Ashis Kumar Chakraborty, J. - (1.) In this application under Section 9 of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016 (in short, "the Act of 1996") the petitioner has prayed for, inter alia, orders of injunction restraining the respondent no.2 bank from making any payment to the respondent no.1 covered by three bank guarantees, mentioned hereinafter.
(2.) The brief facts giving rise to the present application are that the respondent no.1 issued a letter of intent dated September 23, 2010 (hereinafter referred to as "the said letter of intent") in favour of Bharat Forge Infrastructure Limited (hereinafter referred to as 'BFIL') for providing engineering, procurement, transportation, supply and installation of main plant (BTG) equipment and accessories for 3 X 150 MW coal based thermal power plant at Haldia, District-Purba Medinipore, West Bengal, (hereinafter referred to as "the said project")which was followed by a contract between the said parties containing an arbitration agreement. On September 24, 2010 BFIL issued a letter of award in favour of the petitioner for execution of the said project between itself and the respondent no.1. Since, the respondent no. 1 had to pay all advance amount to the petitioner, who was to execute the contract relating to the said project the latter furnished two advance bank guarantees both dated September 29, 2010 of Rs. 91.60 crores and Rs. 6.90 crores, respectively and a contract performance guarantee also dated September 29, 2010 of Rs. 109.20 crores(captioned as security deposit-cum-performance guarantee) in favour of the former, through the respondent no. 2 bank. On September 29, 2010 the amount of the security deposit-cum-performance bank guarantee was enhanced by the respondent no. 2 bank at Rs. 11,13,730,000/-. Subsequently, with consent of all parties, the contract of BFIL in respect of the said project was assigned in favour of the petitioner on the similar terms and conditions. On June 2, 2015 an agreement was entered into between the petitioner and the respondent no. 1 for execution of the said project by the petitioner. As per clauses 13.2.2 and 13.2.3 the said agreement dated June 02, 2015 the petitioner was required to furnish an unconditional bank guarantee towards contract performance security in respect of 10% of contract price and a bank guarantee against the amount of advance payment in favour of the petitioner. Therefore, the petitioner kept all the three bank guarantees dated September 29, 2010 furnished by it in favour of the respondent no. 1 renewed and as mentioned hereinafter, the same remained valid till June 30, 2018.
(3.) In this application, the petitioner's case is that the execution of the said project involved installation of commissioning of three units and although as per the original letter of intent dated September 23, 2010 the stipulated time for completion of the said project was thirty(30) months from the effective date but, as the respondent no. 1 committed various defaults in performing its reciprocal obligations, there was no scope for completion of the said project within the stipulated time. Accordingly, the respondent no. 1 from time to time, extended the time for completion of the said project, without imposing any liquidated damages upon the petitioner. Since the petitioner continued to proceed with the progress of the work under the said project within its limits as per the agreement between the parties, the amount of the said bank guarantees dated September 29, 2010 against advance were also reduced from time to time. Although the petitioner was not responsible for the delay in execution of the work of the said project, it went on extending all the three bank guarantees till December 21, 2017. On December 20, 2017 the respondent no. 1 requested the petitioner to extend all the three bank guarantees for a further period of six months. On the same date the respondent no. 1 also issued a communication to the respondent no. 2 bank informing it of the request to the petitioner to extend all the said bank guarantees and that in the event there is any failure on the part of the petitioner to extend the said bank guarantees, the bank should remit the amount covered by the said bank guarantees to its bank account. By a letter dated December 21, 2017 issued to the respondent no.2 bank, the respondent no.1 invoked all the said three bank guarantees. Thereafter, challenging the invocation of the said three bank guarantees by the respondent no.1, the petitioner approached the Hon'ble Supreme Court under Article 32 of the Constitution of India. By an order dated December 26, 2017 the Hon'ble Supreme Court allowed the petitioner to withdraw the writ petition and to approach the appropriate Court. On December 27, 2017 the petitioner filed an application, presently numbered as A.P. No. 1157 of 2017, under Section 9 of the Act of 1996, before a learned Single Judge of this Court, for an order of injunction restraining the respondent no.2 bank from making any payment to the respondent no.1 under any the three bank guarantees. In the said application on December 27, 2017 a learned Single Judge of this Court held that the petitioner's letter for invocation does not spell out the condition precedent for invocation contained in the instruments of bank guarantee and passed an ad interim order directing stay of the invocation process initiated by the respondent no. 1 till January 11, 2018 or until further order whichever is earlier, subject to the condition that all the bank guarantees shall be extended by the petitioner. By the said order it was, however, clarified that the said interim order shall not prevent the respondent no.1 from re-invoking the said bank guarantees in accordance with the terms thereof during the pendency of the said application. On December 28, 2017 the petitioner caused all the said three bank guarantees being extended by the respondent no.2 bank upto June 30, 2018. However, on December 28, 2017 itself the respondent no.1 issued three separate letters to the respondent no.2 bank thereby, re-invoking both the said bank guarantees against advance dated September 29, 2010 and the said bank guarantee for security deposit-cum-performance guarantee dated September 29, 2010 and called upon the respondent no.2 bank to immediately remit the proceeds bank guarantees to its account within December 30, 2017. On December 29, 2017 the petitioner moved a Special Leave Petition being SLP (Civil) Diary Nos.42647/2017, before the Hon'ble Supreme Court wherein it had challenged the order dated December 27, 2017 passed by the learned Single Judge in so far as the same allowed the respondent no.1 to re-invoke the said bank guarantees, as also the subsequent re-invocation of the said bank guarantees by the respondent no.1 on December 28, 2017. However, by an order dated December 29, 2017 the Hon'ble Supreme Court did not entertain the said Special Leave Petition and granted liberty to the petitioner to mention the pending matter before the Hon'ble Acting Chief Justice of this Court if it so desired. Thereafter, the petitioner has filed this application challenging the re-invocation of the said three bank guarantees by the respondent no.1 and praying for the relief already mentioned above.;