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% 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;

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 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 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.

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.

6. The applications are accordingly disposed of.