Orissa High Court
M/S. Essel Mining And vs M/S. Ravi Udyog Pvt. Ltd on 25 September, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.5 of 2024
M/s. Essel Mining and .... Appellant
Industries Ltd.,Kolkata
Mr. S. Mohanty, Sr. Advocate
-versus-
M/s. Ravi Udyog Pvt. Ltd., .... Respondent
Kolkata
Mr. B.P.B. Bahali, Advocate
CORAM: JUSTICE SANJAY KUMAR MISHRA
ORDER
25.09.2024 I.A. No.19 of 2024 Order No.
06. This matter is taken up through hybrid mode.
2. Though this Appeal is not in the assignment list of this Bench, because of the conduct of the Respondent, as detailed in the order dated 14.08.2024, the learned Judge having assignment to hear the Arbitration Appeals, recused to hear this appeal. Hence, the matter specifically being assigned to this Bench by Hon'ble the Chief Justice, is taken up for hearing.
3. Though the matter has been listed under the heading 'For Hearing', both the learned Counsel for the parties pray for taking up their respective I.A.s on board before taking up the hearing of the Appeal.
4. I.A. No.19 of 2024 has been filed by the Appellant- Company to call for the entire records of the learned Arbitral Tribunal in Arbitration Proceeding No.01 of 2009, whereas I.A. No.13 of 2024 has been filed by the Respondent Company for release of the amount in its favour already kept in form of fixed deposit, in terms of the order dated 24.04.2024.
5. Mr. Mohanty, learned Senior Counsel for the Petitioner, drawing attention of this Court to Para 3 of the order dated 24.04.2024, submits, vide the said order this Court called for the case record from the Court of the District Judge, Keonjhar along with record of the arbitral proceeding and ordered to ensure receipt of the same before the next date of listing. However, when the learned Counsel for the Petitioner wanted to inspect the records, it was found that only the records of the District Judge; Keonjhar in ARBA No.05 of 2024 have been received by the Office. The records of the learned Arbitral Tribunal in Arbitration Proceeding No. 01 of 2009 are yet to be received by the Office and are not available for inspection.
6. Learned Senior Counsel for the Petitioner further submits, since the Counsel engaged in the present Appeal was not the Counsel, who was appearing before the Arbitral Tribunal so also the District Judge, Keonjhar, it is necessary to inspect the records in the arbitral proceeding to conduct this Appeal effectively. Hence, before proceeding further on merit, it is highly Page 2 of 8 necessary to ensure the records in Arbitration Proceeding No.01 of 2009 in terms of the previous order dated 24.04.2024.
7. Though no written objection has been filed in response to this I.A., Mr. Bahali, learned Counsel for the Respondent submits, though the Appellant has a right to inspect the documents, but no reason has been assigned in the application as to why the learned Counsel for the Appellant wants to inspect the said records. That apart, the Appellant being a party to the arbitral proceeding so also the proceeding before the District Judge, Keonjhar, must have all the records, to be made available to the learned Counsel engaged in this Appeal for inspection.
8. Mr. Bahali further submits, since already an order calling for the said records has been passed by the coordinate Bench, there was no need to file the present application to call for the records in Arbitration Proceeding No.01 of 2009.
9. Learned Counsel for the private Respondent submits, as no attempt has been made by him or his associate or his client to inspect the LCR, the correctness of the averments made in the I.A. can only be ascertained by calling for a report from the Office.
10. In view of the submissions made by the learned counsel for the parties, Paragraph-3 of the order dated 24.04.2024, being relevant, is reproduced below for Page 3 of 8 ready reference:-
3. Considering the submissions made, the Appeal is admitted keeping the question of maintainability open to be decided while hearing the Appeal on merit for its disposal in accordance with law;
The case record from the Court of the District Judge, Keonjhar along with the record of Arbitral Proceeding be called for and receipt of the same be ensured by the next date of listing.
(Emphasis Supplied)
11. The coordinate Bench, while admitting the present Appeal, ordered for calling for the records from the Court of the District Judge, Keonjhar along with records of the arbitral proceeding and ordered to ensure the receipt of the same before the next date of listing.
12. In Paragraph-4 of this application, it has been categorically stated that upon inspection of records by the learned Counsel for the Appellant, it was found that the records in Arbitration Proceeding No.01 of 2009 are yet to be received by the Office.
13. In view of the discussions detailed above, as this Court also requires to see the records of the arbitration proceeding and it has already been ordered to call for the records, the I.A. stands disposed of directing the Page 4 of 8 Office to find out as to whether the records in Arbitration Proceeding No. 01 of 2009 form the part of the LCR received from the District Judge, Keonjhar in ARBP No.05 of 2022 and if not, to make an endeavour to ensure receipt of the records in Arbitration Proceeding No. 01 of 2009 before the next date of listing.
14. Accordingly, the I.A. stands disposed of.
(S.K. MISHRA) JUDGE
07. I.A. No.13 of 2024, I.A. No.08 of 2024 & ARBA No.5 of 2024
1. So far as I.A. No.13 of 2024, Mr. Bahali, learned Counsel for the Applicant-Respondents submits, the awarded amount with accrued interest will be around eight crores. Since the 34 application prefered by the Appellant Company has been dismissed, irrespective of pendency of this Appeal, the money deposited by the Appellant Company in terms of the order of this Court dated 24.04.2024 deserves to be released in favour of the Respondent ahead of hearing the present Appeal on merit.
2. Learned Counsel for the Respondent- Applicant in I.A. No.13 of 2024, files copy of the Page 5 of 8 order passed in Civil Appeal Nos.1064-1065 of 2023 (Spicejet Limited & Anr. Vs. Kalanithi Maran) so also order dated 14.09.2018 passed in Special Leave to Appeal (C) Nos.20895-20897/2018 (Srei Infrastructure Finance Limited Vs. Candor Gurgaon Two Developers and Projects Pvt. Ltd.) to substantiate the prayer made in the I.A. No.13 of 2024 for release of the deposited amount. The same are taken on record.
3. Learned Senior Counsel for the Appellant, drawing attention of this Court to certain documents, including the points urged before the learned Arbitrator as to maintainability of the proceeding on the ground of limitation, submits that the Respondent Company is not entitled to any money. Though the Respondent challenged the order dated 24.04.2024 passed by this Court before the Supreme Court, the SLP was dismissed thereby confirming the order passed by this Court. If the said amount is released in favour of the Respondent, in the event the Appellant succeeds in this Appeal, it would be difficult on its part to recover the said amount from the Respondent. Mr. Mohanty, learned Senior Counsel further submits, though, the Supreme Court dismissed the SLP, but requested this Court to dispose of the Arbitration Appeal expeditiously. Hence, after receiving the records in Arbitration Proceeding No.1 of 2009, the Appeal be heard and Page 6 of 8 disposed of expeditiously.
4. Apart from the same, learned Senior Counsel for the Appellant prays for extension of the interim order passed earlier till the disposal of the Appeal. Admittedly, the order dated 24.04.2024 is a conditional order for staying further proceeding in Execution Case No.57 of 2022, pending in the Court of District Judge, Keonjhar, subject to deposit of Rs.2.5 Crores within a period of six weeks from the date of said order. It is not for a specific period.
5. Learned Counsel for the Respondent admits that the said amount has been deposited by the Appellant-Company on time in terms of the order passed by the coordinate Bench. The condition imposed by this Court to stay further proceeding in Execution Case No.57 of 2022 was to deposit Rs.2.5 Crores within a stipulated time, which has already been worked out by the Appellant- Company. The Appeal has been admitted vide order dated 24.04.2024 and is awaiting for hearing and final disposal. Hence, it is made clear that the interim order dated 24.04.2024 shall remain in force till disposal of the Appeal, as there was no such indication in the said order as to continuance of the said order till a particular date and the subsequent orders passed by the coordinate bench Page 7 of 8 for extension of the said order have been passed inadvertently, though it was not so required.
6. Accordingly, I.A. No.08 of 2024 stands disposed of.
7. Since the learned Counsel for the Respondent Company forcefully submits to pass an order for release of the entire deposited amount, on being asked as to whether his client would be able and willing to furnish security/bank guarantee to secure return of the money, in the event the Appellant Company succeeds in this appeal, Mr. Bahali prays for a short adjournment. However, because of the ensuing Durga Puja holidays, the matter be listed in the week commencing from 21st October, 2024.
Signature Not Verified (S.K. MISHRA) Digitally SignedSigned by: BANITA PRIYADARSHINI PALEI JUDGE Designation: SR. STENOGRAPHER Banita Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 27-Sep-2024 14:59:24 Page 8 of 8