Punjab-Haryana High Court
M/S Niraj J M Mahtre vs Haryana State Road & Bridge Development ... on 14 June, 2016
CM-12217-CII-2016 IN
CM-4894-CII-2016 IN
FAO-1667-2014 1
201
CM-12217-CII-2016 IN
CM-4894-CII-2016 IN
FAO-1667-2014
M/S NEERAJ J. M. MAHATRE
VS
HARYANA STATE ROADS & BRIDGES DEVELOPMENT
CORPORATION THROUGH ITS MANAGING DIRECTOR
Present: Mr. Anshul Jain, Advocate for
Mr. Amar Vivek, Advocate
for the applicant-respondent.
Mr. Manoj Chouhan, Advocate
for the non-applicant/appellant.
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Prayer in the application is for issuance of the directions to the non-applicant/appellant for extension of the Bank guarantee till the next date of hearing as the Bank Guarantee is going to expire on 30.06.2016.
This Court vide order dated 21.12.2015 has disposed of the appeal bearing FAO No.1667 of 2014. The operative part of the order reads thus:-
"No doubt Hon'ble Supreme Court in M/s Sundaram Finance Ltd. case (Supra) has laid down the criteria of entertaining an application under Section 9 but the subsequent event which has been brought to the notice of this Court leads to an irresistible conclusion that respondent has not taken any steps for appointment of the Arbitrator despite having been requested in writing.
1 of 4 ::: Downloaded on - 17-06-2016 00:04:47 ::: CM-12217-CII-2016 IN CM-4894-CII-2016 IN FAO-1667-2014 2 In view of what has been observed above, impugned order is set aside. Appeal is allowed.
It is made clear that bank guarantee noticed above shall not be encashed by the respondent till the Arbitrator enters into reference, thereafter applicant shall be at liberty to seek interim protection by moving appropriate application under Section 17 of 1996 Act.".
Thereafter, an application at the instance of the applicant/respondent under section 151 CPC for clarification/modification of the order dated 21.12.2015 was moved and this Court, in the absence of the non-applicant/appellant, passed the following order on 10.02.2016:-
"Prayer in the application is for modification/clarification of the order dated 21.12.2015, whereby, this Court had ordered that bank guarantee shall not be encashed by the respondent till the Arbitrator enters into reference. It has been submitted that despite the fact, appellant having been requested, yet he failed to extend the bank guarantee which has expired on 28.12.2015, i.e., after the order dated 21.12.2015 passed by this Court in the aforementioned appeal. Accordingly, order dated 21.12.2015 is modified vis-a-vis last prayer and shall be read as bank guarantee shall be extended by the appellant, if expired and shall not be encashed by the respondent till the Arbitrator enters into reference. Application stands disposed of. "
2 of 4 ::: Downloaded on - 17-06-2016 00:04:48 ::: CM-12217-CII-2016 IN CM-4894-CII-2016 IN FAO-1667-2014 3 Again an application bearing No.12217-CII of 2016 has been moved for extension of the Bank Guarantee.
Mr. Anshul Jain, learned counsel appearing on behalf of the applicant/respondent submits that the said Bank Guarantee is going to expire on 30.06.2016, therefore, it may be ordered to be extended.
Mr. Manoj Chauhan, learned counsel appearing on behalf of the non-applicant/appellant submits that the order dated 21.12.2015 envisages that Bank Guarantee shall not be encashed by the applicant/respondent till the Arbitrator entered into reference. The Arbitrator has already entered into reference, therefore, no further direction is required to be issued, thus, prays for dismissal of the application.
I have heard the learned counsel for the parties and appraised the paper book.
It is also a matter of record that the applicant/respondent has not filed any counter-claim, whereas, non-applicant/appellant had already filed a claim approximately running into crores. Extension of the Bank Guarantee, in my view, tantamounts to putting the onerous, much less, taxing the non-applicant/appellant twice, which is not permissible in law. The order dated 21.12.2015 was in vogue till the Arbitrator enters into reference. Once, the Arbitrator has entered into reference, no further direction is required to be passed with regard to the extension of the Bank Guarantee.
In view of what has been observed above, the application is hereby dismissed.
3 of 4 ::: Downloaded on - 17-06-2016 00:04:48 ::: CM-12217-CII-2016 IN CM-4894-CII-2016 IN FAO-1667-2014 4 However, liberty is granted to the applicant/appellant to move an appropriate application before the Arbitrator.
( AMIT RAWAL) 14.06.2016 JUDGE yogesh 4 of 4 ::: Downloaded on - 17-06-2016 00:04:48 :::