The court emphasized the limitations on granting injunctions in infrastructure projects and the stringent conditions for injunctions against Bank Guarantees.

JUDGMENT

Navin Chawla, J. (Oral)

1. This petition has been filed under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as `the Act') seeking stay on the operation of the Termination Notice dated 27.02.2023 issued by the respondent, terminating the Contract dated 12.04.2018 by which, the respondent had awarded to the petitioner the work of rehabilitation and upgradation to four laning of NH-31D from km 113.200 to km 154.854 (Package-II A) Ghoshpukur-Salsalabari Section in the State of West Bengal on Engineering, Procurement and Construction ("EPC") basis.

2. The petitioner further prays for restraining the respondent from encashing/invoking the Bank Guarantees given under the Contract and also floating any fresh tender to carry/execute the balance work awarded to the petitioner under the above mentioned Contract.

3. The learned senior counsel for the petitioner, placing reliance on Article 4.1.3 read with Article 8.1 and Annexure-II (Schedule-A) of the Contract, submits that the respondent was under an obligation to provide 60 meter Right of Way in 90% of the length along with existing Right of Way in the complete length of the Project by the `Appointed Date', which was 21.01.2019, and the balance 10% within 90 days of the said Appointed Date. He submits that admittedly, the respondent failed to discharge its obligations under the Contract, resulting in a Supplementary Agreement dated 01.04.2021 being executed between the parties. The said Supplementary Agreement records that even on the date of the Supplementary Agreement, only 27.8 kms of length of the land out of total of 41.654 kms was provided by the respondent to the petitioner.The balance 13.854 kms of length was to be provided by June, 2021. The petitioner was also instructed not to deploy any machinery/resources on the stretches without requirement to do so and written confirmation of the Authority Engineer.

4. He submits that in support of the above understanding, as on 31.10.2022, only 37.514 kms of the land was handed over by the respondent to the petitioner, and that too only in stretches which made it impossible for the petitioner to carry out the work with expedition. In this regard, he places reliance on a chart that has been handed-over by the learned counsel for the petitioner during the course of submissions.

5. He submits that, therefore, the assertion in the Impugned Termination Notice dated 27.02.2023 of the petitioner having abandoned the Project Site is patently false and the respondent is merely trying to pass the blame on to the petitioner. He submits that the petitioner, without prejudice to all the rights and contentions of the petitioner, is ready & willing to complete the project work and has machinery, material and manpower on the site to complete the work in an expeditious manner.

6. On the other hand, the learned counsel for the respondent, placing reliance on the monthly progress reports, submits that hardly any work is being carried out by the petitioner at the Project Site. He submits that even as per the recommendation of the Authority Engineer, the petitioner was to achieve the Second Project Milestone by 19.12.2022, which has not been achieved till date.

7. He submits that, in fact, for the last few months before the termination, the petitioner had almost abandoned the work site, which is evident from the fact that the work had been progressively decreasing in the months commencing from May, 2022. This has also been relied upon by the respondent in its Termination Notice dated 27.02.2023, in the form of following table:

8. He places reliance on Section 14(d) of the Specific Relief Act,1963 (hereinafter referred to as "Specific Relief Act") to submit that t