JUDGMENT (Oral)

(Video conferencing)

1. These petitions under Section 9 of the Arbitration and Conciliation Act, 1996 ("1996 Act", in short), seek pre-arbitral interim reliefs.

2. The facts in the two petitions, though they pertain to different contracts and different bank guarantees, are more or less identical. Arguments were principally advanced by Mr. Monish Panda, learned Counsel for the petitioner by reference to OMP (I) (Comm) 365/2021.

3. As such, the recital hereinafter would be relatable to OMP (I) (Comm) 365/2021. However, reasoning and the findings would mutatis mutandis apply to OMP (I) (Comm) 364/2021.

4. Given the narrow confines of the controversy, it is not necessary to make any detailed allusion to facts. A bare recital would, therefore, suffice.

5. Respondent 1 was contracted by M/s. Jawaharpur Vidyut Utpadan Nigam Ltd as an EPC contractor, for construction of a thermal power project in Uttar Pradesh. Respondent 1 further subcontracted a part of the work to the petitioner, vide two Subcontract Agreements dated 27th December, 2017 and 16th November, 2018. Under these subcontracts, the petitioner was required to undertake the work of civil construction of Coal Handling System and the erection of Electrostatic Precipitators and Flue Gas Desulphurization Plants, as part of the larger Thermal Power Project in respect of which Respondent 1 had entered into the contract with M/s. Jawaharpur Vidyut Utpadan Nigam Ltd. The substantial completion date of the work, as per the contract, was 12th July, 2020 and 22nd December, 2021.

6. Clause 9.1 of the General Conditions of Contract (GCC), as amended by the Special Conditions of Contract (SCC), representing the contractual relationship between the petitioner and Respondent 1, read thus:

"9.1 Performance bond

a) The Subcontractor shall submit to the Contractor, as a guarantee of the faithful performance of the obligations under this Subcontract and a guarantee of the quality of Works and materials provided by the Subcontractor, an unconditional Performance Bond acceptable to the Contractor in the following manner

The Performance Bond shall expire after expiry date of Warranty Period as defined in Clause 12 [WARRANTY] in this Subcontract. Such guarantee shall be binding notwithstanding any variations; alterations or extensions of time that may be given or be agreed upon. No interest shall be paid for this bond.

b) The Performance Bond shall be provided by a first class bank of the Country at Contractor's discretion in the form attached hereto acceptable to the Contractor."

7. As is seen, Clause 9.1(a) refers to the warranty period as defined in Clause 12 of the GCC. Clause 12 of the GCC, with its sub clauses 12.1 and 12.2, read thus:

"12 WARRANTY

12.1 Warranty Period

a) The warranty period for the Works for the warranties shall commence at the Substantial Completion Date (SCD) for a period of twenty four (24) months thereafter.

b) The Warranty Period with respect to any Work that is repaired, replaced, modified or otherwise altered shall be extended for a further period of twenty four (24) months from the date of completion of such repair, replacement, modification or alteration [the "Warranty Period", which shall include any extensions to the warranty period of the above paragraph a) under this paragraph b)]...."

"12.2 Repair of Defects

a) The Contractor shall promptly notify the Subcontractor in writing of the discovery of any defects or deficiencies in the Work.

b) In the event of a