JUDGMENT
M.K. Sharma, J.
1. This order shall dispose of the petition filed by the petitioner, a contractor under Section 9 of the Arbitration and Conciliation Act, 1996. By this application, the petitioner prays for the order restraining the respondent No. 1, its agents, servants and assigns from encashing the Bank Guarantee No. 62/ 95dated 8th August, 1995 for an amount of Rs. 17,54,600/- issued by the respondent No. 2-Bank and/or for direction to respondent No. 1 to release the aforesaid Bank guarantee and also the cash security deposit to an extent of Rs. 16,62,695 /- furnished
by the petitioner, since the defect liability period of twelve months, during which the same could be retained by respondent No. 1, has already expired and the respondent No. 1’s alleged claim against the petitioner are only to the tune of Rs. 40,96,198/-.
2. The respondent No. 1 awarded a contract to the petitioner by a letter of acceptance of Tender dated 6th January, 1993 for civil , plumbing and internal electrical work (including conduit for telephones/communication system) and site development work of the proposed office complex of the respondent No. 1 at NOIDA. The total contract value of the work was Rs. 7,01,84,094.23. The petitioner furnished a Bank guarantee bearing No. 62/95 dated 8th August, 1995 issued by respondent No. 2 for Rs. 17,54,600/- towards initial security deposit being 2.5% of the accepted value of the tender as stipulated in Clause 2.1.2.0 of the General Conditions of Contract. An a mount of Rs. 58,44,000/- of the petitioner is also kept deposited with the respondent No. 1 being balance 7.5% of the security deposit which was deducted from the bills of the petitioner. The aforesaid two amounts thus constitute a sum equal to 10% of the total value of the bills, as required to be deposited with the respondent No. 1 towards security deposit, as provided for in Clause 2.1.0.0.
3. It is pleaded in the plaint that the work awarded to the petitioner could not be completed within the stipulated time of the contract in view of various breaches on the part of the respondent No. 1 and accordingly, time for completion of the same was extended by the respondent No. 1 as there was delay by the respondent No. 1 to comply with its part of the contract. The entire work was to be completed within a short span of twenty two months and, therefore, the petitioner was put under tremendous pressure for mobilisation in terms of resources, labour and equipment. The petitioner mobilised his resources a t the site and had taken every step to ensure timely execution of the work. However, there were delays in performance by the respondent No. 1 on its part of the contract. Finally, the work was virtually completed on 31st January, 1996 and the petitioner requested the respondent No. 1 to take over the building. According to the petitioner, a completion certificate was issued by the respondent No. 1 on 18th March, 1996.
4. Petitioner submitted his final bill amounting to Rs. 1,35,73,060/- for the work upto 31st January, 1996 , on 29th February, 1996. The respondent No. 1, however, by letter dated 10th August, 1996 imposed liquidated damages upon the petitioner of an amount of Rs. 40,96,198/- and asked the petitioner to deposit the same. The petitioner, however, refuted the aforesaid claim and stated by the letter dated 22nd August, 1996 that the question of imposition of liquidated damages did not arise and sought for release of its claim of Rs. 2,09,58,000/- inclusive of security deposit of Rs. 58,57,893/- besides release of security deposit of Rs. 17,54,000/-. On 19th September, 1996, the petitioner by letter invoked the arbitration clause in the agreement and seeks reference of the disputes to the Arbitrator in terms of the arbitration clause of the contract. The respondent No. 1, however, objected to reference of all the disputes for arbitration as, according to it, only notified claims could be sent for arbitration and desired that the petitioner should give his consent in writing for referring only those claims which, in the view of respondent No. 1, were notified claims, to arbitration. The petitioner having no other alternative
approached this Court with a petition under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator through the process of Court, which was numbered as A.A.No. 58/97 and is at present pending adjudication before this Court. However, since during the pendency of the aforesaid petition, the respondent No. 1 addressed a letter to the respondent No. 2 informing it that the respondent No. 1 is invoking the Bank guarantee but in case the validity period is extended by the petitioner, the letter of invocation of respondent No. 1 should be deemed to have been withdrawn. Since the respondent No. 1 has been writing letter to the petitioner to extend the validity of the Bank guarantee with a threat of its invocation failing extension of the validity of the Bank guarantee, the petitioner approached this Court with the present petition for the aforesaid relief.
5. The respondent No. 1 has contested the present petition by filing a detailed reply to the aforesaid petition contending, inter alia, that the job site was handed over to the petitioner on 5th January, 1993 and, therefore, in terms of the contract, the work was to be completed on 4th November, 1994. It is also alleged in the reply that the petitioner has shown complete lack of interest for timely completion of the work and the progress of the work carried out by the petitioner was slow and tardy and that by the middle of September, 1993, the progress achieved by the petitioner was only about 23% as against the scheduled progress of 36.855%. It is also alleged that even the quality of work which has been performed by the petitioner was not according to the specifications. In view of insufficient and inadequate procurement of material and non-deployment of sufficient and adequate manpower by the petitioner, delay occurred in completion of the project and on expiry of the date of contractual completion the work was still substantially incomplete and even in spite of the fact that the respondent No. 1, on request from the petitioner, extended the time for completion but still the petitioner failed to complete the work within the extended period and thereafter stopped all work at the site by about middle of August, 1995 and that after various oral and written requests the petitioner resumed the work at site after a stoppage of 5-6 weeks and thereafter immediately invoked the provisions of Clause 9.0.0.0. of the General Conditions of Contract for the appointment of an Arbitrator to adjudicate its claim against the respondent No. 1 even though the works were not completed and no final bill had been prepared. It is further stated that the petitioner completed the work upto a stage when the building could be substantially occupied only in the end of March, 1996 and achieved final completion in order to qualify for a completion certificate only in May, 1996 and the completion certificate was granted on 18th May, 1996 and the defect liability period got extended upto 17th May, 1997 during which period the petitioner was obliged to rectify all defects discovered within that period. In November, 1996, respondent No. 1 noticed that several works undertaken by the petitioner were defective and required urgent repair/rectification at the site and, therefore, the respondent No. 1 called upon the petitioner to rectify the said defects but the petitioner failed to take any action to rectify the defects particularly the stone-cladding of the building which fell off and consequently the respondent No. 1 has decided that the aforesaid work would be carried out through another agency for approximately Rs. 40.00 lakhs required for the aforesaid rectification work. For that purpose, the respondent No. 1 has also floated limited tender on 26th June, 1998 for the first phase. The respondent No. 1 in its reply has stated that the liquidated
damages Have been imposed on the petitioner in terms of the provisions of the contract and, therefore, the total estimate amount recoverable from the petitioner works out to approximately Rs. 1,15,05,309/- which is calculated as follows:
1.
Balance Liquidated damages
Rs. 72,32,845/-
2.
Deductions
Rs.
2,72,464/-
3.
Rectification of stone cladding (approx.)
Rs.
40,00,000/-
Total:
Rs.
1,15,05,309/-
As against which the respondent No. 1 holds the following amounts of the petitioner:
1.
Bank guarantee
:
Rs. 17,54,600/-
2.
Cash Security Deposit
: Rs.
58,44,254/-
3.
Amount payable against the final bill of the
petitioner
:
Rs. 34,09,111/-
Total
:
Rs. 1,10,07,965/-
It is also stated that the respondent No. 1 after adjustment of his claim under sums recoverable from the final bill i.e. Rs. 2,72,464/- and balance liquidated damages amounting to Rs. 72,32,845/-, holds deposit of the petitioner of Rs. 35,02,566/-, made up as follows:
1.
Bank Guarantee
Rs. 17,54,600/-
2.
Cash security deposit
Rs. 17,48,056
as against an unadjustable liability of Rs. 40.00 lakhs from rectification of stone cladding of the building as stated above.
6. The aforesaid figures placed before this Court by the respondent No. 1 tally with the figures given by the petitioner in its petition and, therefore, there is no dispute with regard to the amounts held by the respondent No. 1 towards the security deposit. The respondent No. 1 has also taken a plea in the reply that the security deposit of the petitioner is refundable only after discharge of all liabilities of the contractor in respect of the defect liability period.
7. Mr. Rajiv Nayyar, Sr. Advocate, appearing for the petitioner submitted that the respondent No. 1 is required to refund the security deposit of the petitioner as the work under the contract stands completed and a completion certificate to that effect has also been given to the petitioner by the respondent No. 1. It was also submitted that the respondent No. 1 is not entitled to levy liquidated damages or claim money on account of rectification of stone-cladding as the delay for completion of the work was on account of hindrances created by the respondent No. 1 and even otherwise, the respondent No. 1 was obliged to issue notice under the provisions of the contract before getting the same done at the risk and cost of the contractor. He also submitted that in any event, the petitioner, in the instant case, is not liable to rectify the defects caused on account of negligence of the other agency employed by the respondent No. 1 since the site was handed over to the respondent No. 1 and that the defect liability period during which the petitioner is responsible for the
work, has also expired. He submitted that the contractor is now not liable to maintain the site after one year of completion, which is apparent from Clause 5.4.0.0. of the General Conditions of Contract as the site was handed over to the respondent No. 1 on 31st January, 1996 and the defect liability period came to an end one year thereafter. He also submitted that the contract stands performed by the petitioner and stood duly completed and, therefore, the respondent No. 1 cannot appropriate the amount lying with it being security deposit of due performance of contract towards penalty for breach of contract.
In support of his aforesaid submission, the learned Counsel relied upon a decision of the Supreme Court in Mania Bux v. Union of India and a decision in Union of India v. Rampur Distillery and Chemical Co. . It was further submitted by the Counsel that the amount of Rs. 40.00 lakhs on account of stone-cladding cannot be claimed by the respondent No. 1 as the respondent No. 1 is not entitled to apply the risk purchase clause in the facts and circumstances of the present case and also for the reason that the said sum is not instantly due and payable. It was also submitted that the Bank guarantee and cash security deposit were furnished by the petitioner for due performance of the contract and since contract has been duly performed by the petitioner and completion certificate has been given to the petitioner by the respondent No. 1, contract stood duly performed and, therefore, the aforesaid Bank guarantee and cash security deposit lying in the account of the petitioner is required to be released in favour of the petitioner. In support of the aforesaid contention, learned Counsel relied upon the decision of this Court in Nangia Construction (India) Ltd. v. Airport Authority of India and Ors. and Ansal Properties & Industries (P) Ltd. v. Engineering Projects (India) Ltd. .
7. Mr. V.N. Kaura, Sr. Advocate appearing for respondent No. 1, however, submitted that the petitioner has no right to prevent encashment of Bank guarantee except in case of fraud or where the encashment would cause any irretrievable injustice and none of the aforesaid factors being established and proved in the present case, no relief could be granted to the petitioner. In support of his aforesaid submission, the learned Counsel relied upon various decisions of the Supreme Court i.e. Hindustan Steel Works Construction Ltd. v. Tarapore & Co. Dwarikesh Sugar Industries Ltd. v. Prent Heavy Engineering Works Ltd. reported in 1997 (2) ALR 350; U.P. State Sugar Corporation v. Sumac International reported in 1997(1)SCC56S; Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corpn. Ltd. Hindustan Steel Workers v. G.S. Atwal & Co. Larsen & Toubro Ltd. v. Maharashtra State Electricity Board, Svenska Handels banken v. Mis. Indian Charge Chrome G.E.T. Services Company Inc. v. Mis. Punj Sons (P) Ltd. and U.P. Cooperative Federation Ltd. v. Singh Consultants .
9. In order to appreciate the submissions of the learned Counsel appearing for the parties and to decide the issues arising for my decision in this case, it would be necessary to refer to some of the arbitration clauses of the contract having a bearing in the present case. The most important provisions of the contract, in terms of the
issues raised and the facts and circumstances, are the provisions for deposit of the security deposit which appear in Clause 2.1.0.0. of the General Conditions of Contract.
10. Relevant are the Clauses 2.1.1.0, 2.1.2.0 and 2.1.3.0. Also vitally connected with the aforesaid clauses of the General Conditions of Contract with regard to grant of final certificate is 6.8.0.0. Two clauses under the aforesaid heading are relevant which are 6.8.1.0 and 6.8.3.0. The aforesaid provisions are extracted below:
“6.8.1.0. Within 15 (fifteen) days of the Contractor’s application made after the expiry of the period defect liability provided for in Clause 5.4.10 hereof and satisfaction of all liabilities of the Contractor in respect thereof, the Engineer-in-Charge shall issue a Final Certificate to the Contractor certifying that the Contractor has performed his obligations in respect of the defect liability period in terms of Clause 5.4.1.0 hereof, and until issue of such Final Certificate, the Contractor shall be deemed not have performed such liabilities notwithstanding issue of the Completion Certificate or payment of the Final Bill by the owner.
6.8.3.0. Within 15 (fifteen) days of application made by the Contractor in this behalf accompanied by Final Certificate, or within 15 (fifteen) days of the passing of the Contractor’s Final Bill by the owner, whichever shall be the later, the owner shall pay/refund to the Contractor the unadjusted balance (if any) of the Security Deposit for the time being remaining in the hands of the owner, and upon such payment/refund, the owner shall stand discharged of all obligations and liabilities under the Contract.”
Provisions for imposition of liquidated damages are provided for in Clause 4.4.0.0. which is extracted below :
“4.4.0.0. If there is any delay in the final completion of the work at any job site or specific works in respect of which a separate Progress Schedule has been established, beyond the date for the final completion of the work or works aforesaid at the job site as stipulated in the progress schedule, the owner shall (without prejudice to any other right of owner in this behalf) be entitled to reduction in price 1/2 % (one-half percent) of the total contract value for each week of delay or part thereof limited to a maximum of 10% (ten percent) of the total contract value.”
Defect liability period and latent defects is prescribed in the contract under Clause 5.4.0.0. which is extracted below :
“5.4.0.0. Defect Liability Period for work unless otherwise specified shall be 12 (twelve) months from the date of completion of work as specified in the Completion Certificate. The Contractor shall at his own cost and initiative, correct, repair and/or rectify and all defect(s) and/or imperfections in the design of the work (insofar as the Contractor shall be concerned with the design of the work or any part thereof) and/or in the work performed and/ or materials, components or other items incorporated therein as shall be discovered during the said Defect Liability Period, and in the event of the Contractor failing to do so the provisions of Clause 5.1.7.0 hereof shall apply.”
11. Another relevant clause having bearing on the present context is clause 5.1.7.0 which is extracted below :
“5.1.7.0. Should the Contractor fail to re-perform, replace, re-install and/or re-erect, as trie case may be, any work, structure, material or component rejected or found defective in terms of Clause 5.1.5.0 hereof within such period as the Engineer-in-Charge may specify by written notice to the Contractor in this behalf, the Contractor shall be deemed to be in breach of contract within the provisions of Clause 7.0.1.0 hereof with regard to termination of Contract and associated provisions thereunder and the owner shall be entitled (without prejudice to any other right or remedy available to the owner) upon expiry of the period specified in said notice, demolish and/or remove the rejected/ defective work, structure, material or component and re-perform, replace, reinstall and/or re-erect, as the case may be, the same by itself or through other agency or Contractor at the risks and costs of the Contractor in al 1 respects, and recover the costs incurred by the owner in this behalf together with a supervision charge of 15% (fifteen percent) thereon admissible to the owner, and the owner shall be entitled (without prejudice to any other mode of recovery) to deduct the same from the Running Account Final Bill(s) of the Contract or any monies becoming due to the Contractor from time to time, and the decision of the Engineer-in-Charge as to the costs incurred by the owner as aforesaid shall be final and binding upon the Contractor”.
12. The aforesaid provisions would indicate that upon award of the contract in his favour, a contractor has to furnish security deposit in the amount equivalent to 10% of the total contract value . The said security deposit would be made up of the Earnest Money accompanying the tender and the initial security deposit and the retention monies. The contractor has to make deposit of initial security deposit of an amount equivalent to 2.5.% of the total contract value either by payment in cash or by Bank guarantee. In terms of the aforesaid clause the petitioner furnished Bank guarantee No. 62/95 dated 8th August, 1995 for an amount of Rs. 17,54,600/- issued by respondent No. 2 which constituted 2.5%. Retention money is the balance 7.5% of the security deposit which was to be made up by deduction from the contractor’s bill. In that manner, an amount of Rs. 58,44,000/- was lying deposited as cash security with the respondent No. 1 being 7.5% of the total contract value. The aforesaid security deposit was retained and held by the respondent No. 1 as security for the due performance of the contract. An application under the contract as stipulated in Clause 2.1.1.0, after expiry of the defect liability period as provided for in Clause 5.4.1.0 and satisfaction of all liabilities of the contractor can be made by the contractor within 15 days thereafter to the Engineer-in-Charge for issuance of final certificate and on such application the Engineer-in-Charge is to issue a final certificate to the contractor certifying that the contractor has performed his obligation in respect of the defect liability period in terms of Clause 5.4.1.0. Until issuance of such a final certificate the contractor shall be deemed not to have performed such liabilities notwithstanding issuance of completion certificate or payment of the final bill by the petitioner after obtaining the final certificate and upon application made by the contractor which is to be accompanied by the aforesaid final certificate or within 15 days of the passing of the petitioner’s bill by the owner whichever is later, the respondent No. 1 is to pay/refund to the
contractor the unadjustable balance, if any, of the security deposit remaining in the hands of respondent No. 1 and upon such payment/refund the respondent No. 1 would discharge all obligations and liabilities of the contract.
In the instant case, it is an admitted case of the parties that no final certificate has been issued by the respondent No. 1 in favour of the petitioner. The final bill of the contractor has also not been passed by the respondent No. 1. Thus, in view of Clause 6.8.3.0, the petitioner has not yet become entitled to get refund of the unadjusted balance of the security deposit remaining in the hand of the respondent No. 1.
13. Counsel for the petitioner submitted that since completion certificate has been given and the possession of the building has been taken over by the respondent No. 1 and from that period one year period has expired, therefore, the defect liability period has also expired and, therefore, the petitioner is entitled to receive final certificate in terms of Clause6.8.1.0. I am not satisfied with the aforesaid submission made by the Counsel appearing for the petitioner for the simple reason that the question of release of the security deposit which also includes the Bank guarantee would arise only when the requirement and pre-conditions as set out in Clause 6.8.3.0. stands satisfied. In the present case the pre-conditions as set out in Clauses 6.8.1.0 and 6.8.1.3 for grant of or final certificate are yet to be complied with and performed and thus the respondent No. 1 at this stage cannot be compelled to release the security deposit including the Bank guarantee by issuance of an injunction. As to whether the defect liability period is over or not and whether the petitioner is entitled to refund of the security deposit, are the matters relating to the main disputes arising out of the contract and could be agitated in the petition filed by the petitioner under Section 11 of the Arbitration and Conciliation Act, 1996 which is pending in this Court. Any opinion and/or finding given by me in that respect would amount to pre-judging the aforesaid petition and, therefore, I do not propose to enter into the aforesaid arena of controversy and whatever propositions I have set out here are only my tentative views, at this stage, and shall have no effect on the issues.
14. Law with regard to invocation of the Bank guarantee is also, by now, well-settled by several decisions of the Supreme Court as also of this Court, reference of some of which has been made. My attention was also drawn to various passages of the said decisions. It is, however, not necessary to extract those passages except for extracting one passage from the decision of the Supreme Court in U.P. State Sugar Corporation (supra) which practically summarises the crux of the matter. In paragraph 12 of the said judgment the Supreme Court has stated thus:
“When an unconditional Bank guarantee is given or accepted, the beneficiary is entitled to realise such a Bank guarantee in terms thereof irrespective of any pending disputes and the Bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The Courts have carved out two exceptions, namely, the same being a fraud committed in connection with such a Bank guarantee or causing an irretrievable harm or injustice to one of the parties concerned for allowing encashment of the bank guarantee.”
In Dwarikesh Sugar Industries v. Prem Heavy Engineering Works, AIR 1977
SC 2477, the Supreme Court has held that the Courts should be slow in granting an injunction to restrain realisation of the Bank guarantee. It was held that there are two exceptions: (1) if there is fraud in connection with Bank guarantee which would vitiate the very foundation of such guarantee and should be nature of established fraud, and (2) irretrievable harm or injustice which would be of such a nature which would make it impossible for the guarantor to reimburse himself in case he succeeds.
In order to appreciate as to whether any of the aforesaid exception is attracted to the facts and circumstances of the present case, it is required to notice the pleadings of the parties in respect of the aforesaid two factors.
15. The petitioner has pleaded fraud as also special equities amounting to irretrievable injury, in the petition. In paragraphs 42, 43 and 44 of the petition, such pleadings are available. It has been pleaded that the threat of invocation given by respondent No. 1 on every occasion for getting the Bank guarantee renewed and then not releasing the Bank guarantee is illegal and tantamounts to fraud on the part of the respondent No. 1. It has further been pleaded that there is suppression of material facts and it tantamounts to the violation of the terms of the Bank guarantee giving rise to special equities in favour of the petitioner. It is also alleged that the special equities are in favour of the petitioner as the respondent No. 1 has practised fraud by not informing the Bank that the contract has been successfully executed and the defect liability period for which the subject Bank guarantees were given is already over.
16. In the context of the aforesaid pleadings, I propose to examine as to whether there is any fraud committed by respondent No. 1 in connection with the Bank guarantee. It has been held by the Supreme Court that the plea of fraud in connection with the Bank guarantee is to be examined in relation to the time factor during which the contract was executed. In the present case, it is an admitted fact that no plea of fraud has been alleged in respect of execution of the Bank guarantee relating to the time when the said Bank guarantee was executed. It is true that even if the fraud is committed by respondent No. 1 subsequent to execution of the Bank guarantee, then, also a Court can hold that the Bank guarantee has been vitiated inasmuch as a demand by the beneficiary under the Bank guarantee may become fraudulent by subsequent events or circumstances. In Hindustan Steel Works Construction’s case (supra) the Supreme Court has held that a Bank guarantee is an independent and distinct contract between the Bank and the beneficiary and is not qualified by the underlying transaction and the primary contract between the person at whose instance the Bank guarantee is given and the beneficiary. It was further held that in case of an unconditional Bank guarantee the nature of obligation of the bank is absolute and not dependent upon any dispute or proceeding between the party at whose instance the Bank guarantee is given and the beneficiary. It was also held that whether the Bank guarantee is towards security depositor mobilisation advance or working funds or for due performance of the contract if the same is unconditional and if there is a stipulation in the Bank guarantee that the Bank should pay on demand without a demur and that the beneficiary shall be the Sole Judge not only on the question of breach of contract but also with respect to the amount of loss or damages, the obligation of the Bank would remain the same and that obligation has to be discharged in the manner provided in the Bank guarantee.
17. The facts pleaded by the parties in the instant case, indicate no such fraud having been committed by the respondent No. 1 even during the period subsequent to the execution of the Bank guarantee.
In Svenska Hatulelsbanken’s case (supra), the Supreme Court held that in case of confirmed Bank guarantees/irrevocable letters of credit, it cannot be interfered with unless there is fraud and irretrievable injustice involved in the case and fraud has to be an established fraud.
18. In my considered opinion, the petitioner has failed to plead any fraud which goes to the root of the matter and vitiates the very foundation of the Bank guarantee and no such fraud is established. The petitioner has miserably failed to prove and establish any fraud much less established fraud and therefore, invocation of the Bank guarantee cannot be restrained on the ground of fraud.
19. Next point to be examined is whether the petitioner has been able to make out a case of special equities amounting to irretrievable injustice in the facts and circumstances of the present case, irretrievable injury to be proved is of the nature as noticed in the case of Item Corporation, 566 Federal Supplement 1210, (supra) which is reiterated by the Supreme Court in para 98 of Svenska Handels banken’s case (supra). The petitioner has failed to establish any case of special equities amounting to irretrievable injury and injustice. The petitioner has failed to show how it is injured and how it would be impossible for it to get reimbursement. In the aforesaid decisions of the Supreme Court it has also been laid down that a dispute with regard to the validity of the claim or encashment of the Bank guarantee will not constitute fraud or irretrievable injustice since if the guarantee is wrongly encashed, it would be possible to recover money/damages through the process of law.
20. The petitioner has already filed a petition in this Court under Section 11 of the Arbitration and Conciliation Act, 1996 seeking for appointment of an Arbitrator to decide the disputes arising between the parties. There is claim and counter-claim between the parties. According to respondent No. 1, the stage for releasing the security deposit as stipulated under the General Conditions of Contract is yet to come. In view that disputes have arisen between the parties and the final bill and the final certificate have not been issued to the petitioner by the respondent No. 1, the contract cannot be said to be duly performed and, therefore, the stage for payment/refund to the contractor of the unadjusted balance of the security deposit is yet to come. The claim of the petitioner that huge amount is due and payable to it by the respondent No. 1 cannot be said to have been established as on date, as counter-claim of the respondent No. 1 is still pending, which needs adjudication alongwith the claims of the petitioner.
21. Thus, the petitioner has failed to make out any case for grant of an injunction restraining the respondent No. 1 from encashing the Bank guarantee and calling upon it to refund/repay the balance security deposit lying with it under Section 9 of the Arbitration and Conciliation Ad and the petition stands dismissed but without any cost.