Delhi High Court - Orders
Afcons Infrastructure Limited vs Petronet Lng Limited on 18 October, 2022
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 297/2022
AFCONS INFRASTRUCTURE LIMITED ..... Petitioner
Through: Mr. Abhishek Birthray with Ms. Tanu
Priya Gupta, Mr. Adeem Ahmed and
Ms. Shreya Sharma, Advocates.
versus
PETRONET LNG LIMITED ..... Respondent
Through: Mr. Karun Mehta with Mr. Diwakar
Maheshwari and Ms. Partiksha
Mishra, Advocates.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 18.10.2022 I.A.17044/2022 Exemption granted, subject to just exceptions. Let requisite compliances be made within 01 week. Application stands disposed of.
O.M.P.(I) (COMM.) 297/2022 By way of the present petition filed under section 9 of the Arbitration & Conciliation Act, 1996 ('A&C Act') at the post-award stage, the petitioner seeks a direction to the respondent to withdraw certain demand letters, in addition to an order restraining the respondent from encashing certain bank guarantees, as detailed in the prayers.
2. Mr. Abhishek Birthray, learned counsel appearing for the petitioner submits, that by way of arbitral award dated 26.09.2022, in which the petitioner/claimant has prevailed, while deciding claim No. 4, the learned Arbitral Tribunal has inter-alia directed the respondent to Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:20.10.2022 O.M.P.(I) (COMM.) 297/2022 Page 1 of 3 15:18:08 release to the petitioner performance bank guarantees Nos. 0393BG00130209 and 0393BG00130309 dated 24.08.2009 as also bank guarantee bearing No. 0999513BG0000520 dated 22.02.2013 and bank guarantee bearing No. l3940100002849 dated 06.08.2014.
3. Mr. Birthray, submits that the bank guarantees in question are all valid till 31.10.2022, with an encashment period of upto 01 year thereafter. However, considering that the petitioner has prevailed in relation to the claim pertaining to the bank guarantees, the petitioner apprehends that in order to nullify that direction in the arbitral award, the respondent may unlawfully invoke and encash the bank guarantees.
4. Issue notice.
5. Mr. Karun Mehta, learned counsel appears for the respondent on advance copy; accepts notice; and seeks time to file reply.
6. Let reply be filed within 06 weeks; rejoinder thereto, if any, be filed within 04 weeks thereafter; with copy to the opposing counsel.
7. Mr.Mehta submits that he has upto 90 days from the date of the award to prefer objections under section 34 of the A&C Act; but, pending the filing of such objections, the respondent is willing to make a statement that they will not invoke the bank guarantees in question provided at the same time the petitioner be directed to extend the validity of the bank guarantees beyond 31.10.2022.
8. In the opinion of this court, the petitioner having prevailed in the arbitral proceedings, and there being a specific direction in the arbitral award directing the respondent to release the bank guarantees in question to the petitioner, the question of directing extension of Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:20.10.2022 O.M.P.(I) (COMM.) 297/2022 Page 2 of 3 15:18:08 bank guarantees at the instance of the respondent does not arise. Furthermore, considering that the invocation period for the bank guarantees is stated to be upto 01 year beyond 31.10.2022, the course that commends itself for acceptance to the court is to permit the respondent to file its reply, while directing that the respondent shall not invoke or encash the subject bank guarantees, till the next date of hearing.
9. It is ordered accordingly.
10. Re-notify on 20th January 2023.
ANUP JAIRAM BHAMBHANI, J OCTOBER 18, 2022 ds Signature Not Verified Digitally Signed By:DIVYA SHARMA Signing Date:20.10.2022 O.M.P.(I) (COMM.) 297/2022 Page 3 of 3 15:18:08