O.M.P.(I) (COMM.)/463/2016 of K.R. ANAND Vs NAVAYUGA ENGINEERING CO LTD & ANR.

IN THE HIGH COURT OF DELHI AT NEW DELHI

+O.M.P.(I) (COMM.) 463/2016

K.R. ANAND

..... Petitioner

Through:Mr R. K. Modi, Advocate.versus

NAVAYUGA ENGINEERING CO LTD

& ANR...... Respondents

Through:Mr Arijit Mazumdar, Advocate for R-1.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

O R R%21.12.2016

1.The petitioner has filed the present petition under Section 9 of theArbitration and Conciliation Act, 1996 (hereafter ‘the Act’), inter alia,praying as under:-

“(A) This Hon'ble Court may be pleased to issue an ex parte adinterim injunction against respondent No.1 thereby restrainingrespondent no.1 from in any manner settling or relinquishingany part of the claim in terms of the award which has becomeenforceable as decree without the express written consent ofthe petitioner. Respondent No.1 be further restrained fromappropriating the entire amount recoverable from respondentno.2 on the basis of the award dated 26/12/2011 which is nowbecome enforceable as decree, the Hon’ble Court may befurther pleased to restrain respondent No.2 from makingpayment of Rs.9,87,19,414.35 along with payable interest torespondent No.1 as the same is payable to the petitioner torespondentNo.1withinterest,inanymannerandtherespondent No.2 be directed not to pay the entire amount as perthe award to respondent no.1 and to pay the awarded amount tothe extent of Rs. 9,87,19,414.35 with interest to the petitionerand balance to respondent no.1 or to hold the amount of Rs.

9,87,19,414.35 along with payable interest on behalf of thepetitioner.”

2.The petitioner states that respondent no. 2 (hereafter ‘GNCTD’) hadawarded contract for construction of bridge across river Yamuna nearGeeta Colony, Delhi to respondent no.1 (hereafter ‘NECL’). The said workswere to be completed by 29.01.2008. It has been averred that since NECLwas not in position to complete the work on its own, it had delegated partof the works to the petitioner.

3.The petitioner states that out of the total work of the value of`82,46,36,748/- executed in terms of the aforesaid contract between GNCTDandNECL,thepetitionerhadexecutedworksofthevalueof`35,32,59,294/-.The petitioner further asserts that NECL raised claimsrelating to the works (which in fact was executed by the petitioner) againstGNCTD. The said disputes were referred to arbitration between NECL andGNCTD and culminated in an award dated 26.12.2011. GNCTD filed apetition under Section 34 of the Act impugning the said award (being OMPNo.420/2012) and by an order dated 31.03.2014 passed by single judge ofthis Court, the said award was set aside in respect of certain claims. NECLpreferred an appeal against the said order dated 31.03.2014 passed in OMPNo.420/2012 before Division Bench of this Court. The petitioner statesthat by judgment dated 15.03.2016, the Division Bench set aside the orderdated 31.03.2014 thereby reinstating the award in favour of NECL.

4.The petitioner has further averred that it had arrived at anunderstanding with NECL, whereby NECL had agreed to pursue the claimsin respect of works executed by the petitioner with GNCTD and the arbitral

award referred to above also includes amounts awarded in relation to thoseworks.

5.The petitioner apprehends that NECL would enter into settlementand relinquish part of the claims that are awarded in favour of NECL(relating to the works executed by the petitioner) and thereby frustrate theclaims of the petitioner.

6.The learned counsel appearing for NECL submits that the awardrendered is not in respect of all the works executed by the petitioner. Hefurther submits that the Division Bench of this Court had not reinstated theaward as contended and this had led NECL to approach the Supreme Courtby filing Special Leave Petition against the judgment dated 15.03.2016passed by the Division Bench.

7.The learned counsel appearing for NECL further contended that theNECL does not admit that any amount is due to the petitioner. He also statedthat the works were completed in 2008 and any claim that may be made bythe petitioner would be barred by limitation.

8.However, the learned counsel for NECL stated that notwithstandingthat NECL disputes the claims made by the petitioner, it did not dispute theexistence of the sub-contract or the arbitration clause contained therein.

9.After some arguments, the learned counsel requested that anArbitrator be appointed to adjudicate the disputes that have arisen betweenthem.

10.Accordingly, with the consent of the petitioner and NECL, Justice V.K. Shali (Retired), former Judge of this Court is appointed as SoleArbitrator to adjudicate the disputes between the parties. This is subject tothe Arbitrator making the necessary disclosure under Section 12 of the Actand not being ineligible under Section 12(5) of the Act.

11.The parties (the petitioner and NECL) agree that the arbitration shallbe conducted under the aegis of the Delhi International Arbitration Centre(DIAC) and in accordance with its rules. It is so directed.

12.Insofar as GNCTD is concerned, it is admitted that there is noagreement between the petitioner and GNCTD and the entire case of thepetitioner rests on the said premise.Accordingly, GNCTD cannot bereferred to arbitration.

13.Insofar as the petitioner's prayer for interim relief is concerned, that isrestraining the respondents from relinquishing or settling the part of theawarded sum, the learned counsel for NECL states that he has noinstructions whether NECL and GNCTD are endeavouring to settle any oftheir claims as apprehended by the petitioner. In view of the above, it isdirected that NECL shall not enter into any settlement with GNCTD, inrespect of the awarded sums which relate to any of the works executed bythe petitioner, for period of four weeks from today. In the meantime, thepetitioner is at liberty to approach the Arbitrator for any relief that may beadvised.

14.It is clarified that nothing stated in this order shall be construed as anexpression of opinion as to the merits of the dispute between the parties.

The Arbitrator shall also consider the petitioner’s claim and prayer for anyinterim order, uninfluenced by any observation or directions made in thisorder.

15.The petition is disposed of.

16.Order dasti.

DECEMBER 21, 2016MK

VIBHU BAKHRU, J