1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION (LODGING) NO. 729 OF 2009 Maytas Infra Limited ...Petitioner. Vs. JSW Realty & Infrastructure Private Ltd. & Anr. ...Respondents. Ms. Shilpa Kapil for the Petitioner. Mr. D.D.Madan, Sr. Counsel with Mr. M.P.Bharucha i/by M/s. Bharucha & Partners for the Respondents. CORAM :- ANOOP V. MOHTA, J. DATED :- 3rd AUGUST, 2009. P.C.- 1 The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”), basically for the prayer against Respondent No.1 to restrain them from invoking and encashing an irrevocable, unconditional Bank Guarantee dated 25/10/2007. The agreement is dated 8th September, 2007 between the Petitioner and Respondent No.1. The basic document which resulted into the execution of the mobilization advance against the bank guarantee which was valid until the completion of the contract. The advance was accordingly received by the petitioner. The said advance, as per clause 5.1 of the agreement subject to adjustment of R.A. Bills. As per this agreement, the Petitioner 2 was supposed to complete the construction within 18 months. Those 18 months expired some time in March/May-2009. Admittedly, the Petitioner terminated the contract by letter dated 11/03/2009, by raising various disputes under clauses of the agreement. Admittedly, the bank guarantee has been extended upto 24th August, 2009. 2 Respondent No.1, as the project was not completed and as the petitioner/contractor failed to fulfill its obligation pursuance to this agreement itself, wants to invoke this bank guarantee. 3 Once the contract is terminated, resultantly, the bank guarantee also normally ends with that subject to the terms. However, in the present case, it is extended upto 24th August, 2009. That itself in no way prevent the Respondents from invoking the same before that date. The contention that the extension was by playing fraud and/or misrepresentation, cannot be gone into at this stage. There are various claims or disputes including entitlement of the amount which Respondents are also claiming in view of the non-completion of the project within the prescribed period. The various other factual aspects, need detail inquiry and the trial. Admittedly, there is an arbitration clause in the agreement. All factual facets can be gone into by the Arbitral Tribunal, if any. 4 Considering the above admitted position and as there is nothing to justify to grant an relief so claimed, in view of the various defaults and/or non-compliances of obligations by the parties as alleged. The breach of 3 contract between the parties, even if any, in no way sufficient to disturb this commercial contract and in the present case the bank guarantee in question. The submission that there will be a great injustice and hardship caused to the petitioner, is unacceptable, basically on the above background and as the contract is also terminated for the default of the petitioner. 5 The Respondents, as stated at the bar, have already engaged on S.B.C. Infrastructure, to complete the project. 6 The adjustment of the respective bills, even if any, that can be taken care of by the tribunal as per the contracts. The respondents are also bound to act within the frame of the agreement and the record. 7 Resultantly, there is no case made out for the interim relief, as sought. 8 The Petition is, therefore, dismissed. No order as to costs. (ANOOP V. MOHTA, J.)