Manish Pitale ORDER
Manish Pitale, J.
1. By this appeal, the appellant claims that the trial Court has committed an error in refusing to grant temporary injunction claimed by it for restraining encashment of unconditional bank guarantees, despite the fact that it had made out a case for such injunction on the well established twin grounds of fraud committed by respondent No. 1 on the appellant and irretrievable damage that the appellant would suffer in the absence of such injunction.
2. The appellant is a company engaged in the business of generation and sale of electricity and for that purpose it had entered into agreements with the respondent No. 1- Western Coalfields Ltd. (WCL) for purchase of coal to be utilised in its power plants for generation of electricity. The respondent No. 1-WCL is a subsidiary of respondent No. 2-Coal India Limited and it is engaged in the business of mining and sale of coal. The entire coal available in the county is under the control and dispensation of respondent No. 2 and as per the policy of the Government of India, supply and sale of coal is done via coal linkages granted in two categories i.e. coal linkages at notified price and coal linkages at cost plus price.
3. Cost plus mines are those mines which are financially not viable at notified price of coal. The respondents offered to supply coal from such cost plus mines at a price called the cost plus price yielding a 12% Internal Rate of Return (IRR) at 85% capacity. The arrangement for supply of coal from a cost plus mine provides certainty of sale of coal to the respondents and at the same time it provides certainty of costing and quantity to the purchase of coal at such cost plus price. It is the case of the appellant that it had entered into three cost plus fuel supply agreements with the respondent No. 1 dated 03.04.2012, for supply of coal at cost plus rates by the respondent No. 1-W.C.L., from three coal mines called the Bellora Naigaon Deep OC, Ukni Deep OC and Urdhan RCE OC mines. While entering into the said agreements, the respondent No. 1-WCL sought security deposit bank guarantees from the appellant to the tune of Rs. 19.57 crores. These were unconditional bank guarantees submitted by the appellant with the respondent No. 1-WCL in respect of the aforesaid three cost-plus fuel supply agreements executed between the parties.
4. Upon execution of the aforesaid agreements pertaining to the said mines of the respondent No. 1-WCL, supply of coal was undertaken to the appellant for its power plant. But, during this process, the appellant felt aggrieved with the price structure imposed by the respondent No. 1-WCL in respect of supply of coal under the said agreements and it filed an application/information under Section 19(1)(a) of the Competition Act, 2002 before the Competition Commission of India, against the respondents alleging contravention of Section 4 of the Competition Act, 2002, on the basis that the respondents had abused their dominant position, being monopoly supplier of coal and that arbitrary methods of fixation of price had been undertaken. The said litigation initiated by the appellant culminated in an order dated 22.07.2014 passed by the Competition Commission of India in Case No. 88 of 2013, wherein the respondents were directed to cease and desist from indulging in any conduct that was found to be in contravention of the provisions of the Competition Act, 2002 and to make necessary modifications in the agreements in the light of findings rendered in the said order.
5. The said order was challenged by the respondents before the Competition Appellate Tribunal (COMPAT). By order dated 09.12.2016, the COMPAT dismissed the appeal of the respondents, holding that the findings and conclusions recorded by ........