B.R. GAVAI, J.

1. This appeal challenges an order passed by the learned Single Judge in Commercial Arbitration Petition (Lodging) No.1465 of 2018 thereby rejecting the petition filed by the present appellant under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act).

2. Undisputedly the present appellant was awarded a contract for constructing Chemical Storage Terminal at Hamriyah Free Zone, Sharjah U.A.E. by the respondent No.1 on 20/02/2014. The contract was awarded on turn key basis. The contract document was executed on 02/06/2014. As per the contract and particularly Clause 11.1, the appellant was required to furnish a Performance Bank Guarantee equivalent to 10% of the contract price within 28 days from signing of the contract. Accordingly the appellant had submitted a Performance Bank Guarantee issued by the respondent Nos.2 and 3 dated 11/08/2014.

3. As per the contract the appellant was required to complete the work within a period of two years from the execution of the said contract. Admittedly the said work has not been completed within the aforesaid period of two years and further extension of two years was granted to the appellant. It is different matter that according to the appellant the work could not be completed within the stipulated period, for the reasons beyond the control of the appellant and due to the reasons attributable to the respondent-employer. There is an exchange of certain correspondence between the parties. Ultimately vide communication dated 17/11/2018 addressed by the respondent No.1 to the respondent Nos.2 and 3, respondent No.1 invoked the Bank Guarantee. The appellant therefore filed Commercial Arbitration Petition No.1465 of 2018 before the learned Single Judge of this Court. Vide the impugned order the petition has been rejected. Being aggrieved thereby the appellant has filed the present appeal.

4. Shri Gourav Joshi, learned Senior Counsel appearing for the appellant submitted that in view of specific clause in the contract between the parties and particularly Clause No.4.2, unless there was an amount due and only in the eventuality of making the demand by the employer not being fulfilled by the contractor within period of 45 days after making of the demand and unless a notice was issued as required under Clause 15, the Bank Guarantee could not have been invoked. The learned counsel submitted that in the present case neither there is a notice as required under Clause 15.3, which is required to be issued by registered mail (acknowledgment due) or by hand or by facimile or by reputed courier and thereafter 42 days period is given to comply with the demand, the Performance Bank Guarantee could not have been invoked. The learned counsel further submits that the communications with the petitioner were not by an authorised employer as defined under the contract between the parties. He therefore submits that the learned Single Judge erred in refusing to grant injunction against invoking the Bank Guarantee. The learned Senior Counsel relied on the judgment of the Honourable Apex Court in case of Hindustan Construction Co. Ltd. Vs. State of Bihar and ors. (1999) 8 SCC 436.

5. Shri V. Dhond, learned Senior Counsel for respondent No.1 on the contrary submitted that the learned Single Judge has rightly considered the legal position. He submitted that the contract between the employer and the guarantor is an independent contract and as per the contract between the Bank and the employer, on a demand simplicitor made by the employer the Bank is bound to perform its obligation within a period of three days. He submitted that, the contract between the Bank and the employer is independent of the agreement between the appellant and respondent No.1. The learned Senior Counsel submitted that though on merits the respondent No.1 can very well justify the invocation of the Bank Guarantee, on account of various defaults of the contractor, in view of the clear l