Delhi High Court - Orders
Ongc Ltd vs Consortium Of Meil-Vngs on 12 December, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 134/2018
ONGC LTD. ..... Petitioner
Through: Mr.Abhishek Puri, Ms.Surbhi Gupta,
Mr.Sahil Grewal, Advs.
versus
CONSORTIUM OF MEIL-VNGS ..... Respondent
Through: Ms.Kiran Suri, Sr. Adv. with
Mr.P.Buttas, Mr.Fahod Imtiaz,
Ms.Aishwariya Kumar, Mr.Prateek,
Ms.Vidushi Garg, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 12.12.2022 IA 13794/2022
1. By this application, the respondent prays for a direction against the petitioner to return the bank guarantees for the liquidated damages submitted with the petitioner.
2. The learned senior counsel for the respondent submits that though the arbitral award is in favour of the respondent, the respondent is incurring huge loss in keeping these bank guarantees alive. She submits that the bank guarantees are, in fact, expiring on 31.12.2022, and, therefore, the respondent should not be burdened with extra cost for renewal of the same.
3. Placing reliance on the order dated 24.06.2020 passed by the Division Bench of this Court in FAO(OS) (COMM) No.72/2020 titled ONGC Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:13.12.2022 15:25:20 Petro Additions Limited v. Technimont Private Limited & Anr., she submits that in case the validity of the bank guarantees has to be extended, the petitioner should be directed to reimburse the cost thereof to the respondent.
4. On the other hand, the learned counsel for the petitioner has drawn my reference to the Memorandum of Understanding (in short, "MoU") dated 26.08.2020, wherein the parties have agreed inter alia as under:
"1. That, the Consortium agree that in the event the Court(s) (Delhi High Court or Supreme Court) or the Court(s) holds at a later date, that the delay is attributable to the Consortium and ONGC is entitled for recovery of LD, then ONGC shall be entitled to unconditionally invoke/encash the above mentioned BGs against LD and against interest on LD in terms of the language of the said BGs, without any recourse to the Consortium.
2. That, the Consortium agree that the BGs towards LD And Interest on LD tabulated above shall be extended 15 days prior to their expiry period and shall continue to do so till the matter is finally decided by the Courts (Delhi HC and Supreme Court) and failure to do so, shall entitle ONGC to unconditionally invoke/encash the said BGs, without any recourse to the Consortium.
3. That, the Consortium agree that their present proposal for release of part PBGs of Rs.135.85 Crores is without prejudice to ONGC's rights to release the PBGs after withholding remaining PBGs for the time being."
5. The learned counsel for the petitioner submits that in terms of the above MoU, the validity of the bank guarantees has to be extended till the matter is finally decided by the Supreme Court.
6. The above submission of the learned counsel for the petitioner is Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:13.12.2022 15:25:20 refuted by the learned senior counsel for the respondent, who submits that the above MoU was got executed from the respondent by exercising duress as other bank guarantees were also retained by the petitioner and were not being released.
7. Be that as it may, in view of the MoU dated 26.08.2020, an order for release of the Bank Guarantees cannot be passed on the application as of today. The submission of duress raised by the learned senior counsel for the respondent cannot be considered in this application. The order of the Division Bench relied upon by the learned senior counsel for the respondent appears to have been passed in the facts of that case and in view of the MoU executed by the parties herein, shall not be applicable.
8. It is therefore, directed that the respondent shall extend the validity of the subject bank guarantees by a period of six months for the present. Endeavour shall, however, be made that the petition is finally heard on the next date of hearing. In case, for any reason, the petition is not heard, the respondent shall be at liberty to move a similar application again for appropriate orders, in accordance with law.
9. The application is disposed of in the above terms.
O.M.P. (COMM) 134/2018
10. A request for adjournment is made on behalf of the learned counsel for the petitioner on the ground that the learned ASG, who has to argue the matter, is busy in another Court.
11. Request for adjournment is strongly opposed by the learned senior counsel for the respondent.
12. However, in the interest of justice, one final opportunity is granted to Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:13.12.2022 15:25:20 the petitioner, making it clear that on the next date of hearing, the petition shall be heard on merit.
13. List on 9th February, 2023 at 2.30 p.m. NAVIN CHAWLA, J DECEMBER 12, 2022 RN Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:13.12.2022 15:25:20