- (1.) THE present appeal filed under Section 37(1) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the said Act") is directed against the order dated 20.12.2013 passed by the Additional District Judge No.14, Jaipur Metropolitan, Jaipur (hereinafter referred to as "the court below") in Arbitration Application No.280/2013, whereby the court below has refused to grant ad -interim injunction in favour of the appellant -applicant during the pendency of the application under Section 9 of the said Act.
(2.) BRIEFLY stated the facts are that the appellant -applicant was awarded the contract for the development of Integrated Solid Waste Management System for Jaipur Nagar Nigam on PPP Model (Public Private Partnership) to ensure scientific disposal of solid waste, for which a Concession Agreement was entered into between the appellant and the respondents on 24.09.2012. As per the condition, contained in Article 6.1 of the agreement, the appellant had furnished the bank guarantee/performance guarantee for a sum of Rs.1,00,00,000/ - (rupees one crore) for the due and punctual performance of its obligations relating to the project. Accordingly the IDBI Bank, Mumbai at the instance of the appellant had executed an unconditional and irrevocable guarantee in favour of the respondents, agreeing and undertaking to pay to the respondents -authority such sum upto an aggregate sum of the guarantee amount as the authority may claim, without any demur, reservation, recourse, contest or protest, and without any reference to the concessionaire i.e. the appellant. It was further stated in the said bank guarantee that the liability of the IDBI Bank under the said guarantee was restricted to Rs.1,00,00,000/ - (rupees one crore), and the guarantee was to remain in force until 23.08.2013, unless a demand or claim under the said agreement was made in writing on or before 23.02.2014. It further appears that thereafter certain disputes between the appellant and the respondents had arisen, which were required to be referred to the Arbitrator as per the terms of the agreement. However, the appellant, filed an application before the court below, under Section 9 of the said Act seeking injunction against the respondents for restraining them from encashing the said bank guarantee. The said application was registered as the Arbitration Application No.183/2013 before the court below. The court below initially granted ad -interim injunction in favour of the appellant restraining the respondents from encashing the bank guarantee in question, vide the order dated 25.02.2013. As per the case of the appellant, during the pendency of the said application under Section 9, the respondents had issued NIT on 19.06.2013 inviting tenders for the Integrated Solid Waste Management, identical to the work required to be carried out by the appellant as per the agreement dated 24.09.2012, and therefore, the appellant had challenged the said action before the High Court by filing the writ petition. The appellant also filed an application under Section 11 of the said Act before the High Court for the appointment of an Arbitrator for the resolution of the disputes between the parties. It further transpires that on 27.09.2013, when the said application was being heard by the court below, both the counsels for the parties had remained present, and as transpiring from the order dated 27.09.2013, both the counsels for the parties had declared before the court below that the validity period of the bank guarantee had expired, and the proceedings under Section 11 (not legible) were pending before the High Court, and therefore, the relief sought for in the application had become infructuous. The court below, therefore, had dismissed the said application on the basis of such statements made by the learned counsels for the parties.
(3.) AS per the case of the appellant, thereafter the appellant received a letter dated 11.12.2013 from the IDBI Bank informing the appellant to remit the amount of Rs.1,00,000,00/ - (rupees one crore) in its CC Account to enable the Bank to make payment to the respondent Nagar Nigam as per its notice dated 26.11.2013, in respect of the bank guarantee in question. The appellant, therefore, again approached the court below by filing the application under Section 9 of the said Act for restraining the respondents from encashing the bank guarantee in question and from entrusting the work to any other agency which was entrusted to the appellant pursuant to the agreement. The appellant also filed an application seeking ad -interim injunction of the same nature in the said proceedings under Section 9 of the said Act. The court below vide the impugned order dated 20.12.2013 has refused to grant ad -interim injunction in favour of the appellant, and fixed the matter for enabling the respondents to file reply. Being aggrieved by the said order, the appellant has filed the present appeal. It has been sought to be submitted by the learned counsel Mr. Mahendra Singh for the appellant that the respondents had lied and committed fraud with the appellant, by getting the earlier application of the appellant dismissed on one hand, and on the other hand calling upon the IDBI Bank to make payment in respect of the bank guarantee. According to Mr. Singh, the learned counsel for the respondents appearing in the court below had misled the court below, which resulted into the dismissal of the earlier application. According to him, the court below without appreciating the said conduct on the part of the respondents, had refused to grant the ad -interim injunction in favour of the appellant. Pressing into service, the provisions contained in Section 9 of the said Act, Mr. Singh submitted that the appellant was entitled to the interim measure as contained in Section 9, for securing the amount in dispute.;