Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Saturday, October 20, 2018 07:10:01 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

Editorial »

European Union must challenge the undemocratic election process


THE European Union has decided not to deploy an election observation mission during the 11th parliamentary election in Bangladesh due by January 28 next year. This has been conveyed to the Election Commission in a diplomatic note. A copy of the note verbale was also handed over to the commission ...

Sports »

Los Angeles Dodgers' Austin Barnes hits an RBI single during the fifth inning of Game 5 of the National League Championship Series baseball game against the Milwaukee Brewers in Los Angeles on Wednesday.


Cricket »

Ten-wicket Abbas destroys Australia for Pakistan's series win


AFP, Abu Dhabi :Medium pacer Mohammad Abbas took his maiden ten-wicket haul in a match to fire Pakistan to a 373-run win over Australia in the second Test in Abu Dhabi on Friday.Abbas followed his 5-33 in the first innings with figures of 5-62 to wreck Australia for 164 after ...

Entertainment »

Aamir Khan`s smile in new poster of Thugs of Hindostan


Ever since the intriguing trailer of Aamir Khan, Amitabh Bachchan, Fatima Sana Shaikh and Katrina Kaif starrer Thugs of Hindostan has been unveiled, there is much excitement around the film. The film is one of the biggest releases of the year and will hit the silver screens on November 8. ...

City »

Bangladesh General Students` Parishad formed a human chain on Friday in front of the Jatiya Press Club demanding 35 years limit applying for govt job.


Business & Economy »

Mamun-Ur-Rashid, Managing Director of Standard Bank Limited poses for photo session with the participants of a two day-long training on "Self Leadership, Advanced Managerial Skills & 21st Century Managerial Mindset" organized by the Training Institute of the Bank. Alkona K. Choudhuri, SEVP and Head of Human Resources Division of SBL, Md. Saif Noman Khan, Asst Prof. of IBA, DU, Md. Zakaria, Principal and Md. Amzad Hossain Fakir, Faculty of SBL Training Institute were present on the occasion.


International »

Trump concedes Khashoggi likely dead, threatens consequences


AP, Washington :President Donald Trump acknowledged Thursday it "certainly looks" as though missing Saudi journalist Jamal Khashoggi is dead, and he threatened "very severe" consequences if the Saudis are found to have murdered him. His warning came as the administration toughened its response to a disappearance that has sparked global ...

International »

Russians ‘will go to heaven’ in event of nuclear war: Putin


AFP, Moscow :Russians will "go to heaven" as martyrs in the event of nuclear war because Moscow will only ever use nuclear weapons in retaliation, President Vladimir Putin said Thursday."We have no concept of a preemptive strike," Putin told a forum of international experts in the southern city of Sochi ...

Football »

Chairperson of the Women's Football Committee of Bangladesh Football Federation (BFF) Mahfuza Akter Kiron speaking at a press conference at the conference room in BFF House on Thursday.


Editorial »

Finally a big loan defaulter held: Others must be nabbed soon


AFTER letting many businessmen get away with loan defaults, the government has finally become stern towards loan default and loan scammers by arresting Chattogram-based SA Group's managing director. Also a director of Mercantile Bank, Sahabuddin Alam was arrested on Wednesday on at least five counts of loan irregularities. The irregularities ...

International »

US first lady`s plane lands safely after smoke filled cabin


Reuters, Philadelphia :U.S. President Donald Trump said his wife, first lady Melania Trump, was safe on Wednesday after a mechanical problem forced her airplane, which was headed for Philadelphia, to return to the Joint Base Andrews military facility in Maryland."They had a problem, but she's fine," Trump said in an ...

Entertainment »

Tale of a rock legend


Sheikh Arif Bulbon :Ayub Bachchu, mostly known as AB, is the legendary name in the history of Bangladeshi band music. He was born in Chattogram on August 16, 1962. With tremendous fan acceptance Ayub Bachchu is famous for his fabulous guitar playing. He has started his music career from his ...

City »

A view of the protest meeting organized by United Students Forum held at the Jatiya Press Club demanding release of BNP Chairperson Begum Khaleda Zia and stoppage of giving farcical judgement in fake cases against Tarek Rahman on Thursday. Among others, Senior leader Nazrul Islam Khan was present on the occasion.


Football »

Groeneveld scores as Netherlands draw 1-1 with Belgium


AP, Brussels :Arnaut Groeneveld celebrated his first start for the Netherlands by scoring a first-half equalizer Tuesday as the Dutch drew 1-1 with neighbor Belgium.The 21-year-old midfielder who plays for Belgium's Club Brugge rounded off a flowing Dutch move in the 27th minute, controlling the ball with his left foot ...

Football »

Brazil's Miranda silences Argentina with last-gasp winner


AFP, Jeddah :Brazil snatched a dramatic 1-0 win over Argentina with an injury-time header from Miranda in their friendly match in front of a sell-out crowd in Jeddah, Saudi Arabia on Tuesday.The Inter Milan centre-back was left all alone to thump in a 93rd-minute effort from Neymar's corner when the ...

 
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