ASHA MENON,J. - (1.) This is an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 ('Act", for short) read with Section 13 of the Commercial Courts Act, 2015 against the judgement of the learned Single Judge dated 27th August, 2020 dismissing the petition filed by the appellant/Hindustan Construction Co. Ltd. ('HCC", for short), Section 9 of the Act seeking an injunction restraining the respondent/ National Hydro-Electric Power Corporation Ltd. ('NHPC", for short) from invoking/encashing any or all of its Bank Guarantees (BGs) cumulatively worth Rs. 214.36 crores.
(2.) The facts as are relevant for the disposal of the present appeal may be set out in brief. The respondent/NHPC being a Public Sector Undertaking involved in the setting up of and execution of hydro-electric power projects in India, invited bids on 25th October, 2006 from pre-qualified bidders for turnkey execution of the 330 MW hydro-electric power plant on the Kishanganga River in Bandipora, Jammu and Kashmir (the 'Kishanganga Project"). The bid of the appellant/HCC was accepted on 22nd January, 2009 and a contract was signed between the parties on 9th March, 2009 for the execution of the Kishanganga Project. The scope of the work was defined including the construction of Units I, II and III with power generation capacities of 110 MW each, along with other civil work. The contract price was Rs. 19,258,390,000/- and the work was to be completed in 84 months i.e. by 21st January, 2016. As part of its contractual obligations the appellant/HCC was required to furnish Performance Bank Guarantees for Rs. 101.32 crores, Retention Bank Guarantees for Rs. 107.80 crores and Advance Bank Guarantees for Rs. 5.24 crores, which it furnished.
(3.) The appellant/HCC were informed on 20th June, 2020 through email by the ICICI Bank that the respondent/NHPC had invoked two BGs issued by them for Rs. 65,00,000.00 and Rs. 1,50,00,000 vide letter dated 19th June, 2020. On the same day, again through email, the Punjab National Bank also informed the appellant/HCC that the respondent/NHPC had that day, invoked three BGs issued by them for Rs. 1,65,00,000/-, Rs. 2,60,00,000/- and Rs. 3,36,84,272/-. On 22nd June, 2020, the Jammu and Kashmir Bank also informed them of the request of the respondent/NHPC for the encashment of 11 BGs worth Rs. 29,48,38,964/- issued towards Retention Money BG. At this juncture, the appellant/HCC approached the Court to prevent encashment of any of the 48 BGs given by it.;