Point of Law: It is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other courts.

JUDGMENT :

Vijay Bishnoi, J.

1. This appeal is filed by the appellant challenging the validity of the order dated 01.04.2022 passed by learned Commercial Court, Udaipur (hereinafter to be referred as ‘the trial court’) in Case No.3/2022, whereby while registering an application filed on behalf of the respondent under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as ‘the Act of 1996’), the trial court granted ad interim ex parte injunction prohibiting encashment of five bank guarantees, furnished by the respondent No.1, in favour of the appellant. The trial court also issued summons to the respondent No.2 and fixed next date i.e. 11.04.2022.

2. Brief facts, necessary for adjudication of the present appeal, are that the appellant is a company incorporated under the provisions of Companies Act, 1956 and involved in business of infrastructure development. A concession agreement was executed between National Highway Authority of India (for short ‘the NHAI’ hereinafter) and Mukarba Chowk Panipat Toll Roads Limited on 28.08.2015 for expanding the existing road from Mukarba Chowk, Delhi to Panipat, Haryana from six lanes to eight lanes. Subsequently, through an endorsement agreement dated 08.06.2020, NHAI substituted Welspun Infrafacility Private Limited in place of Mukarba Chowk Panipat Toll Roads Limited, thereby, endorsing the concession agreement in favour of Welspun Infrafacility Private Limited.

3. Pursuant to the said agreement, the Welspun Infrafacility Private Limited awarded engineering procurement and construction works to the appellant. The appellant, in order to facilitate timely execution of the project, appointed respondent No.1 as subcontractor on 04.06.2020. In addition to the said project, the appellant was also awarded several contracts for improvement of roads in Amravati and Maharashtra and the appellant-company entered into various contracts with the respondent No.1 for procurement of materials and equipments and all other works and things necessary for completion of construction works. The said contracts were entered into between the appellant and respondent No.1 on 25.01.2019, 07.09.2019 and 05.08.2020.

4. As per the appellant, respondent No.1 had not adhered to the contractual requirements of the works executed under the contracts dated 25.01.2019, 07.09.2019 and 05.08.2020. The appellant and respondent No.1 entered into reworks and rectification agreement on 23.02.2021 to carry out detailed reworking and rectification works.

5. It appears that the appellant felt that the works executed by the respondent No.1 were riddled with issues and in breach of the agreed parameters and specifications due to which the overall progress of both the projects suffered tremendously. The appellant wrote a letter dated 24.03.2022 to the respondent No.1 complaining about the deficiencies in the construction work carried out by it while reserving its right to take appropriate action against the respondent No.1 in respect of respective contracts. The appellant has invoked 14 bank guarantees furnished by the respondent No.1 under the projects, however, out of those 14 bank guarantees, 9 have been duly encashed, but due to the impugned order passed by the trial court remaining could not be encashed.

6. After receiving of the letter dated 24.03.2022, the respondent No.1 filed an application under Section 9 of the Act of 1996 and as observed earlier, the trial court registered the said application and passed an ex parte ad interim stay order restraining the appellant from encashing the five bank guarantees, mentioned in the impugned order while summoning the appellant and respondent No.2.

7. The appellant challenged the said order mainly on the ground that the trial court has no jurisdiction to entertain the application under Section 9 of the Act of 1996 preferred by the respondent No.1 and, therefore, the impugned order passed by the trial court is liable to be set aside. Besides the main ground, other g