Corporate Guarantee and Bank Guarantee

CORPORATE GUARANTEE AND BANK GUARANTEE; DIFFERENCES

The Mumbai Bench of ITAT recently laid down differences between the guarantees in the case of Glenmark Pharmaceuticals Ltd. v. Addl. Addl. IT !ITAT !ITAT "#$% !Mum&&. The Tribunal gave the distinctions as follows' $. The Tribu Tribunal nal ruled that there there e(isted e(isted a conce) conce)tual tual distinc distinctio tion n betwee between n bank bank guaran guarantees tees and cor)or cor)orate ate guaran guarantee tees. s. or)or or)orate ate guarant guarantees* ees* which are given given to the banks banks for  safeguarding the interests of the bank* are not given on commercial considerations* unlike  bank guarantees. or)orate guarantees are issued in order to safeguard the financial health of their A+* and )rovide it su))ort. ". ,or banks* banks* )rovi )rovidin ding g a bank bank guarant guarantee ee is a )art )art of their general general course course of business business and and their charges- rates are always on the higher side. ,urther* bank guarantees are fool )roof  instruments of security for the customer* and failure to honour the guarantee is treated as a deficiency of services of the bank under the banking laws. n the other hand* cor)orate guarantees are not fool )roof* even though the guarantor is bound by contract law* and can be sued by the com)any- bank in court. Additionally* one also had to kee) in mind that bank /uotes are sub0ect to negotiations* based on the relationshi) shared between the customer and the bank !and other factors* including the e/uivalent cash de)osits made in the guaranteeing bank by the guarantor* etc.&. %. At the outset* outset* it is )ertinent )ertinent to highlight highlight a critical critical )oint )oint 1 in the instant instant case* the Tribu Tribunal nal has* for the first time* established established a conce)tual conce)tual and legal difference difference in the nature of bank  guarantees and cor)orate guarantees. The Tribunal has made this distinction on account of  various factors which are as follows' !i& risk )rofiles of the res)ondents for the guarantee* !ii& financial )osition of the loan a))licants* !iii& terms of the guarantee* !iv& securities involved* involved* !v& /uantum of the guaranteed amount* amount* !vi& )eriod of guarantee* and !vii& )ast history of customers. It can be viewed from this distinction that' Bank guarantees and cor)orate guarantees are given under different motivations. 2hile cor)orate guarantees are issued in order to su))ort the A+* bank guarantees are issued by  banks in the general course of their business. Thus* commercial considerations in the two cases differ. In the case of a cor)orate guarantee* the )ur)ose is to su))ort the A+ and derive long term benefit* while in bank guarantees* guarantees* the service is rendered rendered in the general course of its business* and the benefit derived by the bank is towards the )rofit element associated with the rendered service. The guidance one may infer from this a))roach is that the functional nature of guarantee in any two situations situations may be different* different* and hence their direct com)arison for com)arability analysis is not feasible. ,or com)arability* re/uisite ad0ustments must be made to account for the difference in the functional nature of the guarantees* as well as for the terms and conditions of the tested transaction