Karnataka High Court
Jmc Projects (India) Ltd vs Bangalore Metro Rail on 6 September, 2017
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.No.58878/2015(GM-RES)
BETWEEN
JMC PROJECTS (INDIA) LTD
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE
AT A-104
SHAPATH-4
OPPOSTIE KARNAVATI CLUB
SG ROAD
AHMEDABAD-380051
REPRESENTED BY HOLDER
OF POWER OF ATTORNEY
MR GAUTAM SHANKARLAL
... PETITIONER
(BY SRI UDAYA HOLLA, Sr. COUNSEL FOR
SRI JOSEPH ANTHONY, ADV.)
AND
1. BANGALORE METRO RAIL
CORPORATION LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT,1956
HAVING ITS REGISTERED OFFICE AT
III FLOOR BMTC COMPLEX
K H ROAD
SHANTINAGAR
BANGALORE-560 027
REPRESENTED BY CHIEF ENGINEER
2. RITES LTD
RITES-OC-PBI-SYTRA
2
GENERAL CONSULTANTS
FOR BANGALORE METRO RAIL PROJECT
5TH FLOOR
TTMC A BLOCK
K H ROAD
SHANTHINAGAR
BANGALORE-560 027
REPRESENTED BY MANAGING DIRECTOR
3. ORIENTAL BANK OF COMMERCE
A PUBLIC SECTOR BANK
HAVING ITS REGISTERED OFFICE AT
E-BLOCK
HARSHABHAVAN
CONNAUGHT PLACE
NEW DELHI-110001
AND HAVING REGIONAL OFFICE AT
NEELKAMAL
OPPOSITE SALES INDIA ASHRAM ROAD
AHMEDABAD-380 009
REPRESENTED BY BANK MANAGER
4. KARUR BYSYA BANK
ASHRAM ROAD BRANCH
SAKAR-VII, B BLOCK
NEHRU BRIDGE CORNER
AHMEDABAD-380 009
... RESPONDENTS
(BY SRI N N HARISH, ADV. FOR R1
SRI M.MOHAMMED IBRAHIM, ADV. FOR R.3
SRI T.MOHANDAS RAO, ADV. FOR R.4
R.2 IS SERVED AND UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH
LETTER DTD:17.12.2015 ISSUED BY R-1 DIRECT THE
PETITIONER TO DEPOSIT AN AMOUNT OF RS.35,04,78,740/-
(RUPEES THIRTY FIVE CRORES FOUR LAKHS SEVENTY EIGHT
THOUSAND SEVEN HUNDRED AND FORTY) AS LIQUIDATED
DAMAGES PRODUCED AT ANNEXURE-A AND ETC.
3
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS ON 30.08.2017, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
ORDER
The petitioner is before this Court assailing the letter dated 17.12.2015 issued by respondent No.1 directing the petitioner to deposit an amount of Rs.35,04,78,740/- as liquidated damages. Consequent thereto, the petitioner is seeking that respondent No.1 be directed not to invoke the Bank guarantees as referred to in prayer (b) to the petition. Respondent No.1 has filed a detailed objection statement opposing the prayer made in the petition.
2. Though rival contentions are urged in this petition, the fact that the Bank guarantees in question being provided and the claim for liquidated damages as claimed by respondent No.1 relate to the contract dated 17.09.2010 entered into between the parties is evident. The fact that there exists certain disputes between the petitioner and respondent No.1 4 cannot be in issue since the petitioner and respondent No.1 are before this Court in CMP No. 97/2016 relating to the appointment of the Arbitral Tribunal and had been considered along with this petition.
3. This Court through a separate order passed this day has disposed of the said CMP No.97/2016 appointing the Arbitral Tribunal to resolve the disputes between the parties. If that be the position, all aspects relating to rival claim between the parties in respect of contract dated 17.09.2010 would be decided by the Arbitral Tribunal. In that view, whether any interim directions are to be issued so as to protect the interest of the parties is also an aspect which is to be taken note by the Arbitral Tribunal in terms of Section 17 of the Act.
4. Learned Senior counsel for the petitioner has referred to an order dated 29.06.2016 passed by this Court in W.P.No.15618/2016 and connected 5 petitions wherein this Court while relegating the parties to the alternative remedy of arbitration had permitted that the remedy both final and interim be sought before the Arbitral Tribunal and in the meanwhile had extended the benefit of the interim order that had already been granted in the writ petition.
5. If that be the position, a similar consideration is necessary in this petition. In the instant case, the interim order was extended for a period of three months on 29.06.2016. Though there is no specific order extending the same further, the fact remains that the bank guarantee has not been invoked since the petition was pending. In that view, the benefit is granted to the petitioner and the interim order is extended till the Arbitral Tribunal considers the request relating to the interim order and makes an order in that regard. The petitioner shall however renew the bank guarantee and keep it 6 valid at all times till the dispute is resolved. The parties thereafter would be regulated by appropriate directions to be issued by the Arbitral Tribunal.
The writ petition is accordingly disposed of in the above terms with no order as to costs.
Sd/-
JUDGE akc/bms