Delhi High Court - Orders
Engineers India Limited vs Jmc Projects India Ltd on 22 September, 2020
Author: Rekha Palli
Bench: Rekha Palli
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 458/2018
ENGINEERS INDIA LIMITED ..... Petitioner
Through: Mr. Abhinav Vasisht, Sr, Adv. with
Mr. Rahul Narayanan, Ms. Akshita Sachdeva and
Ms. Gaeti Khan, Advs.
versus
JMC PROJECTS INDIA LTD ..... Respondent
Through: Mr. Gourab Banerji, Sr. Adv. with
Mr. Ayush Agrawal, Mr. Vikrant Singh Bloria,
Mr. Samith Sagaranahalli, Dr. Sunil Mittal,
Ms.Anu Tiwari, Mr. Subhro Prokash Mukherjee
and Ms. Ishita Mishra, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 22.09.2020
I.A. 8444-45/2020
1. Allowed, subject to all just exceptions.
I.A. 8443/2020
2. This is an application filed by the respondent seeking the following reliefs:-
a) pass an order directing the Petitioner to return the Bank Guarantee 61/2010 dated 14.05.2020 to the Applicant;
b) pass an order restraining/injuncting the petitioner
-EIL from invoking the Bank Guarantee 61/2010 dated 14.05.2010 furnished by the Applicant or from receiving any amounts thereunder pending adjudication of the Signature Not Verified Digitally Signed By:SANDEEP KUMAR Signing Date:22.09.2020 10:57 present petition under Section 34 of the Arbitration and Conciliation Act;
c) Pass ex-parte ad-interim order in terms of prayer
a) & b) above;
d) pass any other further order (s) /direction (s) in favour of the Petitioner as this Hon'ble Court may deem fit in the facts and circumstances of the case.
3. Learned senior counsel for the respondent/applicant submits that the parties had entered into a construction contract on 11.06.2020 and, for due performance thereof, a bank guarantee for INR 6,01,15,800/- was furnished by the respondent on 14.05.2010. Even though the work was completed in April 2013 and the petitioner has been occupying the building from October, 2013, this bank guarantee has been extended from time to time and is now valid till 30.09.2020. However, notwithstanding the completion of the work, the petitioner failed to release due payments in favour of the respondent who was then compelled to invoke arbitration. An award has been rendered by the learned Arbitrator on 09.07.2020 whereunder the respondent has been held entitled to receive a sum of INR 28.18 crores from the petitioner. He submits that the Award dated 09.07.2020 has been assailed by the petitioner in these proceedings wherein this Court, vide its order dated 10.01.2019, had issued notice and stayed operation of the impugned award. Significantly, the order of stay had been subject to the petitioner depositing the awarded amount, barring the sums awarded in relation to claim Nos.3 and 6 as also the proportionate interest accruing thereon. By placing reliance on the decision of a Coordinate Bench in Tehnimont Private Limited and Signature Not Verified Digitally Signed By:SANDEEP KUMAR Signing Date:22.09.2020 10:57 Anr. Vs. ONGC Petro Additions Limited 2020 SCC OnLine Del 653, he submits that merely because the award has been stayed, the petitioner can neither be permitted to invoke the bank guarantee nor insist on extension of the same. He, therefore, prays that the petitioner be restrained from invoking the bank guarantee in question or compelling the respondent to extend the same beyond 30.09.2020.
4. Issue notice. Mr. Rahul Narayanan, Advocate accepts notice on behalf of the petitioner. He prays for and is granted three weeks' time to file a reply. Rejoinder thereto, if any, be filed within two weeks thereafter.
5. Keeping in view the fact that under the impugned award, the learned arbitrator had specifically affixed the liability of the delay in completing the project on the petitioner, I am of the prima facie opinion that it would be against interest of justice to permit the petitioner to either invoke the bank guarantee or insist upon the respondent extending the same, at this stage. Accordingly, till the next date, the petitioner is restrained from invoking the existing bank guarantee or from requiring the respondent to extend the same. However, this interim order will be subject to the respondent filing an affidavit before this Court within three days undertaking to furnish a fresh bank guarantee for the amount in question, in case the present application were to be subsequently rejected.
6. At request, list on 05.11.2020.
REKHA PALLI, J.
SEPTEMBER 22, 2020 'sdp' Signature Not Verified Digitally Signed By:SANDEEP KUMAR Signing Date:22.09.2020 10:57