- (1.) Leave to amend to insert prayer clause (a-1). Amendment be carried out during the course of the day.
(2.) This petition under Section 9 of the Arbitration and Conciliation Act , 1996 (for short, "the Act") has been filed by the petitioner-Tata Projects Ltd. praying for the following reliefs:- "(a) that this Hon'ble Court be pleased to pass an Order of temporary injunction restraining the Respondent No.1 and/ or their officers, agents, servants, etc. from invoking the Performance Bank Guarantee bearing No.9004 IGPER002414 which is valid upto 19th April 2018 issued by the Respondent No.2 for an amount of Rs.44 Cr. (a-1) That this Hon'ble Court be pleased to pass an Order of temporary injunction restraining the Respondent No.1, its officers/agents/servants, etc. from encashing and/or acting in furtherance of the invocation of the Bank Guarantee bearing no.9004IGPER002414 valid upto 19 th April 2019. (b) in the alternative to prayer (a) above, this Hon'ble Court be pleased to restrain the Respondent Nos.2 and 3 and/or their officers, agents, servants, etc. from making payments to the Respondent No.1 under the Performance Bank Guarantee bearing No. 9004 IGPER002414 which is valid upto 19th April 2018 for an amount of Rs.44 Cr." ,
(3.) The petitioner was awarded a contract for construction of Chemical Storage Terminal at Hamriyah Free Zone, Sharjah, UAE, by the respondent No.1 on 20th February 2014. A contract document dated 2nd June 2014 was entered into between the parties. One of the conditions of the contract as contained in Clause 11.1 was requiring the petitioner to furnish a Performance Bank Guarantee equivalent to 10% of the contract price within 28 days from the signing of the contract. It is not in dispute that the petitioner had accordingly furnished a performance bank guarantee of the respondent No.2-Bank of Baroda dated 11 August 2014 for amount of US $ 6,500,000. It would be appropriate to note the relevant clause in the bank guarantee which provided for its invocation in case of default by the contractor. The said clause reads thus:- "In consideration thereof, we Bank of Baroda, Sharjah, Crystal Plaza Building, PO Box 1671, Sharjah, UAE hereinafter referred to as the Guarantor Bank hereby irrevocably and unconditionally guarantee to pay to you on your written demand and without demur such amount or amounts not exceeding the sum of USD 6,500,000 (US Dollars Six Million Five Hundred Thounsand Only) 10 percent of Contract Price of USD 65,000,000 on receipt of your written demand within 3 working days, stating that the Contractor defaulted the conditions of the Contract." (emphasis supplied);