Important Point - It is not a conditional bank guarantee and therefore the beneficiary has an unfettered right to invoke it.

S.C. Dharmadhikari, J.

1. When this appeal was mentioned before this Bench on Thursday, i.e. 16th March, 2017, a request was made to continue the ad-interim order further as it was operative only till 16th March, 2017. The request to continue it further was opposed by the contesting respondent No.1. Bearing in mind the nature of the order passed on 23rd January, 2017, we indicated to both sides that the impugned order refuses to restrain the encashment of the bank guarantee, and this appeal being directed to be disposed of finally, it would not be proper to go on granting such ad-hoc extensions. We, therefore, with the consent of both sides, placed the appeal itself for disposal at the admission stage on 17th March, 2017. As soon as it was called out, we indicated to both sides that one of us (B.P. Colabawalla, J.) holds the shares in the petitioner-appellant-company. If any party has objection, he would like to recuse himself. Both senior counsel, on instructions, stated that they have no objection to this Bench hearing and disposing of this appeal. On this understanding we have proceeded further. Hence, admit. Respondents waive service. By consent, heard finally. Paper-book dispensed with.

2. This appeal under section 10 of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, (Act No.4 of 2015) is directed against the order passed by the learned single Judge on the above Commercial Arbitration Petition. By this order dated 9th January, 2017, the learned Judge has dismissed a petition filed under section 9 of The Arbitration & Conciliation Act, 1996 by the petitioner-appellant.

3. Briefly stated, the facts are that this petition under section 9 of the said Act of 1996 was filed against one Shree Ahuja Properties & Realtors Private Limited (for short “respondent No.1”) and Punjab National Bank (for short “respondent No.2”) alleging that the petitioner-appellant, a company registered under the provisions of the Indian Companies Act, 1956, is the largest Engineering Company and, inter-alia, engaged in the business of construction, engineering, power development, power equipment manufacturing and related activities. The first respondent is a private limited company registered under the same Companies Act and, inter-alia, carrying on business of real estate development. The second respondent is a Nationalised Bank, carrying on banking business in terms of the Banking Regulations Act, 1949.

4. The parties shall hereafter be referred to as per their nomenclature in the Arbitration Petition.

5. The petitioner and the first respondent had a dispute arising out of alleged non-payment of the petitioner's dues in respect of the works carried out. The works were carried out as per the revised scope of work and activities mutually agreed between the petitioner and the first respondent in the year 2013. The petitioner claims that it is entitled to receive compensation for costs and additional expenses incurred due to the delay caused by the first respondent. The petitioner was prevented from completing the balance work within the agreed and extended period as set out in the contract agreement dated 2nd March, 2010, read with the supplementary agreement dated 1st August, 2013. There are various breaches alleged of the obligations under these agreements in paragraph 3 of the petition. It is common ground that this agreement contains an arbitration clause. This agreement was executed in the light of a tender floated by the first respondent in or about November, 2009, expressing its desire of constructing a world class residential complex at Prabhadevi, Mumbai. The petitioner participated in that tender and the contract was awarded to them. The contract involved execution of work such as procurement and construction of building and other facilities. The scope of the work was set out in the agreement. After mutual discussions, eventually a letter of acceptance was issued and a regular contra