Delhi High Court - Orders
Afcons Sener Lng Construction Projects ... vs Western Concessions Private Limited on 26 May, 2023
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 171/2023 & I.A. 10445/2023 & I.A. 10446/2023
& I.A. 10447/2023
AFCONS SENER LNG CONSTRUCTION PROJECTS PRIVATE
LIMITED ..... Petitioner
Through: Mr. Rajshekhar Rao, Sr. Advocate
with Mr. Sulabh Rewari, Ms.
Vishakha Gupta and Ms. Mansvini
Jain, Advocates
versus
WESTERN CONCESSIONS PRIVATE LIMITED ..... Respondent
Through: Mr. Sanjeev Puri, Sr. Advocate with
Mr. R. Sudminder, Mr. Dattatray
Vyas, Ms. Pragya Puri and Mr.
Akshay Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
% 26.05.2023
1. The instant petition under Section 9 (1) (ii) of the Arbitration and Conciliation Act, 1996 (hereinafter "the Act") has been filed on behalf of the petitioner seeking the following reliefs:
"a. Pass an order directing the Respondent to make interim deposit into court of the amounts awarded to the Petitioner (along with interest as on the date of filing of the present petition) under the Majority Award dated 15 April 2023, in a sum of INR 43,64,60,821.77;or b. In the alternative to (a) above, pass an order directing the Respondent to furnish and keep alive an unconditional bank guarantee of an equivalent amount of INR 43,64,60,821.77 till This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:24:31 the enforcement of the Award under Section 36 of the Act, or till the Respondent pays the full Award Amount along with interest, whichever is earlier; and c. Pass an order directing the Respondent to not alienate or further encumber its assets, receivables, cash, balances, shares, etc. to the tune of the Award Amount along with post- award interest;
d. Grant ex-parte ad interim relief in terms of prayers (a), (b) and (c); and e. Pass any further order(s) or direction(s) as this Hon'ble Court may deem fit, proper and necessary in_ the facts and circumstances of the present 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 Companies Act, 2013 as a joint venture between Sener India Engineering Systems Pvt. Ltd. and Afcons Infrastructure Limited, both being companies duly incorporated under the Indian Companies Act.
3. It is submitted that the respondent is a company incorporated under the Companies Act, 1956. The respondent is a wholly owned subsidiary of HE Terminals Private Limited and is involved in the industry of renewable energy in India.
4. Learned counsel appearing on behalf of the petitioner submitted that the arbitration proceeding which culminated in the Award arose from an EPC contract executed on 12th March, 2015 between the petitioner and the respondent for design and construction of a land-based Liquified Natural Gas import, storage, and regasification terminal for a total contract price of over Rs. 2142,59,65,186. The Contract was terminated by the respondent with effect from 4th March 2016, leading to commencement of arbitration by This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:24:31 the petitioner to pursue its claims for works done and costs incurred for the project, for loss of profits, etc.
5. It is submitted that an arbitral tribunal was first constituted on 23rd October 2018, and upon the demise of one of the learned arbitrators, the Tribunal was reconstituted on 6th September, 2021. The reconstituted Tribunal, after completion of hearings reserved the Award on 17th March 2022 and pronounced the same on 15th April, 2023.
6. It is submitted that the respondent (and its Holding Company) are in a precarious financial position. The respondent has been consistently reporting losses, for at least the past three i.e. financial years (2019-2022), with its liabilities outstripping its assets, low revenue generation, negative net worth and prior charges over all present and future assets.
7. Heard.
8. Issue notice. Mr. Dattatray Vyas, learned counsel appearing on behalf of the respondent accepted notice.
9. Learned senior counsel for the respondent vehemently opposed the instant petition and on instructions submitted that they are in the process of filing the petition under Section 34 of the Act before this Court within few days.
10. List on 1st June, 2023.
CHANDRA DHARI SINGH, J MAY 26, 2023 gs/db Click here to check corrigendum, if any This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 09:24:31