SIGN & SEAL OF CONTRACTOR
SAILESH NAIR & ASSOCIATES
- 87 -
BOB, ANKLAV BRANCH, DIST. ANAND
1, DEFENCE KARMACHARI HSG. SOC. NR. UNITED COLONY, B/H. NAVRACHANA HIGH SCHOOL, SAMA, VADODARA
– 390 008 TELE-FAX. 0265 2784382 MOB : 9898072813 / 9427602817
PROFORMA 'E'
UNDERTAKING/HYPOTHECATION IN CONNECTION WITH PAYMENT
OF ADVANCE ON MATERIALS BROUGHT BY THE CONTRACTOR TO THE SITE
This
undertaking
executed
at
this
day
of
____month
of
year
20
_
By
____________________________________________ (hereinafter called the Contractors) IN
FAVOUR OF which expression shall include its _________________________
The_____________ and having its _________________________________________
(herein after called the
Bank) which expression shall include its successors and assigns.
The
Bank and the Contractors have entered into an Agreement dated ______________ for
construction of on office complex on piece of land belonging to the
Bank at
_____________________________________ (hereinafter called as the said agreement) in terms of
which Contractors will be paid an advance of 75% of the cost of materials brought by the Contractor
to the site for consumption in the works at the discretion of the
Bank.
The Contractors have since applied to the
Bank that they be allowed advances as the security
of materials absolutely belonging to him and brought by them to the site of work and the
Bank
has since agreed to do so on the terms and conditions hereinafter set out.
Now this letter of Undertaking witnesses that in consideration of the said agreement, and in
consideration of the amount paid/payable to the contractors by the
Bank and of any further
advances as may be made to the contractors as aforesaid, the Contractors hereby agree with the
Bank and undertake as under:
The amount advanced by the
Bank to the Contractors as aforesaid and all or any further sum or
sums advanced as aforesaid shall be employed by the Contractor(s) in or towards expediting the
execution of the said works and for no other purpose whatsoever.
2. That the materials which have been offered to and accepted by the
Bank as security are
absolutely the Contractor’s own property and free from encumbrances of any kind and the
Contractors will not make any application for or receive a further advance on the security of
materials which are not absolutely his own property and free from encumbrances of any kind and
the Contractors indemnifies the
Bank against all claims to any materials in respect of which an
advance has been made to them as aforesaid.
That the materials on the security of which any further advance or advances may hereafter be made
as aforesaid (hereinafter called the said materials) shall be used by the Contractors solely in the
execution of the said works in accordance with the directions of the
Bank / Architect and in the
terms of the said agreement.
That the Contractor shall make at his own cost all necessary and adequate arrangement for the
proper storage, watch, safe custody, accounting and protection against all risks of the said materials
and that until used in construction as aforesaid, the said materials shall remain at the site of the said
works in the Contractor’s custody and on the responsibility and shall at all times be open to
inspection by the
Bank / Architect or any officer authorised by the Bank. In the event of the said
materials or any part thereof being stolen, destroyed or damaged, the Contractor will forthwith
replace the same with other materials of like quality or repair and make good the same as required
by the
Bank /
Architect.
That the said materials shall not on any account be removed from the site of the said works except
with the written permission of the
Bank of his authorised representative.
SIGN & SEAL OF CONTRACTOR
SAILESH NAIR & ASSOCIATES
- 88 -
BOB, ANKLAV BRANCH, DIST. ANAND
1, DEFENCE KARMACHARI HSG. SOC. NR. UNITED COLONY, B/H. NAVRACHANA HIGH SCHOOL, SAMA, VADODARA
– 390 008 TELE-FAX. 0265 2784382 MOB : 9898072813 / 9427602817
That the advances shall be repayable in full at or before the Contractors receive payment from the
Bank of the price payable to them for the said works under the terms and the provision of the said
agreement provided that if any intermediate payments are made to the Contractors on account of
work done, then on the occasion of each such payment the
Bank will be at liberty to make a
recovery from the Contractor’s bill for such payment deducting there from the value of the said
material then actually used in the construction and in respect of which recovery has not been made
previously the value for this purpose being determined in respect of each description of materials at
the rates at which the amounts of the advances made under these presents were calculated.
That if the Contractors shall at any time make any default in the performance or observance in any
respect of any of the term and provisions of the said agreement or of these presents, the total
amount of the advance or advances that may still be owing to the
Bank shall immediately on the
happening of such default be repayable by the Contractors to the
Bank together with interest
thereon at Eighteen per cent per annum from the date or respective date of such advance or
advances to the date of repayment and with all costs, charges, damages and expenses incurred by
the
Bank in or for the recovery thereof or the enforcement of this security or otherwise by reason of
the default of the Contractor and the Contractor hereby covenants and agrees with the
Bank to
repay and pay the same respectively to him accordingly.
That the Contractor hereby hypothecates all the said materials for the time being at site or to be
brought at site from time to time until the repayment to the
Bank of the sum or sums advanced as
aforesaid and all costs, charges, damages and expenses payable under these presents PROVIDED
ALWAYS and it is hereby agreed and declared that notwithstanding anything in the said agreement
and without prejudice to the powers contained therein if and whenever the covenant for payment
and repayment herein before contained shall become enforceable and the money owing shall not be
paid in accordance therewith, the
Bank may at any time thereafter adopt all or any of the following
courses as he may deem best.
a)
Seize and utilize the said materials or any part thereof in the completion of
the said works on behalf of the contractor in accordance with the provisions in that
behalf contained in the said agreement, debiting the Contractor with the actual cost
of effecting such completion and the amount due in respect of advances under
these presents and crediting the Contractor with the value of work done as if he
had carried it out in accordance with the said agreement and at the rates thereby
provided. If the balance is against the Contractor, he is to pay it to the
Bank on
demand together with interest accruing thereon.
Remove and sell by public auction the seized materials or any part thereof and out of the
moneys arising from the sale retain all the sums aforesaid repayable or payable to the
Bank
under these presents including expenses incurred by
Bank in connection with such auction
and pay over the surplus (if any) to the Contractor.
Deduct all or any part of the money owing hereunder out of the security deposits or any sum
payable to the Contractor under the said agreement.
That except in the event of such default on the part of the Contractor as aforesaid, interest on the
said advance shall not be payable.
That in the event of any conflict between the provisions of these presents and the said agreement
the provisions of these presents shall prevail and in the event of any dispute or difference arising
over the construction of effect of these presents the settlement of which has not been herein before
expressly provided for, the same shall be referred to the
Bank’s Chief Engineer whose decision
shall be final and no appeal shall lie against his decision before any court, arbitrator or authority.
The Provision of this undertaking shall be deemed to be supplemental to the said agreement.