The court affirmed that disputes arising from contractual agreements lacking statutory characteristics are to be resolved through arbitration, and the invocation of performance guarantees is valid when a party fails to meet contractual obligations.

ORDER :

Ramesh Sinha, CJ.

1. Heard Mr. Ashish Shrivastava, learned Senior Advocate assisted by Mr.Manish Kharbanda, Ms. Ekta Gupta, Mr. Gurpreet Singh Bagga and Mr. Aman Pandey, learned counsel for the petitioners. Also heard Mr. Prateek Sharma, learned counsel, appearing for respondent No. 1, Mr. Praveen Kumar Sahu holding brief of Mr. P.R. Patankar, learned counsel, appearing for the respondent No. 3 and Mr. Vinay Pandey, learned Deputy Advocate General, appearing for the respondent No.3/State.

2. The present petition has filed by the petitioners with the following reliefs:

“10.1 It is prayed that this Hon’ble Court may kindly be pleased to issue a writ of certiorari to Respondent No. 1 to submit the entire records of the case before this Hon’ble Court.

10.2 This Hon’ble Court may kindly be pleased to issue a writ in the nature of certiorari and set aside the impugned correspondence dated 20.10.2017 issued by the Respondent No.1.

10.3 This Hon’ble Court may kindly be pleased to issue a writ in the nature of mandamus directing Respondent No. 2 not to act pursuant to the invocation letter dated 20.10.2017 issued by Respondent No.1.

10.4 This Hon’ble Court may be pleased to issue an appropriate writ and/or order or direction holding that the concession agreement dated 20.10.2016 is valid and subsisting.

10.5 That in the event the Bank Guarantee has been en-cashed by the Respondents prior to hearing of the instant petition before this Hon’ble Court, direct that the amount of the Bank Guarantee be returned/refunded to the Petitioner No. 1 by the Respondent No.1.

10.6 Issue an appropriate writ, order or direction, directing the Respondent No. 1 to pay damages to the tune of 20% of the performance security under Clause 4.2 of the Concession Agreement to the Petitioner No. 1.

10.7 Issue an appropriate writ, order or direction, directing that the Concession Agreement stands terminated under Clause 38.2 due to default of the Respondent No. 1 and direct the Respondent No. 1 to make payment under Clause 38.3.2; and

10.8 Any other relief/reliefs which this Hon’ble Court may think fit and proper in the facts and circumstances of the case with cost of the petition may also please be granted to the petitioners.”

3. Brief facts necessary for disposal of this writ petition are that petitioner No.1 entered into a Concession Agreement (hereinafter called as “agreement”) dated 20.10.2016 with respondent No.1 for construction, operation and maintenance of existing road from Patthalgaon at KM 84.250 to Raigarh at KM 194.431 (approximately 110.181 KM) in the State of Chhattisgarh. Under Clause 3.1.1 of the agreement, the concession period was for 15 years commencing from the appointed date i.e. the date on which financial close is attained and all the conditions precedent have been fulfilled or waived by the parties. As per the terms of the agreement, the parties were required to fulfill conditions precedent under Clause 4.5 prior to the 1st Anniversary of the agreement and subsequently reach financial close for the project. Under Clause 4.1.2 of the agreement, respondent No.1 was required to fulfill its conditions precedent within 90 days from the date of issuance of performance bank guarantee by petitioner No.1. Under Clause 4.1.3, petitioner No.1 was required to fulfill its conditions precedent within 180 days from the date of the agreement.

4. In order to achieve financial cl