/DP/IF-31-60/2016/759 and BREB/DP/IF-29-57/2016/758 all dated 28-1-2016 decided to forfeit the petitioner's security money and demanded encashment of the Bank Guarantees each amounting to Taka 35,00,000 (thirty five lac) from the Issuing Bank i.e. Export Import Bank of Bangladesh Limited (EXIM Ltd); Motijheel Branch, Dhaka in favour of Bangladesh Rural Electrification Board (BREB). Thereafter the said EXIM Ltd. requested the petitioner to deposit the requisite amount of funds against the said Bank Guarantees fortheir encashment.
3. Being aggrieved, the petitioner has come to this Court and obtained the present Rules.
4. The Rules are being contested by the Respondent No. 1 by filing Affidavits-in- Opposition stating inter alia that the Notification of Awards issued in favour of the petitioner amounted to formation of a contractual obligation which became binding upon the petitioner. Once the petitioner informed the respondents that he would not supply the materials pursuant to the said tenders and failed to sign a formal contract he was in breach of his commitment causing loss to the respondents in consequence of which they demanded encashment of the Bank Guarantees in accordance with Rule 102(4) of the Public Procurement Rules, 2008 and ITT clause No. 60.3 of the tender document. It has been further stated that in the tender documents there is a provision for settling disputes between the parties amicably and thereafter by Arbitration in accordance with the Arbitration Act, 2001 and therefore the instant Writ Petitions are not maintainable. It is further staled that., the petitioner by his letters dated 13-1-2016 stated his inability to perform his contract amounting to a repudiatory breach of the contract.
 (To be continued)

Tariff
Add Rate

News Archive

Inside The New Nation

Sports »

Law leaving West Indies to coach Middlesex


Stuart Law is leaving his role as West Indies head coach to take over at Middlesex from next season, the English county announced on Monday.The former Australia batsman has signed a four-year deal and will begin duties in January following West Indies' tours of India and Bangladesh."It is a great ...

Editorial »

The audacity of Myanmar is only can be answered by an united int`l community


MYANMAR'S powerful army chief says the United Nations has no right to interfere in his country's sovereignty, a week after UN investigators called for him and other top generals to be prosecuted for "genocide" against the Rohingya. Min Aung Hlaing's comments to an army newspaper were his first public reaction ...

City »

BNP Standing Committee Member Barrister Moudud Ahmed, among others, at a youth rally organised by Jatiyatabadi Projanmo '71 at the Jatiya Press Club on Tuesday demanding release of BNP Chief Begum Khaleda Zia and election under impartial caretaker government.


Business & Economy »

DORP Founder Nouman attends 3rd World Congress in USA


Business Desk :AHM Nouman the Gusi Peace Prize International Laureate and Founder of Development Organization of the Rural Poor (DORP) will attend the 3rd world congress on Mother and Neonatal Nursing Care in Chicago, USA. The two-day long congress will be held on September 26-27, 2018, says a media release. ...

International »

After N Korea, Trump targets Iran with `maximum pressure`


AFP, United Nations :One year after mobilizing the international community against North Korea, Donald Trump is trying to force another arch enemy to the negotiating table by targeting Iran with a similar campaign of "maximum pressure."But if North Korea's leader Kim Jong Un has seen his standing with the US ...

International »

US Judge may dismiss Stormy Daniels lawsuit against Trump


Reuters, Los Angeles: President Donald Trump likely had a free-speech right to make a Twitter comment disputing allegations by adult film actress Stormy Daniels, a federal judge said on Monday, indicating he was inclined to dismiss her defamation lawsuit against Trump.Daniels, whose real name is Stephanie Clifford and who has ...

Entertainment »

Ekta Kapoor`s mantra in selecting platforms for content!


Touted as content czarina, Ekta Kapoor is undoubtedly the only female producer who has carved her niche in the industry with utmost excellence. Ekta Kapoor is currently riding high as she is juggling between multiple projects across various mediums. Ekta has set a benchmark when it comes to daily soaps. ...

Editorial »

Maldives' people reject authoritarian rule and voted for democracy


MALDIVES strongman President Yameen Abdul Gayoom conceded that he lost Sunday's election to his challenger Ibrahim Mohamed Solih, in a speech broadcast live on television Monday, according to the international media. Mr Yameen congratulated Solih and said, "I know I have to step down now."  The Election Commission said voter ...

Cricket »

'Rashid is best but not unplayable' says Mahmudullah


Mahmudullah Riyad sorted out a vigorous 74 against Afghanistan rescuing Bangladesh from a plausible downfall.Mahmudullah Riyad and Imrul Kayes stood tall in the middle when the team was languishing losing all five in the top order in a score of 87 on the board. The duo added 128 runs in ...

International »

Thousands attend funeral for Iran attack dead


AFP :Tens of thousands of mourners attended a funeral on Monday in the southwestern Iranian city of Ahvaz for soldiers and civilians killed in an attack on a military parade.Four militants attacked the Saturday parade marking the start of the 1980-1988 Iran-Iraq war, spraying the crowd with gunfire and killing ...

City »

Prime Minister Sheikh Hasina addressing a reception accorded to her by the expatriate Bangladeshis at a hotel in New York on Sunday.


Entertainment »

Mehazabien, Apurba in Puja special play


Sheikh Arif Bulbon :Popular pair of the small screen of present time Mehazabien Chowdhury and Ziaul Faruk Apurba worked together in a special play of Durga Puja for the first time. Title of the play is Priyo Tumi. Directed by Mahmudur Rahman Himi story of the play is written by ...

Editorial »

Attack on Iran`s elite guards


IRANIAN Supreme Leader Ayatollah Ali Khamenei accused US-backed Gulf Arab states of carrying out a shooting attack on a military parade that killed 25 people, almost half of them members of the country's elite Revolutionary Guards. Khamenei ordered security forces to bring to justice those responsible for one of the ...

Sports »

Bertens defeats Tomljanovic to secure Korea Open win


AFP, Seoul :Kiki Bertens defeated Australia's Ajla Tomljanovic in the Korea Open final on Sunday, securing her third WTA Tour singles title of the season to continue her career-best year.The second-seeded Bertens came back from break down in the deciding set to defeat the Australian in two hours and 22 ...

International »

World leaders gather at UN under threat from unilateralism


AP, United Nations :With rising unilateralism challenging its very existence, the United Nations convenes its annual meeting of world leaders Monday and will try once more to tackle problems together as a community of nations, addressing threats ranging from Mideast conflicts to the effects of global warming - and also ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news