TaxTMI 
TaxTMI 
2020 (5) TMI 742
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....d (hereinafter, "Company") and Cairn Energy (Cairn), ONGC and the Government of India in respect of exploration of the Rajasthan Block RJ-ON-90/1, which produces a substantial portion of petroleum in India. 2. In order to operationalize the production, a global tender was floated by the Company for fast-tracking the development of "end-to-end integrated Oil Well Construction (including drilling, completion and associated Well Services), development of surface facilities (well-pad, intra-field network and evacuation facilities/ pipelines specific to EOR development) and application of Enhanced Oil Recovery Technologies for enhancing the ultimate recovery" (hereinafter, "Project") from three fields called `Mangala', `Bhagyam' and `Aishwarya' (hereinafter collectively referred to as the "MBA fields" or by their individual names). 3. Pursuant to the global tender, competitive bidding took place and the Petitioner - Halliburton Offshore Services Inc. (hereinafter, "Contractor")- a group company of Halliburton Company, USA which runs one of the world's largest oil fields services was selected for the execution of the Project. Contract dated 25th April, 2018 was accordingly executed....
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....ing all coercive actions and consequential follow up action taken pursuant to the same till the present Petition and / or disputes arising under the Agreement between the Petitioner and the Respondent No. 1are decided and adjudicated by the Arbitral Tribunal to be constituted in due course; b) in the alternative the Respondent No. 1 be directed to strictly act in terms of the Agreement including recovering whatever amounts that can be actually deducted and not the entire bank guarantee amounts till the present proceedings and / or the disputes between the Petitioner and the Respondent No. 1 are settled either by way of reconciliation of the accounts or through the adjudication by the Arbitrator ; and / or c) direct the payment of the outstanding invoiced amount (as of date) of USD 6.6 million, unreasonably held by the Respondent No.1; d) pass any order to secure the amount recoverable in arbitration including the unbilled amounts of the variations carried out by the Petitioner company ; e) pass interim/ ad interim ex parte orders in respect of prayers (a) to (e) above; f) pass any other order (s) which this Hon'ble Court may deem fit pro....
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....treated as having been aware in advance. I am also persuaded, in this regard, by the fact that the government itself has, after imposition of the lockdown, being issuing instructions, from time to time, seeking to mitigate the rigours and difficulties that have resulted, unavoidably, as a result of the imposition of the lockdown. There is no reason, therefore, by the petitioner ought not to be given limited protection, till the next date of hearing, subject to orders which may be passed in these proceedings thereafter. 28. In the circumstances, let notice issue on the present petition, returnable on 11th May, 2020. Notice is accepted, on behalf of the respondents, by Ms. Anuradha Dutt, and is permitted to be served on Respondent No. 2 by e-mail. It shall be the responsibility of the petitioner to obtain the email id of Respondent No. 2, for effecting service. Affidavit of service on Respondent No. 2, with proof thereof, be filed by the petitioner prior to the next date of hearing. Counter-affidavit, if any, may be filed by the respondents within two weeks, with advance copy to the petitioner, who may file rejoinder thereto, if any, within one week thereof. List before the ....
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....how that it is when the last, out of the three fields, is commenced that the two years' period is kicked off. The commencement date is 17th January, 2018 concluding only on 16th January, 2020. As per clause 2.1(b) the Company had an option to extend the term of the contract for a further period upto one year. Thus, he submits that the Company had agreed to extend the contract initially till 31st March, 2020 and thereafter till 30th June, 2020. 11. Emphasis is laid by the Ld. Sr. Counsel on the variation order no.3 dated 16th January, 2020. According to Mr. Subramanium, the said variation order no.3 changed the contract expiry date to 30th June, 2020. This was meant to facilitate completing of unfinished work by the Contractor. Since the contract itself stands extended as per the variation order and time has been granted to the Contractor to complete the unfinished work, the Bank Guarantees cannot be invoked. 12. It is argued that the Contractor had been giving the continuous progress reports or the work carried out in the three fields. Reliance is placed on three progress reports that gave complete statistics of progress of work and showed the extensions till 30th April, 2020....
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....ce and for (iii) Bank Guarantees to secure liquidated damages. Until and unless the amount of liquidated damages is adjudicated, the question of encashing the guarantee to the liquidated damages does not arise. Further the Bank Guarantees are alive till 2021 i.e. the defect liability period and thus, the Company is fully secured. 17. Vehement reliance is placed on the variation order no.3 under which as per the Contractor, the Company had agreed for extended time period of contract dated 30th June, 2020. It is claimed that the variation order was issued by the Company and was duly counter signed by the Contractor. After placing of the variation order, meetings of the Project Management Committee were held in terms of clause 3.3(a). The progress reports have also been submitted. 18. It is also submitted that when the Company called for a `cure plan', the same was submitted on 5th December, 2019. There are two components of the work. (a) Drilling and completion and (b) surface activity. Insofar (a) is concerned, the entire work has been completed. Insofar (b) is concerned, very little work is outstanding. At best, if the work is to be carried out beyond the milestones, the liqu....
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....Contractor is to be paid a large sum for works which have already been conducted. Under these circumstances, the Section 9 petition deserves to be allowed and the interim order already granted ought to be confirmed. Submissions of Mr. Harish Salve, Ld. Senior Counsel on behalf of the Respondent No.1 22. Mr. Salve, ld. Senior Counsel appearing for the Company at the outset submits that the law relating to Bank Guarantees is very well settled. The Bank Guarantees are independent contracts which are not subservient to the main contract. The standard that would be applied in such cases is whether the invocation is liable to be stayed on the ground of egregious fraud or special equities. A perusal of the Bank Guarantees shows that the same are completely unconditional and they are not connected in any manner with any dispute in respect of the underlying contract. The Bank Guarantees have been issued in terms of Clause 9 of the Contract in order to secure the advance payments and for effective performance of the contract. Thus, no restraint order ought to be granted. 23. Ld. Sr. Counsel further submits that a perusal of Exhibit-J attached to the contract would show that there we....
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.... dated 16th January, 2020 was issued invoking Clause 11.3 of the contract and clearly informing the Contractor that if the work on the entire Project does not achieve completion by 31st January, 2020, the Company would be compelled to use alternative sources to complete the Project. In response to this letter the Contractor submitted a 'cure plan' which gave projected completion dates in March and April which were not agreed to by the Company. Thus, notice dated 20th February, 2020 was served seeking a firm plan for completion which was a without prejudice notice. 26. It is submitted that under these circumstances when the Contractor was already in breach, it chose to serve letter dated 18th March, 2020 invoking the clause due to the outbreak of COVID-19. Vide this letter, the Contractor, in fact, failed to provide any concrete schedule for completing the Project. The Company then issued notice dated 31st March, 2020 clearly intimating the Contractor that it would now take recourse under the contract and get the balance activity completed through alternative sources. 27. The present petition was then filed by the Contractor on 13th April, 2020. By letter dated 13th April, 202....
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....avalley Power Transmission Limited, (FAO (OS) 397/2014, decided on 15th September, 2014). He submits that egregious fraud is required to be established not in the encashment of the Bank Guarantee but in the underlying contract itself. The contract is not challenged in this case and neither is the termination. COVID-19 according to Mr. Salve is not special equity. Relying upon the above judgments he submitted that the Supreme Court has made it clear that it was only in extreme situations where the Company and its financial standing is itself suspect or where the Company may become untraceable that an injunction on Bank Guarantees can be issued. The Company in the present case is a well-known company doing established businesses in India and if the Contractor wins in the arbitration proceedings, it can easily recover the money from the Company. Thus, there is no ground made out to stay encashment in the Bank Guarantee. 30. Mr. Salve urges that the pleadings are completely defective and do not even make out a case of egregious fraud or irretrievable injustice. The Contractor was conscious of its breaches. The Contractor has accepted the termination and has in fact invoked the arbit....
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....given to the other party i.e. * repudiation leading to arbitration and claim for damages or * extension for completing the contract along with a claim for damages. In the latter circumstance, the claim for damages is one which would be proved before the Arbitral Tribunal. The party alleging breach can, argue that the extension was granted without prejudice and the other party can argue that the extension was with prejudice and hence no claim for damages is made out. This is in itself an arbitrable dispute. Either way the dispute is to be resolved by the Arbitral Tribunal and not in a section 9 petition. 33. After the breach took place even if the work has continued, the question as to whether there is a waiver is also an arbitrable dispute. There are various possibilities in a contract of this nature. There can be partial breach. The question as to whether there is Force Majeure or not depends on the construct of the contract. The Bank Guarantees being unconditional and irrevocable the encashment thereof, does not depend upon the merits of the matter, thus, the Contractor is not entitled to any relief in this petition. Analysis and conclusions 34. The ....
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....here was any failure to pay the liquidated damages the Company could withdraw the said amounts from the various bonds/Bank Guarantees. Under clause 9, the Contractor was obliged to furnish `advance payment bonds', `performance bonds', `financial bonds' and `Parent Company guarantee' for the various agreed amounts as per the contract. 39. The completion dates for each of the fields was 12 months, 14 months and 17 months from the respective `call-out orders'. The completion dates for each of the fields were as under: a) Aishwarya -16th January, 2019 b) Bhagyam - 16th March, 2019 c) Mangala - 16th June, 2019 40. The Project Monitoring Committee (PMC) which was constituted from both sides met regularly to supervise the progress of the projects. The Contractor was to give monthly progress reports to show the actual progress in each of the fields. 41. The contract provided for various milestones dates as also liquidated damages in Exhibit - J as referred to in clause 6.2. The compensation schedule was also provided for in Exhibit - C of the contract. As per Exhibit - J, the specific milestones to be achieved in respect of each of the fields was stipula....
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.... date of 25th October, 2019 and the forecast contract close out date was 30th November, 2019. 43. A perusal of the various monthly progress reports would show that the completion date which was initially in January 2019, March 2019 and June 2019 was thereafter moved to November, 2019. When the Company vide its letter dated 25th November, 2019 realised that the deadlines of November, 2019 would also not be fulfilled by the Contractor as there was considerable amount of work which was still pending, it demanded a `cure plan' on 25th November, 2019 in terms of clause 11.3, though it had the option of terminating the contract. 44. Thus, by this time, the Contractor was already in breach of its contractual deadlines. In response to the letter dated 25th November, 2019 seeking a 'cure plan' the Contractor submitted a 'cure plan' on 5th December, 2019 as per which it gave a staggered completion for each of the fields which is clear from entry no.3 in Table 2 below. This 'cure plan' proposed by the Contractor was not acceptable to the Company which was communicated on 9th December, 2019. The Company then called upon the Contractor to submit a modified 'cure plan' with completion date....
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....the justification for the non-completion of the Project, the Company's stand was that the timelines were not adhered to and that the Contractor was in breach even prior to the occurrence of the Force Majeure event. 47. In view of the letter dated 31st March, 2020 issued by the Company threatening to terminate and to use alternative sources, the Contractor filed the present Section 9 petition. A perusal of the petition shows that the same simply alleges that the Company is in breach for not providing the work site, not clearing the outstanding amount and other pending invoices which led to the delay in the completion of the Project. It is, then claimed that since the Contractor could not mobilise its resources due to COVID-19 and that there is a threat of termination and invocation of the Bank Guarantees, an interim order restraining the invocation ought to be granted. The ld. Single Judge had passed an ad-interim order prior to completion of pleadings and at that stage restrained the Company from encashing the Bank Guarantees. The basis of the said order was that the Contractor was working on the Project till the lockdown on 22nd March, 2020. In the petition, no ground was taken....
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....ent. In view of the same, the contract stood terminated and the Contractor was called upon to take all steps required to give effect to the termination as per the contractual terms. 49. The Bank Guarantees were also invoked on 13th April, 2020. In reply to the termination notice, on 15th April, 2020, the Contractor claimed as under: a) That the termination was illegal and was malicious, that there were various delays by the Company including in closure of variation orders etc., that only 2.4% of the work in respect of 'Aishwarya', 5.5% of the work in respect of 'Bhagyam' and 2.1% of the work in respect of 'Mangala' is outstanding, that the Contractor is facing financial difficulties. b) That the deadline of 31st March, 2020 was agreed to subject to resolution of all the hindrances and other issues. c) That it is entitled to claim USD 91 Million towards variations, unbilled amounts, billed amounts after adjusting unrecovered advances against BGs, from the Company. d) That the Contractor is still willing to negotiate the same in good faith. 50. The correspondence between the parties did not abate. Letter dated 23rd April, 2020 was written ....
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....er, 2019 was absent in January-February, 2020. Vide the said report the Contractor projected that it would complete a substantial portion of the work in March, 2020 and in April, 2020. This report was submitted with an e-mail of 11th March, 2020 and just seven days later, the Contractor invoked the Force Majeure clause. The progress graphs for the other two fields are similar in nature. Thus, the work at the fields had stopped long before the outbreak of COVID-19 or the lockdown. 54. As the saying goes `a picture speaks a thousand words'. As per the monthly progress reports tabulated and extracted above, it is prima facie visible that the Contractor did not adhere to the deadlines for completion of the Project and was, thus, in breach. The Contractor seeks to justify the same by laying the blame on the Company and the Company does the exact opposite. However, this Court is clear that the reasons for the delay are not to be gone into at this stage as both parties blame each other. The Contractor for whatever reasons, gave estimated completion dates which it did not adhere to. The Contractor argues that the outstanding work on the Project in all the three fields is between 2-5%. O....
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....h he had promised to do. e) Express terms of a contract cannot be ignored on a vague plea of equity. f) Risks associated with a contract would have to be borne by the parties. g) Performance is not discharged simply if it becomes onerous between the parties. h) Alteration of circumstances does not lead to frustration of a contract. i) Courts cannot generally absolve performance of a contract either because it has become onerous or due to an unforeseen turn of events. Doctrine of frustration has to be applied narrowly. j) A mere rise in cost or expense does not lead to frustration. k) If there is an alternative mode of performance, the Force Majeure clause will not apply. l) The terms of the contract, its matrix or context, the knowledge, expectation, assumptions and the nature of the supervening events have to be considered. m) If the Contract inherently has risk associated with it, the doctrine of frustration is not to be likely invoked. n) Unless there was a break in identity between the contract as envisioned originally and its performance in the altered circumstances, doctrine of frustrati....
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....d further that the exercise of diligence and reasonable care will not include the obtaining or maintaining of Insurance beyond the requirements of this Agreement. Force Majeure includes the following events and circumstances but only to the extent that each satisfies the above requirements. (i) any act of war (whether declared or undeclared) invasion armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, civil commotion act of terrorism or sabotage; (ii) strikes go- slows or works to rule that are widespread or nationwide of a political nature unless affecting only or caused by the affected Party or, in the case of Contractor, any of its Subcontractors; and (iii) significant archaeological discoveries in the Block officially recognised by a relevant Governmental Authority, and (iv) natural events, including: (A) acts of God, including earthquake, volcanic activity, hurricane, cyclone, flood or lightning and the consequences arising thereform; (B) explosion or chemical contamination (other than resulting from the act of war); and (C) epidemic or plague (b) Force Majeure will e....
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....uct of the parties prior to the outbreak, the deadlines that were imposed in the contract, the steps that were to be taken, the various compliances that were required to be made and only then assess as to whether, genuinely, a party was prevented or is able to justify its nonperformance due to the epidemic/pandemic. 63. It is the settled position in law that a Force Majeure clause is to be interpreted narrowly and not broadly. Parties ought to be compelled to adhere to contractual terms and conditions and excusing non-performance would be only in exceptional situations. As observed in Energy Watchdog (supra) it is not in the domain of Courts to absolve parties from performing their part of the contract. It is also not the duty of Courts to provide a shelter for justifying nonperformance. There has to be a 'real reason' and a 'real justification' which the Court would consider in order to invoke a Force Majeure clause. 64. It is not in dispute between the parties that the two years' term commenced on 17th January, 2018 which is hereinafter referred to as the commencement date. As per clause 2.1(b), the Contractor had the option to extend the term on the same terms and conditio....
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....t be condoned due to the COVID-19 lockdown in March 2020 in India. The Contractor was in breach since September 2019. Opportunities were given to the Contractor to cure the same repeatedly. Despite the same, the Contractor could not complete the Project. The outbreak of a pandemic cannot be used as an excuse for nonperformance of a contract for which the deadlines were much before the outbreak itself. 70. As held in Global Steel (supra) the question as to whether the Force Majeure clause itself would apply or justify non-performance in these facts would have to be finally determined finally in the arbitral proceedings. The observations of the Ld. Division Bench are as under: "9. It is not in dispute that the LC is an independent contractual document. The disputes between the contracting parties are to be settled by arbitration in London but the banks are not party to that contract. Thus, what is sought to be restrained by filing the suit is payments to be made under the LC. .... 14. There is no doubt that clause 21 does provide for force majeure clause and the manner of its invocation and as to how it would come into force. That is, however, a dispute ....
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....n order request would not entitle adjustment to the milestone dates, unless the same is an approved variation in terms of the contract. Under clause 10 the Contractor would not be entitled to any adjustment in the milestone dates if steps are not taken to minimise the delay. The procedure for a variation to come into effect is specified in clause 10.2 which requires the following chronology to be adhered to: a) Company makes a request for variation under clause 10.1 (a) or 10.1 (b). Contractor shall submit a variation order request along with its proposal for adjustment to the milestone dates and compensation payable i.e., the Exhibit J and C within 14 days. After within 14 days such a proposal is not received the same shall constitute a waiver of any entitlement to a change in the milestone dates or the compensation payable. b) Upon receiving the Contractor's proposal, the Company shall as soon as practicable respond to the said proposal. c) If there is consensus between the parties, the milestone dates i.e., Exhibit J and C would be suitably amended. d) If there is a dispute as to the amendment to be carried out in the Exhibit J and C ....
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....hing more. As per clause 2.1(b) the Company had the `option' to extend the Term of the contract on the same terms and conditions. However, though such an option appears to have been contemplated between the parties, there was no final decision to extend, as per the correspondence. Such an extension contemplated revised Milestone Dates etc., which were never agreed upon. Thus, this Court holds that there is no novation in the present case. 74. There are three sets of Bank Guarantees - Advance guarantees, Financial guarantees and Performance Guarantees. The details of the same are as under: Field Name BG Type Amount in USD Issuing Bank BG Ref No. Expiry Date Aishwarya ABG 2,728,728.59 ICICI 0021BG00012818 30 June'20 Bhagyam ABG 7,754,095.74 ICICI 0021BG00012918 30 June'20 Mangala ABG 3,695,607.42 ICICI 0021BG00013018 30 June'20 Aishwarya FBG 4,086,363.00 ICICI 0544BG00013219 30 June'20 Bhagyam FBG 7,261,744.00 ICICI 0544BG00013119 30 June'20 Mangala FBG 7,607,873.00 ICICI 0544BG00012519 30 June'20 Aishwarya PBG 4,086,363.00 ....
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....her, in addition to the other circumstances specified in this Agreement, Company has the right to drawdown and, at Company's discretion, apply the proceeds for recovering any Liquidated Damages or any payments due to the Company under this Agreement, all or part of the value of the Financial Bond. Such recourse against the Financial Bond shall be without limitation to any other right or remedy of the Company in relation to the relevant Contractor breach." Thus, as far as the Advance Bank Guarantees are concerned, a perusal of Clause 9.2(f) shows that upon termination, the Company would be entitled to draw upon the advance payment bond in the amount of the unrecovered portion of the advance payment. The `unrecovered portion' is not yet determined. The invocation letters simply state that the amounts of the advance Bank Guarantees are unrecovered. A perusal of the petition shows that as per paragraph 3.23, it is the case of the contractor that approximately 6.6 million dollars has already been invoiced and is yet to be paid by the company. It is also claimed that the Contractor could not raise its final invoices. Further, a perusal of the 'Advance Bond' as per Exhibit-N pursua....
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....tor and shall remain valid, binding and operative against the bank. The bank also agrees that the company at its option shall be entitled to enforce this bank guarantee against the bank as principal debtor, in the first instance, without proceeding against the contractor and notwithstanding any security of other guarantee that company may have in relation to the contractor's liability." 78. The law relating to Bank Guarantees is extremely clear and has been repeatedly settled by the Supreme Court including in Standard Chartered v. Heavy Engineering Corporation Ltd &Ors. (supra). Relevant extracts from the judgment are: "... 23. The settled position in law that emerges from the precedents of this Court is that the bank guarantee is an independent contract between bank and the beneficiary and the bank is always obliged to honour its guarantee as long as it is an unconditional and irrevocable one. The dispute between the beneficiary and the party at whose instance the bank has given the guarantee is immaterial and is of no consequence.There are however, exceptions to this Rule when there is a clear case of fraud , irretrievable injustice or special equities. The C....
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....favour of the Contractor, for the reasons stated above. 82. Thus, insofar as the invocation of three sets of Bank Guarantees are concerned, no case is made out for passing of any interim order staying the invocation or encashment thereof. 83. However, reconciliation of accounts would be required to determine as to what would be the component of the Advance Bank Guarantees recoverable by the Company. There are no pleadings as to what exactly is the amount recoverable. Accordingly, insofar as the Advance Bank Guarantees are concerned, this Court is of the opinion that the amount recoverable by the Company ought to be ascertained. Accordingly, it is directed that the amount of only the Advance Bank Guarantees which have been invoked, upon being encashed, shall be placed in a separate `Joint Account' which shall be jointly held by the Contractor and the Company. The parties are directed to reconcile the accounts, including payment of any invoices already raised and upon reconciliation as to the unrecovered portion of the advance amount which the Company is entitled to retain, in terms of the clauses in the contract, they may instruct the bank to release the said amounts in favour....
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....ntractor to complete any Services being carried out during the expiry of the Term. 2.2 Call out Order (a) Contractor shall commence the Services on the Commencement Date as notified by the Company to the Contractor pursuant to the respective Call Out Order ("Commencement Date") issued for Mangala, Bhagyam and Aishwariya. (b) Until Company issues a Call Out Order, Contractor shall not become entitled to any payment under this Agreement. (c) At any time prior to the issuance of a Call Out Order, the Company may terminate this Agreement for convenience and, in the event of such termination will have no liability whatsoever to Contractor whether direct or indirect, in contract, tort or otherwise in relation to or arising out of or in connection with any transactions contemplated under or in connection with this Agreement of otherwise. In this regard, Contractor acknowledges that Company's issuance of a Call Out Order will be subject to the satisfaction of certain conditions, including an extension of the term of the PSC, JOA and the receipt of certain third party approvals. 2.3 Novation of Certain Agreements (a) Within 10 Business D....
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....ng any Milestone, subject to the limits (if any) specified in Exhibit J - Milestones, Milestone Dates and Liquidated Damages or agreed by the Parties in writing (as applicable). (b) The Parties acknowledge that the liquidated damages set forth in Exhibit J- Milestones, Milestone Dates and Liquidated Damages reflect a genuine preestimate of the losses that Company may suffer or incur as a result of Contractor's failure to achieve a Milestone by the relevant Milestone Date or otherwise for the matters addressed therein and are not in the nature of a penalty. (c) If Contractor fails to pay any liquidated damages when due and owing under Section 6.2(a), Company will be entitled to withdraw the amount owing (together with any applicable GST on such amount) from the Performance Bond, Financial Bond or deduct such amounts from any and all amounts otherwise owing to Contractor under this Agreement." CLAUSE 9 Relevant extracts of Clause 9 are hereinbelow: "9. ADVANCE PAYMENT BOND, PERFORMANCE BOND, FINANCIAL BOND AND PARENT COMPANY GUARANTEE 9.1 Obligation to Provide Contractor shall provide to Company: (a) within 14 Days following....
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....new Advance Payment Bond or Performance Bond or Financial Bond to be issued to the Company by an Acceptable Bank in accordance with the requirements of this Article 9 within 14 Days following receipt of Notice from Company, and upon delivery of the replacement Advance Payment Bond or Performance Bond or Financial Bind Company shall return the previous Advance Payment Bond Performance Bond or Financial Bond to Contactor. (d) Within 20 Business Days following any increase in the Required Performance Bond Amount or Financial Bond, Contractor shall cause the amount of the Performance Bond or Financial Bond to be increased to the Required Performance Bond Amount or Financial Bond. (e) Within 20 Business Days following any draw on the Performance Bond or the Financial Bond by Company in accordance with this Agreement, Contractor shall cause the amount of the Performance Bond or Financial Bond to be restored to the then-effective Required Performance Bond Amount or the required Financial Bond amount. (f) If Company terminates this Agreement pursuant to Section 11.4 prior to Company's recovery of Advance Payment, Company will be entitled to draw upon the Advance ....
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....o submit a proposal, which shall include all information as prescribed in Section 10.2(a), in respect of Variation proposed to be instructed, and, in addition, the Contractor shall be entitled to submit a proposal including the same prescribed information of its own initiative in the circumstances and for the reasons set out in Section 10.1(d) in either case, a "Variation Order Request". A Variation Order Request shall be headed or clearly include the words "Variation Order Request". (c) Except as provided in Section 5.8(g), the Contractor shall not make any addition, deletion, alteration and/or modification to the Services unless instructed to do so by a Variation and/or in accordance with an Approved Variation. (d) Subject to the terms of this Article 10, Contractor shall be entitled to a Variation in the following circumstances: (i) a delay caused to the Contractor's performance of the Services by Force Majeure (in which case, any Variation will, if granted, only be in respect of any adjustment to the Milestones and/or the Milestone Dates and/or the Required Commercial Operation Dates and will not result in any change to the compensation payable pursua....
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....shall not be entitled to an adjustment to the Milestone Dates to the extent that Contractor has failed to take such reasonable measures to avoid or minimise the delay suffered. (h) Subject to the terms of this Article 10, the Contractor shall be entitled to a Variation of time in the following circumstances: (i) delay caused to Contractor's performance by a restriction on access to the Block that may be imposed by a Government Authority provided Contractor is not under default for any of the obligation in the Contract. The time to be considered in Variation shall be equivalent to the period during which such restriction is in force. (ii) delay caused to Contractor's performance due to local strike/unrest which results in cease of operation for a consecutive 7 days provided Contractor is not under default for any of the obligation under the Contract. The time to be considered in Variation shall be equivalent to the period during which such local strike/unrest is in force The Contractor shall immediately inform the Company, in writing, about commencement and discontinuance of any of the above condition and shall furnish the Company such information....
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.... performing its obligations under this Agreement pending such determination. (e) A Variation and/or a Variation Order Request in relation to which changes to the Milestone Dates or the compensation payable pursuant to Article 8 and Exhibit C - Compensation have been agreed between the Parties under Section 10.2(c) or have been finally determined in accordance with Section 20.2, shall become an "Approved Variation" and from the date of agreement under Section 10.2(c) or from the date of resolution under Section 20.2 (as the case may be) this Agreement shall be deemed to be amended in accordance with, and shall be construed in light of, such Approved Variation. (f) A Variation and/or a Variation Order Request is effective only if made in accordance with this Article10. Contractor shall not be or become entitled to additional payment for any addition, deletion, alteration or modification to the Services or to any adjustment of the Milestone Dates and/or the compensation payable pursuant to Article 8 and Exhibit C - Compensation unless reflected in an Approved Variation in accordance with this Article 10 or as determined in accordance with Section 20.2." CLAUSE 11 ....
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....charges incurred by the Contractor in connection with Demobilisation, substantiated by way of sufficient documentation to the satisfaction of the Company, provided that the Contractor shall use its best endeavours to minimise such charges. Notwithstanding the same such charges shall not exceed the Contract Price. 11.3 Contractor Events of Default Each of the following events will constitute a "Contractor Default" under this Agreement: (a) If Contractor is in breach of any of its representations, warranties or obligations under Section 21.2; (b) if: (i) Contractor (A) is in breach or default of any of its obligations under this Agreement (B) is in breach or default of any of its representations and warranties in Section 19.1 (in each case, other than Section 21.2); (C) violates any Applicable Laws; or (E) violates any of its obligations under this Agreement relating to HSSEQ matters; and (ii) Contractor fails to commence to cure such breach and submit cure plan acceptable to Company (which is not withheld unreasonably) within 10 Days following receipt of Notice from Company identifying such breach and demanding cure of the same; ....
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....D means a bond provided by the Contractor to the Company which can be invoked only for non payment of LD. This shall be for a value of 10% of the Call Out value. ============= Document 1 Monthly % Progress 14% Monthly Progress Monthly 16% Monthly % Progress 16% Monthly Progress Report furnished in September, 2019 ANNEXURE 1: INTEGRATED S CURVE 14% MANGALA INTEGRATED PROGRESS CURVE 0% Jan-18 Feb-18 Mar 18 Apr-18 May-18 Jun-18 Monthly Plan % 0.0% 0.0% 0.0% 0.9 % 5.4 % Jul-18 Aug 18 Sep-18 Oct 18 7.2% 8.5 % 120 % 11.6 % 14.3 % Nov 18 11.8 % Dec-18 Jan 19 8.9 % 10.7 % Feb-19 Mar-19 Apr-19 May-19 Jun 19 Jul-19 Aug-19 Sep-19 Oct-19 Nov-19 7.7 % 0.3% 0.2% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% Monthly 2.3% 2.1% 0.5% Forecast% Monthly Act.% 0.0% 0.0% 0.0% -Cam Plan% 0.0% 0.0% 0.0% 0.3% 0.9 % 3.5 % 3.7 % 45% 5.2 % 6.4 % 74% 9.5 % 80% 4.8 % 6.2 % 13.4 % 21.9 % 33.9 % 45.5 % 5%.8 % 71.6% 80.5 % 91.2% 5.5 % 98.9 % 3.5 % 7.3 % 99.8% 100.0 % -Cam Forecast -Cam Act.% 80 % 10.1 % 5.8% 2.4% 100.0 % 100.0% 100.0% 1....