Delhi High Court - Orders
Cairn India Ltd & Ors vs Government Of India on 4 January, 2021
Author: Rekha Palli
Bench: Rekha Palli
Via video conferencing
$~OS-5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(EFA)(COMM.) 15/2016
CAIRN INDIA LTD & ORS ..... Decree Holders
Through: Mr.Akhil Sibal, Sr. Adv. with
Mr.Arjun Pall, Ms.Shriya Misra &
Ms.Sadhika Gulati, Advs.
versus
GOVERNMENT OF INDIA ..... Judgement Debtor
Through: Mr.Tushar Mehta, SGI with Mr.K.R.
Sasiprabhu, Mr.Anurag Ahluwalia,
Mr.Praveen Kumar Jain & Mr.Tushar
Bhardwaj, Advs.
+ O.M.P.(EFA)(COMM.) 5/2017
VEDANTA LIMITED, & ANR. ..... Decree Holders
Through: Mr.Akhil Sibal, Sr. Adv. with
Mr.Arjun Pall, Ms.Shriya Misra &
Ms.Sadhika Gulati, Advs.
versus
GOVERNMENT OF INDIA, THROUGH JT. SECRETARY,
MINISTRY OF PETROLEUM AND NATURAL GAS,
..... Judgement Debtor
Through: Mr.Tushar Mehta, SGI with Mr.K.R.
Sasiprabhu, Mr.Anurag Ahluwalia,
Mr.Praveen Kumar Jain & Mr.Tushar
Bhardwaj, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
Signature Not Verified
Signed By:GARIMA MADAN
Location:
Signing Date:05.01.2021
16:57:46
ORDER
% 04.01.2021 E.A. 968/2020 in O.M.P.(EFA)(COMM.) 15/2016 E.A. 958/2020 in O.M.P.(EFA)(COMM.) 5/2017
1. These are applications filed by the petitioner/Decree Holder No.1 (DH-1) seeking the following reliefs:-
"a. direct the Registry of this Hon'ble Court to directly and unconditionally return to the Petitioner No.1 all bank guarantees listed in the table appearing at paragraph 17 of the present Application;
b. direct the Registry of this Hon'ble Court to directly and unconditionally release to the Petitioner No.1 the amount INR 68,43,74,991 that stands deposited with this Hon'ble Court, as mentioned at paragraph 21 of the present Application; and c. pass such other or further order(s) and/or direction(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
2. Learned senior counsel for the DHs submits that on 29.10.2018 this Court, after noting that the JD was claiming a sum of USD 144 million from the DHs, had recorded the statement of the learned ASG appearing on behalf of the JD that the oil marketing companies would be directed to deposit this amount, which related to the DHs share, before this Court. This Court had then permitted the DHs to seek release of this amount, provided it furnished bank guarantees for an equivalent sum. He submits that in compliance with this order, the oil marketing companies have been depositing the amounts due to DH-1 before this Court, the release whereof has been sought by DH-1 by furnishing bank guarantees of the same amount. As on date, the DHs Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:05.01.2021 16:57:46 have furnished bank guarantees for a sum exceeding USD 84,320,024 in both these petitions, details whereof have been given in paragraphs 16 and 17 of this application. He submits that the aforesaid claim of the JD for USD 144 million was on two counts, the first being the 'ONGC carry issue' and the second pertaining to Base Development Charges (BDC), the break up whereof already stands recorded in the order dated 29.10.2018. He submits that now that the foreign award dated 18.01.2011 relating to the BDC issue has attained finality and has been held to be enforceable, not only by this Court on 19.02.2020 but also by the Supreme Court on 16.09.2020, there is no subsisting dispute regarding the amount of USD 29 million which was being claimed by the JD from DH-1. At the same time, the JD's claim of USD 64 million towards the 'ONGC carry issue' is yet to be finally adjudicated by this Court in O.M.P.(EFA)(COMM.) 5/2017 whereby the DHs have sought enforcement of the interim award dated 12.10.2004 and the final award dated 26.10.2016. He submits that notwithstanding the fact that it is likely to succeed in these enforcement proceedings, DH-1 is seeking, for the present, release of the bank guarantees furnished by it worth USD 29 million in respect of the BDC claims. He further submits without prejudice to the rights and contentions raised by DH-1 in OMP(EFA)(COMM.) 5/2017 and EA 278/2020, the said decree holder undertakes to, till further orders, continue preserving bank guarantees mentioned in paragraph 16 of the application which are worth USD 64,016,819 (approximately), since that is the amount claimed in respect of the remaining dispute pertaining to the 'ONGC carry issue'. He, therefore, prays that the remaining bank guarantees as set out in paragraph 17 of the application be released to DH-1 along with the amount of INR Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:05.01.2021 16:57:46 68,43,74,991/- deposited by the oil marketing companies.
3. Upon notice being issued, a reply was filed by the Union of India admitting that in view of the order passed by this Court on 19.02.2020 which was subsequently upheld by the Hon'ble Supreme Court in its detailed judgment dated 16.09.2020, the JD can no longer claim the sum of USD 29 million from DH-1 towards the BDC claim. The reply further averred that the JD's interests would continue to be protected as long as DH-1 keeps the bank guarantees alive, worth USD 64 million in respect of its liabilities towards the 'ONGC carry issue' which is the subject matter of adjudication in OMP(EFA)(COMM.)5/2017 and is presently pending adjudication.
4. In the light of the aforesaid, once the JDs' claim upon a sum of USD 29 million towards BDC already stands rejected by the arbitral tribunal, this Court as well as the Supreme Court and its interests with respect to its claims under 'ONGC carry issue' is duly secured by way of bank guarantees worth INR 64 million, there is no reason to withhold the excess bank guarantees furnished by the DH-1 any longer. Accordingly, subject to DH-1 continuing to maintain the bank guarantees referred to in paragraph 16, the application deserves to be allowed and is, accordingly, allowed. The Registry is directed to return the bank guarantees mentioned in paragraph 17 of the application to DH-1 within a period of two weeks. The Registry is also directed to release an amount of INR 68,43,74,991/- to DH-1, out of the amounts deposited by the oil marketing companies before this Court.
5. Needless to say, the undertaking given by DH-1 to maintain the bank guarantees for USD 64 million will be without prejudice to its rights and contentions in OMP(EFA)(COMM.) 5/2017 or the pending application EA 278/2020 preferred therein.
Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:05.01.2021 16:57:466. The applications are accordingly disposed of.
E.A. 1262/2020 in O.M.P.(EFA)(COMM.) 5/2017
7. By the present application, the petitioner/DH-2 is seeking release of the profit petroleum for the quarter ending on 31.12.2020 in favour of JD, from the amounts deposited by the oil marketing companies before this Court. The amount sought to be released is out of the sale proceeds payable to DH-2.
8. Learned counsel for the applicant submits that the amount payable had not been quantified at the time of filing of the application, but stands quantified today at INR 39,63,25,423/-.
9. Issue notice. Learned counsel for the JD accepts notice and has no objection to the application being allowed.
10. Since the JD does not have any objection to this application and previously, similar applications seeking reliefs with reference to the earlier quarters have already been allowed, this application is also allowed.
11. Learned counsel for the respondent/JD assures the Court that in lieu of the release of this amount, the said respondent shall not take any coercive steps against DH-2 with respect to the dues payable for the period between 01.10.2020 and 31.12.2020.
12. The application is accordingly allowed by directing the Registry to release a sum of INR 39,63,25,423/- in favour of the JD/respondent in its bank account bearing No.0016257001 with Citi Bank, Mumbai.
13. Needless to say, this release would be subject to final accounting at an appropriate stage.
14. The application is accordingly disposed of.
Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:05.01.2021 16:57:46O.M.P.(EFA)(COMM.) 15/2016
15. This petition already stands disposed of on 19.02.2020 and, therefore, need not be listed before this Court. However, the same would be listed before the learned Joint Registrar for extension of the bank guarantees as and when required.
O.M.P.(EFA)(COMM.) 5/2017
16. List in Court on 28.04.2021.
REKHA PALLI, J JANUARY 4, 2021 gm Signature Not Verified Signed By:GARIMA MADAN Location: Signing Date:05.01.2021 16:57:46