1. The above Petition is filed by the Petitioner – Simplex Infrastructures Limited against Respondent No. 1 – Siemens Limited and Respondent No.2 – IndusInd Bank Limited under Section 9 of the Arbitration and Conciliation Act, 1996 (“the Act”), inter alia, for the following reliefs:

“(a) pending the passing of an arbitral award and its enforcement, this Hon’ble Court may be pleased to:

(i) pass an order/direction thereby restraining Respondent No. 1 from en-cashing the Bank Guarantee bearing No. 0015PR10005693 dated December 30, 2010, for a sum of Rs. 18,33,41,947/- (Rupees Eighteen Crore Thirty Three Lakh Forty One Thousand Nine Hundred and Forty Seven only) and any other bank guarantee furnished by the Petitioner to Respondent No.1 until final adjudication of the disputes between the Petitioner and Respondent No.1;

(ii) stay the operation of the invocation letter dated August 21, 2014 bearing reference No. IN1024/&ABC020/0917/SILEXT0111/ NRR issued by Respondent No. 1 to Respondent No.2;

(iii) direct Respondent No. 1 to secure an amount of Rs. 29,42,93,621/( Rupees Twenty Nine Crore Forty Two lakh Ninety three Thousand Six Hundred and Twenty One only) in favour of the Petitioner together with interest at the rate of 18% p.a. till the final resolution of the disputes between the Petitioner and Respondent No.1;

(iv) pass an adinterim ex-parte order in terms of clauses (i) to (iii) above”.

The Petitioner has, at the time of hearing and final disposal of the Petition, not pressed for relief in terms of prayer clause (a) (iii) above However, in the written submissions filed by the Petitioner, the Petitioner has submitted that the Petitioner is entitled to the relief as prayed for in prayer clause (a) (iii) of the Petition.

2. The facts as narrated by the Petitioner in the Petition are briefly set out hereunder:

2.1 That the Petitioner is a leading service provider in civil and structural construction and is inter alia engaged in pilling, foundation and ground engineering, construction of roads, railways and bridges, urban infrastructure, building and housing.

2.2 That the Respondent No.1 had received an order for the project from Torrent Energy Limited (‘’Owner’’). Respondent No.1 engaged the services of the Petitioner for executing the main civil works of the project vide the formal Contract Agreement dated 21st December, 2010 (“contract’’).

2.3 That the initial contract price under the contract was Rs. 1,46,67,35,578/. However, due to various amendments and supplementary orders placed under the contract, the contract price increased to Rs. 216,05, 16, 103/.

2.4 The Petitioner was required to complete the works as per the schedule of Specific Milestone for Main Civil Works (‘’MCW’’). The last milestone specified in the said schedule was to be achieved by the Petitioner by 25th April, 2012.

2.5 That Clause 13.2 of the contract provides that if the milestone under the contract cannot be complied with on account of unforeseeable events which are beyond the reasonable control of the parties, the customer (Respondent No.1) may instruct the Contractor (Petitioner) to implement acceleration measures towards maintaining the original milestones or reducing potential delay. The said clause also provides for reimbursement to the Petitioner of additional expense arising from implementation of such measures. It is clear from clause 13.2 of the contract that acceleration measures with additional payments are contemplated under the contract only where the delay is not on account of the Petitioner. This aspect is further supported by Clause 6.5 of the Commercial Conditions of Contract which states that ‘’if, during execution of the works, progress in providing the Works is unsatisfactory or if completion by the milestones or in accordance with the contract is uncertain for reasons for which the Contractor is responsible, the Contractor shall bear the additional costs of measures required to avoid delays….”. It is submitted that the project was del