JUDGMENT

Paul, J:- 1. In this appeal filed under section 37 of the Arbitration and Conciliation Act, 1996 (in short “Arbitration Act”) the parties are at loggerheads on the question of validity of order dated 23.1.2023, whereby the Court below has dismissed the application preferred by the appellant under section 9 of the Arbitration Act.

Facts and contentions :

2. The Court below in the impugned order has reproduced the factual backdrop of the entire matter extensively. The learned counsel for the parties fairly submitted that the Court below has taken pains to reproduce the contentions of both the parties. The grievance of the appellant is that although Court below was kind enough in mentioning the factual backdrop of the matter explicitly and even reproduced the arguments of the parties, it did not deal with the argument of the appellant in correct perspective. Thus, there is no need of reproduction of factual backdrop and the contentions raised because the order of Court below is already pregnant with those necessary details. What is required to be seen is that whether necessary ingredients for grant of interim relief viz - prima facie case, balance of convenience and irreparable loss were established by the appellant or not. The ancillary question raised by Shri Oberoi is whether the Court below while assessing the claim of appellant for interim relief, has rightly applied the aforesaid factors of existence of prima facie case, balance of convenience and irreparable loss.

3. In order to bolster this submission, learned counsel for the appellant submits that prima facie case was clearly established because the appellant fulfilled his part of obligation arising out of contract. The work could not be started because of lethargic attitude of the respondents. The letter of acceptance dated 3.3.2021 which was followed by deposit of performance security by the appellant could not proceed further because work order was issued on 1.4.2021, which was handed over to the appellant on 12.4.2021. Thereafter, in the wake of second wave of COVID-19 and consequential lock down, the site was not handed over to the appellant till 9.8.2021. The date of completion of work was fixed as 8.2.2023. In spite of issuance of work order, the construction work could not be started till December as final earth level and layouts were not provided to appellant by the respondents.

4. Shri Oberoi submits that the inspection of the site showed that beneath it there were rocks and to remove that a permission was sought for blasting. The permission of respondents is required in the teeth of Clause-7 of the contract. The said permission was never granted.

5. Beneath the site, there existed a rock foundation which is clear from the communication of respondent No.3 dated 23.2.2022 (Annexure A/14). Awaiting the formal permission from the respondents, the appellant could not commence the work. After a lapse of more than three months, since no positive response was given by the respondents, the appellant sent a communication dated 12.4.2022 (Annexure A/15) informing the respondents that he is facing loss unnecessarily because of unutilised machinery and manpower deployed at the site. Ultimately, the appellant by communication/notice dated 12.4.2022 (Annexure A/15) expressed his anguish and informed the department that if his grievances are not redressed, he will have no option but to terminate the contract and this letter/communication may be treated as a notice for the said purpose. Since this letter went in vain, the appellant by communication dated 12.8.2022 (Annexure A/17) rescinded/terminated the contract. Thereafter in total ignorance of appellant’s letter dated 12.8.2022 (Annexure A/17), the respondent sent a letter dated 7.9.2022 blaming the appellant for the delay in execution of the work. It is further directed that if the appellant does not commence the work within two weeks, the matter would be reported to the competent authority.

6. In turn, by communication