ARINDAM MUKHERJEE, J. - (1.) The petitioner says that pursuant to a global tender floated by the respondent no.1, the petitioner became successful and was awarded the contract being package No.BREB/UREDS-G-01 for line hardware and insulator (hereinafter referred to as the said contract). The said contract is governed by the General Conditions of Contract (GCC) and Special Conditions of Contract (SCC) contained in the tender documents. The said contract pertains to supply of materials. The total contract price is USD 3,286,944 plus Bangladesh Taka (in short BDT) of 1,982,640 with a permissible increase of 20% quantity. The GCC in clause 16.1 provides for the mode of payment under the said contract. The payment is divided in three phases - i) Advance payment of 10% of the contract price; ii) On shipment 80% of the contract price; iii) On acceptance 10% of the contract price.
(2.) Clauses 18.1 and 18.3 of the GCC provide for a performance security. The performance security shall be 10% of the contract price which shall remain valid for 20 (twenty) months from the date of signing the contract covering warranty period. The date of signing of the contract according to the petitioner is 13th April, 2015. The performance security in the instant case was given by YES Bank in terms of clause 18.3 of the GCC. The performance security for USD 3,31,500 was initially given on 8th April, 2015. This is an irrevocable letter of guarantee. The performance security subsequently has been extended from time to time and is still valid.
(3.) The petitioner says to have supplied the entire material under the said contract on or about 24th October, 2017 and have also received 90% of the payment in terms of clause 16.1 of the GCC. The petitioner says that 10% of the contract value has been retained by the respondent No.1 as there is no final acceptance owing to certain alleged discrepancies raised by respondent no. 1. The respondent No.1, according to the petitioner, by a letter dated 5th July, 2020 claimed a sum of USD107,900.65 on account of short materials, a sum of BDT 20,06,754 on account of packing deviation and BDT 22,81,557.08 on account of CD-VAT. In the said letter the respondent No.1 had also clarified that any applicable Liquidity Damages (LD) will be deducted from 10% retention money. By a further letter dated 7th April, 2021, the petitioner says that the respondent No.1 has reduced the amount on account of short materials and CD-VAT. The amount claimed for short material in the letter dated 7th April, 2021 is USD10,385 while those on account of packing deviation and CD-VAT are respectively BDT 20,06,754 and BDT 4,06,762. According to the petitioner, the aggregate value claimed on the said three heads converted into USD comes to Rs.38,785. The petitioner has paid this amount to the respondent no. 1 and has relied upon a print out of a swift message advice to that effect. The petitioner says that there is no amount which the respondent no. 1 is entitled to realize from the petitioner in terms of the letter dated 7th April, 2021. The imposition of liquidated damages according to the petitioner has not yet been made and in any event if the same is made the 10% of the contract value retained by the respondent no. 1 will be sufficient enough to cover up the same as liquidated damages in terms of clause 27 of the GCC will at the maximum be 10% of the contract. In this fact scenario the petitioner says that assuming without admitting that the petitioner has not fulfilled its contractual obligation. The respondent no. 1 is completely secure even in respect of liquidated damages, there being no other outstanding amount owed by the petitioner to the respondent no. 1. The petitioner says that in such circumstances the bank guarantee for performance security of USD3,31,500 cannot be invoked as sought to be done by the respondent no. 1. The petitioner refers to the print out of the message received by YES Bank, the respondent no. 2 on 6th May, 2021 appearing at page 259 of the petition. The petitioner refers to the grounds enumerated in the said letter for the invocation. Three grounds appear to have been given. They are "as the payment of 10% retention of the contract is not settled ", "in addition a large portion of materials have been found as damaged and shortage " and "packing deviation has occurred against the above mentioned contract ". The petitioner says that the claim of 10% retention money cannot and does not arise as the same which has been retained by the respondent no. 1 is payable to the petitioner and not the other way round. So far as shortage and packing deviation are concerned, the claims under such heads as quantified by the respondent no. 1 in its letter dated 7th April, 2021 has already been paid. There is as such no valid ground available to the respondent no. 1 to invoke the performance security. The respondent no. 1 is, therefore, attempting to unjustly enrich itself by seeking to invoke the bank guarantee given for performance security. The bank guarantee if allowed to be invoked will cause irretrievable injustice to the petitioner. The petitioner has also coined the act of attempted invocation by the respondent no. 1 to be a fraudulent act. The petitioner, therefore, seeks an order of injunction against attempted invocation of the bank guarantee given for performance security by the respondent no. 1. The petitioner relies upon a judgment reported in 1999 (8) SCC 436 para 16.;