Pradeep Nandrajog, J.

1. Yet another instance of an injunction being sought against a beneficiary who sought to enforce its right under bank guarantee(s).

2. NH-5 in the State of Orissa from Km 136.5 to Km 199.141 has run into a road block. Excluding a stretch of 3.799 Km covering major bridges, the work of 4/6 lanning was awarded by NHAI to ELSAMEX-TWS-SNC Joint Venture (hereinafter referred to as the contractor). The contract was awarded on 5.3.2001. 33 months was the completion time i.e. date of completion was 3.2.2004.

3. Under the contract the contractor was to furnish a performance guarantee and was entitled to receive mobilization advance and equipment advance but the same was to be secured under bank guarantees in favor of NHAI. 5 guarantees issued by various banks were submitted by the contractor favoring NHAI on various dates.

4. Work could not be completed within the completion period. On 19.8.2005 a supplementary agreement was executed modifying/substituting certain clauses of the original contract, contents whereof being not relevant for adjudication are not being noted.

5. The contractor justified delay on various factors not attributable to it, like non availability of land free from encumbrance, obstruction by local population, non completion of allied works by third parties etc. The contractor claimed escalation in prices of raw material consumed in the works and hence sought escalation in the price. NHAI denied the same. But the work continued without any consensus being reached.

6. The contract contained an arbitration clause. The contractor invoked the same. On 23.11.2005 arbitration commenced with the constitution of the arbitral tribunal. The work continued because parties agreed that pending resolution of the dispute by the arbitral tribunal the same should continue.

7. The month of April 2006 was reached. The arbitral tribunal made no headway. The contractor stated that it had no funds to continue with the work. It claimed complete drying up of resources. To facilitate the completion of the work a temporary solution was found. NHAI agreed to advance money to the contractor by labeling the same Discretionary Advance. On 2.5.2006 a supplementary agreement was executed under which the scheduled date of completion was shifted to June 2007 and additional discretionary advance was agreed to be paid. The discretionary advance was agreed to be secured in favor of NHAI by and under bank guarantees. The period of recovery of all advances was deferred.

8. Notwithstanding additional funds flowing to the coffers of the contractor from NHAI, the work progressed at a snails pace. According to the contractor the escalation in the price of raw material was far in excess of the advances received by it and hence the slow pace. The contractor constantly demanded price revision. On 5.9.2006 a high level meeting was held in which it was noted that the engineer appointed to monitor the contract had recommended the estimated date of completion to be 31.12.2007 and that the arbitral tribunal had published an award in favor of the contractor allowing price escalation as per the award. In the meeting it was decided that every effort would be made to expedite the work and that NHAI would release additional funds as per schedule agreed. The schedule appended to the minutes of the meeting dated 5.9.2006 contemplated NHAI releasing Rs. 24.1 crores as follows:

A. September 2006 Rs. 10 crores

B. January, Feb. and March 2007 Rs. 2 crores each month C. April and May 2007 Rs. 2.3 crores per month

D. June 2007 Rs. 1.9 crores

E. July 2007 Rs. 1 crores

F. August 2007 Rs. 60 lacs

9. NHAI did not make payment under the award published by the arbitral tribunal and challenged the same by filing objections under Section 34 of the Arbitration and Conciliation Act 1996. The said objections are still pending consideration on the original side of this Court.

10. The contr