Delhi High Court - Orders
M/S Mbl Infrastructures Ltd vs Telecommunication Consultants India ... on 22 July, 2020
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~1 (original side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. 1425/2020 & I.A.5696/2020 in O.M.P. 782/2013
M/S MBL INFRASTRUCTURES LTD ..... Petitioner
Through: Ms. Anusuya Salwan, Ms.
Nikita Salwan, Mr. Bankim
Garg and Mr. Chaitanya
Bansal, Advs.
versus
TELECOMMUNICATION CONSULTANTS
INDIA LTD & ANR .... Respondents
Through: Mr. Ratan K. Singh, Adv. with
Mr. Nikhilesh Krishnan, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 22.07.2020
(Video-Conferencing)
I.A.5696/2020 in O.M.P. 782/2013
1. This application seeks release of an amount of ₹ 1,61,47,491/- alongwith interest accrued thereon, which has been placed in fixed deposit, by this Court, consequent to order dated 25 th September, 2013, passed by this Court in OMP 782/2013.
2. IA 1425/2020, which is also listed today and prays for the same relief, had come up before this Court on 4th March, 2020.
O.M.P. 782/2013 Page 1 of 63. On the said date, a submission was made by learned counsel for the respondents, to the effect that the time available with the respondent, for challenging the Award, dated 20 th January, 2020, of the learned Arbitral Tribunal had not expired.
4. Noting the said submission, a Coordinate Bench of this Court adjourned the matter to 6th May, 2020 with the observation that, in case the respondents were to prefer a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act"), the issue of release of the money, deposited in fixed deposit, could be urged in these proceedings.
5. Instead of filing a petition under Section 34 of the 1996 Act, the respondents proceeded to move an application, under Section 33 of the 1996 Act, before the learned Arbitral Tribunal, in which, apparently, the respondent sought to resile from the statement, contained in the written submissions, dated 28 th December, 2018, filed before the learned Arbitral Tribunal, whereby the respondent had expressed no objection to the release of the aforesaid amount to the petitioner.
6. The learned Arbitral Tribunal has rejected the said contention of the respondents holding that it was not open to the respondents to resile from the statement contained in the written submissions filed by the respondents on 28th December, 2018.
O.M.P. 782/2013 Page 2 of 67. Ms. Anusuya Salwan, learned counsel for the petitioner, has contended, emphatically, that the application, under Section 33 of the 1996 Act, as preferred by the respondents before the learned Arbitral Tribunal, was, in fact, an abuse of process of law.
8. Ms. Salwan has invited my attention to paras 14 to 18 of the order, dated 25th June, 2020, passed by the learned Arbitral Tribunal on the said application, which read thus:
"14. This apart, the Respondent does not appear to us to have any case on merits. It is an admitted case of the parties that Written Submissions were filed by both the parties before the earlier Arbitral Tribunal (comprising of Honible Mr. Justice J.K. Mehra, Shri O.P. Gaddhyan and Shri Vipan Kumar). In the said Written Submissions, the Claimant had specifically referred to the statement in question having been made by learned counsel for the Respondent / TCIL.
Reference in this regard may be made to the Written Submissions dated 28.12.2018 filed by the Claimant before the earlier Arbitral Tribunal respect of Claim No 5 & 6 on page 20 & 22 respectively, The relevant extracts read as under:-
(xiii) During the arguments, the counsel for the TCIL made a statement before the Arbitral Tribunal that TCIL has no objection to MBL withdrawing the amounts under the Performance Bank Guarantee deposited by TCIL before the Hon'ble High Court of Delhi.
Page 2 of Written submission dated 28.12.2018:-
(vi) The counsel for the TM. before the Arbitral Tribunal has made a statement that the TCIL is willing to release the said bank guarantee in favour of MBL as admittedly the TCIL has received the entire payments towards invoices."O.M.P. 782/2013 Page 3 of 6
15. The aforesaid statement as referred to in the Written Submissions of the Claimant dated 28.12.2018 was not challenged by the Respondent before the erstwhile Tribunal or before the reconstituted Tribunal i.e. the present Tribunal by moving an application or anything of the like nature.
16. Learned counsel for the Respondent seeks to argue that there was no opportunity for the Respondent to contest the position as set out in the Written Submissions of the Claimant dated 28.12.2018. A perusal of the order dated 09.12.2018 of the previous Arbitral Tribunal, he states, shows that the previous Arbitral Tribunal had reserved the matter for passing of the award on the aforesaid- date and also observed that in case or before 21.12.2018.It is the case of the Respondent that the Respondent had filed its Written Submissions on 21.12.2018 (within the time limit mentioned in order dated 09.12.2018), but the Claimant did not file the same by 21.12.2028, and subsequently without seeking any condonation of delay the Claimant filed its Written Submissions on 28.12.2018, which were beyond the time limit fixed in the order dated 09.12.2018. Thus, the Respondent was under the bonafide belief that the said Written Submissions of the Claimant not having been filed in terms of order dated 09.12.2018 would not be considered and as such no response was needed to the same, Unfortunately, on account of sad demise of Presiding Arbitrator Hon'ble Mr. Justice J.K. Mehra (Retd.), the present Arbitral Tribunal was reconstituted on 01.07.2019 and thus the Respondent had no opportunity to rebut the statement purportedly Made by the learned counsel for the Respondent as recorded in the Written Submissions of the Claimant dated 28.11.2018.
17. We do not find any force in the aforesaid contention of the learned counsel for the Respondent for the reason that after the Award was reserved by the previous Tribunal on 09.12.2018 and during the period intervening 28.12.2018 and 01.07.2019 (i.e. right up till the constitution of the present Moved by learned counsel for the Respondent rebutting me statement of its counsel as set out in the Written Submissions of the Claimant dated 28.12.2018. The argument of the Respondent that the Respondent was under the impression that the Written Submissions having been filed by the Claimant one week after the date fixed for the filing of the O.M.P. 782/2013 Page 4 of 6 same by the erstwhile Tribunal the same would not be considered by the Tribunal, appears to us to be wholly, untenable. Such a presumption on the part of the Respondent is too-farfetched to say the least.
18. Then again, on the reconstitution of Tribunal on 01.07.2019, the Respondent's counsel while addressing arguments did not retract from the statement allegedly made by him before the earlier Arbitral Tribunal (though the Written Submissions of the Claimant were read out by the Claimant before this Tribunal), in fact, learned counsel for the Claimant again reiterated the said position before the present Arbitral Tribunal. Not only this, the Claimant once again filed Additional Written Submissions before the present Arbitral Tribunal on 07.11,2019 (almost a year after filing of the earlier Written Submissions on 28.12.2020) wherein the statement made on behalf of learned counsel for the Respondent was mentioned.
The relevant extracts are reproduced as Under:-
"Page 23 of Additional Written Submissions dated 07.11.2019:-
(xiii) During the 'arguments, the counsel for the TCIL made a statement before the Arbitral Tribunal that TO has no objection to MBL withdrawing the amounts under the performance, Bank Guarantee deposited by TCIL before the Hon'ble High Court of Delhi.
Page 25 of Additional Written Submissions dated 07.11.2019 :-
(vi) The Counsel for the TCIL before the Arbitral Tribunal has made a statement that the TOL is willing to release the said bank guarantee in favour of MBL as admittedly the TCIL has received the entire payments towards invoices."
9. Ms. Salwan has also sought to press home the merits of her prayer for release of the aforesaid amount.
O.M.P. 782/2013 Page 5 of 610. The respondents, per contra, have sought to submit that, by operation of Section 34(3) of the 1996 Act, the time available with the respondents for challenging the Award, dated 20th January, 2020 (supra), would expire only on 25th September, 2020 and that, prior thereto, release of the aforesaid amount, in favour of the petitioner, could not be directed.
11. In view of the fact that a Coordinate Bench of this Court has already expressed a tentative opinion that the respondents may be permitted to exhaust the remedy available under Section 34 of the 1996 Act, and that, were an application under the said provision to be filed, the issue of release of the aforesaid amount could appropriately be adjudicated in these proceedings, and in view of the fact that the time available with the respondents, as contemplated under Section 34 of the 1996 Act, would expire on 25th September, 2020, Ms. Salwan requests that this matter be renotified thereafter.
12. Accordingly, renotify on 28th September, 2020.
13. It is made clear that, in case no application, under Section 34 of the 1996 Act, is preferred by the respondents, by then, this application would be taken up and heard.
C. HARI SHANKAR, J.
JULY 22, 2020 dsn O.M.P. 782/2013 Page 6 of 6