Naresh H. Patil, J. - (1.) These appeals arise out of judgment and order passed by the learned Single Judge on 11th January,2018. As issues involved in these appeals are similar, by consent the appeals are heard finally at admission stage and are being disposed of accordingly.
(2.) The appellants M/s.Felguera Gruas India Private Limited (hereinafter referred to as 'FGIPL' for short) preferred Arbitration Petition under Section 9 of the Arbitration and Conciliation Act, 1996 (for short referred to as 'the Act') praying for interim injunction against encashment of the Advance/Down Payment Bank Guarantees and Performance Bank Guarantees which were furnished by the FGIPL to the Respondent No.1 - Tuticorin Coal Terminal Pvt. Ltd. (hereinafter referred to as "TCTPL" for short). These guarantees were furnished consequent to six purchase orders. The particulars of subject Bank Guarantees and Purchase orders are set out in the judgment delivered by the learned Single Judge. FGIPL is a Company incorporated under the provisions of the Companies Act, 1956. The company is in the business of undertaking turn key projects across the country. It offers end to end services in design, testing, commissioning, manufacturing, sourcing, supply and construction. It has executed several major projects in Ports.
(3.) Tctpl is a Private Company incorporated under the provisions of the Companies Act,1956. They entered into a Concession Agreement on 11th September, 2010 with the Board of Trustees for Tuticorin Port ("Concessioning Authority") for Development of North Cargo BerthII (NCBII) for handling bulk cargoes at Tuticorin Port on Design, Build, Finance, Operate and Transfer basis. This concessional agreement was operational for a period of 30 years. In the year 2012, FGIPL offered services to TCTPL for supplying as well as designing, erecting and commissioning of stackercumreclaimers, stacker and conveyor system. A Letter of Intent was entered into accordingly. There were six purchase orders under the contract entered into between the parties. Each purchase order had clause for advance payment, down payment, bank guarantee and performance bank guarantee. FGIPL issued Down Payment Bank Guarantee and Performance Bank Guarantee in favour of TCTPL in respect of each Purchase Order. In the petition filed under Section 9 of the Act, FGIPL seeks injunction from invoking the guarantees mainly on the ground that they were conditional. The guarantees were worth Rs.43 Crores. An injunction against respondents 2 and 3 bank from releasing the amounts under the said Bank Guarantees, in favour of respondent no.1 is sought by the appellant. The grounds were that the guarantees were conditional and could be invoked if the appellants had defaulted in complying with their obligations under the Purchase Orders. There were special equities in favour of appellants. According to appellants the TCTPL had admitted in correspondence that Rs.32 Crores was payable to the appellants. It is the case of the appellants that irretrievable injustice and injury would be caused to the appellants if respondent no.1 was permitted to encash the bank guarantees. Respondent no.1 is a Special Purpose Vehicle which is making losses.;