Delhi High Court - Orders
Devyani International Limited vs Airports Authority Of India & Anr on 17 August, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (I) COMM NO.284 OF 2021
DEVYANI INTERNATIONAL LIMITED ......Petitioner
Through Mr Bharat Chugh, Advocate with
Mr Sai Krishna Kumar and
Ms Roopali Mohan and Mr Shashwat
Sarin, Advocates.
versus
AIRPORTS AUTHORITY OF INDIA & ANR ..... Respondents
Through Mr Digvijay Rai, Advocate with
Mr Aman Yadav, Advocate for
R-1.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 20.08.2021 [Hearing Held Through Videoconferencing] CM APP NO.10563/2021 & CM APP NO.10564/2021
1. Exemptions allowed, subject to all just exceptions.
O.M.P. (I) COMM NO.284 OF 2021
2. The petitioner has filed the present petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereafter 'A&C Act'), inter alia, praying as under:
"Restrain the Respondent No.1, its directors/principal officers and those acting under their directions, from invocation/encashment of the bank guarantee from the Respondent No.2 bank & the Respondent No. 2 bank be also directed not to release funds, entertain and act upon any Signature Not Verified Digitally Signed By:DUSHYANT RAWAL such request from the Respondent No. 1 until the final orders / disposal of the contemplated arbitration proceedings are passed."
3. In the year 2017, the respondent no.1 - Airports Authority of India (hereafter 'AAI') - granted the petitioner the concession for running a Food and Beverages Outlet at Srinagar Airport. In terms of the Concession Agreement between the parties, the petitioner furnished a Bank Guarantee of a sum of ₹5,56,00,000/- (Rupees Five Crores and Fifty Six Lacs Only). This was in lieu of security deposit the petitioner was required to maintain with AAI.
4. It is stated that on 29.10.2020, AAI claimed that a sum of ₹4,43,95,627/- (Rupees Four Crores Forty Three Lacs Ninety Five Thousand Six Hundred and Twenty Seven Only) was due and payable by the petitioner. The petitioner disputed the same but paid the amount under protest.
5. Certain disputes have arisen between the parties. Consequently, on 16.07.2021 the petitioner filed a request for arbitration before the Delhi International Arbitration Centre (DIAC).
6. The petitioner states that although it had paid the amount demanded by AAI under protest, AAI once again, after the petitioner had invoked the arbitration, raised an illegal demand on account of interest on delayed payments quantified at ₹2,06,348/- (Rupees Two Lacs Six Thousand Three Hundred and Forty Eight Only) and electricity dues quantified at ₹1,02,96,369/- (Rupees One Crore Two Lacs Ninety Six Thousand Three Hundred Sixty Nine Only). After adjusting the amount against other deposits Signature Not Verified Digitally Signed By:DUSHYANT RAWAL available with AAI. AAI demanded the balance amount of ₹58,27,511.85 (Rupees Fifty Eight Lacs Twenty Seven Thousand Five Hundred Eleven and Eighty Five Paisa Only). The petitioner claims that the said demand is illegal and even if the same is accepted on its face value, AAI is required to reduce a sum of ₹25,08,021/- (Rupees Twenty Five Lacs Eight Thousand and Twenty One Only), which is admittedly was payable by AAI. Therefore, at best, AAI's demand cannot exceed ₹33,19,490.58 (Rupees Thirty Three Lacs Nineteen Thousand Four Hundred Ninety and Fifty Eight Paisa Only). However, notwithstanding the limited demand, AAI has proceeded to invoke the Bank Guarantee (BG No.OGT0005180018683 dated 17.02.2018) furnished by the petitioner for the entire sum of ₹5,56,00,000/-.
7. Mr Chugh, learned counsel appearing for the petitioner submits that without prejudice to the rights and contentions of the petitioner, it is ready to pay a sum of ₹58,27,511.85 (Rupees Fifty Eight Lacs Twenty Seven Thousand Five Hundred Eleven and Eighty Five Paisa Only) to AAI while reserving its right to claim the said amount in the arbitration proceedings.
8. Mr Rai, learned counsel who appears for AAI on advance notice states that if the said amount is paid within a specified period, AAI has no objection if the injunction, as sought by the petitioner, is granted and AAI will not invoke the subject Bank Guarantee furnished by the petitioner.
9. In view of the above, subject to the petitioner paying a sum of ₹58,27,511.85 (Rupees Fifty Eight Lacs Twenty Seven Thousand Five Hundred Eleven and Eighty Five Paisa Only) to AAI on or before 26th August, 2021, AAI is restrained from invoking the Bank Guarantee and respondent no.2, IndusInd Bank, is restrained from making any payment Signature Not Verified Digitally Signed By:DUSHYANT RAWAL against the Bank Guarantee (BG No.OGT0005180018683 dated 17.02.2018).
10. The petition is disposed of in the aforesaid terms.
11. It is clarified that all rights and contentions of the parties are reserved.
12. The parties shall act on copy of the order as uploaded on the website of this Court.
VIBHU BAKHRU, J AUGUST 20, 2021 nn Signature Not Verified Digitally Signed By:DUSHYANT RAWAL