M/s Gupta Coal Fields and Washeries Ltd. v. M. S. Power Generation Co. Ltd. & Ors.

challenged by the appellants before the learned District Judge by preferring Miscellaneous Civil Applications under Section 9 of the Arbitration and Conciliation Act, 1996. The learned District Judge, by order dated 05.05.2012, rejected the applications. Being aggrieved by the order of learned District Judge, the appellants are before this Court. During pendency of the proceedings before the learned District Judge, the order of status-quo was granted and on issuance of the notice by this Court, the effect of status-quo order, 8 Arbitration Appeal No. 9/12+8 which was in operation till 20.05.2012 and the Bank Guarantees were to expire on 31.05.2012, this Court directed the parties to maintain status-quo till final disposal of the matter and directed the appellants to maintain the Bank Guarantees beyond 31.05.2012 till the matters are finally heard. 4] The appellants have filed civil applications under Section 151 r/w Order VI Rule 17 of Code of Civil Procedure seeking leave to amend and also for grant of leave for raising additional grounds in the memo of appeal. The main ground for leave to amend is that the applicants moved the present appeals in urgency and inadvertently and due to oversight on the part of the counsel, certain grounds were not raised and therefore, they sought for amendment. 5] Heard Mr. V.R.Manohar, the learned Senior Counsel appearing with Mr. Jayant Pendse, Advocate so also Mr. Nitin Lalwani, Advocate and Mr. A.G.Gharote, Advocate for the appellants. I have also heard Mr. Shashank Manohar, Advocate appearing with Mrs. Ketaki Joshi for the respondent no.1-Company and the learned counsel appearing for the respective banks. 9 Arbitration Appeal No. 9/12+8 6] Mr. V.R.Manohar, the learned Senior Counsel, firstly invited my attention to the Work Order/contract, which is placed on record by a separate compilation. The learned Senior counsel submitted that the appellants are the coal washeries. He then invited my attention to the various clauses of the contract dealing with the several aspects such as, period of contract, quantity, quality of coal etc. He submitted that as per clause III, the period of contract was of two years, extendable for further period of two years on the same terms and conditions at the behest of the respondent no.1-Company. As per clause IV, the quantity of raw coal to be beneficiated will be 9.0 MMT, +5%, with further stipulation that it may vary as per linkages allocated by the Standing Linkage Committee/ WCL from time to time during period of contract. Clause VIII deals with the quality of coal. As per said clause, the beneficiated coal shall be sampled and tested at TPS laboratory by the Departmental Chemist staff in accordance with BIS procedure to ascertain the quality of beneficiated coal supplied. The specifications of the beneficiated coal are stated in sub-clause (A) of clause VIII. Sub-clause (C) of clause VIII deals with the quality of raw coal. A submission was made by the learned Senior 10 Arbitration Appeal No. 9/12+8 Counsel by taking me through the various clauses of this work order that the conditions of the Work Order are favourable only to respondent no.1 and the appellants, who are the tenderers, are faced with an exorbitant penalty for loss as well as for non-maintenance or retaining the coal quality in the process from raw coal to beneficiated coal. The learned senior counsel further submitted that the appellants are faced to pay the penalty on various counts such as excess percentage of ash content than specified, excess percentage of moisture than prescribed, for non- lifting the raw coal from colliery etc. It was then the submission of the learned senior counsel that though, as per the terms and conditions of the Work Order, the assessment of the quality of the coal was to be determined at TPS laboratory by the Departmental Chemist, but this condition was not followed by the respondent no.1-Company. It is submitted by the learned senior counsel that the samples were tested in other laboratory namely, M/s Inspectorate Griffith India Ltd., instead of TPS Laboratory as referred in clause VIII of the Work Order and this change in the laboratory was not communicated to the appellants. The learned Senior counsel further submitted that though clause 11 Arbitration Appeal No. 9/12+8 IX, which deals with payment, refers that there will be an exercise of reconciliation of the bills in respect of the raw coal quantity received by the Washery Operators and the quantity of beneficiated coal actually received by the respondent no.1-company, which exercise was expected on monthly basis, it was done in case of the appellants only on one occasion. Then, by referring to clause XVII, which deals with the Security Deposit in the form of Bank Guarantee, the learned senior counsel submitted that the revocation sought by the respondent no.1-Company was never informed to the appellants. He further submitted that the period of contract was extended and the bank guarantees were permitted to be renewed. The appellants were under bona fide impression that they will be informed before initiating the action of revocation of the bank guarantees. Then the learned senior counsel invited my attention to clause 4.0 of Annexure-I of the Work Order/contract, which deals with quality of raw/ beneficiated coal. By referring to clause 4.5, it is submitted that as per this clause, the result of the analysis would jointly be signed by the representative of the respondent no.1-Company and the Washery Operators and the same shall be accepted as final for all commercial 12 Arbitration Appeal No. 9/12+8 purposes. The learned senior counsel submitted that in case of the appellants, compliance of this clause was not done. Perusal of the Work Order shows that clause 29 of Annexure-1 provides for Arbitration and sub-clause 1 thereof states that ‘all disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract shall be referred by the contractor to the C.G.M. and the C.G.M. Shall (within 120 days) after receipt of the contractor’s representation make and notify decision of all matters referred to by the contractor in writing’. Then clause 29 deals in detail with the procedure of arbitration. It was the submission of the learned senior counsel that the learned District Judge has failed to consider the terms and conditions of the Work Order i.e. contract and arrived at an erroneous conclusion. The learned senior counsel submitted that the appellants, though initially could not raise certain grounds, sought leave for amendment. It was the submission of the learned Senior counsel that as the applicants were approaching this Court in extreme urgency, certain material aspects and the grounds were not raised 13 Arbitration Appeal No. 9/12+8 due to inadvertence on the part of the counsel and urgency in presenting the appeals arising out of proceedings under Section 9 of the Arbitration Act. In support of his contentions, the learned senior counsel has placed reliance on the following judgments : 1] 1918 AIR (Bom) 228 [Bai Nematbu .vs. Bai Nematullabu] 2] 1921 AIR (Bom) 302 [Dattatraya Sitaram Gadkari .vs. Secretary of State for India] 3] AIR (36) 1949 Calcutta 24 [Sarojendra Kumar Dutt .vs. Purnachandra Sinha] 4] 1987 (Supp) Supreme Court Cases 636 [Mithanlal .vs. Labour Commissioner & others] 5] 2010 (2) SCALE 585 [Security Printing & Minting Corporation of India .vs. The Workmen through the General Secy. and others] 6] 1984 (Supp) Supreme Court Cases 431 [Smt. Lachi Tewari & others .vs. Director of Land Records and others] 7] (2010) 1 Supreme Court Cases 391 [Ram Kumar Gupta and others .vs. Har Prasad and another] 8] 1972 AIR (SC) 1973 [Punjabi University. Etc. .vs. Acharya Swami Ganesh and another] 9] AIR 1981 Supreme Court Cases 1973 [Rafiq and another .vs. Munshilal and another] 10] 1999(1) Bom.C.R. 27 14 Arbitration Appeal No. 9/12+8 [Pratapchand Lakhmaji Jain .vs. Smt. Lilabai Krishanath Surve] 11] 2007 (4) M.L.J. 503 (SC) [Lal Devi and another .vs. Vaneeta Jain and others] 12] 2009 (3) Mh.L.J. 601 [Madhav Onkar Mahajan .vs. Waman Tukaram Patil] 13] 2012 (2) SCC 300 [J. Samuel and others .vs. Gattu Mahesh and others] 14] 2008 (5) SCC 117 [Chander Kanta Bansal .vs. Rajinder Singh Anand] 15] 2008 (7) SCC 169 [Consolidated Engg. Enterprises and another .vs. Principal Secy. Irrigation Deptt. and others] 7] By placing reliance on aforesaid judgments, the learned senior counsel submitted that the term “due diligence” is not defined and the same will have to be understood on the backdrop of the perception of every individual. It is further submitted by the learned senior counsel that the appellants for genuine and bona fide reasons moved the applications for amendment. The learned senior counsel further submitted that the respondent no.1-company, who had initiated an action of revocation of bank guarantees against the appellants for non-compliance in respect of supply of sub-standard coal, itself has admitted 15 Arbitration Appeal No. 9/12+8 that the coal supplier i.e. WCL has supplied the sub-standard quality of coal. 8] Mr. V.R. Manohar, the learned senior counsel invited my attention to the Office Note issued by the respondent no.1-company, dated 17.10.2011, which is placed on record (page 320 in Appeal No.9/12). In the said office note, a chart is given showing various heads such as, name of Washery Operator, area from which the operators receive the coal from the agency such as WCL, SECL and MCL, the quantity made available to the Washery Operators etc. The office note further shows that a request was made by the Washery Operators for extension of time to the demand of recovering the cost of balance stocks from Washery Operators as per the terms of contract. The period was extended by six months i.e. till 31.12.2011 or till finalization of new tender whichever is beneficial to the respondent no.1-company. The learned senior counsel submitted that on the backdrop of of this extension, the letter issued by the respondent no.1-Company, dated

17.01.2012, asking the appellants to make necessary arrangement to deposit the recovery with the penalties, 16 Arbitration Appeal No. 9/12+8 failing which, an action of encashment of the Bank Guarantees will be taken, was a shock to the appellants. The learned senior counsel, then referrerd to certain communications by the appellants i.e. fax communication dated 01.01.2012, in which it is stated that a meeting was held between the appellants and the respondent no.1 on

09.01.2012 and a request was made by the appellants/Washery Operators for reconciliation and extension. The learned senior counsel further submitted that in view of said meeting, the appellants were under bona fide impression that there will be reconciliation of the account. By way of these submissions, the learned senior counsel made an attempt to say that the respondent no.1- Company has played fraud with the appellants. The learned senior counsel submitted that the respondent no.1-Company on one hand accepted the request of reconciliation and extension and on the other hand, before reconciliation was concluded, tried to encash the bank guarantees. The learned senior counsel further submitted that action of respondent no.1-Company shows nothing but arbitrariness and high handed act. 17 Arbitration Appeal No. 9/12+8 9] Mr. V.R. Manohar, learned senior counsel, then, by referring to Section 9 of the Arbitration and Conciliation Act, 1996 submitted that the applicants are approaching this Court for interim measures. The learned senior counsel then referred to various dates of filing the appeals before this Court, the orders passed by this Court and then the applications filed by the appellants seeking leave to amend, to show that the appellants have initially moved this Court in urgency and during the intervening period, in the vacation, the matter was again reconsidered by the counsel and on fresh consideration, necessitated the counsel to file these applications for amendment and grant of leave to raise additional grounds. It was submitted by Mr. Manohar, learned senior counsel that the appellants are not making out any new case, nor they are placing any new facts or new material on record. According to the learned senior counsel, the amendment is sought under Section 151 r/w Order VI Rule 17 of C.P.C. and the scope is wider under these provisions and such amendment can be sought at any stage. In support of these submissions, the learned senior counsel has placed reliance on various judgments. 1] AIR 2008 (NOC) 38 (KAR.) [M/s Symphony Services Corpn. (India) Pvt. 18 Arbitration Appeal No. 9/12+8 Ltd. .vs. Sudip Bhattarjee] 2] AIR 2004 Bombay 136 [National Shipping Company of Saudi Arabia .vs. Sentrans Industries Ltd.] 3] 4] 5] 6] (2002) 5 Supreme Court Cases 510 [ITI Ltd. .vs. Siemens Public Communications Network Ltd.] (2007 7 Supreme Court Cases 125 [Adhunik Steels Ltd. .vs. Orissa Manganese and Minerals (P) Ltd. (2010) 4 Supreme Court Cases 518 [State of Maharashtra .vs. Hindustan Construction Company Ltd.] (2010) 8 Supreme Court Cases 660 [Venture Global Engineering .vs. Satyam Computer Services Ltd. and another] 7] AIR 1987 Rajsthan 24 [Bhom Raj and another .vs. Devi Singh Bhati] 8] 2006 (130) SCALE 525 [Ajendraprasadji N. Pande and another .vs. Swami Keshavprakashdasji N. and others. 9] (2011) 12 SCC 268 [State of Madhya Pradesh .vs. Union of India & anr) 10] 2000 AIR (SC) 1148 [Khairaiti Lal .vs. Raminder Kaur and others] 11] 2008 (6) All MR 65 [The State of Maharashtra (thru. The Spl. Land Acquisition Officer) and another .vs. Ashok Laxman Wani and another] 12] 2011 (113) BLR 1868 [Garware-Wall Bhalchandra Garware and others] Ropes Ltd. .vs. Shashikant 19 Arbitration Appeal No. 9/12+8 13] 2006 (4) BLR 3241 [Bharat Petroleum Corpn. Ltd..vs. Precious Finance Investment Pvt. Ltd.] 14] (2005) 2 M.L.J. 256 [In house Productions Pvt. Ltd. .vs. Meediya Plus] 15] 114 (2004) DLT 478 (DB) [Goel Associates .vs. Jivan Bima Rashtriya Avas Samati Ltd.] 16] 1983 AIR (SC) 43 [Harcharan .vs. State of Haryana] 17] 1974 AIR (SC) 130 [Dilbagh Rai Jarry .vs. Union of India and others] 18] 1982 AIR (SC) 17 [Maitreyee Banerjee .vs. Prabir Kumar Mukherjee] 19] 2009 (12) SCALE 665 [Surendra Kumar Sharma .vs. Makhan Singh] 20] (2012) 6 SCC 337 [Rameshkumar Agrawal .vs. Rajmal Exports Pvt. Ltd.] 21] (2009) 10 SCC 84 [Revajeetu Builders & Developers Narayanswamy and Sons and others] .vs. 22] (2008) 3 SCC 717 [Usha Devi .vs. Rijwan Ahmad and others] 23] (2006) 12 SCC 119 [State of A.P. And othes .vs. Pioneer Builders A.P.] 24] (2006) 4 SCC 385 [Rajesh Kumar Aggarawal and others .vs. K.K.Modi and others] 25] (2000) 1 SCC 712 [B.K. Narayana Pillai .vs. Parameshwaran Pillai and another] 20 Arbitration Appeal No. 9/12+8 26] 1995 Supp (3) SCC 577 [Bakshish Singh .vs. Prithi Pal Singh and others] 27] AIR 1960 SCC 622 [Nanduri Yogananda Lakshminarsimhachari and others .vs. Sri Agasthe Swaraswamivaru] 28] AIR 1963 Gujrat 153 [Vasudev Devnath Pandya .vs. Karsan Kamshi Bharwad] 29] 2000 (4) Mh.L.J. 482 [Laxman Marotirao Paunikar .vs. Keshaorao Rambhau Paunikar] 30] 1979 AIR (SC) 551 [Pandit Ishwardas .vs. State of Madhya Pradesh and others] 31] 1978 AIR (Pat) 322 [Janardan Yadav .vs. The Bihar State Sunni Waqf Board] 32] 1977 AIR (Cal) 108 [Ayesha Khatoom .vs. Durga Sahaya] 10] Mr. Lalwani, learned counsel appearing for the appellants in Arbitration Appeal Nos.14/12 and 17/12, adopted the arguments of Mr. V.R.Manohar, the learned senior counsel. Mr. Gharote, learned counsel appearing for the appellant in Appeal Nos.15/12 and 16/12 also adopted the arguments of the learned Senior counsel. Mr. Gharote, learned counsel has placed reliance on the following judgments - 21 Arbitration Appeal No. 9/12+8 1] 2] 3] 4] 5] 6] 7] 8] 9] AIR 1957 Supreme Court 444 [Harish Chandra Bajpai .vs. Triloki Singh] AIR 1974 Supreme Court 130 [Dilbagh Rai Jarry .vs. Union of India] AIR 1975 Delhi 108 [Sunder Lal & others .v. Balwant Hanmant Alurkar] AIR 1975 PATNA 16 [Smt. Kanti Modih .vs. Bhagwat Prasad Bhuwalika] 1999 (Supp.) Bom.C.R. 81 [Deubai Tukaram Pakhare and others .vs. Muktabai Tukaram Pakhare and others] 2012 DGLS (Soft) 275 [Vijay Kumar Kaul and others .vs. Union of India and others] AIR 1978 PATNA 322 [Janardan Yadav and others .vs. The Bihar State Sunni Waqf Board, Patna and others] 2005 (4) Supreme Court Cases 480 [Kailash .vs. Nanhku] AIR 2002 Supreme Court 2308 [I.T.I. Limited .vs. Siemens Public Communications Network Limited] 10] 2004 (2) Bom.C.R. 1 [National Shipping Company of Saudi Arabia .vs. Sentrans Industries Ltd.] 11] 2006 (2) Supreme Court Cases 777 [Vidyawati Gupta .vs. Bhakti Hari Nayak] 12] AIR 2009 Supreme Court 1433 [Vidyabai and others .vs. Padmalatha and another] 13] AIR 2009 Supreme Court 2544 [Sushil Kumar Jain .vs. Manoj Kumar and another] 22 Arbitration Appeal No. 9/12+8 14] AIR 2002 Bombay 420 [Oil and Natural Gas Corporation Ltd. .vs. Streamline Shipping Co.Pvt. Ltd.] 15] 2005(1) Bom.C.R. 833 [Hyderabad Industries Ltd. .vs. Nuclear Power Corpn. of India Ltd.] 16] AIR 2010 Supreme Court 1399 [State of Maharashtra .vs. M/s Hindustan Construction Company Ltd.] 17] 2012(5) Supreme Court Cases 337 [Rameshkumar Agarwal .vs. Rajmala Exports Pvt. Ltd. and others] 18] AIR 2008 Supreme Court 1147 [Usha Devi .vs. Rajwan Ahmad and others] 11] Per contra, Mr. Shashank Manohar, learned counsel for the respondent no.1-Company vehemently opposed the submissions on behalf of the appellants. Mr. Shashank Manohar, learned counsel submitted that the respondent no.1-company is a public undertaking, which receives coal from M/s Coal India Ltd. The respondent no.1- company pays price of coal to M/s Coal India Ltd. and then it supplies the coal to the Washery Operators like appellants. The learned counsel submitted that the appellants while receiving the coal had not raised any objection about the quality of coal and it was raised when the demand was made by the respondent no.1-Company. The learned counsel 23 Arbitration Appeal No. 9/12+8 invited my attention to clause 3.0 of the Work Order/contract which deals with lifting of raw coal and dispatch of beneficiated coal, particularly clause 3.1, which states that “It is the entire responsibility of the Washery Operator to take delivery of the raw coal as per the release order issued by coal company” and Clause 3.2 deals with penalty for non- lifting of raw coal. The learned counsel for respondent no.1 – Company submitted that the appellants, who had agreed upon the terms and conditions of the work order with open eyes, cannot now take a somersault. 12] Mr. Shahank Manohar, learned counsel further submitted that as per clause XVIII of the work order, the appellants were to pay an amount equal to 5% of the order value towards Security Deposit in the form of Bank Guarantee. He then referred to clause 6 of Annexure-I of the Work Order, more particularly clause 6.3 thereunder, which reads thus - “6.3 If the whole or a part of the Security Deposit is adjusted /attached by the MAHAGENCO for any default of Washery Operator in the due fulfillment of the contract during the contract period, then Washery Operator shall immediately arrange to 24 Arbitration Appeal No. 9/12+8 replenish the amount of Security deposit so attached/adjusted for the continued operation of the contract, failing which the contract is liable for termination by MAHAGENCO, the responsibility for which shall wholly rest with the Washery Operator.” The learned counsel for respondent no.1, therefore, submitted that the terms of the work order are transparent and the allegation of the appellants that the respondent no.1 company has played fraud, is unsustainable. 13] Mr. Shashank Manohar, learned counsel then invited my attention to the statement, which is placed on record at (page 318 in Appeal No. 9/12) under the head “Monthly Reconciliation Statement and Quantity Accounting” and submitted that the appellants were well aware of the outstanding balance against them. He further submitted that the said statement is signed by the representative of the appellants. Thus, it is the submission of the learned counsel for the respondent no.1 that the appellants, who were aware of their liability cannot now turn around and say that the respondent no.1-company has played fraud. He also refers to the communication issued by the respondent 25 Arbitration Appeal No. 9/12+8 no.1-company to the appellants, dated 20.08.2011,

20.09.2011 and 18.10.2011 informing the appellants about the liquidation of balance raw coal quantity from the WCL Command Area and the period specified to take steps and thereby submitted that time and again extension was granted to the appellants for the same. He, then by inviting my attention to the letter dated 21.10.2011, submitted that the appellants themselves assured to the respondent no.1- Company to pay the balance amount within the agreed span of time. By referring to the communication issued by the the respondent no.1-company to the appellants, dated

07.12.2011 submitted that in spite of earlier communication, the appellants have not complied with the condition of Work Order in respect of liquidating the balance raw coal stock. The appellants were having a closing stock of 70442 MT and the costs of this coal is Rs.10.487 Crores. The said communication also refers to the letter dated 18.10.2011 and further states that in spite of grant of time, the appellants failed to do the needful and it was made clear by this communication that if the arrangement for depositing the amount with interest is not done, the appellants would face the action of encashment of the bank guarantees. Mr. 26 Arbitration Appeal No. 9/12+8 Shashank Manohar, learned counsel, therefore, submitted that these communications show that the respondent no.1- company always gave a positive response to reconciliation, but it is the appellants, who in spite of grant of many opportunities, failed to deposit the amount in demand and as such the submission on behalf of the appellants that no reconciliation was done, is contrary to the records. The learned counsel for respondent no.1-Company further submitted that the proceedings of the meeting dated

09.1.2012 shows that the meeting was attended by the representatives of the appellants and therefore, it does not lie in the mouth of the appellants that the action taken by the respondent no.1-company was behind the back of the appellants. 14] Mr. Shashank Manohar, learned counsel for respondent no.1-Company submitted that the contention of the appellants that order VI Rule 17 of C.P.C. would apply in such cases, is unsustainable. He further submitted that the provisions of order VI Rule 17 would not apply to the interlocutory orders and the order under challenge is an interlocutory order. He further submitted that said 27 Arbitration Appeal No. 9/12+8 provisions would apply only to the suits and not to the applications, which are filed against the interlocutory purposes. The learned counsel then by referring to the various judgments and object of the amendment, submitted that these provisions came on statute book with an object to curb the practice of prolonging the matters by unnecessary amendments. He also countered the prayer of the appellants seeking leave to amend on the ground of due diligence. 15] Mr. Shashank Manohar, learned counsel for respondent no.1-company, by referring to the various applications filed by the appellants, submitted that the appellants by one way of the other wanted to prolong the proceedings and filed various applications. He further submitted that the appellants were well aware of the proceedings. Mr. Manohar, learned counsel for respondent no.1-Company submitted that though, the appellants have raised a ground of committing mistake by the lawyer for seeking leave to amend the appeals, but in fact, the proceedings were contested through lawyers and there is no statement in the application that it was a mistake of the 28 Arbitration Appeal No. 9/12+8 lawyer and as such, the appellants/applicants cannot raise such ground. 16] Lastly, Mr. Shashank Manohar, learned counsel for respondent no.1-company submitted that the respondent no.1-Company deals with generation of energy. The company is suffering losses and considering the default on the part of the appellants, who are faced with a liability of payment of the costs, penalty and arrears, are avoiding to pay their legal dues. He further submitted that it is not the appellants, but the respondent no.1-company, who would be suffering loss and it would be an irretrievable loss. In support of his submissions, Mr. Shashank Manohar placed reliance on the following judgments - 1] 2] 3] 4] (2000) 9 Supreme Court Cases 174 [Bharat Coking Coal Ltd. .vs. Raj Kishor Singh and another) (1999) 7 Supreme Court Cases 39 [P.A. Ahammed Ibrahim .vs. Food Corporation of India] (2006) 12 Supreme Court Cases 1 [Ajendra Prasadji N. Pande and another .vs. Swami Keshavprakashdasji N. and others] (2008) 14 Supreme Court Cases 364 [Rajkumar Gurawara (dead) through LRs .vs. S.K. Sarwagi and Company Pvt. Ltd. and another] 29 Arbitration Appeal No. 9/12+8 5] 6] 7] 8] 9] 2012(1) SCALE 330 [J. Samuel and others .vs. Gattu Mahesh and others] 2004 (4) All M.R. 581 [Sayarabi Sayyad Abdul Ajij (deceasead) through LRs .vs. Abdul Rashid Abdul Majid] AIR 1964 Supreme Court 993(1) [Arjun Singh .vs. Mohindra Kumar and others] 2010 (Supp) B C R 131 [Prakash Ratanlal @ Ratansa Kasari .vs. Bhika Banda Dhage and another] 2009 (6) Mh.L.J. 760 [Chhabubai Haribhau Badakh .vs. S.H. Khatod and sons and another] 10] 2002 (Supp) Arbi L.R. 463 (Delhi) [VHEL Industries Ltd. .vs. The Deptt of Telecommunications and another] 11] 2008 (6) Mh.L.J. 161 [Chander Kanta Bansal .vs. Rajinder Singh Anand] 12] AIR 2009 Supreme Court 1103 [Bachhaj Nahar .vs. Nilima Mandal and others] 13] AIR 1966 Supreme Court 1899 [M/s Ram Chand and Sons Sugar Mills Pvt. Ltd., Barabanki (U.P.) .vs. Kanhayalal Bhargava and others] 14] AIR 1960 Supreme Court 941(1) [Satyadhyan Ghosal and others .vs. Smt. Deorjin Debi and another] 15] AIR 1998 Supreme Court 1952 [Indian Bank .vs. Maharashtra State Co-operative Marketing Federation Ltd.] 16] AIR 1987 Supreme Court 1145 [Pralhad Singh .vs. Col. Sukhdev Singh] 30 Arbitration Appeal No. 9/12+8 17] (1976) 3 Supreme Court Cases 528 [Lonankutty .vs. Thomman and another] 18] AIR 2006 Gujarat 204 [Ajendraprasadji Narendraprasadji Pande and another .vs. Swami Keshvprakashdasji Gurupujya Naraynpriyadasji and others] 19] (2011) 11 Supreme Court Cases 786 [Kalyan Singh Chouhan .vs. C.P. Joshi] 20] AIR 2009 Supreme Court (Supp) 2041 [P.A. Jayalakshmi .vs. H. Saradha and others] 21] AIR 1940 LAH 39 [Ishar Das .vs. (Firm) Bhajon Ki Dokan through Sardar Jawahar Singh and others] 22] AIR 1988 Rajasthan 61 [Madan Lal Khuteta .vs. Badri Narayan] 23] (2009) 2 Supreme Court Cases 409 [Vidyabai and others .vs. Padmalatha and another] 17] I have heard the learned counsel for the parties at length. Insofar as the judgments relied upon by the learned counsel is concerned, there can hardly be any dispute on the proposition of law as reflected in those judgments. The issue for consideration is whether the order impugned in these appeals call for any interference at the hands of this Court. It is not in dispute that the facts such as respondent no.1- company issued work order/contract in favour of the appellants and the appellants with open eyes accepted and 31 Arbitration Appeal No. 9/12+8 agreed the terms and conditions contained therein. The respondent no.1-Company, communicated the appellants about the deficiencies such as, supply of less quantity of coal or supply of coal, which is not up to the parameters. The reconciliation and request of extension of time was granted to the appellants. The communications placed on record show that the appellants were informed to pay the amount and failure on their part, would call for an action of encashment of the bank guarantees. It is also not in dispute that there is a specific clause of determination of the disputes and differences by referring the same to the Arbitrator. The appellants by making such demand have not resorted to the competent dispute redressal forum i.e. an Arbitrator, as provided under Clause 29.1 of the contract terms. Perusal of the order passed by the learned District Judge shows that the appellants miserably failed to make out any case for the interim measures on the ground of fraud or irretrievable injury. The appellants have also failed to make out any case for seeking leave to amend the applications. Perusal of the record shows that the grounds raised seeking amendment is due to inadvertence and oversight, certain grounds were not raised and while scrutinizing the notice 32 Arbitration Appeal No. 9/12+8 and record, some important aspects were noticed. On the backdrop of the fact that the proceedings were being contested at every stage, it is difficult to accept the ground of inadvertence or oversight for seeking amendment. The appellants also could not show any material in support of the submission that invocation of the bank guarantees was not by the competent person. There is considerable merit in the submission of the learned counsel for the respondent no.1- company that it is not the appellants, but it is the respondent no.1-company, who would be suffering a loss and it would an irretrievable loss and the action initiated by the respondent no.1 of revocation of the bank guarantees is within the four corners of the law. 18] Considering all the aspects of the matter, I am of the opinion that the appeals and the applications filed by the appellants are devoid of merit and same deserve to be dismissed. Accordingly, the appeals and the applications are dismissed. 19] The learned counsel for the appellants/applicants pray for continuation of the interim order passed by this Court. Though, the learned counsel for respondent no.1- 33 Arbitration Appeal No. 9/12+8 Company opposed the prayer, the interim order is continued for a further period of four weeks. At the request of Mr. Gharote, the learned counsel for the appellant-M/s ACB (India) Ltd., steno copy of this order is granted to him on payment of necessary charges. In case, the request is made by the respondent no.1- Company, steno copy of this order be granted to the learned counsel for respondent no.1, on payment of necessary charges. Diwale JUDGE