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Covid-19 and commercial thrombosis

Prashanto Chandra Sen



Covid-19 and commercial thrombosis
Covid-19 and commercial thrombosis

The impact of Covid-19 on the obligation to comply with an unconditional and irrevocable bank guarantee is a critical issue which has arisen particularly in the case of performance of bank guarantees. Does the lockdown amount to special circumstances justifying an injunction on an unconditional bank guarantee?

The pandemic spawned an interesting judgement by the Delhi High Court in this regard. The court held that the inability of the company to complete a construction contract was due to the pandemic, a cause totally unanticipated and beyond the control of the company. When the company which suffered due to the non performance sought to invoke the performance bank guarantee, the court restrained it from doing so inter-alia on the ground that the pandemic led to a case of special equities which merited interference.

Prashanto Chandra Sen, Senior Advocate, BA LL.B BCL (Oxon)

It is time that the exact scope of the doctrine of special equities in the context of bank guarantee law is clarified by the apex court. The law of injunction against bank guarantees is otherwise well settled. A bank guarantee contract is a separate contract from the underlying contract in relation to which they are given. The bank is not concerned with the merits or demerits of the underlying transactions.

This is because free and unrestricted flow of commerce is the prime consideration in the case of bank guarantees. Irrevocable bank guarantees have been described as the lifeblood of commerce. In the Intraco Case [(1981) 2 Lloyd’s Report 256 at 257], Donaldson LJ declared, “Thrombosis will occur if, unless fraud, is involved, the courts intervened and thereby disturbed the mercantile practice of treating rights thereunder as being cash in hand.”

It is this mercantile practice which has led to the court over the years to be shy of issuing injunctions against the invocation of an irrevocable bank guarantee except in certain well-defined exceptions. Three exceptions have been recognised over the years–fraud, irretrievable injustice/ injury and special equities. Fraud should be egregious in nature vitiating the entire transaction of the bank guarantee.

Irretrievable injustice has been defined as a situation where if the bank guarantee invocation is not restrained, it will make it impossible for the party at whose instance the bank guarantee was issued to recover the amount if the bank guarantee were found to be wrongly invoked at a later stage.

The standard of irretrievable injustice/injury has been famously set by the Itek Corporation case in which the imposition of sanctions by the US against Iran made it impossible for the guarantor to reimburse himself if he ultimately succeeded in the trial. A mere apprehension that the party would not pay is not enough. It the third exception of special equities which needs clarity.

The origin of the words “special equities doctrine” in the context of bank guarantees in India has been engagingly discussed in the SBI Case (2019)SCConline2650. It is in the Texmaco Case AIR (1979)Cal 44 that Sabyasachi Mukharji J first coined the term in the Indian context, after referring to a number of English decisions.

The same judge when in the Supreme Court in the UP Cooperative Federation Case (1988) 1 SCC 174 reiterated special equities in the form of irretrievable injustice to be an exception warranting interference with a bank guarantee. The Supreme Court has conceptualised the test of special equities as being of such injuries which are of an irretrievable, irremediable, unrecoverable and irreversible kind.

There have, however, been instances where High Courts have given injunctions against bank guarantees in certain cases, on the grounds of special equity even if not leading to irretrievable injustice e.g. when invocation is done after unilaterally changing the terms of the main contract to the detriment of the guarantor; exceptional circumstances of financial hardship in addition to a strong case on merits; refusal by the beneficiary, to return the bank guarantee despite a clear agreement to do so and instead attempt made to invoke the ;circumstances which “prick the judicial conscience.”

These are some instances. No clear test has been laid down till date. In the Halliburton case, which came up in the Delhi High Court, the exception of special equities came under spotlight when the guarantor pleaded inability to perform the contract because of the lockdown in industrial activities on account of Covid-19. The court observed that the apex court had held that special equities should be in the form of preventing irretrievable injustice for it to weigh in with the court for the grant of injunction.

It went on to highlight that while earlier special equities were limited to cases where irretrievable injustice resulted, the decision in Standard Chartered Bank seemed to visualise irretrievable injustice and special equities as distinct circumstances. The Standard Chartered judgement had relied on the Ansal Case (1996)5SCC450 when discussing special equities.

This case linked special equities to irretrievable injustice. Therefore, the Standard Chartered case may not be asserting special equities as a concept independent of irretrievable injustice. However, the Delhi High Court has flagged an important issue which needs to be set at rest by the Supreme Court. If special equities is indeed a part of the concept of irretrievable injustice then what is the need for mentioning the same separately from irretrievable injustice/injury.

The choice is whether to take the narrower view of special equities as an inseparable twin of irretrievable justice (as described by the Calcutta High Court) or of special equities encompassing a wider range of events which may or may not lead to irretrievable injustice. The danger of delinking special equities as a special circumstance from irretrievable injustice is that well-established principles of bank guarantee law would be diluted.

In the absence of a clarity of what exactly constitutes special equities, it would give a carte blanche to courts to interfere. The concept of special equities is too broad to define. The concept of equity itself has its origin in the arbitrary length of the chancellor’s foot. In the context of bank guarantee law where the principles of commerce require iron cast certainty, the special equity uncertainty is something which would sit uneasily with the need for established principles.

It is difficult balancing commercial certainty with the need to ensure justice and equity. It may normally be more prudent for the courts to rely on the doctrine of fraud for the purpose of injunction. Fraud can cover a wide variety of situations as it is nothing but a deliberate deception with the design of taking unfair advantage over another. It is, however, arguable, that in case of wholly unanticipated events making the performance of the contract impossible, as in the case of the present pandemic, the doctrine of special equities may have their utility.

One possible test touched upon by the Delhi High Court in the Sharma Kalypso case (2016) SCC Online Del 5236 was of exceptional circumstances of hardship and a strong case on merits. The Covid-19 crisis is being described as a pivotal moment challenging the old order. It is moments like this which will perhaps compel the court to set the issue at rest finally.

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Legally Speaking




The Punjab and Haryana High Court in the case Dinesh Versus State of Haryana observed and has recently granted a regular bail to a man booked under the POCSO Act after the complainant, the petitioner wife, accused him of penetrative sexual assault in an incident that allegedly took place prior to their marriage, when the petitioner wife was still a minor.

The bench comprising of Justice Vikas Bahl observed that no date of the alleged incident has been mentioned in the FIR and it was registered after the petitioner moved a plea for restitution of conjugal rights, the bench noted that the FIR was registered after much delay.

It was observed that the FIR was registered under Sections 6, 12 and 17 of POCSO Act and Sections 506, 376(2) (N), 323, 328 and 406 of Indian Penal Code, 1860.

The Court noted that no date of incident has been mentioned in the FIR and the said FIR has been registered after filing of the petition by the petitioner under Section 9 of the Hindu Marriage Act, 1955. Prima facie, it also appears that after much delay, the FIR has been registered.

Further, the Court observed that the affidavit suggests that the complainant married the petitioner without coercion or pressure and also the Aadhaar Card that suggests her to have attained the majority age at the time of her marriage.

The bench after considering the fact that the petitioner is not involved in any other matter and prosecution is to take time and also that the co-accused Yogesh has been granted interim protection. It was stated that this court deemed it fit to extent the relief of regular bail to the petitioner. It observed that since 07.12.2021, the petitioner has been in custody and there are 22 prosecution witnesses and none of them have been examined. Therefore, the trial is likely to take time.

Moreover, the court allowed the instant petition and released the petitioner on regular basis subject to its cancellation if he threatens or influences the witness.

The present petition is allowed by the court, while keeping in view the facts and circumstances and the petitioner is ordered to be released on bail on his furnishing bail or surety bonds to the satisfaction of the concerned trial Court or Duty Magistrate and subject to him not being required in any other case. In the present case, it is made clear, the petitioner threatens or influences any witness, it would be open to the State to move an application for cancellation of the present regular bail granted to the petitioner by the court.

Accordingly, the petition is disposed off in above terms.

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Allahabad High Court refuses to quash case against government, madrasa teachers allegedly found with cow meat, 16 live cattle stock



The Allahabad High Court in the case Parvez Ahmad And 3 Others v. State of U.P. and Another observed and refused to quash the criminal case against a government teacher and a madrasa teacher from whose alleged possession cow meat (beef) and 16 live cattle were recovered.

The bench comprising of Justice Rohit Ranjan Agarwal observed that the First Information Report (FIR) that prima facie cognizable offence is made out against the applicants and thus, no case was made out against them, to quash the case.

Facts of the Case:

In the present matter, the court was dealing with the 482 CrPC plea filed by 4 applicants booked under Sections 153- A, Section 420, Section 429, Section 188, Section 269, Section 270, Section 273 of the Indian Penal Code, 1860 and section 3/5/8 of Prevention of Cow Slaughter Act, 1955 and section 11 of Prevention of Cruelty to Animals Act, 1979 and section 7/8 of Environment (Protection) Act, 1986, plea seeking to quash the case.

An Assistant teacher, Applicant no. 1 in the education department of the State. As Assistant Teacher, the applicant no. 2 is also working in the Madrasa Darul Ulum Gausia Kasba Salempur. A medical shop is run by the applicant no. 3 and applicant no. 4 is Hafiz Quran.

It was observed that their submission that a report from the Forensic Investigation Laboratory had received did not disclose that the sample sent for analysis was of the cow. Their case was case that no case under the Prevention of Cow Slaughter Act was made out.

It was argued by the State counsel that the FIR is a detailed report, the FIR which categorically mentioned that out of 16 live cattle stock which included 7 buffaloes, 1 cow, 2 female buffalo’s calf, 5 male buffalo’s calf, and one male cow-calf.

It was further argued by the state that it was wrong to say that the FSL report gave a clean chit to the applicants. Moreover, as 16 cattle were found in the possession of the applicants and other co-accused and they were not having any license to run the slaughterhouse.

Court Analysis:

The argument of the Applicant was discarded by the Court on the ground that no offence was made out from the reading of the First Information Report. It was underscored by the court that even though the FSL report had revealed that the sample which was sent for chemical analysis was not cow meat, but from the custody of the applicants and another co-accused, 16 live cattle were also recovered.

The court observing that defence regarding the FSL report shall be considered by the trial court as such defence set up in the present application cannot be considered at this stage by this Court, at the stage of quashing of the charge sheet

Accordingly, the case was dismissed.

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The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.

The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.

It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?

In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.

It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.

The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-

Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.

Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.

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The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.

The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.


The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.

The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.

the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.

Contentions Raised by the Parties:

It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.

It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.

The submissions of the petitioner were countered by the Respondent on the following grounds:

Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.

It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.


The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.

Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.

The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.

The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.

Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.

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The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.

The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.

In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.

Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.

Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.

It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.

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Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.



The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?

In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.

It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.

Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.

The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.

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