Drilltee-Maxwell Joint Venture vs. Respondent: Gas Transmission Company Limited (GTCL) and Ors.

Jul 27, 2022

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

arbitration Application No. 25 of 2012

Decided On: 14.05.2015

Appellants: Drilltee-Maxwell Joint Venture
Vs.
Respondent: Gas Transmission Company Limited (GTCL) and Ors.

**Hon’ble Judges:**A.K.M. Abdul Hakim, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Sharif Bhuiyan, Advocate and Tanim Hussain Shawaon

For Respondents/Defendant: Mejbahur Rahman, Advocate

Subject: arbitration

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Contract Act, 1872 - Section 126

Citing Reference:

Mentioned

 

 1

Case Note:arbitration - Injunction - Section 7 of arbitration Act, 2001 - Whether there is ground to grant ad-interim injunction with a view to preserve subject matter of arbitration by restraining from enchasing Bank guarantees under reference? - Held, as per terms of contract, parties should try to settle their dispute amicably before commencement of arbitration - Unless settled amicably, same should be settled fby International arbitration, which respondent No.1 has agreed by its letter - Accordingly, three members arbitration Tribunal has been constituted - Since termination of contract by GTCL relates to failure to perform its obligations under contract is main issue in dispute between parties to be finally decided by Arbitral Tribunal - In present case, clause 45.5 of GCC that provides for arbitration has been couched in widest possible terms as can be well imagined - It includes any disputes, differences, claims and questions between parties arising out of said contract or in any way relating thereto - Having regard to issues as raised in application should be determined by tribunal and accordingly this court remained convinced that ad-interim injunction passed by this court earlier ought, thereby, to remain in place to effectively be in aid till conclusion of arbitration proceeding - In light of above, this court deeming it prudent to preserve performance guarantees as were considered by it to be subject matter of said arbitration proceedings - On proper assessment of materials on record and applying principles of law as applicable in present case there is no cogent reason to interfere with its earlier order passed by this court - In result, application is allowed - arbitration proceeding that has already been commenced is to be continued - Accordingly, earlier order of ad-interim injunction is made absolute - Respondent No. 2 Bank is hereby restrained from encasing Bank Guarantees under reference till disposal of arbitration proceeding. [29],[30],[32], [34],[35],[36]

JUDGMENT

A.K.M. Abdul Hakim, J.

  1. This arbitration application filed by the petitioner under section 7ka of the arbitration Act, 2001 (hereinafter referred to as “the Act 2001”) having an order of ad-interim injunction with a view to preserve the subject matter of the arbitration by restraining from enchasing the Bank guarantees under reference as an aid to the effective disposal of the instant arbitration application and this court by order dated 18-10-2012 restrained the respondents by an order of ad-interim injunction from encashing Bank Guarantees under reference namely (1) No. IBBL/Ramna/Inv/BG/2010/216 dated 12-7-2010, (2) IBBL/Ramna/FEX/BG/10/01 dated 12-7-2010, (3) IBBL/Ramna/Inv/BG/2011/292 dated 27-6-2011, (4) IBBL/Ramna/Inv/BG/2011/303 dated 27-6-2011, (5) IBBIL/Ramna/Inv/BG/2011/292 dated 27-6-2011, (6) IBBL/Ramna/Inv/APG/2011/879 dated 11-5-2011, (7) IBBL/Ramna/Inv/BG/201/304 dated 27-6-2011, and (8) 4110-2005-3418 dated 4-7-2011 for a period of 4(four) months from date. Against the order dated 18-10-2012 the opposite party No. 1 Gas Transmission Company Limited (shortly, the GTCL) moved the Appellate Division and the Appellate Division of the Supreme Court stayed the operation of the order dated 18-10-2012 passed by this court in the present application so far as it relates to ad-interim injunction from enchasing the Bank Guarantee namely 1) IBBL/Ramna/Inv/APG/2011/291 dated 10-5-2011, 2) IBBL/Ramna/Inv/BG/2011/303 dated 27-6-2011, 3) IBBL/Ramna/Inv/BG/2011/292 dated 27-6-2011, 4) IBBL/Ramna/Inv/APG/2011/879 dated 11-5-2011, 5) IBBL/Rnmna/Inv/BG/201/304 dated 27-6-2011, and 6) 411020053418 dated 4-7-2011.

  2. This application filed by the petitioner Drilltee-Maxwell Joint Venture against the opposite-party No. 1 Gas Transmission Company Limited and Islami Bank Bangladesh Limited, Ramna Branch. 9 B.B. Avenue, Dhaka-1000 and Standard Chartered Bank, Gulshan Branch, 67 Gulshan Avenue, Dhaka-1212, Bangladesh as opposite-party No. 2 and 3 respectively restraining the opposite-parties from making payment to the opposite-party No. 1 under eight performance guarantees issued in favour of the respondent No. 1

  3. The relevant facts which are necessary for disposal of the application are that the petitioner is a joint-venture between DRILLTEC GUT Gmbh, a company established and registered under the laws of Germany having its principal place of business at Josef-Wallner-Strasse 10,94469 Deggendorf, Germany and Maxwell Engineering Works Ltd. a company Incorporated in Bangladesh.

  4. That on 3-8-2009 opposite party No. 1 invited sealed bills for the installation of 30 OD High Pressure Natural Gas Pipeline by HDD Method on design, procurement, supply, installation, testing and commissioning on turnkey basis (“the Project”). The petitioner submitted its bid on 27 October 2009 and was issued with the Notification of Award (NoA) on 14 June 2010 for the contract price of USD 6,653,906.88 (USD Six Million Six Hundred Fifty Three Thousand Nine Hundred Six and Eighty Eight cents) and Taka 66,000,000 (Taka Sixty Six Million) only. Accordingly, an agreement was executed between the petitioner and the opposite party No. 1 on 10 October 2010 (“the Contract”). The Contract contains “General Conditions of Contract” and “Special Conditions of Contract”. That pursuant to Clause 13 of the General Conditions of Contract (“GCC”) and Clause 13 of the Special Conditions of Contract (“SCC”), the petitioner furnished 2 (two) Bank Guarantees as Performance Security being Bank Guarantee No. IBBL/Ramna/Inv/BG/2010/216 dated 12-7-2010 and Bank Guarantee No. IBBL/Rnmna/FEX/BG/2010/01 dated 12-7-2010. That pursuant to Clause 13 of the GCC and Clause 13 of the SCC, the petitioner furnished 4 (four) Bank Guarantees as Advance Payment Security being Bank Guarantees No. IBBL/Ramna/Inv/APG/2011/291 dated 10-5-2011, IBBL/Ramna/Inv/BG/2011/303 dated 27-6-2011, IBBL/Ramna/Inv/BG/2011/292 dated 27-6-2011 and IBBL/Ramna/INV/APG/2011/879 dated 11-5-2011. All the above Bank Guarantees were extended from time to time and all the Bank Guarantees are at present in force.

  5. In the contract agreement clause 45.5 contained a arbitration clause for resolution of disputes which reads as under:

“45.5. arbitration

Unless settled amicably, any dispute in respect of which the DB’s decision (if any) has not become final and binding shall be finally settled by international arbitration. Unless otherwise agreed by both Parties:

(a) arbitration Proceedings shall be conducted as stated in the Special Conditions,

(b) if no arbitration proceedings is so stated, the dispute shall be finally settled by International arbitration under the Rules of arbitration of the International Chamber of Commerce,

(c) the dispute shall be settled by three arbitrators, and

(d) the arbitration shall be concluded in the language for communications defined in the GCC sub-clause 5.3.

The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Project Manager, and any decision of the DB, relevant to the dispute. Nothing shall disqualify the Project Manager from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the dispute.

Neither party shall be limited in the proceedings before the arbitrators(s) to the evidence or arguments previously put before the DB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DB shall be admissible in evidence in the arbitration.

arbitration may be commenced prior to or after completion of the Works. The Obligations of the Parties, the Project Manager and the DB shall not be altered by reason of any arbitration being conducted during the progress of the Works.

45.6. Failure to Comply with Dispute Board’s Decision

… …

45.7. Expiry of Dispute Board’s Appointment:

If a dispute arises between the Parties in connection with the performance of the Contract, and there is no DB in place, whether by reason of the expiry of the DB’s appointment or otherwise:

(a) GCC Sub-Clauses 45.3 and 45.4 shall not apply, and

(b) the dispute may be referred directly to arbitration under GCC Sub Clause 45.5”

Clause 45 of the SCC provides as follows:

“45.5. Rules of Procedure for arbitration proceeding:

(a) Contracts with foreign contractors: United Nations Commission on International Trade Law (UNCI - TRAL).

(b) … … … ..

  1. It is further stated since a dispute has arisen between petitioner and opposite-party No. 1 in this regard there is a specific dispute resolution in the contract. In the above facts and circumstances, the petitioner filed the present application under section 7Ka of the arbitration Act, 2001 on 18-10-2012 and prayed for passing in relation to the intended arbitration proceeding.

  2. Upon hearing the application, this court not only issued show cause notice but also passed ad-interim injunction upon the respondents restraining encashment of the Bank Guarantees issued by the respondent No. 2 and 3 till disposal of the rule.

  3. Opposite-party No. 1 Gas Transmission Company Limited entered appearance and contested the application by filing Affidavit-in-Opposition dated 20-2-2013 stating the facts and contending, inter alia, that the present application brought before this court is not maintainable. It is further stated that in the original contract dated 10-8-2010 the petitioner was described as Drilltec Maxwell JV a Joint Venture Company incorporated under the laws of Bangladesh and having its principal place of business at 357/A Modhubagh, Moghbazar, Dhaka-1217, Bangladesh. Therefore, the petitioner is a local company, so it cannot invoke jurisdiction as per section 2(ga) of the arbitration Act, 2001.

  4. It is further stated that the present application should be filed before the District Judge Court and, as such, this court has no jurisdiction to order such ad-interim injunction for matters falling outside International Commercial arbitration and prayed that the application is liable to be rejected as not maintainable.

  5. It is also stated in the Bank Guarantees that they are separate contract between the Bank and opposite party No. 1 under section 126 of the Contract Act as such the petitioner cannot legally oppose the encashment of the same. The petitioner not being a party to the contract regarding Bank Guarantees cannot invoke present application to obtain a restriction or injunction on the lawful encashment of the Bank Guarantees.

  6. Thereafter, the opposite party No. 1 filed supplementary Affidavit-in-opposition dated 30-4-2015 stating that despite the notice of default dated 4-3-2015, the petitioner once again failed to take any steps to re-start the work within the stipulated deadline of 18-3-2015 as required in the said letter to remedy their default. Hence, finding no other alternatives, the opposite party No. 1 by letter dated 25-3-2015 terminated the contract pursuant to GCC Sub-clause 42:2.1 with effect from same date.

  7. Subsequently, on 4-5-2015 petitioner filed supplementary affidavit stating that the petitioner is a joint-venture between DRILLTEC GUT GMBH (“DT”), a German company and Maxwell Engineering Works Ltd. (Maxwell), a Bangladeshi Company who entered into a Consortium Agreement on 26-10-2009 to work together in a consortium for the purposes of preparing and submitting a Bid of installation of 30” OD High Pressure Natural Gas Pipeline by HDD method invited by the opposite-party No. 1. In the Consortium Agreement it is stipulated that in the event of an award by the opposite-party No. 1, DT and Maxwell shall enter into a Joint Operation Agreement setting out, in greater detail, the rights, duties, obligations and liabilities of each party. That the applicant, after signing of the Consortium Agreement, submitted its bid on 27-10-2009 and was issued with the Notification of Award (NOA) on 14 June 2010 for the contract price of USD 6,653,906.88 (USD Six Million Six Hundred Fifty Three Thousand Nine Hundred Six and Eighty Eight cents) and Taka 66,000,000 (Taka Sixty Six Million) only, thereafter, pursuant to the Consortium Agreement, DT and Maxwell entered into a Joint operation Agreement (“JOA”) on 10-10-2010.

  8. It was further stated that the petitioner is un-incorporated joint venture which is controlled by German Company and, as such, the central management and control of the consortium is located outside Bangladesh. In this context, it is stated that the description of the applicant (Drill Tec-Maxwell JV) in the Contract as a “Drill Tec-Maxwell JV, a joint venture company incorporated under the laws of Bangladesh” is not an accurate description inasmuch as the joint venture has not been incorporated as a company and it operates under the JOA referred to hereinabove. The said mis-description of the joint venture as an incorporated company has occurred due to an inadvertent error. In view of the above, as dispute under the terms of the contract between the petitioner and opposite party No. 1 and the petitioner being foreign Company would fall under International Commercial arbitration in accordance with 2(ga) of the arbitration Act, 2001. The respondent No. 1 has further agreed on the application of UNCITRAL Rules for arbitration in accordance with Clause 45.5(a) of the Special Conditions of Contract. Accordingly, the GTCL issued a letter dated 8-4-2015 to the presiding arbitrator of the three-member arbitration Tribunal agreeing to accept UNCITRAL Rules for arbitration to govern the arbitration proceeding (Annexure-‘DD’).

  9. Subsequently, opposite-party No. 1 by filing supplementary affidavit dated 30-4-2015 stated that several meetings were held and many letters were sent to the petitioner requesting to complete the project, which the petitioner failed to achieve. Thereafter, the Opposite Party No. 1 vide letter dated 4-3-2015 bearing reference No. 28.14.0000.165.03.038.14.2448 sent a default notice pursuant to GCC Sub-clause 42.2.2 of the Contract to re-start the installation work which remained suspended for more than 3 (three) years by the petitioner despite repeated requests made by the Opposite Party No. 1. Accordingly, the Opposite Party No. 1 stated the nature of the default and requested the Petitioner to remedy the same by 18-3-2015, failing which Opposite Party No. 1 would terminate the Contract. That it is stated that despite the notice of default dated 4-3-2015, the Petitioner once again failed to take any steps to re-start the work within the stipulated deadline of 18-3-2015 as required in the said letter to remedy their default. Hence, finding no other alternatives, the Opposite Party No. 1 vide letter dated 25-3-2015 bearing reference No. 28.14.0000.165.03.038. 15.2455 terminated the Contract pursuant to GCC Sub-clause 42.2.1 with effect from the same date.

  10. With regard to the prior termination, the petitioner issued a notice of arbitration dated 24-12-2014 under the United Nations Commission on International Trade Law (UNCITRAL) arbitration Rules (as per Clause 45 of the General Conditions of Contract read with clause 45 of the Special Conditions of Contract of the Agreement). GTCL issued its Reply to the said Notice of arbitration on 25-1-2015. Pursuant to the above, a three-members arbitration Tribunal has been constituted on 19-3-2015, and in accordance with the Tribunal’s direction, the parties have already agreed a time-line for submission of pleadings. The parties are currently awaiting further direction from the Tribunal.

  11. It was further stated that a three member arbitration Tribunal has already been constituted to resolve the dispute out of the contract in question. The present petitioner has appointed Prof Dr. H. Ercument Erdem and the respondent No. 1 appointed Mr. Ajmalul Hossain QC, Senior Advocate, Supreme Court of Bangladesh as its arbitrator and both the arbitrators appointed Mr. Vinayak Pradhan as chairman of the Arbitral Tribunal. The Arbitral tribunal was constituted on 19-3-2015 as per provision of section 11(3) of the arbitration Act.

  12. Dr Sharif Bhuiyan, with Mr. Tanim Hussain, the learned Advocates appearing on behalf of the petitioner submits that the dispute in question squarely falls within the definition clause of International Commercial arbitration under section 2(ga) of the arbitration Act, 2001. He further submits that the dispute has been referred to the three members Arbitral Tribunal which was constituted on 19-3-2015. He finally submits that in the performance guarantee there is time limit when the guarantee is to be presented and the dispute as to whether the same is encashable or not has already been referred to the Arbitral Tribunal in pursuant of clause 45 of the contract Agreement. Accordingly, the learned Advocate prayed for injunction not to encash performance guarantees till disposal of the arbitration proceeding which has been commenced on 19-3-2015.

  13. Mr. Mejbahur Rahman, the learned Advocate appearing on behalf of the respondent No. 1 came up with a straight forward and short submission that since the petitioner is a local company it cannot invoke jurisdiction of this court and filed this application praying for an order of ad-interim injunction regarding encashment of the Bank Guarantees. He further submits that the performance guarantee imposes an obligation on the bank and these are not to be governed by the terms and conditions of the contract agreement between the parties and the petitioner not being a party to the contract in respect of Bank Guarantees cannot invoke the present application to obtain a restriction or injunction on the encashment of the Bank Guarantees. In this respect learned Advocate relies two decisions namely, 1981 BLD (AD) 230 and 60 DLR (2011) 132. He finally submits that since the contract has been terminated, the present application is not maintainable. Thus the petitioner is not entitled to get any order of temporary injunction and this arbitration application is liable to be rejected.

  14. I have heard the learned Advocate of both the parties and perused the application, affidavit-in-opposition dated 20-2-2013, supplementary affidavit filed by the petitioner dated 16-4-2015 and 4-5-2015 and Supplementary affidavit filed by the respondent No. 1 dated 30-4-2015 and the documents annexed therewith.

  15. It is evident to this court that under the arbitration Act, 2001 the court can pass interim order under section 7ka. The material words occurring in section 7ka are “before on during the arbitral proceeding.” This clearly contemplates two stages when the court can pass interim order, i.e. during the arbitral proceedings or before the arbitral proceedings. There is no reason as to why section 7ka of the Act 2001 should not be literally construed. When a party applies under section 7ka of the Act 2001 the court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is satisfied the court will have the jurisdiction to pass orders under section 7ka giving such interim protection as the facts and circumstances warrant. That this provision was made in the Act which could enable a party to get interim relief urgently in order to protect and preserve the subject matter of arbitral proceedings with a view to ensuring that any future award may remain effectively executable.

  16. To deal with the contentions raised by the parties before me it would be convenient for me to decide first of all the question of maintainability of the application filed by the petitions.

  17. The learned Advocate for the opposite party No. 1 at the very outset raised a question of law as to the maintainability of the present application filed by the petitioner. Referring to the Contract Agreement dated 10-8-2010 where the petitioner described itself “JV, Drilltec Maxwell Joint Venture Company Limited incorporated under the laws of Bangladesh” having its principal place of business at 357/A Modhubagh, Dhaka 1217 and submits that since the petitioner company is a Local Company, in Bangladesh it cannot invoke jurisdiction of this court under section 2(Ga) of the arbitration Act, 2001.

  18. Dr. Sharif Bhuiyan, the learned Advocate for the petitioner, in reply on the point of maintainability of the application submits that the dispute in question squarely falls within the definition of International Commercial arbitration in accordance with section 2(Ga) of the said Act. In elaborating his submission Mr. Sharif submits that due to an inadvertent error mis-description has occurred in the Contract Agreement dated 10-8-2010. In fact DRILLTEC GUT GMBH (DT) is a company established and registered under the laws of company having its principal place of business at Josef-Wallrer stores 10,94469 Deggesdorf, Germany and Maxwell Engineering Works (Maxwell), a company incorporated under the laws of Bangladesh. Drilltec and Maxwell entered into a Consortium Agreement dated 26-10-2009 (Annexure-AA) to work together in a consortium for the purpose preparing and submitting a Bid for installation of 30" OD High Pressure Natural Gas Pipeline by Horizontal Directional Drilling (HDD) method invited by the GTCL. After signing the consortium Agreement, the Petitioner Company submitted its bid on 27-10-2009. The Employer GTCL issued the Notification of Award (NOA) dated 14-6-2010. Thereafter, pursuant to the Consortium Agreement DT and Maxwell entered into a Joint Operation Agreement (JOA) dated 10-8-2010 (Annexure-BB). In fact Joint Venture has not been incorporated as a company and it operates under Joint Operation Agreement dated 26-10-2009.

  19. I have considered the submission advanced by the learned Advocates and perused the documents annexed with the Application, Affidavit-in-Opposition and Supplementary Affidavit and relevant provisions of the arbitration Act, 2001.

  20. In the light of the above, on proper assessment of the materials on record and applying the principles of law, I am of the opinion that disputes under terms of the contract between the petitioner and opposite party shall fall under   International Commercial arbitration as contemplated under section 2(ga) of the arbitration Act, 2001 and the petitioner rightly invoked jurisdiction of this court under section 7ka of the Act, 2001. Therefore, the contention of the learned Advocate for the opposite party No. 1 is of no substance.

  21. It appears that as per clause 45 the petitioner issued a notice to the opposite-party No. 1 dated 24-12-2014 invoking arbitration under the United Nations Commission on International Trade Law. (UNCITRAL) Rules for arbitration Rules as per clause 45.5(a) of the General Conditions of Contract read with clause 45 of the Special Conditions of Contract. GTCL by its letter dated 8-4-2015 issued to the chairman of Arbitral Tribunal agreed to accept UNCITRAL Rules to govern the arbitration proceedings. It appears from the documents filed by the parties the arbitration has already been commenced on 19-3-2015 and the tribunal directed the respective parties to deposit the required fees with the presiding Arbitrator (Annexure-DD-1) and presently the parties are awaiting further direction from the tribunal. It further appears that the dispute as to the breach of conditions laid down in the bank guarantee itself in the subject matter of arbitration. It further appears that the disputed question as to whether the respondent No. 1 encashed Bank Guarantee or not is to be decided by the arbitral tribunal and not by this court.

  22. It may be noted that the respondent No. 1 has agreed on the application of UNCITRAL Rules for arbitration as per clause 45.5(a) of the Special Conditions of contract as it appears from the letter dated 8-4-2015 issued by the GTCL to the Presiding Arbitrator of the three members Arbitral Tribunal.

  23. Mr. Rahman further tried to submit that respondent No. 1 by letter dated 18-3-2015 terminated the contract pursuant to GCC Sub-clause 42.2.1 with effect from the same date, the arbitration agreement does not survive and the matter need not be referred to the arbitration as such the present application is liable to be rejected.

  24. It appears that as per terms of contract, at first the parties should settle their dispute amicably before the commencement of arbitration. Unless settled amicably as per clause 45.5 of the Agreement, same should be settled finally by International arbitration, which the respondent No. 1 has agreed by its letter dated 8-4-2015. Accordingly, three members arbitration Tribunal has been constituted on 19-3-2015. Since the termination of contract by GTCL relates to the failure to perform its obligations under the contract is the main issue in dispute between the parties to be finally decided by the Arbitral Tribunal under the UNCITRAL Rules for arbitration and at present the parties are awaiting further direction from tribunal.

  25. In the present case, clause 45.5 of the GCC that provides for arbitration has been couched in widest possible terms as can be well imagined. It includes any disputes, differences, claims and questions between the parties arising out of the said contract or in any way relating thereto. The contract Agreement having been admittedly entered into between the parties and the disputes and differences have since arisen between them, I am accordingly of opinion that the arbitration clause 45.5 survives for determining the mode of their settlement although the contract has come to an end on account of termination or repudiation.

  26. In this connection reliance may be placed on a decision referred by the learned Advocate for' the petitioner reported in AIR 2010 SC 488 wherein it has been held that when the contract is terminated by one party on account of the breach committed by the other particularly in it case where the clause is framed in wide and general terms. Merely because the contract has come to an end by its termination due to breach, the arbitration clause does not get perished nor rendered inoperative; rather it survives for resolution of disputes arising “in respect of or “with regard to' or “under the contract.” This is in line with the earlier decisions of the Indian Supreme Court, Particularly as laid down in Union of India vs. Kishori Lal Gupta, AIR 1959 SC 1362.

  27. Having regard to the facts that issues as raised in the application should be determined by the tribunal and accordingly this court remained convinced that the ad-interim injunction passed by this court earlier on 18-10-2012 ought, thereby, to remain in place to effectively be in aid till conclusion of the arbitration proceeding.

  28. I have carefully gone through the decisions, reported in 1981 BLD (AD) 236 and 63 DLR 132 as cited by the learned Advocate for the opposite-party No. 1 but those decisions have no manner of application so far the points involved in the present case. In the cited cases nothing has been laid down in respect of resolution of disputes through arbitration arising under or in connection with the contract Agreement.

  29. In light of the above, this court deeming it prudent to preserve the performance guarantees as were considered by it to be the subject matter of the said arbitration proceedings. On proper assessment of the materials on record and applying the principles of law as applicable in the present case there is no cogent reason to interfere with its earlier order dated 18-10-2012 passed by this court.

  30. In view of the aforesaid facts circumstances, the provisions of the contact document, relevant provision of law and the decisions cited above I find merit in this application.

  31. In the result, the application is allowed. The arbitration proceeding that has already been commenced is to be continued. Accordingly, the order of ad-interim injunction dated 18-10-2012 is made absolute. The respondent No. 2 Islami Bank Bangladesh Limited, Ramna Branch, 9B.B. Avenue, Dhaka-1000 is hereby restrained from encashing the Bank Guarantees being No. 1 IBBL/Ramna/Inv/APG/2011/291 dated 10-5-2011, 2) IBBL/Ramna/Inv/BG/2011/303 dated 27-6-2011, 3) IBBL/Ramna/Inv/BG/2011/292 dated 27-6-2011, 4) IBBL/Ramna/INV/2011/879 dated 11-5-2011, 5) IBBL/Ramna/Inv/BG/201/304 dated 27-6-2011 and 6) Guarantee No. 4110-2005-3418 dated 4-7-2011 till disposal of the arbitration proceeding.

There is no order as to cost.

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