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10 2015 SCC Online Bom 3352
11 2013 SCC Online Bom 78
12 (2006) 2 SCC 728





 SSP                                          17                                Arbpl-366 of 2016

13. On the issue of Bank Guarantee being conditional, Mr. Khambatta, in rejoinder, made the following submissions on behalf of FGIPL :

(i) that the judgment of this Court in the case of ITD Cementation Ltd. (supra) is distinguishable from the present case, inter alia, on account of (i) the mobilisation advance guarantee in ITDC case did not provide for any incorporation of the contractual terms into the bank guarantee; (ii) the Bank Guarantees presently in question do not contain clauses in pari materia to clauses 5, 6 and 9 of the mobilisation advance guarantee in the ITDC case, (iii) the Performance Bank Guarantee presently in question also materially differs from the Performance Bank Guarantee in the ITDC case. Firstly the contractual provisions were not incorporated into the Bank Guarantee and secondly, clauses in the present Bank Guarantee are materially different from Clauses 6, 7, 8 and 11 of the Performance Bank Guarantee in the ITDC case, (iv) that it is based on these distinguishing features that this Court concluded at paragraph 16 in the ITDC case that, "The language of the Bank Guarantees therefore leaves no room for doubt that the Bank Guarantees furnished by the Plaintiff to the Defendant No. 1 are unconditional and irrevocable, (v) that clearly the judgment in the ITDC case revolved around the aforesaid peculiar features of the bank guarantees involved there, which are distinguishable from the Bank Guarantees in the present case;