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23. On behalf of the petitioner, a rejoinder affidavit of one Amita Chitnis dated 26 October 2018 came to be filed denying the case of ONGC interalia contending that the action of ONGC both, before and after filing of the petition suffers from the vice of a premeditated course of action driven by prejudice and designed to cause grave and irreparable harm, loss and injury to the petitioner. It is contended that ONGC simply wanted the petitioner not to perform the contract and through its machinations engineered a situation where ONGC sought to present the petitioner with a fate accompli and that simply cannot be right. The petitioner has alleged malafides on the part of ONGC in paragraphs 2(a) to 2(d) inter alia stating that issuance of 14 days cure notice under clause 6.3.2 clearly shows that ONGC has already taken a position that the contract should be terminated, and the cure notice was merely an empty formality, as also it is clear from the proceedings before this Court. It is the case of the petitioner that ONGC has pvr 22 ONGC-03-06-19 committed fraud on the consortium as also fraud on the bank by invoking bank guarantees and ultimately has attempted to play fraud on this Court by not making complete disclosure of its conduct but rather placing the blame on the petitioner for termination of the contract, as if ONGC gave an opportunity to the petitioner to perform the contract yet the petitioner failed to do so. It is contended that on receipt of 14 days cure notice, the petitioner continued to perform the contract as set out in letter dated 10 October 2018 to the respondent and also submitted a remedial measures plan on or about 3 October 2018 as the contract entitled the petitioner to do so, however, ONGC maintained studied silence on the plan until the expiry of 14 days cure period till 9 October 2018 as also by rejecting remedial measures on untenable grounds by ONGC's letter dated 10 October 2018. It is contended that this fact clearly demonstrates that ONGC had no intention whatsoever to allow the petitioner to remedy the alleged breaches and ONGC had already decided to terminate the contract, come what it may. It is contended that this demonstrated gross abuse by ONGC and dishonest and malafide intention to cause loss to the petitioner. The petitioner accordingly in its letter dated 10 October 2018 addressed to the ONGC recorded that it has rejected the purported termination of the contract and considered the contract being on its legs and called upon ONGC to perform it. It is contended that this conduct of ONGC was further clear pvr 23 ONGC-03-06-19 from the fact that it had secret negotiations with one of the consortium partner-GPC and that ONGC had permitted GPC to retain the possession of the vessel. It is contended that ONGC could not have promised GPC for balance work to be awarded. It is contended that ONGC has already recovered US$ 3.289 million as liquidated damages under the contract prior to June,2017, from out of US$ 15.214 million cap and had agreed to forebear from recovering liquidated damages of further sum of US$ 8.98 million until the vessel was jacked up at the WO-16 location (offshore, India) under Amendment No.12 to the contract till July,2017, the ONGC has proceeded to recover an amount of US$ 20 million under various bank guarantees for the alleged failure of the petitioner to perform the contract and this case of the petitioner is not dealt with by ONGC in its reply. It is contended that ONGC's case that as the contract stands terminated and the petitioner has remedy to claim damages, is not acceptable to the petitioner, as the termination itself is not accepted by the petitioner. It is contended that the petitioner has already taken this position in its letter dated 10 October 2018 addressed to ONGC. It is contended that this is a clear case that the parties are in unequal bargaining power and the very imbalance in the parties bargaining power creates special equities, and as such any unreasonable action on the part of the party with disproportionate bargaining power must ipso facto amount to irretrievable injury and injustice. It is contended that pvr 24 ONGC-03-06-19 the nefarious design of ONGC was to cause irretrievable injury and injustice to the petitioner, even it amounts to denying arbitration to the petitioner on the ground that OEC process has not been undertaken. Even in the advance payment bank guarantees, the petitioner is now beginning to understand the fraud played by ONGC. It is contended that the petitioner was entitled to an interest-bearing advance against the bank guarantee under Clause 3.7 of the contract with simple interest of 12% per annum. It is contended that the petitioner did not avail of this advance when it was performing the contract, as the original scope of the contract did not appear to challenge the petitioner's ability to commence work without an advance. It is contended that over the course of performance of the contract, however, not only did the scope of the work expand manifolds, the consortium also encountered substantial amount of extra work for which it was legitimately entitled to Change Orders and payments under the said Change Orders. It is contended that from time to time the contractor requested for Change Orders, however, only some were issued. It is contended that by 2017 these factors caused a building-up of a financial strain on the consortium and the consortium requested that an advance be paid to it in the sum of Rs.32 crores well within the 10% cap under Clause 3.7 of the contract. It is contended that ONGC being aware of the precarious financial condition of the consortium and pvr 25 ONGC-03-06-19 the parties' unequal bargaining power, put illegitimate conditions on the petitioner. The ONGC gave to itself disproportionate rights in respect of the advance to which it was not entitled to under the contract, including an interest on the advance at monthly compounding and the right to call on the advance payment bank guarantees for alleged non-performance of the contract, even though almost 95% of the work had already been completed by them. It is contended that ONGC used its unequal and disproportionate bargaining power to make even the advance payment bank guarantees in the nature of performance bank guarantees and in fact that it now purports to use to justify the invocation of the advance payment bank guarantees.

33. It is submitted that the arguments on behalf of the petitioner that there is collusion between ONGC and GPC is totally unfounded. To support this contention Mr.Nankani has referred to the notice dated 10 October 2018 terminating the contract of the petitioner and it is submitted that this notice is crystal clear of the nature of the dispute between the petitioner and its consortium member-GPC.

34. In so far as the petitioner's contention that the award of the contract for the balance work to GPC is a fraud, it is submitted that these are baseless allegations of the petitioner. It is submitted that the interest of ONGC is to complete the public works and that it is clearly a pvr 41 ONGC-03-06-19 commercial decision on the part of ONGC and there is no impediment on the part of ONGC to award the contract to GPC and when the rig was lying in incomplete condition for a substantial time.

47. It appears that after the last extension dated 30 th March, 2018, there was hardly any progress made by the Consortium and consequent thereto the ONGC addressed a letter dated 25 th September, 2018 to the Consortium inter alia setting out the entire background of the progress contractual work and the extensions which were granted from time to time. The ONGC 's case is of the consortium having acted in breach of its contractual obligations. It is the ONGC's case that the Consortium, in it's letter dated 9th March, 2015 had submitted unconditional pvr 51 ONGC-03-06-19 commitment for successful completion and delivery of the project by 20th December, 2015 and had also confirmed, that the Consortium shall not raise new issues as to the reasons for further delay, till completion of the said project. That the Consortium, however, had failed to honour it's commitment. ONGC has referred in detail in the said letter the various breaches on the part of the Consortium to state that in each of the review meetings the importance and critical nature of the said project was emphasized to the Consortium and the Consortium was advised to implement daily plan, keeping in view the rate of progress that was needed to be achieved so as to catch up the scheduled sail date. That all these persuasions as made to the Consortium were of no avail and that the Consortium had failed to achieve the desired progress to complete the contractual works. ONGC says that it was also noted in the 18th Management Review Meeting that there was a stalemate between the petitioner group and the GPC and that it was the responsibility of the Consortium to resolve internal disputes of the Consortium which were hampering the progress of the project. Also that ONGC had provided an interest bearing advance of Rs.32 crores against the Bank Guarantee and it was disbursed in two installments and despite disbursement of such advance amount, the Consortium had failed to achieve the progress as per the plan. That the ONGC had time and again expressed it's concern on the lack in progress, slippages from pvr 52 ONGC-03-06-19 the schedules/ catch-up plan and requested the Consortium to adopt measures to arrest the delay and slippages and that several letters were issued to the Consortium expressing concern over the slow progress and requesting the Consortium to deploy more resources to complete the project work as planned. That post 21 st Management Review Meeting held on 04 June 2017, the ONGC had also released payment of USD 4.11 million towards change order of leg attachments and change order Part -B and Part-A, milestones were made progressive as also the levy of liquidated damages was deferred till jack up at WO-16 without submission of bank guarantee and deferred recovery of interest bearing advance, a special dispensation was approved for processing two or more invoices in a month without waiting for 21 days. ONGC has contended that despite full co-operation and support from the ONGC, the Consortium was not been able to complete the work. ONGC has also commented that the Consortium had failed to release the past dues to their vendors which had resulted in the virtual stoppage of pre- commissioning work of process systems. The ONGC has contended that it was further burdened with a liability of USD 13.79 Million (estimated) on account of GST/GST implications, and pending recovery of USD 11.93 Million on account of liquidated damages, in addition to production losses/monetization of the investment made. The Consortium had submitted numerous catch up plans, but none of these pvr 53 ONGC-03-06-19 plans turned into reality and remained only paper commitments. Further the Consortium failed to complete the sail away by 15.09.2018, ultimately, on the request of the Consortium, an extension was granted for completion of the project upto 30 th November, 2018. Also the Consortium was put on notice of 14 days to initiate on or before 09.10.2018, remedial actions acceptable to ONGC towards completion of the said project, failing which the contract in question shall stand terminated in terms of GCC clause 6.3.2. of the contract, without any further notice and without prejudice to any other and further remedies and rights as may be available to the ONGC under the said contract.

61. In so far as the arguments of Mr. Dwarkadas that ONGC's fraud on the bank , the petitioner and this court, is writ large from the reading of the first affidavit as filed on behalf of the ONGC dated 28 September 2018, wherein the deponent before the formal termination of the contract, stated before this court that the contract in question stood terminated would demonstrate that notice dated 25 September 2018, was an eye wash and a decision was already taken to terminate the contract. Further according to Mr. Dwarkadas this position stood compounded from the wordings of the ONGC's letters invoking bank guarantees when again the ONGC has commented about the non- fulfillment of the contractual obligations before the period of fourteen days as granted by the ONGC in the said notice could come to end and before the contractual period would expire, whereby time was available to complete the contractual work. Mr. Dwarkadas would urge both these factors, coupled with the ONGC taking a decision to award pvr 66 ONGC-03-06-19 the contract to the petitioner's consortium partner GPC, makes out a clear case of a fraud on invocation of the bank guarantees. It is urged that also the money as may be received under the bank guarantees would be utilised by the ONGC to make payment to the GPC for the balance work. This is also an argument made in asserting, case of special equities.