INSURANCE
GUARANTEE
By:
M. ZEESHAN ABDULLAH
Advocate
This paper would explore the legal concept
with reference to the contract of Guarantee in light of relevant case laws;
Guarantee (Noun) A formal promise or
assurance (normally in writing) that certain conditions be fulfilled,
especially, that a product will be repaired.
Guarantee (Verb) Provide a formal assurance
or promise, especially, that certain conditions shall be fulfilled relating to
a product, service, or a transaction.
A Contract of guarantees
normally known and called as guarantee, surety, warranty. security, bail,
pledge, performance bond and mobilization advance bond etc.
History of guarantee bonds / surety bonds is
that an individual surety bond was the original form of surety-ship. The
earliest known record of a contract of surety-ship is a Mesopotamian tublet
written around 1790 BC. There is evidence of Individual Surety Bonds in the
Code of Hammurabi and in
In Pakistan a contract of Guarantee governed
by Section 126, Chapter VIII of the Contract Act, 1872, which says that if a
contract which provides or binds a person to perform the promise, or discharge
the liability of a third person in case of his default (non-performance) is
called a contract of guarantee. Section 126 further defines that for a contract
of guarantee there should be three persons as one who gives the guarantee is
called "Surety", the person for whose default guarantee is given is
called the "Principle debtor" and the person to whom a guarantee is
given is called the "Creditor".
Therefore for making a legitimate contract of
guarantee there should be three persons who are called, as far their status in
a contract of guarantee, as "Surety/Guarantor", "Principle
Debtor" and "Creditor".
In strict sense a business of insurance,
explicitly, does not cover a contract of guarantee which are now being issued
by the insurance companies, in other words, an insurance guarantee, in early
stages, was not a common product of insurance companies as insurance is based
on a mechanism known as risk pooling or a group sharing of losses and in legal
sense an insurance is a contract of indemnity governs by Section 124 of Contract
Act, 1872.
That the common insurance products are Auto
Insurance, Fire Insurance, Marine Insurance, Health Insurance, Life Insurance
and Miscellaneous Insurance.
Now insurance companies
also issue insurance guarantee(s) in different shapes like Performance Bonds,
and Mobilization Advance Bond etc. and charge specified charges for the same. Although by virtue of Section 145 of the
Contract Act, 1872 a Guarantor/Surety always indemnified that in every contract
of guarantee there is an implied promise by the principle debtor to indemnify
the surety that he/she is entitled to recover from the principle debtor
whatever sum the Guarantor has rightfully paid under the guarantee, but,
besides, almost all the Insurance Companies, while issue guarantee/performance
bond/mobilization advance guarantee get securities from the principle debtor in
order to secure the guaranteed amount. Such securities may be in different shapes
like; cash margin deposit, Counter Guarantee, Promissory Notes, undated Cheques
and mortgaged of properties etc.
Section 141 of the Contract Act, 1872
provides that a Guarantor/surety is entitled to the every security which the
creditor (in whose favour such guarantee is issued) has against the principle
debtor at the time when the contract of surety-ship is entered into. Such
entitlement is irrespective of fact that the surety having knowledge of
existence of such security or not and if the creditor losses, or without the
consent of the surety parts with such security, the surety would be discharged
to the extent of the value of the said security.
The provisions of Sections 142 and 143
provide some exceptions to the validity of a contract of Guarantee as the
former Section gives a safeguard to a Guarantor that if guarantee obtained by
means of misrepresentation made by the creditor, or such misrepresentation was
in his knowledge and he assented concerning a material fact of the transaction
such contract of Guarantee shall be invalid, and later Section provides a
shield of protection to a Guarantor from whom guarantee has been obtained by
concealment as to material circumstances, which renders such Guarantee invalid.
In a contract of Guarantee, if not provided
otherwise, the liability of a surety always co-extensive with that of the
principle debtor, however, Section 140 say that if on default of principle
debtor the Guarantor pays all the amount he is liable for, the surety shall be
invested with all the rights, with the creditor had against the principle
debtor.'
European Surety bonds are issued by the banks
and are called "Bank Guarantee" in English and "Caution" in
French.
In a contract of Guarantee if principle
debtor commits default in performance of his obligations and the surety terms
out to be insolvent, the purpose of the Guarantee is rendered nugatory,
therefore, the insurance Guarantee is usually obtain from insurance companies
whose solvency are verified by private audit, governmental regulations or both.
A key term, in nearly every Guarantee,
including Performance Bond and Mobilization Advance Bond is the penal sum. A specified amount of money which is the maximum amount that the
surety will be required to pay in the event of the principle debtor's default
in performance of his obligation(s). That such specified amount of money
enables the Guarantor to assess the risk involved in giving the Guarantee, the
premium charged is determined accordingly.
Contacts Bonds (Performance Guarantee and
Mobilization Advance Bond) used mostly in the construction industry,
are a guarantee from a Surety to a project owner that the contractor (Principle
Debtor) will adhere the provisions of a contract.
This
category included:
(i) Bid
Bonds (Guarantee that a contractor will enter into contract if awarded the
bid).
(ii) Performance
Bond (Guarantee that a contractor will perform the work as specified by the
contract)
(iii)
(iv) Payment
Bond (Guarantee that a contractor will pay for services and materials.)
(v) Maintenance
Bond (Guarantee that a contractor will provide facility repair and upkeep for a
specified period of time)
There are also other miscellaneous contract
bonds that do not fall within the categories above, the most common of which
are subdivision and supply bonds;
(i) COMMERCIAL SURETY BONDS;
(a) License and Permit Bond.
(b) Court Bond.
(c) Public Official Bond.
(d) Miscellaneous Bond.
(ii) FIDELITY BONDS,
(i) COMMERCIAL SURETY BONDS
They are generally divided into four
sub-types: License and Permit, Court, Public Official and Miscellaneous
LICENSE
AND PERMIT BONDS
License and permit bonds are required by
certain federal, state, or municipal governments as prerequisites to receiving
a license or permit to engage in certain business activities.
These bonds function as a guarantee from a
Surety to a government and its constitutions (Obligee) that a company
(Principal) will comply with an underlying statute, state law, municipal
ordinance, or regulation.
Specified
examples include:
Contractor's license
bonds, which assure that a contractor (such as a plumber, electrician, or
general contractor) complies with local laws relating to his field.
Customs bonds, including
importer entry bonds, which assure compliance with all relevant laws, as well
as payment of import duties and taxes.
Tax bonds, which assure
that a business owner, will comply with laws relating to the remittance of
sales or other taxes.
Reclamation
and environmental protection bonds.
Broker's
bonds, including Insurance, Mortgage, and Title Agency bonds.
ER1SA (Employee
Retirement Income Security Act) bonds.
Motor
vehicle dealer bonds.
Money
transmitter bonds.
Health
spa bonds, which assure that a health spa will comply with local laws relating to their field, as well as refund
dues for any prepaid services in the event the spa closes.
COURT
BONDS
Court bonds are those bonds prescribed by
statute and relate to the Courts. They are further broken down into judicial
bonds and fiduciary bonds. Judicial bonds arise out of litigation and are
posted by parties seeking Court remedies or defending against legal actions
seeking Court remedies. Fiduciary, or probate, bonds are filed in probate Courts
and Courts that exercise equitable jurisdiction; they guarantee that persons
whom such Courts have entrusted with the care of others' property will perform
their specified duties faithfully.
Examples of judicial bonds include appeal
bonds, supersedeas bonds, attachment bonds, replevin bonds, injunction bonds.
Mechanic's lien bonds, and bail bonds. Examples of fiduciary bonds include
administrator, guardian, and trustee bonds.
PUBLIC
OFFICIAL BONDS
Public official bonds guarantee the honesty and faithful
performance of those people who are elected or appointed to positions of public
trust. Examples of officials sometimes requiring bonds include: notaries
public, treasurers, commissioners, judges, town clerks, law enforcement
officers, and Credit Union volunteers.
MISCELLANEOUS BONDS
Miscellaneous bonds are those that do not fit well under the
other commercial surety bond classifications. They often support private
relationships and unique business needs. Examples of significant miscellaneous
bonds include: lost securities bonds, hazardous waste removal bonds, credit
enhancement financial guarantee bonds, self-insured workers compensation
guarantee bonds, and wage and welfare/fringe benefit (
FIDELITY
BONDS
Fidelity bonds, also known as employee
dishonesty coverage, cover theft of an employer's property by its own
employees. Though referred to as bonds, fidelity coverage
functions as a traditional insurance policy rather than a surety bond.
PERFORMANCE
BOND
A performance bond is a surety bond issued by
an insurance company or a bank guarantee satisfactory completion of a project
by a contractor.
A job requiring a payment & performance
bond will usually require a bid bond, to bid the job. When the job is awarded
to the winning bid, a payment and performance bond will then be required as a
security to the job completion.
For example, a contractor may cause a
performance bond to be issued in favor of a client for whom the contractor is
constructing a building. If the contractor fails to construct the building
according to the specifications laid out by the
contract (most often due to the bankruptcy of the contractor), the client is
guaranteed compensation for any monetary loss up to the amount of the
performance bond.
Performance bonds are commonly used in the
construction and development of real property, where an owner or investor may
require the developer to assure that contractors or project managers procure
such bonds in order to guarantee that the value of the work will not be lost in
the case of an unfortunate event (such as insolvency of the contractor). In
other cases, a performance bond may be requested to be issued in other large
contracts besides civil construction projects.
The term is also used to denote a collateral
deposit of "good faith money, intended to secure a futures contract,
commonly known as margin.
Performance bonds are generally issued as
part of a Performance and Payment Bond", where a Payment Bond guarantees
that the contractor will pay the labour and material costs they are obliged to.
Performance bonds have been around since
2,750 BC and the Romans developed laws of surety around 150 AD, the principles
of which still exist.
In
Following are some of the leading cases on
the subject;
Shipyard
K. Damen International v. Karachi Shipyard and Engineering works Ltd. reported PLD 2003 SC 191 the Appellant
approached the Apex Court of Pakistan against an order by the Sindh High Court
refusing to grant prayer to interim orders to respondents from encashment of
Performance Bank Guarantee. The Honorable Apex Court refused the leave to
Appeal by upholding the Order of High Court of Sindh.
In case of M/s. Platinum Insurance Company Ltd. Karachi V. Daewoo Corporation,
reported PLD 1999 Supreme Court 1, while dealing with the "Mobilization
Advance'" and "Performance Bond" and given objects and distinction
between the two;
"In building / construction contracts it
is common practice that an employer pays certain amount as mobilization advance
to the contractor upon the execution of the contract document against an
unconditional Bank guarantee or an Insurance Company guarantee, in order to
enable the contractor to commence execution of the work by bringing at the site
the equipment and material. Whereas a performance bond is executed on behalf of
a contractor in order to ensure that the contract work is completed and in case
of failure, the surest who executed the performance bond has to indemnify the
employer. If one was to compare the language employed in the Performance Bond,
it becomes evident that the former is unconditional, whereas the latter is conditional".
Infamous case of Pakistan Engineering Consultants V. PIA, reported 1993 CLC 1926 the
learned single bench of Sindh High Court dismissed the stay application by
observing that the Defendant is free to invoke the Bank Guarantee and
Performance Bond in accordance with their terms, if so advised, however such
order was assailed in appeal before a division bench of Sindh High Court case
in which the learned division bench held that;
"In our view, there seems to be
preponderance of judicial view that in case of a letter of credit and an
unconditional Bank guarantee, the Court would generally be reluctant to grant
an ad-interim injunction restraining a Bank from honoring its contractual
obligation. However, in exceptional cases where refusal to grant an ad-interim
injunction, will perpetuate fraud or injustice, which should be apparent from
the material on record, the Court may grant an ad-interim injunction. In our
view, the instant case does not fall under the category of exceptional cases.
The Bank guarantee was given against the cash amount paid by the PIA towards
the 10% mobilization advance of the cost of the contract. The above amount was
to be adjusted against the running bills and the final bill at the rate of 10%
which has not been fully adjusted, and, therefore, the balance amount of the
bank guarantee in fact belongs to the PIA. Under the terms of the Bank
guarantee, the Bank has given undertaking to pay the amount on demand by the
PIA without questioning it and without making a reference to the consultants
and, therefore, it wilt not be just and proper to grant an ad-interim
injunction. However, it will not be just to allow the encashment of the full
amount of the Bank guarantee. Mr. Nasim Farooqui, learned counsel for the
appellant, has submitted that the PIA has withheld two running bills, namely,
15 and 16 amounting to about Rs. 20,00,000. Even if
the above bills are to be taken into consideration for the purpose of
adjustment of the mobilization advance, only 10 % amount of the bills could be
adjusted towards the amount of the Bank guarantee, namely, Rs. 2,00,000 (rupees
two lacs). The question, whether the PIA has illegally withheld the above
running bills or any other amount, will be an issue in the suit. If they have
done so, they will be rendering themselves liable to face the consequences
thereof under the law.
As regards the performance bond, in our view,
the same stands entirely on different footing than the Bank guarantee and
unless and until the Court prima facie finds that the default was on the part
of the consultants, it would not be just and proper to allow its encashment as
the encashment depends on the commission of default. We have already observed
herein above that on the basis of material available on record, it cannot be
said who has committed the default.
In the above case the learned division bench
restrained the encashment of Performance Bond, however, allowed for the
encashment of guarantee / Mobilization Advance Guarantee.
Similarly, in case of Zeenat Brother (Pvt.) Ltd. V. Aiwan-e-lqbal Authority and 3 others,
reported PLD 1996 Kar. 183 the learned Single Bench of the Sindh High Court
restrained the encashment of Performance Bond, however, refused to grant
injunction against encashment of Mobilization of Advance Bond.
In another case, Port Qasim Authority, Karachi V. Al Ghurair Group of Companies, reported
PLD 1997 Kar. 636, while granting interim injunction against the encashment of
Performance Bond placed reliance upon the above referred reported Judgment and
observed that;
"The dispute arose and the respondent
attempted to encash the bank guarantee as well as the performance bond. In a
well reasoned judgment after examining the case-law in great deal Ajmal Mian,
CAH. (as his lordship then was) hold that no
injunction should normally be granted to restrain encashment of an
unconditional bank guarantee issued to cover the amount advanced by way of
mobilization advanced. At the same time it was held that the performance bond
stood on an entirely different footing and it would not be just and proper to
allow its encashment without prima facie
evidence of breach of contract. Judgment was sustained by the Hon'ble Supreme
Court in the case reported in 1983 SCMR 379. In another very recent judgment in
the case of Zeenat Brothers Vs. Aiwan-e-lqbal
Authority PLD 1996
One may now to refer to the terms of the
performance bond quoted in para 3 of this judgment which clarify that the
aforesaid bond become enforceable only upon breach on
contract by the Respondents. As such Mr. Zuberi is not quite correct when he
states that there was an unconditional obligation on the part of the bank to
disburse the amount of the bond. The judgment of the Hon'ble Supreme Court
relied upon by him is clearly distinguishable and the distinction has been
appreciated by the Court itself. Therefore, on this aspect of the matter, the
contention of the appellant fails and we would sustain finding of the learned
Single Judge albeit or somewhat different reasons.
With respect to the submission of Mr. Yousuf
Qasim it is indeed correct that arbitration agreement does not bind the Respondent
No. 3 and we entirely agree that the principle of law enunciated in the
judgment cited by him. Nevertheless in view of the decision that we are
recording it is not necessary to state anything further and the case can be
disposed of as being primarily dispute between the appellant and Respondents Nos.
1 and 2.
In view of the above, the appeal is partly
allowed and it is ordered that:--
The parties shall appoint their respective
Arbitrators, who would enter upon the reference within 15 days from the
announcement of this judgment and make their Award within four months of having
entered upon such reference. In case of difference of opinion the matter would
be referred to the Umpire in accordance with the provisions of the Arbitration
Act.
In case a party fails to appoint an
Arbitrator the other party can move a proper application for appointment of an
Arbitrator on the original side of this Court.
That the Respondents Nos. 1, 2 and 3 shall
not encash the performance bond till the disposal of the suit which will now,
however, proceed in accordance with the Arbitration Act."
In case of Messer Continental Cables (Pvt) Ltd. V. Messer China Harbor Engineering
Co. Ltd, reported 2011 CLD 1625 the learned Single Bench of Sindh High
Court granted interim injunction on the encashment of Performance Bond,
observed that;
"It is well settled by now that no
injunction should normally be granted to restrain encashment of an
unconditional Bank guarantee issued to cover the amount advanced by way of
mobilization advance. It is also well settled that performance bond / guarantee
stands entirely on different footings. And again, normally it would not be just
and proper to allow its encashment when prima facie evidence of breach of
contract was available. In the case of Pakistan
Engineering Consultants V Pakistan International Airlines Corporation, a
Division bench of this Court held that unless there was prima facie evidence of breach of principal contract, encashment of
performance bond was not justified. The observation of the Division bench of
this Court in the case under discussion was upheld by the Hon'ble Supreme Court
of Pakistan reported as 1989 SCMR 379. The above case was followed by this Court
in the case of Zeenat brothers V.
Awan-e-Iqbal Authority's case (PLD 1996 Karachi 183) where again the same
distinction was given with regard to mobilization advance guarantee and that of
performance bond guarantee. It was held that since encashment of performance
bond was dependant on determination of question as to who had committed default
for fulfillment of its obligations or in completion of work within given period
and such question require evidence."
In case of Messer Atlas Cables
(Pvt) Ltd. v. Water and Power Development Authority & 2 others, reported
PLD 2008 Lah. 238 the Petitioner sought restraining Order by invoking writ
jurisdiction under Art. 199 of the Constitution, 1973.
The learned Single Bench of the Lahore High Court dismissed the Writ Petition
by observing that:
"
.. In these proceedings under
Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, such
intricate questions pertaining to contractual regime and controversies cannot
be gone into or resolved which necessarily entail a thorough trial and
recording of evidence. Restraint order as prayed for is not ordinarily issued
by the Court. This case is not exception to the ordinary rule. The rational
behind is that the bank issuing such a document is considered to be bound by
its own (documents/ terms) in respective of other disputes between the parties.
Such a contract (security /performance bond) is to be construed with reference
to its own terms and conditions. In heavy Mechanical
Complex (Pvt.) Ltd. Taxila Vs. Attock industrial Products Ltd. Rawalpindi PLD
2003 SC 295 on consideration of the precedents it was held that "Rights
and liabilities of parties in case of a contract of guarantee are determined
strictly with reference to terms and conditions of guarantee without recourse
to any other instrument or document executed by the parties for any different
purposes." Moreover, as held by the apex Court in Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt's
case (supra) the terms of contract can only be altered or modified by the
parties with mutual consent and whenever there is a dispute arising out of
contractual liabilities / obligations requiring extensive recording of
evidence, the forum competent to undertake that exercise is the civil Court.
Jurisdiction of the High Court under Article 199 of the Constitution of the
Islamic Republic of Pakistan, 1973 in such matters is not invo able. Similar
was the view taken in Yousuf A. Haroon's
case (supra). In view of such expression of legal position the other
aspects need not to be embarked upon. Therefore, I find it absolutely
impermissible for this Court in writ jurisdiction to issue any such restraint
order as is being prayed for. The petition is dismissed accordingly"
In case of Guangdong Overseas Construction Group Company Ltd. V. Creek Marine (Pvt.)
Ltd. Learned Single Bench of Sindh High Court, reported 2011 CLD 648 after
a detail survey of the ease law on the subject of Performance Bond and
Moblization Advance Bond observed that:
"
In case of a letter of credit and
an unconditional bank gurantee, the Court would generally be reluctant to grant
an ad interim injunction, restraining a bank from honouring its contractual
obligation. However, in exceptional cases, where refusal to grant an ad interim
injunction, will perpetuate fraud or injustice, which should be apparent from
the material on record, the Court may grant an ad interim injunction.
With regard to the performance bond, the same
stands entirely on different footing than the bank guarantee and unless and
until the Court prima facie finds that the default was on the part of the
defendants, it would not be just and proper to allow its encashment as the
encashment depends on the commission of default.
Performance guarantee stands on footing
similar to an irrevocable letter of credit, the bank which gives performance
guarantee must honour that guarantee according to its terms. It is not
concerned in the least with the relations between the parties to the main
contact and as to whether the contractor has performed his contracted
obligation or not, nor with the question whether the contractor is in default
or not. The bank must pay according to the terms of the guarantee all demands,
and if so stipulated, without proof or condition and that the only exception is
a case of clear fraud of which the bank has notice. There is an absolute
obligation upon the banker to comply with the terms and conditions, as
enumerated in the guarantee and to pay the amount stipulated therein
irrespective of any dispute between the parties to the main contract, as to
whether the goods supplied are up to the specification nor not. The bank guarantee
should be enforceable on its own terms and that realization against the bank
guarantee would not affect or prejudice the case of the contractor, if
ultimately the dispute is referred to arbitration and further that the contract
of bank guarantee is an independent contract between the bank and party
concerned and is to be worked out independently of the dispute arising out of
the work agreement between the parties to the work agreement and, therefore,
the extent of the dispute and claim or counter-claims were matters extraneous
to the consideration of the question of enforcement of the bank guarantee.
Where the bank had undertaken to pay the stipulated sum, at any time, without
demur, reservation, recourse, contest or protest, and without any reference to
the contractor, no interim injunction, restraining payment under the guarantee
could be granted. Bank guarantee is an autonomous contract and imposes an
absolute obligation on guarantee becomes due on the happening of a contingency
on the occurrence of which the guarantee becomes enforceable. In the absence of
special equities and the absence of any clear fraud the bank must pay on
demand, if so stipulated and whether the terms are such must be found out from
the performance guarantee, as such. Unqualified terms of guarantee could not be
interfered with by the Courts irrespective of the existence of dispute."
(The author of instant Article is