Calcutta High Court
Hindustan Copper Ltd. vs Rana Builders Ltd. on 9 February, 1999
Equivalent citations: AIR1999CAL229, (1999)2CALLT95(HC), [2001]103COMPCAS702(CAL), AIR 1999 CALCUTTA 229, (1999) 4 CIVLJ 700, (1999) 2 CURLJ(CCR) 277, (1999) 3 ARBILR 169, (1999) 2 CAL WN 425, (1999) 2 CALLT 95, (2000) 1 BANKCLR 345, (2001) 103 COMCAS 702
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT M.H.S. Ansari. J. 1. The appellant herein was the respondent in an application being A.P. No.8 of 1998 filed by the respondent herein under section 9 of the Arbitration and Conciliation Act, 1996 praying for an injunction restraining the respondent therein (appellant herein) from giving any effect to its letters of invocation of the bank guarantee No. 49/252 for Rs. 1.38 crores or 49/263 for Rs. 1.93 crores that were furnished by the bank of Baroda, Sayajigunj Branch. 2. The above appeal is directed against the order of learned single judge dated 4th May, 1998 whereby the appellant was directed to return the two bank drafts dated 8th January, 1998 to the bank for cancellation and the Branch Manager, Sayajigunj Branch of the Bank was directed to invest the amounts thereof in a separate fixed deposit account free from any lien and keep the same renewed until further orders of the court. The said fixed deposit account, it was directed, shall lie to the credit of the arbitration proceedings between the parties and the same shall abide by the result of the Award. 3. The brief facts are that : The appellant issued a Letter of intent for carrying out the works mentioned therein by the respondents. In terms thereof, the respondent furnished a bank guarantee for Rs. 1.38 crores in lieu of security deposit. The said guarantee being No. 49/252 dated 28th December, 1994. On 14th January, 1995, contract in writing was entered into between the appellant and the respondent. By the said contract, the respondent agreed to carry out excavation and removal of 4 (four) Million cubic meters rock works at the appellant's Malanjkhand Copper Project at Balaghat in M.P. It contained an Arbitration clause for referring the dispute to the Chairman-cum-Managing Director of appellant or his nominee. 4. On 4th January, 1995, the respondent furnished the second bank guarantee for Rs. 1.93 crores, towards mobilisation advance being guarantee No. 49/263. 5. According to the appellant since the inception, the respondent failed to duly, properly or in terms of the said contract execute and perform the works and discharge its obligation thereunder and that since February, 1997 virtually stopped the work at the said project and abandoned the same. The appellant thereupon by its letter dated 9th August, 1997 called upon the respondent to show cause as to why the contract should not be terminated by reason of its failure and neglect to execute the works and perform the obligation thereunder. Correspondence thus ensued between the appellant and the respondent. Meanwhile, on 16th August, 1997, the respondent instituted a suit being Regular Suit No. 1417 of 1997 in the court of Civil Judge, Vadodara for an injunction restraining the Bank of Baroda from making any payment of the amounts of the said bank guarantees and an ex-parte interim order was issued by the said court directing status quo in respect of the said bank guarantees. On 1st October, 1997, the appellant terminated the contract. By a letter dated 6th October, 1997, the appellant invoked bank guarantee for Rs. 1.38 crores and by another letter of same date that is 6th October, 1997, the appellant invoked the second bank guarantee for Rs. 1.93 crores. A reminder letter was issued by the appellant on 20th October, 1997 to the bank calling upon it to pay the amounts of the said two bank guarantees. In reply to the said letter, the bank by its letter dated 24th October, 1997 enclosed a copy of a letter dated 21st October, 1997 of the respondent by which it was intimated to the bank that the respondent had obtained the stay order from the court directing the appellant to maintain status quo in respect of the said two bank guarantees. 6. The respondent by its letter dated 17th November, 1997 called upon the appellant to refer the disputes in accordance with the arbitration agreement. 7. It must be stated here that the learned Civil Judge, Vadodara by his order dated 7th January, 1998 dismissed the application of the respondent on which interim order of status quo dated 16th August, 1997 was granted and by the same order, it was further directed to return the plaint under Order VII Rule 10 of CPC for presenting the same before the proper court on the ground that it had no jurisdiction to entertain the suit. However, assuming that the court had Jurisdiction to hearing the injunction application, the same was considered on merits and was dismissed. 8. Consequent upon the said order, the appellant by its letter dated 8th January, 1988 called upon the Bank to pay the amounts of the said two bank guarantees. In compliance therewith, the bank under cover of its letter dated 8th January, 1998 forwarded demand drafts for Rs. 1.38 crores and Rs. 1.93 crores to the appellant. The appellant presented the said demand drafts to the bank for repayment but the same were not encashed as on 9th January, 1988, the respondent moved an application under section 9 of the Arbitration and Conciliation Act, 1996 for restraining the appellant from encashing or receiving any monies under the said bank guarantees and an ex-parte interim order of status quo was issued by the learned single Judge of this court whereby it was directed that if any bank drafts or pay orders have been issued by the bank, the same should not be encashed until further orders. The said application, as noticed above, was finally disposed of by an order dated 4th May, 1998. It is against this order that the present appeal has been filed by the appellant. Consequent upon the order under appeal, the appellant on 13th May, 1998 returned the bank drafts to the bank which have been encashed and invested by the bank. 9. It is the submission of Mr. B.K. Bachawat, learned senior counsel appearing on behalf of the appellant that by the order dated 4th May, 1998, the learned Judge in effect granted an injunction restraining the enforcement of the two bank guarantees. It was further contended that the two bank guarantees in question are unconditional bank guarantees and having duly been invoked, the bank honoured the said invocation and had issued demand drafts in favour of the appellant, the order of injunction restraining enforcement of the said bank guarantees was wholly erroneous and that the grounds on which the said injunction has been issued by the court is untenable in view of the settled legal position and the court was not justified in passing the order as it did dated 4th May, 1998. 10. Mr. Anindya Mitra, learned senior counsel appearing for the respondent sought to sustain the order under appeal by submitting that the letters of invocation are not in terms as stipulated by the said bank guarantees and that the invocation pf the bank guarantee by the appellant was fraudulent besides being arbitrary as it is the appellant which has committed breach of contract having withheld payment of running bills of the respondent. The disputes between the appellant and the respondent are pending adjudication before the Arbitration and if so what amount, if any is due to the appellant or by the appellant to the respondent is to be adjudicated in the arbitration proceedings and until so decided, the appellant is not entitled to the amounts covered by the said bank guarantees. The order under appeal has provided adequate safe-guard to both the parties in that the amount has been directed to be kept in fixed deposit account to the credit of the arbitration proceedings and to abide by the result of the Award. The fraud and irretrievable injustice has also been pleaded. As to the maintainability of the appeal, it was contended that the appellant having made over the bank drafts to the bank for investment in terms of the order under appeal, the present appeal is not maintainable on the ground of acquiescence. 11. Before we consider the contentions urged before court, it may be useful to look at the relevant terms of the respective bank guarantee. The performance guarantee being No. 49/252 recites as under; "in Consideration of the Hindustan Copper Limited (hereinafter called "the HCL") having agreed to exempt M/s. Rana Builders Limited (hereinafter called 'the said Contractor,(s)'] from the demand, under the terms and conditions of an agreement dated 1/12/94 made between HCL and M/s. Rana Builders Limited for awarding contract for Excavation and Removal of 4.0 Mm tons of rock at Malanikhand Copper Project (hereinafter called 'the said Agreement') of security deposit towards performance for the due fulfilment by the said Contractor(s) of the terms and conditions contained in the said agreement, on production of a bank guarantee for Rs. 1,38,00,000/- (Rupees One crore Thirty eight Lacs) only, we Bank of Baroda, Sayajigunj Branch, Baroda (hereinafter referred to as 'the Bank') at the request of M/s. Rana Builders Limited, Contractor(s) do hereby undertake to pay to HCL an amount not exceeding Rs. 1,38,00,000/-against any loss or damage caused to or suffered by HCL by reason of any breach by the said Contractor(s) of any of the terms and conditions contained in the said Agreement. 2. We Bank of Baroda do hereby undertake to pay the amount due and payable under this guarantee without any demur, and without reference to the Contractor M/s. Rana Builders Limited merely on a demand from HCL stating that the amount claimed is due by way of loss or damage caused to or would be caused to or suffered by HCL by reason of breach by the said Contractor(s) of any of the terms or conditions contained in the said Agreement or by reason of the Contractor's failure to perform the said agreement. Any such demand made on the bank shall be conclusive as regards the amount due and payable by the bank under this guarantee. However, our liability under this guarantee shall be restricted to an amount not exceeding Rs. 1,38,00,000/-. 3. We undertake to pay to the HCL any money so demanded notwithstanding any dispute raised by the Contractor(s)/Supplier(s) in any suit or proceeding pending before any court or tribunal relating thereto our liability under this present being absolute and unequivocal." 12. The mobilisation advance is covered by the Bank Guarantee No. 49/ 263 which inter alia, recites as under: "1. We, Bank of Baroda hereby agree and undertake that if in your opinion contractor commits any beach of the contract or there is any demand by you against M/S. Rana Builders Limited then on notice to us by you, we shall on demand and without demur without any right to recourse to yourselves and without reference to M/s. Rana Builders Limited, immediately pay you, in any manner in which you may direct, the said amount of Rs. 1,93,00,000/- (Rupees One crore ninety three lacs only) or such portion thereof as may be demanded by you not exceeding the said sum and as you may from time to time require. Our liability to pay is not dependent or conditional on your proceeding against the contractor and we shall be liable to pay the aforesaid amount as and when demanded by you merely on a claim being raised by you and even before any legal proceedings are taken against the contractor. 2. You will have full liberty without reference to us and without affecting this guarantee, to postpone for any time or from time to time the exercise of the powers and rights conferred on you under the contract with the said contractor and to enforce or to forbear from enforcing any power or rights or by reason of time being given to the said contractor which under law relating to sureties would but for this provision has the effect of releasing us. ***** Your right to recover the said sum of Rs. 1,93,00,000/- (Rupees One crore ninety three lacs only) from us in manner aforesaid will not be affected or suspended by reason of the fact that any dispute or disputes have been raised by the said M/s. Rana Builders Limited and/or that any dispute or disputes ore pending before any Officer, Tribunal or court." 13. It is evident from a perusal of the relevant clauses of the respective guarantees that the bank has unconditionally and irrevocably agreed and undertaken to pay to the appellant on demand the sums respectively specified in the said guarantees. 14. In so far as the security guarantee is concerned, the amount is to be paid on demand and the undertaking by the bank is to pay the monies so demanded, notwithstanding any dispute raised by the respondent-contractor in any suit or proceeding pending before any court or tribunal relating thereto. 15. In so far as the mobilisation advance guarantee is concerned, the bank has agreed and undertaken to pay the amount on demand and without demur and without reference to the respondent--contractor and by the appellant merely raising a claim. It is further specifically provided that the right to recover the said amount will not be affected or suspended by reason of the fact that any dispute has been raised by the respondent--contractor and/or that any dispute or disputes are pending before any Officer, Tribunal or court. 16. It is not in dispute that at the request of the respondent, the bank has furnished bank guarantees to the appellant. In the dispute pending for adjudication in arbitration proceeding between the appellant and the respondent, the bank is not a party. Also, the bank was not a party to the application filed by the respondent under section 9 of the Arbitration and Conciliation Act, 1996 or to the order dated 4th May, 98, which is under appeal. 17. A perusal of the order under appeal would show that it is in effect an order granting injunction restraining enforcement of the said two bank guarantees. 18. It appears to us that the learned single judge misdirected himself in assuming that the present application for interim relief against the enforcement of bank guarantee is not to be decided strictly on principles of injunction in relation to the bank guarantee but general principles of injunction on lenders would be applicable and on that basis proceeded to decide the matter and issued the order under appeal. 19. It is now fairly well establishment by a catena of Judgments of the Supreme Court that in law relating to bank guarantees, a party seeking injunction from encashing of bank guarantee has to show prima facie case of established fraud and an irretrievable injury. Suffice it to refer to Tarapore and Co. v. Tractor export, Moscow) : United Commercial Bank v. Bank of India ; U.P. Co-operative Federation Ltd. v. Singh Consultants and Engineers P. Ltd. (1988 SCC 174; General Electric Technical Services Co. Inc. v. Punj Sons (P) Ltd.. ; Syndicate Bank v. Vijay Kumar ; Hindustand Steel Works Constitution Ltd. v. G.S. Atwal & Com. (Engineers) Pvt. Ltd., . 20. The principles that emerged from the decisions referred to supra, briefly stated, are (a) that there should be serious dispute and there should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice to the party approaching the court in order to restrain the operation of bank guarantee. Otherwise, the very purpose of bank guarantee would be negatived and the fabric of trading operation will get jeopardised. (b) The Supreme Court has frowned upon the approach of the court that has proceeded on the basis that the injunction sought was not against the bank but was sought against the appellant. The Supreme Court has observed that the net effect of the injunction is to restrain the bank from performing the bank guarantee and that cannot be done. One cannot do indirectly what one is not free to do directly and further observed that the aggrieved party in such circumstances is not remedyless. He can sue for damages. (c) The autonomy of bank guarantee/irrevocable letter of credit was entitled to protection and except in very exceptional circumstances, court should not interfere with that autonomy. The reasons stated are is that bank guarantees involve many of the trading transactions. The commitments of banks must be honoured free from interference by the courts. Otherwise, trust in commerce, internal and international would be irreparably damaged. It is only in exceptional cases, that is to say in cases of fraud or in case of irretrievable injustice be done, the court should interfere. (d) Fraud in relation to bank guarantees is fraud of exaggerated nature as to vitiate the underlying transaction. 21. General Electric Technical Services Com. v. Punj Sons (P) Ltd., is a case where a bank guarantee was obtained to secure the mobilisation advance of 25% of the contract value. On failure of the sub contractor to execute the work as per required specifications within the stipulated time, the contractor sought to encash the bank guarantee. The court held that the bank could not be restrained from making payment as per undertaking given by it in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. It is significant to note that in this case the court observed that the encashment of the bank guarantee could not be refused on the ground that the contractor has failed to make a reference to mobilisation advance in the letter seeking encashment of the bank guarantee and it amounted to suppression of material facts, in the sense that the mobilisation advance was under the terms of the contract to be recovered from the running bills. It was held, "The right to recover the amount under the running bills has no relevance to liability of the Bank under the guarantee. The liability of Bank remained intact irrespective of the recovery of mobilisation advance or the non-payment under the running bills." 22. In the instant case, the fraud pleaded is to the misrepresentation made by the appellant in the letters issued by it invoking the bank guarantee. The representation in the letters of invocation, it has been pleaded are false to the knowledge of the appellant. It is the appellant which was responsible for impeding the execution of the work contemplated under the contract for various reasons enumerated in the application for injunction and that the appellant had wrongfully and illegally failed to release the outstanding amounts against running bills of the appellant. That the mobilisation advance in excess of Rs.66 lacs has already been deducted from the running bills of the respondent and in the letter of invocation relating to mobilisation guarantee, the respondent has purported to make a suggestion as to the fact which is untrue to the knowledge of the appellant. 23. The aforesaid contentions in the light of the decisions cited supra, have to be rejected. The nature of fraud, as noted supra, that the courts consider in cases relating to bank guarantees is fraud of an egregious nature as to vitiate the underlying transaction, that is not the case pleaded in the instant case. 24. As to the contention of Mr. Anindya Mitra, learned senior counsel appearing for the respondent, that the entire dispute is pending before the arbitration and until the same is adjudicated upon, no fault can be found with the order under appeal which has provided adequate safe guard to both the parties, the said contention has to be rejected in the light of the Supreme Court Judgment in Hindustan Steel Workers Construction Ltd. v. G.S. Atwal & Com. (cited supra). In that case, the High Court had proceeded on the basis that the amounts claimed were not or cannot be said to be due and that the entire dispute was pending before the Arbitrator. Whether and if so what is the amount due was to be adjudicated in the arbitration proceedings. The Supreme Court found fault with that reasoning of the High Court and observed that the High Court had acted illegally and without Jurisdiction in affirming the interim order of injunction restraining the appellant from interferrlng the bank guarantee till the disposal of the arbitration proceedings. 25. In Hindustan Steel Workers Construction Ltd. v. G.S. Atwal (cited supra), the Supreme Court did not accept the reasoning of the High Court that before invoking the performance guarantee, the appellant should assess the quantum of loss and damages and mention the ascertained figure. For the said reason, the other submission of Mr. Anindya Mitra that the appellant has not in the letter of invocation in relation to the security guarantee either stated any loss has been caused or would be caused or quantified the damage/losses said to have been caused or to be caused, has to be rejected. The said contention cannot be put forward to restrain the appellant from invoking the unconditional guarantee. 26. As to the contention of Mr. Anindya Mitra, learned senior counsel appearing for the respondent with respect to 'irretrievable injustice' that would be caused to the respondent, unless the order under appeal is sustained suffice to state here that in the light of the observations in Svenska Handelsbanken v. M/s. Indian Charge Chrome and Ors., , the irretrievable injury as pleaded in the instant case is not of the nature to warrant the issue of injunction. 27. In Suenska's case (cited supra), similar contention was rejected on the ground that irretrievable injury pleaded was not of the nature as noticed in the case of Itek Corpn. v. The First National Bank of Boston, 566 Fed. Supp. 1210. The Supreme Court in that case has extracted the relevant observations of Itck's case which read as under; "Because I find that Itek has demonstrated that it has no adequate remedy at law, and because I find that the allegations of irreparable harm are not speculative, but genuine and immediate, I am satisfied that Itek will suffer irreparable harm if the requested relief is not granted." 28. In the instant case, the plea of irretrievable injustice to the respondent is founded on the ground that the purported invocation of the bank guarantee is an attempt by the appellant to unjustly enrich itself and that it is aimed at meeting the immediate liabilities of the appellant, inter alia, in paying staff salaries and the like. That the appellant has concealed the fact that large sums of money are due and owing from the appellant to the respondent. That bank guarantees if allowed to be invoked and encashed will result in total ruination of the respondent. There is no reason stated much less any pleading to the effect that even if the claim of respondent as awarded in the arbitration proceedings, the same will not be recoverable from the appellant. The respondent has failed to demonstrate that it hag no adequate remedy at law and the allegations of irreparable harm and genuine or immediate. 29. Mr. Anindya Mitra, learned senior counsel appearing for the respondent next contended as held in various judgments of the Supreme Court of India that a bank guarantee is equated to a letter of credit and it has also been held that the terms and conditions of the letter of credit have to be complied with strictly to fasten the obligation on the bank to honour the credit. It was Mr. Mitra's contention that similar tests have to be applied to the letters of invocation in respect of bank guarantees and the appellant must strictly comply with the terms and conditions of the bank guarantee before he can legally enforce payment thereon. 30. A similar contention, as above, has been considered by a Division Bench of the Kerala High Court in Regional Science Centre & Anr. v. Varghese K. Pulayath & Co. & Anr., 1998 (91) Company Cases, 90. The Division Bench in that case reviewed the case law on the subject and held as under; "The position of law in India is the same as in England and it has been made clear in the decision of the Supreme Court in United Commercial Bank v. Batik of India . The Supreme Court referred to the decision in Lamborn v. Lake Shore Banking and Trust Co. (1921) 196 Appl. Div 504 wherein Smith J. said thus "A party who is entitled to draw against a letter of credit must strictly observe the terms and conditions under which the credit is to become available, and, if he does not, and the bank refuses to honour his draft, he has no cause of action against the bank". We feel that we may go wrong if we parallelise a letter of invocation to documents to be tendered under a credit. We say so because in a letter of credit which specifies certain documents to be tendered for honouring the bills the documents should certainly strictly conform to the description given in the credit. A banker considerating payment against documents is not expected to have a knowledge of market terms and descriptions. But in the case of a letter of invocation, the beneficiary himself is making the decision to invoke the guarantee and in that context, it is difficult for us to equate in all cases the letter of invocation to the documents to be tendered under a letter of credit. Usually in a letter of credit, the description of the goods in the relative bills is important though it is stated that where a mandate is ambiguous and a paying banker acts in a reasonable way in pursuance of it, he may be protected. Certainly this rule cannot be stretched so far as to protect a banker who pays against documents describing goods in terms which are similar to, but not exactly the same as those stipulated in the credit." 31. It may not be necessary for us to refer to the various other English judgments as also the judgments of the Supreme Court of India and American Courts on the subject which have been referred to in the Kerala High Court Judgment. We are in respectful agreement with the view expressed by the Kerala High Court in the passage from their judgment extracted (supra). The letter of invocation in respect of the bank guarantees cannot be equated with documents that are required to be tendered under letters of credit for the reason that in a letter of credit, the documents to be tendered for honouring the bills have been specified thereunder and the documents should conform to the description given in the letters of credit. 32. While on this aspect, reference needs to be made to the Judgment of the Calcutta High Court in Road Machines (India) Pvt. Ltd. v. Projects & Equipment Corporation of India Ltd., , wherein it was observed thus: "With great respect I am unable to accept the principles laid down by the Division Bench of the Delhi High Court in Harparshad & Co. 'Ltd. v. Sudarshan Steel Rolling Mills , to the effect that a bank guarantee should be invoked in an exact and punctilious manner setting out the entire case of the beneficiary under the guarantee in the same way as setting out a cause of action in a plaint. A bank guarantee is a commercial document and is neither is statutory notice nor a pleading in a legal proceeding. In my view, a bank guarantee may be invoked in a commercial manner. The invocation would be sufficient and proper if the bank concerned understands that the guarantee is being invoked by the beneficiary in terms of the guarantee." 33. In the subsequent judgment in D.T.H. Construction (P) Ltd. v. Steel Authority of India & Anr., , reference has been made to the Road Machine's case (cited supra) and to various other english judgments and it was held as follows; "..... This is now well established by several decisions of this court as well as of the Supreme Court and of the English Courts which have been noted earlier. If the notice of demand dated 19.9.83 was not strictly in accordance with the language of the bank guarantee that would not also be an excuse for the bank for non-payment of the amount due under the guarantee. If the bank has understood the purport of the notice, which no doubt the bank well understood, then the bank cannot be heard to say that there has been no statement in the notice that the defendant No. 1 has suffered loss and/or damages on account of the ban defaults committed by the plaintiff. Even if the notice was bad that will not help the bank ultimately because the defendant No. 1 could give a fresh notice strictly in compliance with the language and words of the guarantee to the bank. If there is substantial compliance with the terms of the guarantee in the notice that would be sufficient and if there be no defect in understanding the nature and purport of such notice by the Bank, the bank is bound to honour its commitment under the guarantee." 34. We are in agreement with the view expressed as above. In the instant case, the bank has honoured the bank guarantees in question. The appellant had by a letter dated 6th 'October, 1997 invoked the bank guarantee. The bank was at that time restrained by an order of status quo issued by the learned Civil Judge, Vadodara and after the said stay was vacated by an order dated 7th January, 1998 on a subsequent letter of the appellant dated 8th January, 1998, the bank under cover of its letter dated 8th January, 1998 forwarded the two demand drafts to the appellant. 35. Lastly, it was contended by Mr. Anindya Mitra that the appellant having acquiesced in the order under appeal in that the appellant has returned the bank drafts to the bank in compliance with the order under appeal dated 4th May, 1998, the above appeal is not maintainable on the ground of waiver and acquiescence. 36. The said contention is misconceived and untenable. That contention would have merited considerations if the appellant has taken the benefit of an order or decree of court. In the instant case, the appellant has not taken any benefit. That apart, the appellant was bound to comply with the order of this court under appeal and we must state here that the appellant has acted quite properly in so complying with the said order, (see: ). We accordingly overrule the contention of Mr. Mitra. 37. Now reverting to the order under appeal. We are of the view that the learned single Judge has not considered the matter applying the principles of injunction in relation to bank guarantees. The learned single judge has not found that any good prima facie case of fraud or special equities in the form of preventing irretrievable injustice to the respondent was made out to restrain the operation of bank guarantee. As noticed above, bank guarantee may be invoked in a commercial manner. The invocation will be sufficient and proper, if the bank concerned understood that the guarantee was being invoked in terms of the guarantee. The respondent failed to show prima facie case of established fraud or any irretrievable injury and was, therefore, not entitled to any injunction. For the said reasons we allow the appeal and set aside the order of the learned single Judge under appeal. The costs in the appeal shall be costs in the cause (Arbitration proceedings). R. Pal, J.
38. I agree.
39. Stay of operation of the order is prayed for and the same is refused.
40. Let a xerox copy of the Judgment duly signed by the Assistant Registrar of this court be given to the parties upon their undertaking to apply for certified copy of the Judgment and on payment of usual charges.
41. Appeal allowed