Delhi High Court - Orders
Central Electronics Limited vs Energy Efficiency Services Limited & ... on 14 February, 2023
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 45/2023
CENTRAL ELECTRONICS LIMITED ..... Petitioner
Through: Mr. Jeevesh Mehta and Mr. Nihit
Dalmia, Advocates
versus
ENERGY EFFICIENCY SERVICES LIMITED & ANR.
..... Respondents
Through: Counsel for the respondents
(Appearance not given)
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 14.02.2023 CAV 91/2023 The respondents have entered appearance.
Accordingly, the caveat stands discharged.
I.A. 3008/2023 (Exemption) Exemption allowed subject to just exceptions.
The application stands disposed of.
O.M.P.(I) (COMM.) 45/2023
1. The instant petition under Section 9 of the Arbitration and Conciliation Act, 1996 has been filed on behalf of the petitioner seeking the following reliefs:-
" (a) Grant a permanent, prohibitor injunction restraining the Respondent No. 1 from invoking/ encashing Bank Guarantee no 161BG082020 DATED 20.05.2020 AMOUNTING TORS Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:15.02.2023 18:17:23 51451265/-. pursuant to the "Final Default Notice dated 31.01.2023, or any part thereof, or any other sum from the Petitioner as and by way of Damages.
(b) Restrain the Respondent No.1 from directly or indirectly and in any manner whatsoever, adopting any coercive measures for the recovery of any sum pursuant to or in furtherance of its letters dated 31.01.2023, or otherwise, until the publication of a final decision of the committee or arbitral award in the proposed arbitration;
(c) Grant ex-parte, interim reliefs and/or ad-interim reliefs in terms of prayers (a) and (b) above;
(d) Grant such further or other relief as this Hon'ble Court may deem just and proper in the present facts and circumstances.."
2. Learned counsel appearing on behalf of petitioner submitted that the petitioner herein is a Govt. of India Enterprise under the Department of Scientific and Industrial Research (DSIR), Ministry of Science & Technology. It was established in 1974, with an objective to commercially exploit indigenous technologies developed by National Laboratories and R&D Institutions in the country. Petitioner undertakes various projects for other Government enterprises, departments and undertakings in the field of Solar Power Generation, Security & Surveillance, Railway signalling and many more. It is submitted that the Respondent no. 1 is promoted by Ministry of Power, Government of India as a joint venture of four public sector undertakings NTPC Limited, Power Finance Corporation Limited, REC Limited and Powergrid Corporation of India Limited. It is further submitted that the petitioner was awarded with a work contract from respondent no. 1 vide Letter of Award (LOA) no EESL/06/2019-20/SPGS Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:15.02.2023 18:17:23 System/181912031/LOA-1920222 dated 29th November, 2019 for design, engineering, supply, construction, erection, testing, commissioning and O&M of 120 MW of Solar Power Generating Systems at various sub stations in Maharashtra for a total contract price of Rs. 226,38,55,660/-.
3. Learned counsel appearing on behalf of petitioner submitted that as on date, there is an outstanding of Rs 2.45 Crore to be released by the respondent no. 1 to the petitioner, but the respondent no. 1 has arbitrarily sought to deduct liquidated damages to the tune of Rs. 0.23 Crore on account of alleged delay in commissioning of the Project and Rs. 0.33 Cr on account of penalty against less generation of power in the project. It is submitted that due to the acts of respondent no. 1 of not releasing the outstanding amount of Rs. 2.45 Crore and enforcing liquidated damages and penalty thereon, it became utmost difficult for the petitioner to continue with the O&M on few sites of the project and thus could not retain the vendors for the said purpose. It is further submitted that the respondent no. 1, in total disregard to the various meetings held between the officials of both sides and various oral and written representations by the petitioner, has now issued "Final Default Notice" dated 31st January, 2023 to the petitioner calling upon the petitioner to take remedial actions with respect to alleged breach of the contract within 14 days.
4. It is submitted that the petitioner considering the fact that respondent no. 1 is not responding in a desired and ethical manner has now invoked clause 7 i.e. the Arbitration clause of terms & conditions of LOA dated 29th November, 2019 and thus, resorted to the mandatory dispute resolution mechanism vide Office Memorandum dated 14th December, 2022, issued by Department of Public Enterprises, Ministry of Finance, Govt. of India as Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:15.02.2023 18:17:23 amended from time to time. The petitioner has filed its claim against the respondent no. 1 before Administrative Mechanism for resolution of CPSEs Disputes (AMRCD) on 23rd November, 2022, who shall through a constituted committee, arbitrate the claim/dispute between the petitioner and the respondent no. 1. The petitioner considering the disputes which arose with the respondent no. 1 invoked clause 7 of the LOA dated 29th November, 2019 and further filed its claim under the mandate of Office Memorandum dated 14th December, 2022 issued by Department of Public Enterprises, Ministry of Finance, Govt of lndia. Hence, the instant petition is filed.
5. Heard learned counsel for the petitioner.
6. Issue notice.
7. Notice is accepted by learned counsel appearing on behalf of respondents. He vehemently opposed the instant petition and prayed for some time to file reply.
8. Let reply be filed within a week. Rejoinder, thereto if any, be filed within a week thereafter.
9. List on 9th March, 2023.
10. Both the parties are directed to maintain status quo till the next date of hearing.
CHANDRA DHARI SINGH, J FEBRUARY 14, 2023 Dy/ug Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:DAMINI YADAV Signing Date:15.02.2023 18:17:23