Bombay High Court
Halani International Ltd vs Afcons Infrastructure Ltd And 4 Ors on 12 July, 2019
Author: G.S.Kulkarni
Bench: G.S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION PETITION (lodg) NO.719 OF 2019
Afcons Infrastructure Ltd. ...Petitioner
Versus
Halani International Ltd
and 2 others ...Respondents
ALONG WITH
COMMERCIAL ARBITRATION PETITION (lodg) NO.720 OF 2019
Afcons Infrastructure Ltd. ...Petitioner
Versus
Halani International Ltd
and 2 others ...Respondents
ALONG WITH
COMMERCIAL ARBITRATION PETITION (lodg) NO.731 OF 2019
Halani International Ltd
and 2 others. ...Petitioners
Versus
Afcons Infrastructure Ltd
and 4 others ...RespondentS
ALONG WITH
COMMERCIAL ARBITRATION PETITION (lodg) NO.732 OF 2019
Halani International Ltd
...Petitioners
Versus
Afcons Infrastructure Ltd
and 4 others ...Respondents
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Mr. Aspi Chinoy, Senior Advocate, a/w Mr. Rahul Narichania a/w
Abhishek Birthray, Mr. Santosh Mishra, Mr. Prateek Seth, i/by Kochar &
Co., for petitioner in Commercial Arbitration Petition (L) Nos. 719 of 2019
and 720 of 2019and for responded No.1 in Commercial Arbitration
Petition (L) Nos. 731 and 732 of 2019.
Mr. Mayur Khandeparkar a/w Mr. Bernardo Reis i/by Viraj Kandpile, for
respondent in Commercial Arbitration Petition (L) No.719 of2019 and
720 of 2019 and for petitioner in Commercial Arbitration Petition (L)
Nos.731 of 2019 and 732 of 2019.
Mr. Cyrus Ardeshir, Mr.Nausher Kohli a/w Mr.Munaf Virjee i/by ABH Law
LLP, for respondent No.5 in Commercial Arbitration Petition (L) Nos.731
and 732 of 2019.
Mr. Girish Paryani, for O.N.G.C.
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CORAM : G.S. KULKARNI, J.
DATE : 12 July 2019
---
ORDER
1. These are four petitions filed under Section 9 of the Arbitration and Conciliation Act,1996 (for short 'the Act').
2. Commercial Arbitration Petition (L) nos.719 OF 2019 and 720 of 2019 are filed by Afcons Infrastructure Ltd. (for short 'Afcons') against the respondent-Halani International Ltd. (for short 'Halani') and two others. Halani is the only contesting respondent.
3. The other two petitions are cross petitions filed by Halani being ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 3 902carbpl719-19grp-urgent-12-7-19.doc Commercial Arbitration Petition (lodg) No.731 of 2019 and 732 of 2019, principally against Afcons -respondent therein.
Brief Background
4. The Oil and Natural Gas Commission (for short 'the ONGC') on 29 January 2016, had awarded two contracts for the work of "Life Extension of Well Platform Project LEWPP-1 and LEWPP-2" for revamping of topside of 20 ageing well platforms to a consortium of Afcons, Halani and one Triune Energy Services Pvt.Ltd. ('Triune') (for short 'the Consortium"). These contracts are awarded on "lumpsum turnkey basis"
the nature of the contractual work being offshore work. Formal contract(s) were entered between the ONGC and the Consortium on 26 February 2016 (for short "the principal contract"). The principal contract stipulated the overall completion date of the work to be 30 April 2018. It was further extended to 31 January 2019 and now it is further extended up to 15 May 2020 in the circumstances as are discussed hereunder.
5. Under the principal contract scope of the work of each of the consortium partner was specifically defined wherein Afcons was responsible for project management, procurement, fabrication, ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 4 902carbpl719-19grp-urgent-12-7-19.doc installation, pre-commissioning and commissioning. Halani was responsible for mobilizing marine spread (barges and vessels), for transportation and offshore work. The third partner Triune was responsible for the design and detail engineering of the project. On 1 September 2017 another partner Nauvata Engineering Pvt. Ltd. was added as another Consortium member under agreement dated 2 September 2017 ('the consortium agreement'). Even the consortium agreement defines the scope of work of the members of the consortium. Clause 11.2 of the consortium agreement is the arbitration agreement between the parties.
6. There is a significant previous background of litigation between Afcons and Halani, in relation to the contracts in question. Afcons had approached this Court in petitions filed under Section 9 of the Act (Commercial Arbitration (l) No.1593 of 2018 and Commercial Arbitration
(l) No.1594 of 2018), seeking a relief that Halani be restrained by an injunction, from in any manner interfering with, objecting to, or obstructing the performance of its balance obligations under the consortium agreement dated 2 September 2017 and for a further relief to restrain Halani from requiring ONGC to make payment to it for balance works. The grievance of Afcons in the said proceedings was interalia on ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 5 902carbpl719-19grp-urgent-12-7-19.doc the ground that Halani had failed to deploy the requisite number of barges during the period 2016-17 and as against the requirement of six barges (three for each contract), Halani had deployed only one barge for Contract LEWPP-1 and none for LEWPP-2. Afcons had contended that right from the inception there had been gross non-fulfillment of the barge requirement by Halani which was seriously affecting the contractual work awarded to the consortium. Afcons had contended that the consortium had fallen in a seriously obscure position that it had become impossible for the consortium to progress and discharge its obligations under the principal contract entered by the consortium with the ONGC, on account of Halani not fulfilling its contractual obligations. Halani had contested the said assertion of Afcons.
7. In the said proceedings Afcons had also contended, that earlier Afcons considering that the project ought not to be adversely affected for want finance by Halani, so that Halani mobilizes the requisite barges, Afcons executed with Halani "A Short Term Advance Agreement"dated 3 November 2017. This agreement was amended on 10 November 2017 by an amending agreement (collectively referred as "the advance agreement") Under the advance agreement, Afcons had granted Halani ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 6 902carbpl719-19grp-urgent-12-7-19.doc advances of USD 3.6 millions. Afcons had contended that Halani despite receiving financial advances, had failed to deploy the required marine spread and in regard to which a serious grievance was made by the ONGC. Halani on the other hand asserted that Afcons was not capping the number of barge days which had resulted in the vessels of Halani lying idle causing severe financial losses to Halani. Accordingly, Halani took a position that the marine spread/barges cannot be made available unless Afcons agrees to cap the number of barge days.
8. This Court considering the contractual standing of the parties and their respective obligations under the principal contracts entered with the ONGC as also under the consortium agreement, by an order dated 22 December 2018 granted ad-interim reliefs to Afcons in terms of prayer clause (a) of the said petitions which reads thus:-
"a) pending the hearing of this petition and the Arbitration proceedings, Respondent No.1 be restrained by an interim order and injunction of this Hon'ble Court from in any manner interfering with, objecting to, or obstructing the performance of its balance obligations under the Consortium Agreement dated 02.09.2017 by the Petitioner and further restraining Respondent No.1 from requiring ONGC to make payment to it for such balance work."
9. It would be appropriate to note some of the relevant paragraphs of the said order as the parties have advanced their submissions on issues ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 7 902carbpl719-19grp-urgent-12-7-19.doc which fell for consideration of the Court in the said proceedings and the consequences arising thereafter. The Court in paragraph 31, 32, 33, 34, 35, 38, 39, 40, 43 observed thus:-
"31 It would be necessary to see some of the clauses in the agreement which would clearly demonstrate the respective obligations in this regard.
Consortium Agreement 2.0 PRINCIPLES OF CO-OPERATION FOR THIS PROJECT:
2.1 The original Consortium of AFCONS - HALANI - TES had entered into the Contract accepting joint and several liabilities for the execution of this Contract. Such joint and several liabilities will transfer to the new Consortium under the amended Contract. Notwithstanding such joint & several liabilities of the members to the client under the contract, the members agree as follows:= * Each Member shall be individually and solely responsible for providing all resources and for the due performance of its portion of the scope of work in accordance with Article 3 ("Scope of Work").
............
3.0 SCOPE OF WORK:
3.1 The CONSORTIUM will execute the CONTRACT on lumpsum turnkey basis.
The Members hereby agree that the Split Scope of Work for the Project between the Members as described in Appendix 1 hereto corresponds to 57.09%: 39.44%: 0.31%:
3.16% (AFCONS :HALANI :TES:NAUVATA).
3.2 The broad scope of work for each Member is indicated below:-
3.2.1 AFCONS Notwithstanding AFCONS's obligations for the performance of its Scope of Work (as per Appendix 1) under the project, AFCONS undertakes to carry out the following specific obligations for the smooth execution of the Project:
a) AFCONS will submit the documents generated by the consortium Members promptly to client for their ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 8 902carbpl719-19grp-urgent-12-7-19.doc approval/confirmation.
b) AFCONS will be responsible for resolving any dispute/misunderstanding, if any, between the Consortium partners;
c) AFCONS will provide sufficient number of suitably qualified personnel and all such materials and/or facilities as may be necessary for the proper completion of its scope of work and any additional costs on this account shall be to the account of AFCONS.
3.2.2 HALANI Notwithstanding the HALANI's obligations for the performance of its Scope of Work (Appendix 1) under the Project, HALANI undertakes to carry out the following specific obligations for the smooth execution of the Project:
a) Mobilizing the marine spread as per the mutually agreed plans and schedules of the Project. If for any reason HALANI is not able to mobilize its pre-agreed vessel then it shall make alternate arrangement at its sole risk and cost and ensure that there is no slippage or delay in the mobilization of the marine spread as per the mutually agreed schedule.
b) All the barges/vessels to be deployed by HALANI should be safety audited by ONGC/MWS. HALANI shall comply with the audit findings/comments before mobilizing the barges/vessels.
c) All the barges/vessels deployed by HALANI shall be as per the technical requirement of ONGC/MWS."
(emphasis supplied) 31A. The relevant contents of the advance agreement read as under:-
Amendment Agreement No.1 to Short Term Advance Agreement.
"WHEREAS, the Parties are members to the Consortium for the execution of Life Extension of Well Platforms Tender 1 and Tender 2 (hereinafter referred to as 'Projects') awarded by Oil & Natural Gas Corporation Limited (hereinafter, "ONGC" or "Client") and have executed ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 9 902carbpl719-19grp-urgent-12-7-19.doc Consortium Agreement dated 2nd September 2017 ("Consortium Agreement") wherein each member to the Consortium has agreed to provide its resource and finance for the performance of its respective scope of work in the Consortium.
WHEREAS HALANI is facing liquidity issues and has constrains in mobilizing the vessels required for the Project.
WHEREAS to ease the current financial burden, HALANI has requested AFCONS to provide a temporary short term advance up to an aggregate amount of USD 3.6 million (United State Dollar Three Million and Six Hundred Thousand only) against the security of postdated cheques of equivalent amount and repayable immediately upon receipt of payment from ONGC against its milestones.
WHEREAS the parties have executed Short Term Advance Agreement dated 3rd November 2017 ("Advance Agreement") whereby AFCONS have, subject to regulatory approval, agreed to provide a temporary short term advance up to an aggregate amount of USD 3.6 Million (United State Dollar Three Million and Six Hundred Thousand only) to HALANI to tide over the liquidity constrains faced by it and to enable HALANI to mobilize the vessels required for the Project.
WHEREAS the Reserve Bank of India has vide its letter no.FE.CO.Trade (IMD/4203/05.43.000/2017-18 dated 10th November 2017 granted its approval to AFCONS to make temporary short term advance up to an aggregate amount of USD 3.6 Million (United State Dollar Three Million and Six Hundred Thousand only) to HALANI.
WHEREAS HALANI has requested ONGC to directly make payment to AFCONS from its invoices for the repayment of the advance given by AFCONS to HALANI. ONGC has vide its letter MR/OW/LEWPP/OW/224/17-18 dated 20th October 2017 accepted the said request of HALANI.
WHEREAS the Parties vide this Agreement agree to amend and elaborate further the terms and conditions of Advance Agreement for release of USD 3.6 Million (United State Dollar Three Million and Six Hundred Thousand only) by AFCONS to HALANI and also set forth herein this Agreement HALANI's obligations and commitments in ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 10 902carbpl719-19grp-urgent-12-7-19.doc connection with the Projects.
NOW THEREFORE in furtherance of the Advance Agreement and in consideration of the foregoing, the Parties hereto agrees, as under:
1. AFCONS, having received approval of Reserve Bank of India vide letter no.FE.CO.Trade(IMD)/4203/05.43.000/2017-18 dated 10th November 2017, agrees to give temporary short term advance up to an aggregate amount of USD 3.6 million (United State Dollar Three Million and Six Hundred Thousand only) to HALANI against the security of postdated cheque of equivalent amount issued by HALANI to AFCONS.
2. AFCONS agrees to release the above said sum either directly to the vendors/agencies of HALANI or to HALANI, for fulfillment of the following obligations: A. USD 0.45 million towards IGST obligation of vessel GERIMAL.
B. USD 0.45 million to IGOPL (Vendor of Halani) towards obligation of vessel GERIMAL.
C. USD 0.95 million towards mobilization of 2 barges from Singapore (i.e. SS-3 and Trinity Nissi) including their towage.
D. USD 0.85 million towards repayment of past dues of Halani to its Vendor to enable mobilization of 3 barges (i.e. Venture, Kissama, Halani-1) from Africa. E. USD 0.7 million towards mobilization of Work Boat Goodman and Work Boat Topman.
F. balance sum of USD 0.2 million towards other obligation of Halani for mobilizing barges (eg. Ocean 303) for adhering to the schedules for the Projects.
3. HALANI represents and warrants as under:
a. to utilize the aforesaid sum advance by AFCONS to it solely for the payment of obligation for mobilization of vessels/barges for the Projects and to provide AFCONS with the relevant evidences of payment to said vendor/agencies.
b. to mobilise at Mumbai Offshore, exclusively for the Projects, the vessels and barges (i.e. Gerimal, SS-3, Trinity Nissi Venture, Kissama, Halani-1) as per the following timeline.
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Sr.no Barge Date of mobilization on
. field
1 Gerimal 25/11/2017
2 SS-3 15/12/2017
3 Trinity Nissi 15/12/2017
4 HALANI-1 10/01/18
5 Venture 10/01/18
6 Kissama 10/01/18
7 Work Boat Goodman 15/12/2017
8 Work Boat Topman 15/12/2017
9 Ocean 303 ( provided release order is Post release order
received)
c. to ensure availability of the pre-committed vessels
and barges exclusively for the Projects till the obligation of the Consortium to the Client are fulfilled under the Contract.
4. HALANI shall repay the above advance amount of USD 3.6 million (United State Dollar Three Million and Six Hundred Thousand only ) to AFCONS from the receivables from ONGC against their milestones payment from the Project.
In this connection, HALANI shall vide letter to ONGC (as per the template provided by AFCONS), give an irrevocable standing instruction to the Client to make direct payment to AFCONS of USD 3.6 million (United State Dollar Three Million and Six Hundred Thousand only) in 3 installments from their milestone payments for the month fo December 2017, January 2018 and February 2018.
In the event the Client doe not make to making direct payment to AFCONS, then HALANI shall receive the payment from ONGC in an Escrow Account with an Escrow Bank to be mutually agreed between AFCONS and HALANI. In such case, the Parties shall execute an Escros Agreement with the Escrow Bank for the receipt of payment from the ONGC and re-distribution among AFCONS and HALANI as per the terms agreed therein.
5. The complete advance amount along with interest shall be repaid before 28th February 2018. AFCONS shall charge Interest @ USD LIBOR plus 400 basis ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 12 902carbpl719-19grp-urgent-12-7-19.doc points compounded monthly from the date of release of advance till the repayment of entire advances together with interest. Interest will be calculated for the actual number of days of advance outstanding.
6. In the event HALANI defaults in repayment of advance alongwith interest (as stated above) on or before 28th February 2018, HALANI shall pay by way of penalty additional interest (over and above the interest indicated above in clause 4) of 200 basis points per annum with monthly compounding or as AFCONS may notify in writing from time to time, from the date of default (28 th February 2018) till the date of actual payment.
7. In case HALANI defaults in the repayment of the Advance amount of USD 3.6 million (United State Dollar Three Million and Six Hundred Thousand only ) along with the interest and penalty as stated in clause 5 and 6 above, then AFCONS shall be entitled to encash the cheques given to it by HALANI.
In the event HALANI breaches the commitment made in this Agreement then in such case (i) HALANI shall be deemed to be in default as per this Agreement and as per clause 10 of the Consortium Agreement (ii) HALANI agrees and accepts that AFCONS in its capacity as a Leader of the Consortium would have the right to take over its scope of work (in part or full ) to fulfillment of the obligation to the Client at the risk and cost to HALANI. (ii) AFCONS shall have the right to claim payment directly from ONGC for the scope of work taken over from HALANI (iii) HALANI shall bear all the cost and provide all the vessels and other resource to the Project and also bear all the cost connected with the fulfillment of its obligations by AFCONS. (emphasis supplied) 32 A perusal of the above advance agreement clearly reflects that it concerns issues which are inextricably linked to the obligations of Halani under the consortium agreement. In fact the object behind the advance agreement is for no purpose other than to bring about smooth execution of the ONGC's contractual work. There can be no other meaning and reading of the advance agreement and the clauses contained therein. Mr.Madon's submission that the advance agreement should be read as a merely money lending agreement, is in fact in the teeth of clause 3 and clause 7 of the advance agreement. If the purpose of the advance agreement was merely money lending then the parties would not have provided for such intricate interlinking details and ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 13 902carbpl719-19grp-urgent-12-7-19.doc compliances which are in fact compliances under the consortium agreement. It is not Halani's case that the advance agreement has stood extinguished. If that be the case and certain obligations are still at large under the consortium agreement read with advance agreement, then it is difficult to accept Halani's case that it has no obligation to comply its obligation under clause 3 and clause 7 of the advance agreement.
33. Apparently it is Halani who is in breach of its obligations not only under the consortium agreement but also under the advance agreement. In this context it would be necessary to refer to the letter dated 5 January 2018 of the ONGC to the petitioner which reads thus:-
Sub: Life Extension of Well Platform Project- Delay in Marine Spread deployment.
This has reference to the meeting held in the office of Head of Works on 08/12/2017 wherein, consortium had committed the deployment of barges of LEWPP. Till date not a single Barge has been deployed in the field, committed during the meeting. This is alarming and matter of serious concern.
It is learnt that the Barges and work boats, which were to be deployed from South Africa and Dubai respectively have not sailed out from their respective locations till date.
Consortium has already delayed the project considerably. The deployment of Barges have also been abnormally delayed by the Consortium, reason of which are solely attributable to the Consortium itself.
Leader of the consortium is advised to immediately mobilize the Barges and complete the activities.
Consortium should also ensure that LEWPP, Tender-3 activities are not affected in any way as has been highlighted by the company from time to time.
Copy for information to:
(H.S.Ratra)
1.GM(E)-PM PC-LEWPP-1 (emphasis supplied)
34. Thus prima facie Mr.Madon's submission that Halani would ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 14 902carbpl719-19grp-urgent-12-7-19.doc provide the barges/marine spread only on the petitioner/consortium agreeing for a cap on the barge days per platform, appears to be an untenable insistence considering the contractual terms. It cannot be accepted that a expert player in the field of such activities would turn around and say that the basic terms and conditions of the contract be now altered to suit Halani's convenience and requirement in performance of its obligation. It is not disputed that the contract is a turn key contract, and therefore, Halani was required to have an estimate of its obligations. It however appears that Halani has landed into financial difficulties. Whether the financial difficulties are attributable to present contract or the overall business dealings of Halani which is a UAE based company are matters which would be tested on evidence in the arbitral proceedings. If Halani is able to prove that the other members of the consortium have wronged Halani, in that event Halani can certainly claim damages.
35. At this stage of the proceedings the hard stand of Halani that it will refuse to perform its obligation by insisting for a capping on number of barge days and that it should be provided with more funds either by ONGC or by consortium would lead to the irretrievable failure of the performance of the consortium obligations towards the ONGC. .... .. ... ... ..
38. Apart from the above discussion, the Court cannot be oblivious to the nature of the principal agreement. The ONGC which is a public company has awarded the contract in question to consortium. Halani has clearly indicated that it would not deploy the barges unless the condition as insisted and noted above are complied by the consortium members and/or ONGC. These conditions are neither acceptable to ONGC nor to the members of consortium. By such an approach, Halani cannot bring the execution of the contract of consortium and fulfillment of its obligations to ONGC to a grinding halt and/or by its action jeopardize the very execution of the contract. In such a situation considering the issues even on first principles, if the consortium member comes forward and intends to take over the obligation of Halani, in my opinion, it cannot be said that such a course of action is not available to the consortium member. Halani as a member of consortium certainly cannot be oblivious to the contractual obligations in their entirety. It cannot take a position which would destroy the very foundation of the consortium. If it has grievances/issues against the consortium members on the contractual terms, it has a remedy in law to make an appropriate claim for any financial loss which Halani may suffer in the execution of the contract. However, as a responsible member of consortium, if it is unable to perform its obligation, Halani ought to have resolved the issues and permitted the other members of the consortium to mitigate the situation and/or make the execution of the contract feasible at the hands of remaining members of consortium. This more so when it is the joint responsibility of the members to fulfill their obligations towards the ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 15 902carbpl719-19grp-urgent-12-7-19.doc ONGC. The other members of the consortium are ready and willing to perform their obligations and there appears to be no serious grievance in that regard even by the ONGC. The imminent hurdle is the continued non performance by Halani.
39 As noted above one member of the consortium cannot paralyze the performance and execution of the contract by the consortium. It cannot be said that legally the consortium in such a situation becomes helpless and silently becomes a victim for all the liabilities and consequences for non performance of the contract awarded by the ONGC. Halani cannot adopt an approach to render the consortium to be left in a position that it would face a claim for damages and compensation, from the party who has awarded the contract to consortium.
40 For the above reasons, in my clear opinion, there are certain and clear circumstances for the court to grant of ad-interim reliefs as prayed by the petitioner. If the relief of a nature as prayed for is not granted, it would result in non-fulfillment of the contract by the consortium and only for the actions of Halani. In a situation of this kind, it is now a settled principle of law that to prevent the parties from suffering an irremediable injury which may possibly suffer at the hands of the ONGC, such reliefs are necessary to be granted. The court is required to take into consideration not only the basic principles for grant of an injunction namely of a prima facie case, balance of convenience and irreparable injury but also the conduct of the parties. In the facts of the present case, refusal of relief would have serious consequences. Thus, the endeavour of the court would be not only to protect the interest of the parties but to objectively examine their contentions. .... ... ... ... .. .
43 In the light of the above discussion, I am certain, in my opinion, that a strong prima facie case has been made out by the petitioner for grant of ad-interim relief. Accordingly, the following order:
ORDER Pending the hearing and final disposal of the above petition, there shall be ad-interim relief in terms of prayer clause (a) of the petitions. Ordered accordingly.
......"
10. The aforesaid order passed by this Court was accepted by Halani and the said proceedings were disposed of by this Court in terms of the ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 16 902carbpl719-19grp-urgent-12-7-19.doc order dated 13 February 2019 which reads thus:-
1. The parties were heard for urgent reliefs on these Section 9 petitions and by a detailed order dated 22 December 2018 ad-
interim relief was granted in terms of prayer clause (a). Considering the nature of reliefs, the learned Counsel for the parties are agreeable that the reliefs are as good as of final reliefs on these petitions, and in the facts and circumstances of the case, the petitions can be disposed of in terms of the order dated 22 December 2018.
2. In my opinion the learned Counsel for the parties are fair in their above suggestion. It is thus appropriate that these petitions are disposed of in terms of the order dated 22 December 2018 passed by this court. Ordered accordingly.
3. Needless to observe that the parties are at liberty to initiate the appropriate proceedings for reference of disputes to an arbitral tribunal.
4. Disposed of. No costs."
11. The earlier proceedings being disposed of as noted above, again disputes have arisen between Afcons and Halani. The issue being Halani not extending the 'counter guarantee' furnished to the State Bank of India as part of Halani's obligations under the consortium agreement, to enable the consortium to submit a performance bank guarantee (PBG) to the ONGC.
12. Under the principal contract entered by the ONGC with the consortium, PBG was submitted to the ONGC equivalent to 10% of the contract value being approximately of INR 120 crores. Afcons had 60.56% ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 17 902carbpl719-19grp-urgent-12-7-19.doc stakes in the PBG and Halani has stake of 39.44%. Halani had furnished a counter guarantee for USD 7,088,600 to the extent of its share in the contract to the State Bank of India for issuance of the PBG. Accordingly, State Bank of India had issued PBG vide three separate bank guarantees in different currencies that is in INR, EURO and USD. Halani's counter guarantee is concerned only with the bank guarantee issued by State Bank of India in USD.
13. Afcons has contended that as per the principal contract the PBG is required to be extended as and when the completion time is extended and is required to be kept valid for a period of sixty days thereafter. Afcons has contended that after this Court passed the order dated 22 December 2018 (supra), granting interim reliefs in favour of Afcons, now Halani's contractual obligations are being performed by Afcons. It is contended by Afcons that after the said order was passed by this Court, ONGC on 10 January 2019 amended the contract to allow Afcons to supplement the performance for Halani's scope of work and to receive payment directly for the works to the extent supplemented. Afcons has contended that thereafter on 2 February 2019 Halani extended the validity of the counter bank guarantee furnished by it to the SBI towards Halani's share in the ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 18 902carbpl719-19grp-urgent-12-7-19.doc PBG. It is stated that ONGC on 20 February 2019 granted further extension of time for completion of the project upto 15 May 2020. Consequent thereto, the ONGC by its letter dated 16 April 2019 requested the consortium to extend the PBG upto 15 July 2020.
14. In pursuance of the ONGC's request for extension of the PBG upto 15 July 2020, Afcons by its letter dated 26 April 2019 requested Halani to extend the counter bank guarantee, so that the PBG can be extended. Halani however did not take any steps to renew the counter bank guarantee in favour of SBI and by its letter dated 11 June 2019 invoked arbitration, raising claims against Afcons. In regard to the said counter bank guarantee in raising claim no.3, Halani asserted as under:-
28. Claim No.3: Release of Performance Bank Guarantee Claimant had submitted the Performance Bank Guarantee amounting of $ 7,086,600.00/- for the period valid up to 30.04.2018 i.e. the stipulated date of completion of Contract but however since the contract could not be completed by then due to Respondents failures,defaults and Breach committed as explained herein above claimant had to extend the said PBG beyond 30.04.2018. The said PBG is now valid up to 15.07.2019 as such is continuing for the reasons totally attributable to Respondent i.e non availability of sufficient man power with the Respondents, non-proper planning's, etc as mentioned above and for no any fault on part of Claimant. Claimant was not bound to extend the bank guarantee beyond 30.04.2018 as per terms of contract. Moreover, it is admitted position that ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 19 902carbpl719-19grp-urgent-12-7-19.doc Respondent admittedly caused delay themselves as such caused the extension of the bank guarantee beyond 30.04.2018 and till this date. Moreover, Claimant work is descoped by virtue of Hon'ble High Court Order dated 22.12.2018 & Order dated 13.02.2019 whereby Respondents was allowed to carry out claimants Scope of work lying under the Contract without Claimants involvement or/Participation. As such in the said pretext, Claimants PBG needs to be released. Claimant therefore, claims release of Performance Bank Guarantee amounting of $ 7,086,600.00/- to be payable or / released to the Claimant with its replacement from the Respondents on this account."
15. In the aforesaid circumstances, Afcons being aggrieved by Halani's refusal to extend/renew the validity of the counter bank guarantee No.19001FI7020014 for USD 7088600 has filed this petition praying for the following reliefs:-
"(a) that pending the hearing and disposal of the arbitration proceedings and till after the making of the award but before the award is enforced, Respondent no.1 be directed to extend the validity of the Counter Guarantee bearing No.9001F117020013 for a sum of USD 48,21,168 up to 15.07.2020 and for such further period as may be required till completion of the Project and for further period of 60 days thereafter.
(b) That pending the hearing and final disposal of this Arbitration Petition Respondent no.1 be directed to extend validity of the 'Counter Guarantee bearing No.9001F117020013 for a sum of USD 48,21,168 up to 15.07.2020."
16. On the other hand as noted above, Halani has filed the above two section 9 cross petitions interalia praying for a relief that Afcons did not ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 20 902carbpl719-19grp-urgent-12-7-19.doc act in furtherance of its notices dated 30 June 2019, 21 June 2019 and 4 July 2019, whereby Afcons had called upon Halani to extend the counter bank guarantee and for further reliefs which read as under:-
"33. The Claimant therefore pray:
a) that this Hon'ble Court be pleased to restrain Respondents including their agents, assignees, officers, representatives and/or servants by way of an injunction, not to act in furtherance of Respondent No.1's notices dated 13.06.2019, 21.06.2019 and 04.07.2019;
b) that this Hon'ble Court be pleased to direct Respondent No.1 by way of a mandatory injunction, to substitute and/or replace Petitioner's counter Bank Guarantee No.9001F117020013 for US$ 4,821,168.00 dated 31.01.2019 issued ny Respondent no.5 with a Fresh counter Bank Guarantee for the equivalent amount;
c) that this Hon'ble Court be pleased to direct Respondent No.5, by way of a mandatory injunction, to hand over and/or return Petitioner's counter Bank Guarantee No.9001F117020013 for US$ 4,821,168.00 dated 31.01.2019.
d) that this Hon'ble Court be pleased to direct Respondent Nos.1 including their agents, assignees, servants and/or representatives, by way of a mandatory injunction, to comply with the orders dated 22.12 2018 and 13.02.2019 in Arbitration Petition (L) Nos.1594 of 2018;
e) that this Hon'ble Court be pleased to direct Respondent No.1 by way of mandatory injunction to provide appropriate security to Respondent no.4 to for secure amount equivalent to the Bank Guarantee amount of US$ 4,821,168.00 or such other further or other amount as this Hon'ble Court may deem fit and proper;
f) that this Hon'ble Court be pleased to restrain Respondent Nos.4 and 5 including their agents, assignees, officers, representatives and/or servants by way of an injunction from in any manner encashing Petitioner's counter Bank Guarantee No.9001F117020013 for US$ 4,821,168.00 dated 31.01.2019;
g) that this Hon'ble Court be pleased to restrain Respondent including their agents, assignees, officers, representatives and/or servants by way of an injunction against invocation of Petitioner's counter Bank Guarantee No.9001FI17020013 for US$ ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 21 902carbpl719-19grp-urgent-12-7-19.doc 4,821,168.00 dated 31.01.2019."
17. Halani in opposing the petitions as filed by Afcons, has placed on record a reply affidavit of Mr.Ashok Hariram Bhambhani.
18. Mr.Aspi Chinoy, learned Senior Counsel for Afcons would contend that it is Halani's obligations under the principal contract as also the consortium agreement to continue/extend the counter guarantee. This inasmuch as, Afcons in view of inability of Halani to execute its contractual obligation, is now performing the Halani's contractual obligations. In supporting this contention Mr.Chinoy would refer to clause 7(ii) of the amendment agreement no.1 to the short term advance agreement to contend that the contractual obligations of Halani are being performed by Afcons at the cost of the Halani. Clause 7 reads as under:-
"7. In case HALANI defaults in the repayment of the Advance amount of USD 3.6 Million (United State Dollar Three Million and Six Hundred Thousand only) along with the interest and penalty as stated in clause 5 and 6 above, then AFCONS shall be entitled to encash the cheques given to it by HALANI.
In the event HALANI breaches the commitment made in this Agreement then in such cause (I) HALANI shall be deemed to be in default as per this Agreement and as per clause 10 of the Consortium Agreement (ii) HALANI agrees and accepts that Afcons in its capacity as a Leader of the Consortium would have the right to take over its scope of work (in part or full) to fulfillment of the obligation to the Client at the risk and cost to HALANI (ii) AFCONS shall have the right to claim payments ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 22 902carbpl719-19grp-urgent-12-7-19.doc directly from ONGC for the scope of work taken over from HALANI
(iii) HALANI shall bear all the cost and provide all the vessels and other resource to the Project and also bear all the cost connected with the fulfillment of its obligations by AFCONS."
(emphasis supplied)
19. Mr.Chinoy would next submit that Halani continues to be the member of the consortium and thus Halani cannot take a position that it is under no obligation to extend the counter bank guarantee. This also for the reason that after the order dated 22 December 2018 was passed by this Court, Halani on 2 February 2019 extended the validity of the counter bank guarantee towards its share which is valid till 15 August 2019. It is contended that however, as the PBG as furnished by the Consortium to the ONGC would expire on 14 July 2019, it was an obligation of Halani to extend its counter bank guarantee, so that the consortium's PBG is renewed by the SBI. It is submitted that as now the validity of the contract is extended by the ONGC upto 15 May 2020, Halani being a member of the Consortium cannot assert, that it will not renew the counter bank guarantee. It is submitted that when this Court in the order dated 22 December 2018 granted a relief in terms of prayer clause (a), the reference to word "obligation" in the said prayer clause would necessarily mean the contractual obligations of Halani being undertaken by Afcons on the site and the financial obligations such as renewal of the counter bank ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 23 902carbpl719-19grp-urgent-12-7-19.doc guarantee or taking over the obligation to provide a counter guarantee to the SBI. It is hence submitted that the prayers as made in the petition filed by Afcons are required to be granted so that the PBG is renewed by the consortium in favour of the ONGC. It is contended that if the PBG is not renewed it is likely that the ONGC may invoke the PBG which is valid till 14 July 2019.
20. On the other hand Mr.Khandeparkar, appearing for Halani would submit that Halani is under no obligation to renew and/or to extend the counter bank guarantee. This for the reason that the entire scope of Halani's contractual work is now being undertaken by Afcons. It is submitted that this factual position is clear from the observations as made by this court in the orders passed by this Court, in the earlier proceedings and more particularly the relief as granted in terms of prayer clause (a) in the said proceedings. It is submitted that consequently the position which has emerged is that Halani, is as good as outside the consortium and is left with no contractual obligations whatsoever. It is submitted that once there are no obligations to be performed by Halani under the principal contract, there cannot be any other obligation, including an obligation to renew/ extend the counter bank guarantee much less any liability for any future ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 24 902carbpl719-19grp-urgent-12-7-19.doc performance. Mr.Khandeparkar would contend that Afcons cannot be put in a situation that Halani with no contractual obligation is subjected to any future liabilities of non-performance of the obligations by Afcons, and for which Halani becomes monetarily liable in case the PBG is invoked by the ONGC. It is submitted that there cannot be a situation that Afcons takes obligations of Halani, receive payments in that regard from the ONGC and Halani takes the liability for the extended period of the contract. In supporting his contentions, Mr.Khandeparkar has drawn my attention to the Consortium agreement dated 2 September 2017 and more particularly Clause 2.15 and 2.15.3 to submit that in drawing the bank guarantee by the Consortium, the scope of the work of each of the Consortium member is identified, a member to the extent of its scope of work shall have its counter guarantees drawn and thus provisionally the proportion of the counter guarantee as agreed between the parties was Afcons 57.40% and Halani 39.44% and Nauvala 3.16%, in the event ONGC was not to identify the scope of work. It is submitted that as the entire scope of the work of Halani was identified, and now is taken over by Afcons, and thus there is no question of Halani extending the counter guarantee considering the clear provisions of Clause 2.15 read with Clauses 2.15.3, 3.2.1, 4.0 and 4.5 of the Consortium agreement. ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 25 902carbpl719-19grp-urgent-12-7-19.doc Mr.Khandeparkar would further submit that it cannot be a situation that in the event Afcons does not perform or comply with its obligations the PBG as issued on the basis of any counter bank guarantee to be submitted by Halani would be invoked by the ONGC. Mr.Khandeparkar has drawn my attention to the reply affidavit and to a letter dated 5 March 2019 issued to Halani by its bankers Indusind Bank whereby it is informed that the bank guarantee can be renewed only if Halani "cash collateralized" the entire bank guarantee amount including the outstanding bank guarantee commission that is USD 92,702 (plus interest) if an extension is to be sought. It is thus submitted that Halani itself being in financial difficulties, would be required to block substantial amounts for a meaningless purpose when no obligation under the contractual work would be discharged. Mr.Khandeparkar has drawn my attention to the documents as annexed to the reply affidavit to contend that it is clear that the entire scope of Halani's work is now taken over by Afcons and such taking over of the work definitely covers all obligations including the obligations of Afcon to extend/renew the PBG. This also for the reason that Halani's obligations to submit a counter bank guarantee would arise only when Halani was performing its scope of work under the principal contract and not otherwise.
::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 26 902carbpl719-19grp-urgent-12-7-19.doc
21. I have heard the learned Counsel for the parties and with their assistance I have perused the record. It appears to be an admitted position that Halani is no more performing its contractual obligations and by virtue of the order passed by this Court in the earlier proceedings as noted above and Afcons is performing the balance obligations of Halani under the Consortium agreement. This is also an admitted consequence as clearly reflected not only from the order dated 22 December 2018 passed by the Court in the earlier proceedings but also from the consequent acceptance of this position by the ONGC as clear from the fact that ONGC amended the contract on 10 January 2019 permitting Afcons to supplement the performance of Halani's scope of work and receive payment directly for the work so supplemented. In considering the obligation to extend/renew the counter bank guarantee, necessarily the obligations in that regard are found in the Consortium agreement dated 2 September 2017 as entered between the parties. Clause 2.15 of the Consortium Agreement pertains to the bank guarantees. In Clause 2.15.3 to the Consortium Agreement, the parties have agreed as under:-
2.15 Bank Guarantee 2.15.1 The Performance Bank Guarantees required to be furnished to the Client towards the Contract performance has been submitted in the name of the Consortium "AFCONS-HALANI-TES". The ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 27 902carbpl719-19grp-urgent-12-7-19.doc issuing bank is State Bank of India. The PBG and other Bank Guarantees, a required by the Contract, shall be amended to include the name of 4th Consortium member i.e. Nauvata. All costs associated with amendment to PBG to include the name of 4 th consortium partner will be borne by AFCONS.
AFCONS, HALANI & TES have provided the issuing bank with its counter-guarantee in the following proportion i.e. AFCONS 57.09%, HALANI 39.44% and TES 3.47%.
As per clause 2.10, Nauvata shall provide counter Bank Guarantee for the balance engineering works of the Project constituting 3.16% of the total contract price of the Project. The Performance Bank Guarantee for 0.31% of the total contract value which is pertaining to TES shall be arrange by Afcons in addition to their share of 57.09%.
Upon submission on the counter bank guarantee by Nauvata (as stated above) in compliance with the requirement of ONGC letter dated 25th January,2017 the PBG shall be suitably amended to include the name of the 4th Consortium member i.e., NAUVATA and the amended PBG shall remain in force as per the Contract requirements.
Subsequent to Contract amendment, the counter Bank Guarantee of TES shall be released by the issuing bank. Afcons will follow up with the issuing bank to ensure that the counter bank guarantee of TES is released at the earliest and shall provide the copy of release instruction to TES.
............
2.15.3. If the Bank guarantee of the Consortium is drawn down (a "Draw") then the Members agree that:
(i) If the Client identifies the Scope of Work giving rise to the Draw, the Member (i.e. either of AFCONS or HALANI or Nauvata) responsible for such Scope of Work shall have its Counter Guarantee drawn down by the full amount of the Draw; or
(ii) If the Client does not identify the Scope of work giving rise to the draw or if there is a dispute between AFCONS, HALANI and Nauvata on the scope of Work giving rise to the Draw, then the Counter Guarantee still be provisionally drawn down in the ratio AFCONS 57.40% HALANI 30.44 % and Nauvata 3.16% subject to adjustment if required as a result of any subsequent judgment or decision arising out of the dispute resolution process set forth in Clause 11."
(emphasis supplied)
22. Further in Clause 3.2.1, 4.0 and 4.5 it is agreed as under:- ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 :::
pvr 28 902carbpl719-19grp-urgent-12-7-19.doc 3.2 The broad scope of work for each Member is indicated below:
3.2.1: AFCONS Notwithstanding AFCONS's obligations for the performance of its Scope of work (as per Appendix 1) under the project, AFCONS undertakes to carry out the following specific obligations for the smooth execution of the Project.
(a) AFCONS will submit the documents generated by the Consortium Members promptly to client for their approval/confirmation.
(b) AFCONS will be responsible for resolving any dispute, misunderstanding, if any between the Consortium partners.
(c) AFCONS will provide sufficient number of suitably qualified personnel and all such materials and/or facilities as may be necessary for the proper completion of its scope of work and any additional costs on this account shall be to the account of AFCONS. 4.0 CHANGE ORDER 4.1 In case of Change Orders issued by the Client under the Contract for additional or modified work or for cancellation of non- performed work the same is agreed to be borne by AFCONS, HALANI AND Nauvata in the following manner:
" If it pertains to or is accessory or related to the SCOPE OF WORK of one MEMBER, the additional or modified or cancelled work forming the subject of the change Order shall be assigned to the said MEMBER, If it pertains to all the Members scope of Work, then such additional or modified or cancelled WORK forming the subject of the Change Order shall be assigned to the Members i.e. Afcons, Halani & Nauvata in the ratio AFCONS 57.40% HALANI 39.44 % and Nauvata 3.16 %.
4.2. Each MEMBER shall be responsible for the preparation of all documents required for the defence of its interests,and the other MEMBERS shall provide the LEADER with all information/documents it may possess or procure for such defense in advance for onward submission to the Client.
4.3 AFCONS shall process any and all Change Order requests ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 29 902carbpl719-19grp-urgent-12-7-19.doc and/or Change Orders whether directed by Client or requested by any Member, 4.4 The Members shall jointly defend, justify and negotiate any Change Order before Client, whether it concerns the Scope of work of all the Member (s) or the Scope of work of one or several members, 4.5: Each MEMBER shall be responsible for its own costs incurred in connection with such Change Order.
4.6: Each Member shall be liable and responsible for the resulting punch works from their respective Scope of Work as defined in this Agreement. Any services rendered by a Member to other Members for attending to their punch list shall be reimbursed by the Member availing the services at the mutually agreed terms and conditions including rates." (emphasis supplied)
23. It is thus clear that the obligation for furnishing a counter bank guarantee has a direct bearing and relation with the scope of the work and the responsibility of the members of the Consortium to execute such scope of work and to that extent counter bank guarantee to be furnished.
Further in Clause 4.5 it is clearly agreed that each member shall be responsible for its own cost incurred in connection with such 'change order' which clearly means that the liability of the Consortium member corresponds and is coterminous with the scope of the work and the contractual obligations.
24. Accordingly, Halani being completely divested of its scope of work and no more performing its contractual obligations, in my prima facie ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 30 902carbpl719-19grp-urgent-12-7-19.doc opinion, considering the contractual conditions as noted above, Halani would not be under an obligation to renew or continue the performance bank guarantee. Considering the contractual conditions in which the parties stand, it cannot be accepted that Halani would now not perform any contractual work/obligation but nonetheless Halani would be made liable for the obligations of the consortium and more particularly by contributing to renew the PBG when it has no scope of work under the principal contract. Prima facie, Mr.Khandeparkar would be correct in his contention that in case of default in the performance of Halani's scope of work by Afcons, Afcons is making Halani liable for Afcon's obligations in case the ONGC invokes the PBG for any default of Afcons in performing Halani's work. Mr.Khandeparkar has supported this contention by referring to the minutes of the meeting of the 12 th MRM wherein ONGC has echoed that Afcons is providing only one barge when there was an obligation to provide three barges. Mr.Khandeparkar has also referred to a communication dated 18 April 2019 from ONGC to the Consortium when a complaint in regard to 'tugs' is being made. Mr.Khandeparkar has also referred to an earlier letter dated 22 June 2018 addressed to ONGC by Afcons where Afcons in paragraph 2 has clearly conceded to the position that Halani does not have sufficient bank guarantee limits with ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 31 902carbpl719-19grp-urgent-12-7-19.doc his hankers to issue bank guarantee in lieu of LD deduction. He has also referred to a letter of Afcons dated 8 January 2019 addressed to ONGC under which Afcons in pursuance of this Court's order dated 22 December 2018 in taking over the obligations of Halani had submitted an indemnity in receiving the amounts due and payable by ONGC for the contractual work to be performed by Halani namely Halani's scope of work. All these documents clearly indicate that Halani is dormant and/or a non-
performing member of the Consortium. The parties to the consortium agreement have clearly provided the counter bank guarantee liability to correspond with the contractual work as noted above.
25. Mr.Chinoy has referred to Clause 7 of the Advance Agreement to contend that Halani in terms has agreed and accepted that Afcons in its capacity as a leader of the Consortium (in part or full) for the fulfillment of the contractual obligations towards the ONGC at the risk and cost of Halani and thus Halani is estopped from contending that it would not renew or extend the counter bank guarantee. According to Mr.Chinoy, Halani's contention not to extend the counter guarantee would be contrary to the express terms of Clause 7(ii) of the Advance Agreement. This contention of Mr.Chinoy referring to Clause 7(ii) of the Advance ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 32 902carbpl719-19grp-urgent-12-7-19.doc Agreement cannot be accepted for the reason that such an intention cannot be gathered from the Advance agreement. A perusal of the short term advance agreement clearly specifies in its terms and conditions, the respective obligations of the parties in the context of the said agreement.
Halani's obligation under the said agreement are clearly defined. From a plain reading of all these conditions/obligations in the advance agreement, it is explicit that ultimately what the parties intended was performance of the respective obligations under the principal contract, in respect of actual execution of the contractual work and in that regard finance under the terms and conditions as set out in the advance agreement was made available to Halani. There does not appear to be any express intention on the part of the parties to the said advance agreement that the parties in any manner intended to dilute or take away the basic terms and conditions as contained in the consortium agreement and more particularly Condition No.2.15 read with 2.15.3, 3.2.1, 4.0, 4.1 and 4.5 as noted above. Though the advance agreement has a bearing and connection with the performance of the obligation under the Consortium agreement, it cannot be said that the obligation of the parties under the consortium agreement in any manner stand superseded by the advance agreement. Clause 7 of the Advance Agreement as relied by Mr.Chinoy, ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 33 902carbpl719-19grp-urgent-12-7-19.doc learned Counsel for Afcons is required to be read in the context of the other surrounding clauses and cannot be attributed a meaning as canvassed by Mr.Chinoy. In my opinion when Clause 7(ii) says that 'Afcons would take over the scope of work of Halani, it would do so at the risk and cost of Halani', would not mean that there is an obligation on Halani to renew / extend the counter bank guarantee. Such a meaning to be attributed to Clause 7.2 would be too farfetched and in fact reading something into the said clause which the parties have not intended or agreed. In fact on a plain reading of the advance agreement, it clearly shows that the parties have not intended in any manner to take away the rights of the parties under the terms and conditions of the Consortium agreement.
26. In the light of the above discussion, in my opinion, Afcons would not be entitled to any ad-interim relief as prayed for. Accordingly, ad-
interim prayers as made in the petitions filed by Afcons stand rejected.
27. The discussion certainly leads to a conclusion that Halani has made out a prima facie case for an ad-interim protection to be granted at this stage of the proceedings. The balance of convenience is clearly in favour ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 ::: pvr 34 902carbpl719-19grp-urgent-12-7-19.doc of Halani. Accordingly, there shall be ad-interim reliefs in terms of prayer clauses (a) and (g) of both the petitions filed by Halani. Ordered accordingly.
28. Let the parties complete the pleading on these petitions within two weeks from today. Rejoinder, if any, be filed within two weeks thereafter.
List these petitions after two weeks.
(G.S.Kulkarni, J.) ::: Uploaded on - 12/07/2019 ::: Downloaded on - 13/07/2019 07:03:26 :::