A.K. Menon, J. - (1.) By this petition filed under Section 37 of the Arbitration and Conciliation Act, 1996 (the Act) the petitioner challenges an interim order passed by the Arbitral Tribunal dated 27th April, 2018 under Section 17 and as modified on 28th April, 2018 by which the tribunal directed status quo to be maintained as on 27th April and thereafter restrained the petitioner from utilising the amounts if any collected by the petitioner under bank guarantees issued in favour of the petitioner. A few facts are necessary to be set out :
(2.) The respondent herein is the claimant in arbitration proceedings which are underway before the Arbitral Tribunal. The petitioner is a private company established under the Companies Act, 1956 which entered into a Concession Agreement with the Board of Trustees for Tuticorin Port on or about 11th September 2010, the intention being to develop North Cargo Berth-II (NCB-II) to handle bulk cargo at Tuticorin Port on a Design, Build, Finance, Operate and transfer basis. The Concession Agreement is valid for 30 years and upon project completion vessels would come alongside to discharge cargo. The NCB-II is stated to be partially operational. The respondent offered services for supply, design, erection and commissioning of stacker-cum-reclaimers and a conveyor system. Three purchase orders dated 23rd August, 2012 came to be placed for design, erection supply and commissioning of stacker-cum-reclaimers. A further set of three purchase orders dated 28th November, 2012 were placed for design, supply, erection and commissioning of the conveyor system. As required under the contract, the respondent issued down payment bank guarantees and performance bank guarantees ("the guarantees") in favour of the petitioner in respect of each of the purchase orders.
(3.) Disputes arose between parties and at some stage the petitioner invoked these guarantees. The respondent then filed six Arbitration Petitions under Section 9 of the Act seeking injunctions restraining the petitioner from invoking any of the guarantees, the contention of the respondent being that the guarantees were conditional and therefore could not be invoked at will. All the guarantees were identically worded. Vide an order dated 11th January, 2018 the arbitration petitions under Section 9 came to be dismissed, thereby rejecting the submission of the respondent that it will suffer immensely if the bank guarantees are permitted to be encashed.;