Era Infra Engineering Ltd. v. National Thermal Power Corporation & ORS.

$~31 * IN THE HIGH COURT OF DELHI AT NEW DELHI + O.M.P.(I) (COMM.) 10/2016 ERA INFRA ENGINEERING LTD.

..... Petitioner Through:

Mr Manoj Kumar Singh, Ms Nilava Bandhopadyay and Ms Shweta Vashisht, Advocates.

versus NATIONAL THERMAL POWER CORPORATION & ORS.

..... Respondents Through:

Mr Puneet Taneja and Ms Shaheen, Advocates for Respondent no.1.

Mr O. P. Gaggar with Mr Runashree, Advocates for Respondent Nos.2 & 4.

Mr Sanjeev Sabharwal, Senior Advocate with Mr Rajiv Kapur, Advocate for the Respondent.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

O R D E R

% 28.07.2016 IA No.332/2016 Allowed, subject to all just exceptions.

O.M.P.(I) (COMM.) 10/2016 & IA Nos.687/2016, 1253/2016 This is a petition filed under Section 9 of the Arbitration & Conciliation Act, 1996, inter alia, praying as under:- "a) Restrain Respondent No.1 herein from invoking and/or encashing the following Bank Guarantees issued by Respondent Nos.2 to 5/Banks (on behalf of the Petitioner herein), during the pendency of the present Petition, till the

final adjudication of the matter by an Arbitrator or as may be so required/directed by this Hon'ble Court:

(i) Bank Guarantee No.413701GL0008907 dated 10/09/2007 for Rs.152.23 lakhs;

(ii) Bank Guarantee No.413701GL0002209 dated 11/02/2009 for Rs.250.00 Lakhs;

(iii) Bank Guarantee No.497801GL00005911 dated 26/05/2011 for Rs.100.00 Lakhs;

(iv) Bank Guarantee No.PSBG/2010/158 dated 29/04/2010 for Rs.100.00 Lakhs;

(v) Bank Guarantee No.1731315BG00000311 dated 01.07.2015 for Rs.75.00 Lakhs;

(vi) Bank Guarantee No.1731315BG00000163 dated 08.05.2015 for Rs.50.00 Lakhs;

(vii) Bank Guarantee No.1731315BG00000164 dated 08.05.2015 for Rs.75.00 Lakhs; and/or b) In case of encashment of the aforesaid Bank Guarantees by Respondent No.1, before consideration and/or grant of the aforesaid prayer (a) by this Hon'ble Court - To pass an order of interim measure of securing the aforesaid Bank Guarantees amounts by requiring/directing Respondent No.1 herein to deposit the encashed amounts before this Hon'ble Court, til, the final adjudication of the present petition or as may be so required/directed by this Hon'ble Court;"

The learned counsel for the respondent states that the bank guarantees in question have already been encashed and the amounts have already been received by the respondent. The letters invoking the bank guarantees were issued by the respondent on 05.01.2016 and they were received by the concerned banks on 06.01.2016. The Union Bank of India honoured its

commitment and remitted the amount on 06.01.2016 and the State Bank of India forwarded the demand drafts on 07.01.2016. The petitioner by an email sent on 07.01.2016 at 5:19 PM informed the respondent about the stay order. In response thereto the respondent had communicated that the bank guarantees claimed had already been honoured in favour of the NTPC.

In the aforesaid circumstances, the prayer for restraining the respondents from invoking the bank guarantees has become infructuous. With regard to the other prayer regarding providing of security to the petitioner, the same prayer can be made before the Arbitral Tribunal. Accordingly, the present petition is dismissed. However, it is clarified that nothing stated therein should be construed as an expression of opinion on the merits of the claims raised by the petitioner and the petitioner would be at liberty to apply under Section 17 for such interim measure of protection as the petitioner may be advised.

The petition and all the pending applications are disposed of. VIBHU BAKHRU, J JULY 28, 2016 MK