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Judgment
This is an application under Section 9 of The Arbitration and Conciliation Act, 1996 filed by the petitioner, contractor for the commissioning of a Solar
Power Plant for the respondent State Electricity Board who prays for an order of injunction restraining the respondent no.1 from making any claim for
payment under the performance guarantee in terms of the Letter of Invocation dated 24th May, 2021.
Learned senior counsel for the petitioner raises several factual issues for persuading the Court to grant the prayer for restraining invocation of the
performance guarantee but primarily on the factual question on whether the letter of invocation was according to the terms of performance guarantee.
Counsel cites Hindustan Construction vs. State of Bihar : 1999 8 SCC 436 in this context. It is also submitted that the respondent no.1 could not
terminate the Letter of Award since the petitioner had completed the work and none of the three conditions for terminating the LOA existed as on the
date of termination of the LOA.
Learned senior counsel appearing for the respondent no.1 takes a point of suppression in the filing of the application particularly with regard to the
LOA which has been annexed to the application. Counsel further submits that subsequent to the Letter of Invocation dated 24th May, 2021, the
respondent no.1 has issued a letter dated 9th June, 2021 to the petitioner expressing the loss and damage caused by the non-completion of the project
as justification for the termination of the LOA. It is further submitted that there are several letters exchanged between the petitioner and the first
respondent which have not been made part of the application.
Upon hearing learned counsel, since it is evident, prima facie, that there are indeed several documents which the Court must consider before allowing
or rejecting application, let such documents be brought on record by way of affidavit within seven (7) days from date ; reply thereto within a week
thereafter.
List this matter after a fortnight.
Until the matter is heard on affidavits, the respondents will not proceed pursuant to the letter dated 24th May, 2021 or until further orders whichever is
earlier.