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14. Furthermore, it is submitted that the stand of respondent No.2 / HSCL is contrary to its own unequivocal position as taken by them in a judicial proceeding before this Court when it sought to secure an injunction against encashment of BGs tendered by them to NTPC. As the work awarded by respondent No.2 / HSCL to the appellant / plaintiff was on a back-to-back basis, it was subject to the identical contractual terms and conditions, as applicable between respondent No.2 / HSCL and NTPC, and accordingly, the BGs advanced by respondent No.2 / HSCL to the appellant / plaintiff. Moreover, in seeking to resist encashment of BGs by NTPC pursuant to the termination of the main contract between NTPC and respondent No.2 / HSCL, respondent No.2 / HSCL filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter, ‗A&C Act, 1996') before this Court against NTPC. According to Dr. George, respondent No.2 / HSCL had itself contended that the BGs in question stood discharged by virtue of the fact that the 90-days period post the cancellation of the contract between respondent No.2 / HSCL and NTPC stood expired. It is stated that respondent No.2 / HSCL took a categorical position that the case fell under the second category i.e., of termination, and that there was no question of awaiting the expiry of any defect liability period. Therefore, respondent No.2 / HSCL's own interpretation of identically worded BGs in the context of termination of the contract has been that (i) the act of termination would trigger the 90 days period, (ii) that the BGs could not be encashed beyond the said 90-days period, and (iii) that in the event of termination, the defect liability period would be inconsequential and inapplicable. Respondent No.2 / HSCL evidently cannot be permitted to adopt a diametrically opposite stand in an identical factual scenario and identical BG terms qua the appellant / plaintiff. In this regard, Dr. George stated that it is trite law that a party cannot be permitted to approbate and reprobate at the same time, and the same is based on the principle of the doctrine of election. To support his stand, he has relied upon the Judgment in the case of Cauvery Coffee Traders, Mangalore vs. Hornor Resources (International) Co. Ltd., (2011) 10 SCC 420.

ii. The condition precedent for invocation of the BGs is any loss to be suffered by respondent No.2 / HSCL owing to any breach by the appellant / plaintiff. The letters issued by respondent No.2 / HSCL seeking encashment do not state the loss suffered by them. In any case, the only loss pleaded by respondent No.2 / HSCL, as ascertained from its own stand is that by non- accounting of about 1950 MT of structural steel on the site by the appellant / plaintiff, respondent No.2 / HSCL suffered a loss of approximately ₹7.8 Crore. It is submitted that in the arbitration proceedings before the sole arbitrator under the PMA, respondent No.2 / HSCL itself blamed NTPC for wrongfully terminating its contract and claimed a refund of the Security Deposit besides other claims. In the said proceedings, NTPC had sought a counter-claim for a sum of ₹12.14 Crore from respondent No.2 / HSCL on account of recovery of amount against material issued and not returned / unaccounted at the site. The Trial Court had upheld the stand of respondent No.2 / HSCL therein that there was no unaccounted / missing material and rejected the counter-claim after observing that the material was lying unutilised at the site and was not missing. Hence, while seeking to blame the appellant / plaintiff (sub- contractor) for certain alleged missing material from the site in the present proceedings, it can be seen that respondent No.2 / HSCL (contractor) contested that the said fact against the NTPC (employer) in the arbitration proceedings and in fact succeeded in establishing that all material on-site was in fact accounted for. According to Dr. George, the fate of the Awards is presently sub-judice before the PMA pursuant to an order to this effect passed by the Supreme Court on August 28, 2017. Dr. George stated that in any case, the stand of respondent No.2 / HSCL before the sole arbitrator, and as reflected in the awards, binds it in the present proceedings as well. However, respondent No.2 / HSCL has till date not instituted any case against the appellant / plaintiff seeking recovery of any alleged loss, and this fact according to Dr. George again demonstrates the untenable stand of respondent No.2 / HSCL. iii. The work awarded by respondent No.2 / HSCL to the appellant / plaintiff was on a back-to-back basis, and was subject to the same terms and conditions, as applicable between respondent No.2 / HSCL and NTPC (Principal Employer) including the General Conditions of Contract for Civil Works (hereinafter, ‗GCC'). Dr. George stated that the case of respondent No.2 / HSCL is that the BG was advanced in lieu of Security Deposit as contained in Schedule of GCC as appended to the contract between respondent No.2 / HSCL and NTPC. Respondent No.2 / HSCL had itself sought the release of Security Deposit from NTPC in the arbitration proceedings, therefore, respondent No.2 / HSCL cannot seek encashment of BGs of the appellant / plaintiff on the same set of facts.

26. That apart, Dr. George with respect to the arbitration between respondent No.2 / HSCL and NTPC, after the passing of the order dated February 11, 2015, NTPC had challenged the same by way of a writ petition in this Court. It is submitted that vide order dated May 30, 2016, this Court disposed of the writ petition and permitted respondent No.2 / HSCL to file appropriate proceedings under the A&C Act, 1996. Thereafter, respondent No.2 / HSCL had filed a petition under Section 34 of the A&C Act, 1996 wherein it was held that the Chairman-cum- Managing Director of NTPC was to decide as to whether the matter then should at all be sent to Arbitration. In an appeal against the said order, the Division Bench of this Court vide order dated May 30, 2017, appointed Justice Vijender Jain (Retd. Chief Justice, Punjab and Haryana High Court) as the sole arbitrator to adjudicate the disputes. However, the said order was also challenged before the Supreme Court, wherein, vide order dated August 28, 2017, the matter was referred to the bench of three Judges of the Court and meanwhile directed that the parties could go for decisions before the Cabinet Secretariat under the PMA in terms of the order dated December 07, 2015. Presently, the matter is pending adjudication before the Cabinet Secretariat of the Government of India.

46. Moreover, Mr. Sinha submitted that the appellant / plaintiff's submissions based on the ex parte ad interim order dated September 28, 2010, passed by this Court in O.M.P. No. 567 / 2010 between respondent No.2 / HSCL and NTPC under Section 9 of the A&C Act, 1996, to support their argument that BG was not invokable beyond 90 days of contract cancellation is meritless. In this regard, Mr. Sinha submitted that the ex parte ad interim order dated September 28, 2010, cannot be treated as a binding precedent. This Court did not have the occasion to evaluate all the BG contractual terms or consider the counterparty arguments and form any binding opinion. According to Mr. Sinha, the proceedings under Section 9 of the A&C Act, 1996, came to be disposed of by final order dated October 19, 2010, passed by this Court in view of the fact that the invoked BG amounts were already paid to NTPC. Thereafter, respondent No.2 / HSCL initiated arbitration proceedings against NTPC which even after multiple and prolonged proceedings before the Courts remain inconclusive.