Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Monday, June 17, 2019 08:35:53 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

Cricket »

No fracture found on Mushfiqur's forearm


Bangladesh heaved a huge sigh of relief after an X-ray report revealed that Mushfiqur Rahim had no fracture on his forearm.Mushfiqur, considered as the most dependable batsman of the country, got hit on his right forearm during a batting practice session while facing a bouncer from pace bowler Mustafizur Rahman.He ...

International »

Saudi Crown Prince lashes out at arch-rival Iran over tanker attacks


AFP, Riyadh :Saudi Crown Prince Mohammed bin Salman accused arch-rival Iran of attacks on oil tankers in a vital Gulf shipping channel, adding he "won't hesitate" to tackle any threats to the kingdom, according to an interview published on Sunday.Two tankers were struck by explosions on Thursday in the Gulf ...

Cricket »

More than just a game: India face Pakistan in World Cup battle royale


Virat Kohli will have history on his side when India take on arch-rivals Pakistan in a World Cup blockbuster on Sunday -- a clash that is always more than just a game of cricket.India cut off bilateral cricket ties with its neighbour after the 2008 Mumbai terror attacks, with authorities ...

Cricket »

Eoin Morgan downplays England's injury concerns


England captain Eoin Morgan said that his team is "not at panic stations", after he and Jason Roy left the field with discomfort during the game against West Indies in Southampton on Friday, 14 June.Both Roy and Morgan had left the field at different points during West Indies' innings and ...

International »

Iran President renews ultimatum over nuclear pact compliance


Reuters, Dushanbe :Iran will continue scaling back compliance with its nuclear deal commitments unless other signatories show "positive signals", the Iranian president told a meeting of Russian, Chinese and other Asian leaders in Tajikistan.Iran stopped complying in May with some commitments in a 2015 nuclear deal that was agreed with ...

Editorial »

Don't let successes go in vain


A total of 298 people were killed and 860 sustained injuries in road accidents across the country during the Eid-ul Fitr vacation. A report of Bangladesh Jatri Kallyan Samiti presented the statistics at a press conference at Dhaka Reporters' Unity on Saturday. It said the accidents took place within 13 ...

Entertainment »

Kareena to reunite with Aamir Khan for the Hindi remake of Forest Grump?


After Karan Johar's period drama, Takht and Homi Adajania's Angrezi Medium, Kareena Kapoor Khan has given her nod to another big project and it's one of the most awaited projects already. Thanks to the incredible popularity and credibility of its leading man, superstar Aamir Khan. Yes, after 3 Idiots (2009) ...

Editorial »

The tax-happy fat budget


THE government in the FY 2019-20 budget announcement set many promises including 8.2 percent GDP growth rate and bring down the inflation at 5.5 percent. In first look, we think the promises are over ambitious. The ever biggest budget of Tk 523,190 crore is a may appear as biggest mockery ...

City »

Bangabandhu Sangskritik Jote formed a human chain in front of the Jatiya Press Club on Friday greeting Prime Minister Sheikh Hasina and Finance Minister AHM Mostofa Kamal for presenting people-oriented budget.


.

International »

Iran has no intention to make or use nuclear weapons: Khamenei


Reuters, Tokyo :Iran has no intention of making or using nuclear weapons, Iranian Supreme Leader Ayatollah Ali Khamenei was quoted as saying on Thursday by Japanese Prime Minister Shinzo Abe.Khamenei's comment, a reiteration of Iran's stance, comes at a time of increased US-Iranian tension, a year after Washington abandoned an ...

Entertainment »

Deepika Padukone tops the list of Most Gorgeous Women in the World by a magazine


A Global Icon, Deepika Padukone tops the list of Most Gorgeous Women in the World from Bollywood. Giving a definition to beauty, Observer Dawn wrote: “Beautiful women in the world have created a magic history through their work and other qualities.” They further added, “There is definitely more to beauty ...

Editorial »

ACC miserably failed to meet people's expectation


PRIME MINISTER Sheikh Hasina on Wednesday told Parliament that the public perception about many of the Anti-Corruption Commission employees being involved in corruption was not totally baseless. Responding to a supplementary question from ruling Awami League lawmaker Rafiqul Islam, leader of the House said that all the employees of the ...

Cricket »

Vaughan calls Finch the best captain at CWC19


Aaron Finch's captaincy has earned him the praise of Michael Vaughan, who hailed Finch's tactical nous, following Australia's 41-run victory against Pakistan in Taunton on Wednesday, 12 June.Vaughan hailed Finch's shrewd and brave decision-making, and called him the best captain at the ICC Men's Cricket World Cup (CWC) 2019 so ...

International »

Abe urges Iran to play 'constructive role' to prevent clash with US


AFP, Tehran :Japanese Prime Minister Shinzo Abe urged Tehran to play a "constructive role" for Middle East peace Wednesday during a rare diplomatic mission to the Islamic republic aimed at defusing US-Iran tensions.Iran has been locked in a bitter standoff with the United States since US President Donald Trump withdrew ...

International »

US-Russia relations are getting ‘worse and worse’: Putin


Reuters, Moscow :President Vladimir Putin said relations between Moscow and Washington were getting worse and worse, noting in an interview published on Thursday that the current U.S. administration had imposed dozens of sanctions on Russia.Putin made his gloomy assessment ahead of a G20 summit in Japan later this month at ...

 
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