Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Tata Power Company Limited vs Genesis Engineering Company on 14 December, 2022

Author: Chandra Dhari Singh

Bench: Chandra Dhari Singh

                  $~22
                  *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                  +       ARB.P. 1415/2022
                          TATA POWER COMPANY LIMITED                            ..... Petitioner
                                             Through:       Mr. Shri Venkatesh, Mr. Siddharth
                                                            Joshi, Mr. Abhishek Nangia and Ms.
                                                            Soumyaa Sharma, Advocates

                                             versus

                          GENESIS ENGINEERING COMPANY                          ..... Respondent
                                             Through:       None

                          CORAM:
                          HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
                                             ORDER

% 14.12.2022 I.A. 21205/2022 (Exemption) Subject to the petitioner filing the clear, original and legible/typed copies of any dim documents on which the petitioner may seek to place reliance, within four weeks from today, exemption is granted for the present.

The application is disposed of.

1. The instant petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 has been filed on behalf of the petitioner seeking the following reliefs:

„(a) Allow the present Petition and appoint Justice G.S Sistani Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:15.12.2022 18:53:23 (Retd.) as the Ld. Sole Arbitrator in terms of Clause 23 of the GCC for adjudicating the disputes between Petitioner and Respondent;

(b) Pass such other and further orders which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice."

2. Learned counsel appearing on behalf of the petitioner submitted that the petitioner is a company incorporated under the Indian Companies Act, Act No. VII of 1913 and the respondent is a partnership firm engaged in the services of electrical security and civil construction services to Commercial, Residential and Information Technology and Telecommunication market.

3. On 5th June, 2017, the Municipal Corporation of Ludhiana ("MCL") issued Request for Proposal ("RfP") for selection of concessionaire for implementing smart LED street lights and Centralised Control and Monitoring System ("CCMS") for the city of Ludhiana on Energy Services Companies ("ESCO").

4. Pursuant to the bidding process conducted by MCL, Tata Projects Limited ("TPL") emerged as the successful bidder for aforementioned works.

5. In order to execute the Project awarded, TPL issued the following Work Orders in favour of the petitioner: -

(a) Work Order dated 11.10.2018 for Installation and commissioning of LED Street Lights and CCMS Panels and Operation and Maintenance of the executed work across four zones, namely A, B, C and D.

(b) Work Order Dated 28.03.2019 for Supply and Erection of earthing material, cables, Light Poles etc. being part of Infrastructure Development works for Ludhiana Smart LED Project" in favour of the Petitioner.

6. In view of the work allotted, on 12th November, 2018, the petitioner issued a notice inviting Tender No. TPC/ENGG/ENQ/200001062/18-19 inviting bidders for replacement of conventional streetlights for the project.

7. On conclusion of the bidding conducted by the petitioner, the respondent was declared as the successful bidder and the following Letter of Comfort ("LoC") was issued in favour of the Respondent: -

(a) LoC dated 02.01.2019 bearing No. T&D/BDS/ Dom/FY19/LMC/033 for execution of work pertaining to Zone A, C and D for replacement of conventional streetlights with LEDs, at an aggregate contract value of Rs. 11,98,36,905/-

(Eleven Crore Ninety-Eight Lacs Thirty Six Thousand Nine Hundred Five Rupees Only) including all taxes and duties.

(b) LoC dated 02.05.2019 bearing no. T&D/BDS/ Dom/FY20/LMC/033 for execution of work pertaining to Zone A, C and D for supply and erection of earthing material, cables, light poles etc at an aggregate contract value of Rs. 8,38,99,754.02/- (Eight Crores Thirty-Eight Lakhs Ninety-Nine Thousand Seven Hundred Fifty Four Rupees Only) including all taxes and duties.

8. Pursuant to the issuance of the aforesaid LoC, the petitioner entered into the following Work Orders along with the General Conditions of Contract ("GCC") with the respondent: -

(a) Work Order No. 6000040502 for Replacement of Street Lights along with LEDs; and

(b) Work Order bearing No. 6000042695 for Supply & Installation of Tubular poles, Supply & Installation of Earth Wire, Supply & Installation of PVC Cable and other relevant accessories and services as per BOQ.

9. It is submitted that during the term of the Work Orders, the petitioner had issued various letters and emails on account of laxities on the part of the respondent in performing its obligation under the Work Order.

10. As per the deficiencies and omissions on part of the respondent, the petitioner issued a notice dated 5th August, 2020 for non-performance of services under Clause 22 of the GCC and directed the respondent to submit the requisite report and rectify the deficiencies within the period of 7 days from the date of receipt of notice. However, the respondent has failed to rectify the deficiencies as pointed out by the petitioner.

11. Learned counsel appearing on behalf of the petitioner submitted that the respondent issued a letter dated 22nd August, 2021 disputing the claims as raised by the petitioner and raised its own claim to the tune of Rs. 4,86,67,058.00 [Four Crores Eighty Six Lakhs Sixty Seven Thousand Fifty Eight Rupees Only) on account of alleged dues withheld by the petitioner.

12. Learned counsel for petitioner submitted that the respondent also issued a termination notice dated 23rd August, 2021 to the other company i.e M/s Tata Power Delhi Distribution Company Limited ("TPDDL") alleging that TPDDL has acted in violation of contractual obligation and directed to release its alleged dues under the Work Order.

13. Learned counsel appearing on behalf of the petitioner submitted that the petitioner has issued a notice under Section 21 of the Act invoking arbitral clause of 23 of the GCC.

14. On 19th November, 2021, the respondent issued a response to the arbitration notice and denied the allegations seeking panel of five arbitrators.

15. In view of no agreement being arrived between the parties towards the appointment of an Arbitrator, the petitioner filed an Arbitration Petition No. 1237/2021 under Section 11 (6) of the Act and the same was withdrawn Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:15.12.2022 18:53:23 vide order dated 20th September, 2022 for settling the matter out of the Court. However, no settlement took place between the parties.

16. It is submitted that the dispute between the parties is arbitral in nature and the petitioner issued the notice under Section 21 of the Act for appointment of an Arbitrator.

17. In view the above facts and circumstances, it is submitted that an Arbitrator may be appointed for adjudicating the disputes between the parties.

18. Heard learned counsel for the petitioner and perused the agreements/contracts and other relevant documents available on record.

19. Issue notice to respondent through all permissible modes on filing PF within one week.

20. List on 20th January, 2023.

CHANDRA DHARI SINGH, J DECEMBER 14, 2022 gs/ak Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:15.12.2022 18:53:23