Pardeep Nandrajog, J.

1. Petition filed by the appellant under Section 9 of the Arbitration and Conciliation Act, 1996 seeking a restraint order against the respondent to invoke Performance Bank Guarantee No.11640100001232 dated December 01, 2012 in sum of Rs.19,58,00,000/- (Rupees Nineteen Crores Fifty Eight Lacs only) has been dismissed by the learned Single Judge vide impugned order dated November 19, 2014.

2. It may be stated at the outset that when the petition was filed before the learned Single Judge the bank guarantee in question had not been invoked and it is apparent that the petition was filed in anticipation. Thus, there are no pleadings concerning the issue whether the invocation of the bank guarantee is in terms of the guarantee. After the learned Single Judge dismissed the petition and before the appeal was filed, the bank guarantee has been invoked and the issuing bank has paid the money to the respondent. Pithily stated, the pleadings in the petition would be that since, as per the contract, the construction period did not commence, which was the condition precedent for the obligation of the appellant to comply with its obligations under the contract, the performance guarantee could not be invoked for the reason default could be attributed to the appellant only when the construction period commenced. The plea of fraudulent invocation, as noted by the learned Single Judge, was sought to be weaved with aforenoted submission, being that, if the construction period did not commence, the respondents would have no right to invoke and thereupon encash the bank guarantee and any invocation thereof would be an act of fraud.

3. Article 4, Article 6, Article 9 and Article 10 of the Agreement dated June 05, 2012, which fell for consideration before the learned Single Judge, have been noted by the learned Single Judge, and the finding has been returned against the appellant. In a nut shell the finding returned is that the trigger of date called the Appointed date by which date 80% access of the Right of Way, which as per the appellant had not come into being, was a plea based on highly disputed question of fact and since under the terms of the bank guarantee NHAI was the sole Judge, no case was made out to grant the interim injunction prayed for.

4. Since same contentions which were advanced before the learned Single Judge were urged before us in appeal, we would begin our journey by noting relevant sub- Articles of Articles 4, 9 and 10 of the Agreement as also the definition of the Appointed date.

5. Article 4, under the caption ‘Condition Precedent’ reads as under:-

“4.1 Conditions Precedent

4.1.1 Save and except as expressly provided in Articles 4, 9, 10, 24, 34, 44 and 47, or unless the context otherwise requires, the respective rights and obligations of the Parties under this Agreement shall be subject to the satisfaction in full of the conditions precedent specified in this Clause 4.1 (the “Conditions Precedent”).

4.1.2 The Concessionaire may, upon providing the Performance Security to the Authority in accordance with Article 9, at any time after 90 (ninety) days from the date of this Agreement or on an earlier day acceptable to the Authority, by notice require the Authority to satisfy any or all of the Conditions Precedent set forth in this Clause 4.1.2 within a period of 30 (thirty) days of the notice, or such longer period not exceeding 60 (sixty) days as may be specified therein, and the Conditions Precedent required to be satisfied by the Authority shall be deemed to have been fulfilled when the Authority shall have:

(a) procured for the Concessionaire the Right of Way to the Site in accordance with the provisions of Clause 10.3.1;

(b) issued the Fee Notification;

(c) Deleted

(d) procured approval of the Railway authorities in the form of a general arrangement drawing that would enable the Concessionaire to co