Delhi High Court - Orders
Tata Projects Limited vs Energie Du Mali Edm Sa & Ors on 19 November, 2025
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~81
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 480/2025
TATA PROJECTS LIMITED
.....Petitioner
Through: Mr. Dayan Krishnan, Senior
Advocate, Mr. Rajshekhar Rao, Senior Advocate
with Mr. Susmit Pushkar, Advocate, Mr. Anchit
Oswal, Advocate, Mr. Gaurav Sharma, Advocate,
Ms. Naina Agarwal, Advocate
versus
ENERGIE DU MALI EDM SA & ORS.
.....Respondents
Through: Mr. Santosh Kumar Rout, SC- R4
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 19.11.2025 I.A. 28890/2025 and I.A. 28891/2025 Allowed, subject to all just exceptions.
The application stands disposed of.
O.M.P.(I) (COMM.) 480/2025
1. This is a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 ("the Act") seeking the following prayers:-
"(a) Pass an order restraining Respondent No. 1 and/ or his agents from invoking/ appropriating/ making any payment to Respondent No. I under abovementioned Bank Guarantees, more particularly mentioned at paragraph 1 above;
(b) Pass an order directing Respondent Nos. 2, 3 and 4 to not act upon any request from Respondent No. 1 for This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 appropriating any part of the Petitioner's Bank Guarantees and/ or making any payments under the said Bank Guarantees; and ( c) Direct the Respondents to restore the Bank Guarantees, if invoked and/ or deposit any money if paid/ received under the said Bank Guarantees into an escrow account; and
(d) Pass interim/ ad-interim ex-parte orders in respect of prayers (a) to (c) above."
2. The facts of the case are that the petitioner and respondent No.1 entered into a Contract dated 29.10.2021 for the design, manufacture, supply, assembly, and commissioning of installations for the electrification of villages in the Republic of Mali. Clause 46 of the Contract contains the Arbitration clause.
3. Pursuant to the Contract, the petitioner arranged Advance Bank Guarantees ("ABGs") and Performance Bank Guarantees ("PBGs") which were backed by counter-guarantees issued by the State Bank of India (Respondent No. 4). In accordance with the contract, the petitioner made substantial progress in the execution of the project and achieved major milestones.
4. Since there were delays which were beyond the control of the petitioner, the respondent No.1 also granted extension of time without imposing any penalty till 31.12.2025.
5. Subsequently, the security and political situation in Mali deteriorated sharply due to increased attacks by jihadist groups, blockade of transport routes, and instability following the 2020- 2021 coups.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05
6. On 02.07.2025, the Ministry of External Affairs (respondent No.5) issued a press release stating as under:-
"The Ministry of External Affairs expresses its deep concern regarding the abduction of three Indian nationals employed at the Diamond Cement Factory in Kayes, Republic of Mali. The incident occurred on 1st July 2025, when a group of armed assailants carried out a coordinated attack at the factory premises and forcibly took three (03) Indian nationals as hostages.
2. It has come to the knowledge of the Government of India that many military and government installations at multiple locations of western and central Mali were attacked by terrorists on 01 July 2025."
7. In September, 2025, the petitioner made a presentation before the Project Steering Committee in relation to the project highlighting that there are various hurdles in view of the law-and-order situation prevailing in Mali around the project site.
8. From September, 2025 to November, 2025, the situation in Mali worsened and attacks on transport infrastructure, convoys travelling between urban centres by Jihadist groups increased dramatically. There was also been a blockade of urban centres like Farabougou, Timbuktu, Kayes and Bamako. Due to these frequent attacks, even the schools and universities were closed. The embassies in Mali also urged the citizens to depart the country immediately.
9. On 31.10.2025, the Embassy of India in Bamako, Republic of Mali issued an advisory to Indian nationals in Mali which stated as under:-
"Due to recent developments in Mali, the Embassy of India in Bamako urges all Indian nationals residing in Mali to remain This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 vigilant, exercise utmost caution and follow the instructions issued by the Malian authorities from time to time.
All Indian nationals in Mali are requested to avoid nonessential travel outside Bamako, especially by road and to rural areas because of the increasing threat of criminal activities and kidnapping against foreigners. Traveling at night time and odd hours should be strictly avoided.
All Indian nationals in Mali are requested to remain in close touch with the Embassy of India in Bamako and regularly follow the Embassy website at www.embassyofindiabamako.gov.in and social media accounts (Facebook: India in Mali; X: @IndianEmbassyML) for latest updates."
10. Thus, it is the case of the petitioner that it was compelled owing to force majeure event prevalent in Mali to call back its Indian personnel on account of threat to their life and safety.
11. On 10.11.2025, the respondent No.1 has invoked the PBG and ABG as well as the advance bank guarantee.
12. The petitioner immediately informed the respondent its readiness and willingness to perform its obligation once the situation is normalised and has also sent 4 of its Indian employees back to Mali. However, it is the case of the petitioner that despite the above said situation, the respondent No.1 is threatening to encash the bank guarantees.
13. From the aforesaid facts, it is clear that the petitioner has been performing its obligations in terms of the contract. Clause 37 is the force majeure clause and it reads as under:-
"37 force majeure This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 37.1 For the purposes of this Contract, "force majeure" means any event which is beyond the control of one of the parties and which makes the proper performance of its obligations impossible or makes it so difficult. What may be held to be impossible in such circumstances. Force majeure events include, but are not limited to:
(To) wars, hostilities and operations akin to wars (whether or not there is a declaration of war), invasion, act of civil war or due to an external enemy;
(b) rebellion, revolution, insurrection, mutiny, usurpation by governments civilians or soldiers, conspiracy, riots, civil unrest and terrorist acts.
...."
14. The bank guarantees also refers to ICC Uniform Rules for Demand Guarantees ("URDG 758") which contains Article 26 which reads as under:-
"Article 26 Force majeure a. In this article, "force majeure" means acts of God, riots, civil commotions, insurrections, wars, acts of terrorism or any causes beyond the control of the guarantor or counter- guarantor that interrupt its business as it relates to acts of a kind subject to these rules.
b. Should the guarantee expire at a time when presentation or payment under that guarantee is prevented by force majeure: i. each of the guarantee and any counter-guarantee shall be extended for a period of 30 calendar days from the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 date on which it would otherwise have expired, and the guarantor shall as soon as practicable inform the instructing party or, in the case of a counter-guarantee, the counter- guarantor of the force majeure and the extension, and the counter-guarantor shall so inform the instructing party;
ii. the running of the time for examination under article 20 of a presentation made but not yet examined before the force majeure shall be suspended until the resumption of the guarantor's business; and iii. a complying demand under the guarantee presented before the force majeure but not paid because of the force majeure shall be paid when the force majeure ceases even if that guarantee has expired, and in this situation the guarantor shall be entitled to present a demand under the counter- guarantee within 30 calendar days after cessation of the force majeure even if the counter-guarantee has expired.
c. Should the counter-guarantee expire at a time when presentation or payment under that counter-guarantee is prevented by force majeure:
i. the counter-guarantee shall be extended for a period of 30 calendar days from the date on which the counter-guarantor informs the guarantor of the cessation of the force majeure. The counter- guarantor shall then inform the instructing party of the force majeure and the extension;
ii. the running of the time for examination under article 20 of a presentation made but not yet examined before the force majeure shall be suspended until the resumption of the counter-guarantor's business; and iii. a complying demand under the counter-guarantee presented before the force majeure but not paid because of the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 force majeure shall be paid when the force majeure ceases even if the counter-guarantee has expired.
d. The instructing party shall be bound by any extension, suspension or payment under this article.
e. The guarantor and the counter-guarantor assume no further liability for the consequences of the force majeure."
15. A perusal of the aforesaid clauses makes it evident that they are squarely applicable to the facts of the present case. Clause 37 of the Contract, read with the governing terms of the bank guarantees and URDG 758, expressly recognise situations where performance is hindered due to events beyond the control of the parties, like wars, acts of terrorism etc. thereby attracting the force majeure protections.
16. The petitioner is executing a project in the Republic of Mali, where the prevailing law and order situation demonstrated through the press releases and advisories placed on record is far from normal. The Force Majeure Clause in the Contract unequivocally covers circumstances of armed conflict, political instability, civil unrest, and threats to the safety of personnel, all of which are present in the current situation.
17. The petitioner submits that the facts of the present case fall squarely within the recognised exceptions to the principles governing bank guarantees, as laid down in U.P. State Sugar Corpn. v. Sumac International Ltd., (1997) 1 SCC 568. The relevant findings read as under:
"14. On the question of irretrievable injury which is the second exception to the rule against granting of injunctions This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 when unconditional bank guarantees are sought to be realised the court said in the above case that the irretrievable injury must be of the kind which was the subject-matter of the decision in the Itek Corpn. case [566 Fed Supp 1210] . In that case an exporter in USA entered into an agreement with the Imperial Government of Iran and sought an order terminating its liability on stand by letters of credit issued by an American Bank in favour of an Iranian Bank as part of the contract. The relief was sought on account of the situation created after the Iranian revolution when the American Government cancelled the export licences in relation to Iran and the Iranian Government had forcibly taken 52 American citizens as hostages. The US Government had blocked all Iranian assets under the jurisdiction of United States and had cancelled the export contract. The Court upheld the contention of the exporter that any claim for damages against the purchaser if decreed by the American Courts would not be executable in Iran under these circumstances and realisation of the bank guarantee/letters of credit would cause irreparable harm to the plaintiff. This contention was upheld. To avail of this exception, therefore, exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately succeeds, will have to be decisively established. Clearly, a mere apprehension that the other party will not be able to pay, is not enough. In Itek This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 case [566 Fed Supp 1210] there was a certainty on this issue. Secondly, there was good reason, in that case for the Court to be prima facie satisfied that the guarantors i.e. the bank and its customer would be found entitled to receive the amount paid under the guarantee."
18. Mr. Krishnan, learned senior counsel for the petitioner, on instructions, states that the respondent Nos. 1 to 3 are not within the jurisdiction of this Court and for the time being only presses relief against respondent No. 4 i.e. State Bank of India.
19. For the said reasons, issue notice.
20. Mr. Rout, learned Standing Counsel accepts notice on behalf of the respondent No.4.
21. Let notice be issued to all other respondents through all modes including electronic on the petitioner taking steps within 1 week from today.
22. The respondent Nos. 1, 2 and 3 are all parties which are situated within Mali and in case the Bank Guarantees are permitted to be encashed, the petitioner may not be able to recover the amounts in case it succeeds. Additionally, it is not due to defaults of the petitioner that the performance of the contract has come to a standstill.
23. Hence, it is a case of special equities in favour of the petitioner. The facts show a situation such as that existing in Itek Corpn. (Supra). Additionally, I am satisfied that the petitioner has a prima facie case and that the balance of convenience lies in its favour. The invocation of the bank guarantee(s), when there's civil unrest due to which the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 Contract cannot be performed along with the petitioner's continued performance and willingness to fulfil its contractual obligations, would result in irretrievable injury to the petitioner.
24. For the said reasons, respondent No. 4 is restrained from enchasing/ processing bank guarantees which are as follows:-
25. The petitioner shall also convey the order to respondent No. 4.
26. List on 16.01.2026.
27. Dasti.
JASMEET SINGH, J NOVEMBER 19, 2025 / (MS) This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/11/2025 at 21:59:05