BANK GUARANTEE(BG) can be many types - Advance BG,Payment BG, Performance BG , Bid security BG
ADVANCE BANK GUARANTEE
Bank guarantee No. ………………………
Date : …………………..
In consideration of Employer having its registered office at ……… (herein after called ‘the Company’ which expressions shall unless repugnant to the context or meaning thereof include its successors, administrators, executors and permitted assigns) has awarded to M/s Applicant, a company incorporated under the Companies Act, 1956, and having its registered office at …… (hereinafter referred to as ‘the Contractor’ which expressions shall unless repugnant to the context or meaning thereof include its successors administrators, executors and permitted assigns) a contract, by issuance of a Purchase Order No. …. (‘PO’) by the Company on terms and conditions stated therein and the same having been unequivocally accepted by the Contractor at a gross value of Rs. 9,00,00,075/- (Rupees Nine Crores and Seventy Five Only) (‘Contract Value’).
As per clause “a” in Payment terms of the PO, the Company has agreed to make an advance payment of 10 % of Contract Value to the Contractor amounting to Rs.90,00,008/- ( Rupees Ninety Lakhs and Eight Only) (hereinafter called the ‘said advance’ which expressions shall include any and all further amounts advanced by the Company to the Contractor with reference to the PO) against bank guarantee to be furnished by the Contractor having a validity of not less than six months for due performance of the terms of the PO.
NOW THEREFORE THESE PRESENTS WITNESSTH that in consideration of the promises aforesaid and at the request of the Contractor, we, State Bank of Hyderabad, constituted under the State Bank of India subsidiary Act 1959, having its central office at Gunfoundry, Abids Hyderabad-500 177 and amongst other places a branch at TFCPC,2nd floor, Surya towers, SP road, Secunderbad-500 003 (hereinafter called the ‘Bank’) so as to bind ourselves and our successors and assigns DO HEREBY issue this bank guarantee (‘Bank Guarantee’) and hereby irrevocably agree and undertake:
(a) to pay the Company anywhere in India forthwith on first demand with or without any reason in writing from the Company, without protest or demur or reservation or contest or recourse or proof of satisfaction and without reference to the Contractor any and all said advance demanded from us by the Company with reference to this guarantee upto an aggregate limit of Rs.90,00,008/- ( Rupees Ninety Lakhs and Eight Only)
(b) not to require any proof in addition to the written demand from the Company or its authorized representative, made in any format, raised at the above mentioned address of the Bank, in order to make the said payment to the Company or its authorized representative.
(c) Any such demand made by the Company on the Bank shall be conclusive and binding notwithstanding any differences between the Company and the Contractor or any dispute pending before any Court, Tribunal, Arbitrator or any other Authority. The Bank undertakes not to revoke this Bank Guarantee during its currency without previous consent of the Company in writing and further agrees that the Bank Guarantee herein contained shall be enforceable till expiry of its validity.
AND the Bank hereby further agree and undertakes as follows:
i) The Company shall have the fullest liberty without reference to the Bank under this Bank Guarantee at any time and/or from time to time to vary the said Bank Guarantee and/or any of the terms and conditions thereof or of the said advance and/or to extend time for performance of the said Bank Guarantee and/or payment of the said advance in whole or part or to postpone for any time and/or from time to time any said obligations of the Contractor and/or the rights, remedies or powers exercisable by the Company against the Contractor either to enforce or forbear from enforcing any of the terms and conditions of /or governing the said Bank Guarantee and/or the said advance, if any, or any of them available to the Company and the Bank shall not be released from its liability under these presents and the liability of the Bank shall remain in full force and effect notwithstanding any exercise by the Company of the liberty with reference to any or all the matters aforesaid or by reason of time being given to the Contractor or any other forbearance, or omission on the part of the Company or any indulgence by the Company to the Contractor of any other act, matter or thing whatsoever which under any law could (but for this provision) have the effect of releasing the Bank from its liability hereunder or any part thereof.
ii) It shall not be necessary for the Company to proceed against the Contractor before proceeding against the Bank and the Bank Guarantee herein contained shall be enforceable against the Bank as Principal debtor notwithstanding the existence of any security for any indebtedness of the Contractor to the Company and notwithstanding that any such security shall at the time when claim is made against the bank or proceedings taken against the Bank hereunder, be outstanding or unrealised.
iii) As between the Bank and the Company for the purpose of this Bank Guarantee, the amount claimed or demanded by the Company from the Bank with reference to this Bank Guarantee shall be final and binding upon the Bank as to the amount payable by the Bank to the Company hereunder.
iv) The liability of the Bank to the Company under this Bank Guarantee shall remain in full force and effect notwithstanding the existence of any difference or dispute between the Contractor and the Company, the Contractor and the Bank and/or the Bank and the Company or otherwise howsoever touching or effecting these presents or the liability of the Contractor to the Company, and notwithstanding the existence of any instructions or purported instruction by the Contractor or any other person to the Bank not to pay or for any cause withhold or defer payment to the Company under these presents, with the intent that notwithstanding the existence of such difference, dispute or instruction, the Bank shall be and remain liable to make payment to the Company in terms hereof.
v) The Bank Shall not be released of its obligations under these presents by any exercise by the Company of its liberty with reference to the matters aforesaid or any of them or by reason of any other act or forbearance or other acts of omission or commission on the part of the Company or any other indulgence shown by the Company or by any other matter or thing whatsoever which under the law would but for this provision, have the effect of relieving the Bank.
vi) The Bank shall not require the Company to justify the invocation of this Bank Guarantee, nor shall the Bank have any recourse against the Company or its authorized representative in respect of any payment made hereunder.
vii) This Bank Guarantee shall be a primary obligation of the Bank and accordingly, the Company or its authorized representative shall not be obliged before enforcing this Bank Guarantee to take any action in any court or arbitral proceedings against the Contractor, to make any claim against or any demand on the Contractor or to give any notice to the Contractor to enforce any security or its authorized representative or to exercise, levy or enforce any distress, diligence or other process against the Contractor.
viii) This Bank Guarantee shall not be affected in any manner by reason of merger, amalgamation, restructuring, liquidation, winding up, dissolution, insolvency or any other change in the constitution of the Bank or that of the Contractor or Company or any irregularity in the exercise of borrowing powers by or on behalf of the Contractor.
ix) This Bank Guarantee shall not be affected by the liquidation, winding up or insolvency etc., or the Contractor seeking protection of any law.
x) This Bank Guarantee shall not be revoked by the Bank until its expiry, except with the prior consent of the Company.
xi) The Bank hereby declare that Shri……………………. who is the ………………… (designation) of the Bank is authorised to sign this Bank Guarantee on behalf of the Bank and to bind the Bank thereby.
xii) This Bank Guarantee shall be interpreted in accordance with the laws of India and the courts at Kolkata shall have exclusive jurisdiction. The Bank represents that this Bank Guarantee has been established in such form and with such content that it is fully enforceable in accordance with its terms as against the Bank in the manner provided herein.
xiii) The Bank hereby agrees and acknowledges that the Company shall have a right to invoke this Bank Guarantee either in part or in full, as it may deem fit.
Notwithstanding anything contained hereinabove, our liability under this Bank Guarantee is limited to Rs.90,00,008/- ( Rupees Ninety Lakhs and Eight Only) and it shall remain in force upto the midnight of 31-Dec-14 with a claim period of one (1) month i.e. 31-Jan-15 and shall be extended from time to time for such periods as may be desired by the Company in writing.
Notwithstanding anything contained hereinabove:
(a) Our liabiity under the Bank Guarantee shall not exceed Rs.90,00,008/- ( Rupees Ninety Lakhs and Eight Only)
(b) This Bank Guarantee shall be valid upto 31-Dec-14
(c) We are liable to pay the Bank Guaranteed amount or any part thereof under this Bank Guarantee only and only if you serve upon us a written claim or demand on or before 31-Dec-14.
Dated this 30th day of October 2014
Bank seal / stamp …………….
BANK GUARANTEE FOR MOBILIZATION ADVANCE
1. In consideration of ……………(hereinafter called "the Employer" which expression shall unless repugnant to the subject or context include its successors and assigns) having agreed under the terms and conditions of the Work Oder Ref. No………….. ISSUED BY THE Customer which have been unequivocally accepted by……. M/s applicant…… company incorporated under the Companies Act 1956 and having its registered office at………(hereinafter called “the said Contractor” which expression shall unless the context requires otherwise include its administrators, successors and assigns) in connection with the work of " Execution, Erection, testing & commissioning of power plant including associated ancillary electrical works for the ------- (hereinafter called "the Contract") to make at the request of the Contractor a 30% advance of Rs.8,85,180/- (Eight Lakhs Eight Five Thousand One Hundred and Eighty Only ) for utilizing it for the purpose of the Contract on his furnishing a guarantee acceptable to the Employer, we State Bank of Hyderabad having its branch office at ----------,(hereinafter referred to as "the said Bank") do hereby guarantee the due recovery by the Employer of this said advance with interest thereon as provided according to the terms and conditions of the Contract. If the said Contractor fails to utilize the said advance for the purpose of the Contract and / or the said advance together with Interest thereon as aforesaid is not fully recovered by the Employer,
2. we, The Said bank hereby unconditionally and irrevocably undertake to pay to ………. on demand and without demur to the extent of the said sum of Rs.8,85,180/- (Eight Lakhs Eight Five Thousand One Hundred and Eighty Only ), any claim made by the Employer on us for the loss or damage caused to or suffered by the Employer by reason of the Employer not being able to recover in full the said sum of Rs.8,85,180/- (Eight Lakhs Eight Five Thousand One Hundred and Eighty Only ) with interest as aforesaid.
2. We, The Said bank further agree that the Employer shall be the sole judge of and as to whether the said Contractor has not utilized the said advance or any part thereof for the purpose of the Contract and the extent of loss or damage caused to or suffered by the Employer on account of the said advance together with interest not being recovered in full and the decision of the Employer that the said Contractor has not utilized the said advance or any part thereof for the purpose of the Contract and as to the amount or amounts of loss or damage caused to or suffered by the Employer shall be final and binding on us.
3. We, the said Bank, further agree that the Guarantee herein contained shall remain in force and effect during the period that would be taken for the performance of the said Contract and till the said advance with interest has been fully recovered and its claims satisfied or discharged and till the Employer certifies that the said advance with interest has been fully recovered from the said Contractor, and accordingly shall have no claim under this Guarantee after ( 0 ) days from the date of satisfactory completion of the said Contract (as per the mutually agreed Work Schedule) i.e. upto and inclusive of Rs.8,85,180/- (Eight Lakhs Eight Five Thousand One Hundred and Eighty Only ) unless a notice of the claim under this Guarantee has been served on the Bank before the expiry of the said period i.e. 15-Feb-15 in which case the same shall be enforceable against the Bank notwithstanding the fact, that the same is enforced after the expiry of the said period.
4. The Employer shall have the fullest liberty without affecting in any way the liability of the Bank under this Guarantee or Indemnity, from time to time, to vary any of the terms and conditions of the said Contract or the advance or to extend time of performance by the said Contractor or to postpone for any time and from time to time any of the powers exercisable by it against the said Contractor and either to enforce or forbear from enforcing any of the terms and conditions governing the said Contract or the advance available to the Employer and the said Bank shall not be released from its liability under these presents by any exercise by the Employer of the liberty with reference to the matters aforesaid or by reasons of time being given to the said Contractor or any other forbearance, act or omission on the part of the Employer or any indulgence by the Employer to the said Contractor on any other matter or thing whatsoever which under the law relating to sureties would, but for this provision, have the effect of so releasing the Bank from its such liability.
5. It shall not be necessary for the Employer to proceed against the Contractor before proceeding against the Bank and the Guarantee herein contained shall be enforceable against the Bank notwithstanding any security, which the Employer may have obtained or obtain from the Contractor shall at the time when proceedings are taken against the Bank hereunder, be outstanding or unrealized.
6. We, the said Bank, lastly undertake not to revoke this Guarantee during its currency except with the previous consent of the Employer in writing and agree that any change in the Constitution of the said Contractor or the said Bank shall not discharge our liability hereunder.
If any further extension of this Guarantee is required the same shall be extended to such required periods on receiving instructions from the Contractor on whose behalf this Guarantee is issued.
Notwithstanding anything contained herein before our liability under this Guarantee is restricted to Rs.8,85,180/- (Eight Lakhs Eight Five Thousand One Hundred and Eighty Only ) together with interest . Our undertaking shall commence from the date of execution and shall remain in force upto .
Dated this .
PERFORMANCE CUM DEFECT LIABILITY BANK GUARANTEE
GUARANTOR: BANK STATE BANK OF HYDERABAD
GUARANTEE NUMBER : ……………………………………………….
PRINCIPAL: ……NAME OF APPLICANT…………..
... (hereinafter referred to as “Purchaser”)
Agreement to which this Guarantee relates:
Agreement for Design, Engineering, Erection including associated civil works, Installation, testing and commissioning of ….for the …..Project at ……gainst Purchase order no: ……… (hereinafter referred to as the “Contract”).
Aggregate Maximum Amount of this Guarantee: Rupees 1,01,124/- ( One Lakh One Thousand One Hundred and Twenty Four Only) equivalent to 5 % of the Contract value] of the aggregate of the Contract Price of Rupees 20,22,480/- (Twenty Lakhs Twenty Two Thousand Four Hundred and Eighty only)
Expiry Date: 20th Day of May, 2016.
This PERFORMANCE CUM DEFECT LIABILITY BANK GUARANTEE (the “Guarantee”) is provided on this day of March, 2014 at Hyderabad, by the Guarantor in favour of the Purchaser for an amount of Rupees 1,01,124/- ( One Lakh One Thousand One Hundred and Twenty Four Only).
In consideration of the Contract awarded by the Purchaser in favour of the Contractor for the [Purpose of the Contract], on the terms and conditions set out in the Contract, dated 05-Aug-2013 valued at Rupees 20,22,480/- and the same having been unequivocally accepted by the Contractor, the Contractor hereby agreed to provide a performance cum defect liability bank guarantee for the faithful performance of the entire Contract, [including the warranty obligations /liabilities under the Contract equivalent to 5% of the said value of the Contract, to the Purchaser amounting to Rupees 1,01,124/- ( One Lakh One Thousand One Hundred and Twenty Four Only) as the contract security in the form of a bank guarantee.
We, State Bank of Hyderabad, constituted under the State Bank of India subsidiary Act 1959, having its central office at ……. and amongst other places a branch at ……..,being the Guarantor under this Guarantee, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby irrevocably and unconditionally guarantee and undertake to you, the abovementioned Purchaser, or such other persons for the time being entitled to the benefit hereof, upon your written request, any sum or sums up to the Aggregate Maximum Amount of this Guarantee as amended from time to time, upon any failure by the Contractor to fulfill any of the conditions of the Contract required to be performed during the performance of the Contract , as determined by you in your absolute judgment.
We, as Guarantor, undertake to effect payment forthwith upon receipt of your written demand, without proof, conditions, grounds or reasons for such demand for the sum specified therein, notwithstanding any contestations, claims, demands or objections made by the Contractor or any other third party. We recognize that under this Guarantee we have no right to set-off or counterclaim the amounts claimed under this Guarantee.
Any payment made hereunder shall be made free and clear of, and without deduction for or on account of any present or future taxes, levies, imposts, duties, charges, fees, deductions or withholdings of any nature whatsoever and whomsoever imposed. We, further, unconditionally acknowledge that any such demand by the Purchaser of the amounts payable by us to the Purchaser shall be final, binding and conclusive evidence in respect of the amounts payable by the Contractor to the Purchaser.
We agree that our obligations under this Guarantee are irrevocable, absolute and unconditional and shall remain in full force and effect till the Final Expiry Date without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, including, without limitation:
(i) any time or other indulgence granted by the Purchaser to the Contractor under the Contracts,
(ii) any amendment, modification, supplementation or other variation of the Contract,
(iii) any invalidity, irregularity or unenforceability of all or part of the Contract or any obligation of the Contractor under or pursuant thereto,
(iv) any partial or complete performance of the Contract,
(v) any lack of or limitation on the status or power of the Contractor,
(vi) any winding-up, dissolution, receivership or bankruptcy of the Guarantor, the Contractor and any amalgamation, merger, reconstruction, reorganization or any change in the constitution of the Guarantor and/or the Contractor, or
(vii) any other act, omission, event or circumstance which would or may but for this provision operate to prejudice, affect or discharge this Guarantee or our obligations hereunder.
The Purchaser shall have the fullest liberty without affecting in any way the liability of the Guarantor under this Guarantee from time to time to extend the time for performance of the Contract by the Contractor. The Purchaser shall have the fullest liberty without affecting the liability of the Guarantor under this Guarantee, to postpone from time to time the exercise of any powers vested in it or of any right which they postpone from time to time they might have against the Contractor, and to exercise any powers vested in them or of any right which they might have against the Contractor, and to exercise the same at any time in any manner, and either to enforce or to forebear to enforce any covenants contained or implied in the Contract between the Purchaser and the Contractor or any other course of remedy or security available to the Purchaser. The Guarantor shall not be released of its obligations under these presents by any exercise by the Purchaser of its liberty with reference to matters aforesaid or any of them or by reason of any other act or forbearance to other acts of omission or commission on the part of the Purchaser or any other indulgence shown by the Purchaser or by any other matter or thing whatsoever which under the law would, but for this provision, have the effect of relieving the Guarantor.
We hereby waive notice of acceptance of this Guarantee and notice of any liability to which it may apply. Except with respect to the written demand for payment referred to above, we waive presentment, demand of payment, protest, notices of any kind and any right to require that resort be made to the Contract or any other security.
We, as Guarantor, undertake to pay to the Purchaser any money so demanded, within 7 (seven) days of receipt of request from the Purchaser, notwithstanding any dispute or disputes raised by the Contractor in any suit or proceeding pending before any Arbitration or Court or Tribunal relating thereto our liability under this Guarantee being absolute and unequivocal.
We, as Guarantor also agrees that the Purchaser at its opinion shall be entitled to enforce this Guarantee against us as a principle debtor, in the first instance without proceeding against the Contractor, and notwithstanding any security or other guarantees that the Purchaser may have in relation to the Contractor’s liabilities.
This Guarantee shall come into force on the date of issue. This Guarantee shall be a continuing security and accordingly: (i) it shall extend to cover any amount due at any time from the Contractor to Purchaser under the Contract; and (ii) it shall not be discharged by an intermediate discharge or repayment by or for the account of the Contractor or any settlement of accounts between the Contractor and the Purchaser.
We undertake not to revoke this Guarantee during its term except with the previous express consent of the Purchaser in writing and agree that any change in the constitution of the Guarantor or the Contractor shall not discharge the liability of the Bank hereunder.
The sums payable under this Guarantee shall be remitted by the Guarantor to the Purchaser’s designated bank account the details of which will be informed to the Guarantor by the Purchaser in writing. The Guarantor shall immediately notify the Purchaser on remittance of the amount/s. Remittance of sums payable hereunder into such designated account shall discharge the Guarantor of its liability hereunder to the extent of such remittance. The remaining obligations of the Guarantor shall continue until the exhaustion of the Aggregate Maximum Amount of this Guarantee.
Notwithstanding anything contained hereinabove:
1) Our liability under this Guarantee shall not exceed the Rupees 1,01,124/- ( One Lakh One Thousand One Hundred and Twenty Four Only).
2) This Guarantee will be valid up to the Expiry Date 20th Day of May,2016.
3) We shall be liable to pay any amount under this bank guarantee or part thereof only if we receive a claim or demand in writing on or before the Final Expiry Date i.e. 20th Day of May, 2016.
This Guarantee shall be governed by and construed in accordance with laws of India, and the courts at [Bangalore] shall have the jurisdiction to try any dispute arising hereunder. Notwithstanding this provision, the Guarantor shall have no right to withhold payment of the guarantee pending the resolution of any dispute, unless expressly directed to do so by a court of competent jurisdiction.
This Guarantee shall be extended upon written instructions from the Principal to the Guarantor.
In the event that any one or more of the provisions contained in this Guarantee are considered invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Upon the Final Expiry Date, this Guarantee shall become null and void, whether returned to the Guarantor for cancellation or not and any claim or statement received after the Final Expiry Date where applicable, shall be ineffective and not accepted.
Notwithstanding anything contained herein above, our liability under this guarantee is restricted to Rupees 1,01,124/- ( One Lakh One Thousand One Hundred and Twenty Four Only).
Our Guarantee shall remain in force until 20th Day of May,2016.
Unless a demand or claim under the guarantee is made on our bank in writing on or before 20th Day of May,2016.
All your rights under the said guarantee be forfeited and we shall be relieved and discharged from all liabilities thereunder.
_________________________ By __________________________
Place and Date Name:
CORPORATE GUARENTEE FORMAT
Bank Guarentee encashment legal position
If beneficiary intends to encash Bank Guarentee courts dont interfere and grant injunction. Banks are duty bound to oblige
When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts will, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee.
The rule is well established that a bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of the bank under a performance guarantee is created by the document itself. Once the documents are in order the bank giving the guarantee must honour the same and make payment ordinarily unless there is an allegation of fraud or the like. The courts will not interfere directly or indirectly to withhold payment, otherwise trust in commerce internal and international would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle the disputes with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising ex contractu is not barred and the cause of action for the same is independent of enforcement of the guarantee.
The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take the advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealings in the country.
The first exception which has been carved out by the Courts is that the fraud perpetrated must be of egregious nature meaning that the said fraud must be one of gross nature which shakes the conscience of the Court and the said fraud must be known to the parties including the party representing as well as the bank. Under the said circumstances, if the said fraud is established, the Court can interfere with the bank guarantee. In U.P. Cooperation Federation Ltd. (Supra) also it was held that the fraud pleaded must be of an egregious nature so as to vitiate the entire underlying transaction of the Bank Guarantee. It is fraud of the beneficiary and not the fraud of somebody else that would make the Court to grant the Order of injunction as asked for.
The second exception to the rule of granting injunction, i.e., the resulting of irretrievable injury, has to be such a circumstance which would make it impossible for the guarantor to reimburse himself, if he ultimately succeeds. This will have to be decisively established and it must be proved to the satisfaction of the court that there would be no possibility whatsoever of the recovery of the amount from the beneficiary, by way of restitution
Various Cases for reference
Tarapore and Co., Madras –vs- V.O Tractors Export Moscow, AIR 1970 SC 891
United Commercial Bank –vs- Bank of India, (1981) 2 SCC 766:AIR 1981 SC 1426
U.P. Coop. Federation –vs- Singh Consultants & Engineers (P) Ltd., (1988) 1 SCC 174
Hindustan Steel Works Construction Ltd. –vs- Tarapore & Co., AIR 1996 SC2268:(1996) 5 SCC 34
U.P.State Sugar Corporation –vs-. Sumac International Limited, AIR 1997 SC 1644:(1997)1 SCC 568
Dwarikesh Sugar Industries Ltd. –vs- Prem Heavy Engineering Works (P) Ltd., (1997) 6 Supreme Court Cases 450
Federal Bank Limited –vs- V.M. Jog Engineering Limited, (2001) 1 SCC 663
National Highways Authority of India –vs- Ganga Enterprises, (2003) 7 Supreme Court Cases 410