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7. Vide a detailed order dated 20th April 2020, an ad-interim order was passed restraining invocation and encashment of the Bank Guarantees tabulated in paragraph 3.4 of the Petition. The operative portion of the order reads as under:

"27. The petition, and the rival submissions advanced by learned Senior Counsel for me, unquestionably throw up issues of some factual and legal complexity, which may necessitate a proper affidavit, by way of response, from the respondent, and detailed consideration of all these aspects, so as to arrive at a firm conclusion as to whether, till the normalisation of activities of the petitioner, consequent to lifting, or relaxation, of the restrictions imposed by the executive administration as a result of the n-COVID-2019 pandemic, the petitioner would be entitled to an injunction, against the respondent, from invocation of the eight bank guarantees forming subject matter of the present petition. For the present, I am convinced, prima facie, that, in view of the submission, of the petitioner, that it was actually working on the project till the imposition of lockdown on 22nd March, 2020, or at least shortly prior thereto, and in view of the sudden and emergent imposition of lockdown, the interests of justice would justify an ad interim injunction, restraining invocation or encashment of the aforesaid eight bank guarantees, till the expiry of exactly one week from 3rd May, 2020, till which date the lockdown stands presently extended. As to whether this interim injunction merits continuance, thereafter, or not, would be examined on the next date of hearing, consequent to pleadings being completed and all requisite material, including all relevant Governmental instructions, being placed on record. The injunction presently being granted, it is reiterated, is purely ad interim in nature, and is being granted only in view of the completely unpredictable nature of the lockdown, and its sudden imposition on 22nd March, 2020, of which the petitioner could not legitimately be treated as having been aware in advance. I am also persuaded, in this regard, by the fact that the government itself has, after imposition of the lockdown, being issuing instructions, from time to time, seeking to mitigate the rigours and difficulties that have resulted, unavoidably, as a result of the imposition of the lockdown. There is no reason, therefore, by the petitioner ought not to be given limited protection, till the next date of hearing, subject to orders which may be passed in these proceedings thereafter.

8. Post the passing of the above order, pleadings have been completed by the parties. Detailed submissions have been heard on various dates on behalf of both sides, during the COVID-19 lockdown period. Some Counsels joined the video conferencing hearings from outside India as well. Parties have also filed case law they rely upon in support of their respective stands along with some documents including a copy of the contract.

Submissions of Mr. Gopal K. Subramanium Ld. Senior Counsel on behalf of the Petitioner:

9. It is submitted by Mr. Subramanium that there is no compelling reason to dissolve the injunction already granted by the ld. Single Judge. The contract already stands terminated and the arbitration clause has also been invoked. The Contractor has also sought waiver of the liquidated damages owing to the various defaults by the Company. According to the Contractor, a substantial part of the Project stands executed and only 3-5% of the Project work remains outstanding. Thus, there are no justified reasons for invoking the Bank Guarantees. He further relies upon the letter dated 6th May, 2020 to argue that a final proposal was given by the Company clearly seeking timelines for execution. This itself showed that the contract was still alive between the parties and the Contractor wanted to resolve the matter. It is further submitted that Force Majeure squarely applies in view of the outbreak of COVID-19 globally. It is well within the knowledge of the Company that the kind of equipment that is to be installed requires personnel to travel from various foreign countries which is not possible due to lockdown. Thus, the Contractor is entitled to an injunction.

31. The letter dated 26th March, 2020 of the Director General of Hydrocarbons according to the Company clearly shows that Petroleum and other related functions constitute exempted services (being essential services under the exemption list) and thus there is in fact no suspension of work in these areas. He submits that there is a difference between impossibility of performance and a Force Majeure clause. Factum of lockdown is not disputed, however, since the Project was delayed prior to the outbreak of the epidemic, the Contractor is not entitled to seek shelter under the Force Majeure clause. It is further submitted that the question whether the Force Majeure is rightly invoked or not is itself a contractual dispute, which is beyond the scope of a section 9 petition. Reliance is placed on the judgments of the Single Judge and Division Bench of this Court in Global Steel Philippines v. STC of India Ltd., ILR 2009 VI Delhi 1 and Global Steel Philippines v. STC of India Ltd., [FAO (OS) No. 186/2009, decided on 12th May, 2009] where it was held that the question of Force Majeure would have to be decided in terms of the arbitration clause. It was held that the contractual conditions are not part of the letter of credit.