Ashis Kumar Chakraborty, J. - (1.) The Court: In a suit for declaration that the invocation of the counter bank guarantees issued by the respondent no.2 bank in favour of the respondent no.3 bank, as mentioned hereinafter, is illegal and null and void and permanent injunction, the plaintiff has filed this application praying for, inter alia, an order of injunction restraining the respondent no.1 from receiving any amount under the counter guarantees issued by the respondent no.2, being Annexure-D series to this application. The plaintiff has also prayed for an order of injunction restraining the respondents from making any payment under the counter guarantees as against the demand letters dated April 1, 2019 issued by the respondent no.3.
(2.) The brief facts leading up to the filing of the suit and the present application are that on December 23, 2015 the petitioner and the respondent no.1, a limited liability company incorporated under the appropriate laws of UAE, entered into a contract dated December 23, 2015 (hereinafter referred to as "the contract") whereby the latter engaged the former as its sub-contractor for installation, testing and commissioning of three electric sub-stations of DEW at Barsha Housing Madinat, Al Seha and Sadda Street in Dubai (hereinafter referred to as "the said project") on the terms and conditions specified therein. The contract was deemed to have commenced on the date of its execution and the stipulated time for completion of the contract was 15 months. Clause 26 of the contract contains the arbitration agreement contemplating all disputes arising out of or in connection with the contract shall, unless amicably settled between the parties, be finally settled by arbitration according to the Rules of arbitration of the International "Chamber of Commerce, Paris [Rules]" by three arbitrators in accordance with the said Rules. As per clause 7.1 and clause 9 of the contract, the petitioner was required to issue advance bank guarantees being 10% of the total contract value as well as performance bank guarantees being 10% of the total contract value to the respondent no.1. The advance bank guarantees were against mobilisation advance to be paid by the respondent no.1 in respect of the said three substations of the said project and the same were to be proportionately deducted from the RA bills to be raised by the petitioner during the execution of the contract. So far as the performance bank guarantees in respect of the said three substations of the said project, are concerned, the same were to be issued by the petitioner to secure performance of the contract by the petitioner and the same were to remain valid until issuance of the Final Acceptance Certificate by Dubai Electricity & Water Authority, who engaged the respondent no.1 as the contractor to set up the said project. As per the contract, the petitioner had to furnish the said performance bank guarantees and advance payment bank guarantees to the respondent no.1 though any bank of UAE. Since the petitioner did not have any bank account in the UAE, the respondent no.3 bank had agreed to issue the advance payment guarantees and the performance bank guarantees in favour of the respondent no.1 provided the petitioner would furnish corresponding counter guarantees in their favour from any bank of India. Accordingly, the petitioner through the respondent no.2, Bank of India furnished three counter performance bank guarantees and three advance payment counter guarantee all dated February 10, 2016 in favour of the respondent no.3. Each of the said counter performance bank guarantees as well the said advance payment counter bank guarantees contained the similar clause that the respondent no.2 undertook to pay the amounts mentioned in the respective counter guarantees to the respondent no.3 upon receipt of the first written demand from the respondent no.3, supported by a written statement that it has received a demand for payment under its guarantee and in accordance with its term.
(3.) On February 22, 2016, the respondent no.3, on behalf of the petitioner issued three performance bank guarantees amounting to 53,39,865.53/- Dirham (hereinafter referred to as "the said performance bank guarantees") in favour of the respondent no.1. All the said three performance bank guarantees contained the following terms: "IN THIS CONNECTION, WE HEREBY UNCONDITIONALLY AND IRREVOCABLY, UNDERTAKE TO MAKE PAYMENT OF THE ABOVE SUM, IN WHOLE OR IN PART, NOTWITHSTANDING ANY OBJECTIONS ON THE PART OF THE CONTRACTOR UPON YOUR FIRST WRITTEN DEMAND".;