Yogesh Khanna JUDGMENT
Yogesh Khanna, J.
1. The petitioner has filed this petition under Section 9 of the Arbitration and Conciliation (Amendment) Act, 2015 with a prayer the respondents be restrained from acting upon the letter dated 15.09.2017 or from invoking the Bid securities of the petitioner to the tune of ` 10.93 Crores and also restraining the respondent Nos. 2 to 4 from honouring the invocation of said bank guarantees on behalf of respondent No. 1 acting in terms of letter dated 03.11.2007.
2. Admittedly, WP(C) No. 8327/2017 filed by the petitioner herein was disposed of on 23.10.2017 by the learned Single Judge of this Court whenever the petitioner had prayed as under:-
"a) Issue an appropriate Writ, Order or Direction directing the Respondent NHAI that the Bank guarantee proposed to be furnished by the Petitioner from Punjab Maharashtra Cooperative Bank be accepted by the Respondents or ALTERNATIVELY, direct the Respondents to extend the time for the Petitioners so as to enable the Petitioners to get the Bank Guarantee from Nationalized Bank as demanded;
b) Issue an appropriate Writ, Order or Direction in the facts and under the circumstances of the case stated above directing the Respondent Authority not to take any coercive steps in the matter including termination of the Contract and invocation of Bank Guarantees; (BID SECURITIES)
c) Issue an appropriate Writ, Order or Direction in the facts and under the circumstances stated above directing the Respondent to fulfill it's obligations under the Contract."
3. The said writ petition was though dismissed, but a liberty was granted to the petitioner to invoke the arbitration clause and seek alternative remedy including interim order under Section 9 of the Arbitration and Conciliation Act, 1996. The petitioner did not avail such remedy and rather went in appeal against the order dated 23.10.2017 vide LPA No. 684/2017 which too was dismissed by the Division Bench of this Court vide order dated 03.11.2017.
4. Admittedly during the hearing of LPA No. 684/2017 an option was yet again given to the petitioner herein to pursue the alternative remedy under Section 9 of the Act, but the petitioner insisted to argue the appeal on merits and the Division Bench ultimately dismissed the appeal observing inter alia as follows:-
"19. As noticed above, the appellant was required to submit the performance bank guarantee in the sum of Rs. 64.6 crores within a period of 30 days of execution of the concession agreement. The concession agreement was executed on 28.04.2017 and the time for furnishing the performance security was to lapse on 27.05.2017. At the request of the appellant, the respondent extended the period from time to time and finally on 25.08.2017 a last opportunity was granted to the appellant to furnish the balance performance bank guarantee of Rs. 50 crores within five days i.e. by 30.08.2017. Admittedly, the appellant did not furnish the performance bank guarantee in accordance with the RFP condition i.e. by 27.05.2017 or within the extended period i.e. till 30.08.2017. It is only on 26.10.2017 that a further effort was made by the appellant to furnish the bank guarantee.
20. The appellant who was to furnish the bank guarantee within a period of 30 days from 28.04.2017 failed to obtain and furnish the bank guarantee for period of over six months.
21. Perusal of the alleged sanction letter of Punjab & Maharashtra Cooperative Bank Ltd. shows that the letter dated 14.09.2017 is in fact not a sanction letter. The letter enlists va........