L And T Geostructure Pvt Ltd vs Gammon India Ltd
2021 Latest Caselaw 13129 Bom

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      ORDINARY ORIGINAL CIVIL JURISDICTION


                                     INTERIM APPLICATION (L) NO.13958 OF 2021
                                                         IN
                       COMMERCIAL EXECUTION APPLICATION (L) NO.35 OF 2020


                    L & T Geostructure Private Limited              .. Applicant
                         v/s.
               Gammon India Ltd. & Ors.                             .. Respondents



               Mr. Karl Shroff a/w Sanaya            Dadachanji & Shantanu Ray i/b. M/s.
               Manilal Kher Ambalal & Co. for the applicant.

               Mr. Amrut Joshi i/b. Ramesh C. Sahu for respondent no.1.


                                                          CORAM : A. K. MENON, J.

DATED : 15TH SEPTEMBER 2021.

P.C. :

1. Mr. Shroff appearing on behalf of applicant submits that despite

several assurances made by the respondent no.1 that the amounts

awarded would be paid, no payments are forthcoming. He

submits that on previous occasions the respondent no.1 had

assured the applicant that monies were to be received from

certain judgment debtors of the respondent no.1 and hence there

Digitally signed by SANDHYA was no requirement of passing any interim orders since those SANDHYA BHAGU BHAGU WADHWA WADHWA Date:

2021.09.16 17:35:05 +0530

21.ial-13958-21.doc wadhwa monies can be available for settling the applicant's claim. This

Execution Application is in a consent award. Hence there is no

question of any challenge.

2. Mr. Shroff therefore submits that the statements made by the

respondent no.1 cannot be relied upon. He has instructions to

press for relief in terms of prayer clauses (d) and (e). He submits

that certain amounts are expected to be received by the

respondent no.1 from Sewa HEP and Patna Water Supply Project

and that amounts receivable from those entities are under Awards

dated 4th July, 2020 13th February, 2020. He submits that

respondents are expecting receipt of those amounts. He therefore

seeks a direction in terms of prayer clauses (d) and (e).

3. The record indicates that this Execution Application has been

listed for hearing since 5th February, 2020. The court then

recorded that since the award is by consent, let the dispute be

settled and observed that the court may not be required to pass

any further orders. On 12 th February, 2020 once again time was

sought and granted on the basis that Vakalatnama on behalf of

respondent will be filed before the adjourned date. On that date,

Ms. Sonawane had appeared for the respondent. The matter

21.ial-13958-21.doc wadhwa could not taken up for want of time on 18 th February, 2020 and

on 3rd March, 2020 the learned counsel for the respondent

undertook to place on record the affidavit disclosing the movable

and immovable assets of the respondent and also a list of creditors

along with a separate list of proceedings filed by the creditors

against the respondent and the amounts involved.

4. It was stated that certain proceedings were pending in the Delhi

High Court where substantial amounts have to be recovered by

the judgment debtor. The learned counsel, obviously on

instructions submitted that the respondent is looking for

realization of these amount so that the respondent can make

payment to the applicant from the said amounts. Accordingly,

disclosure was directed to be made. No amounts were

forthcoming between 3rd March, 2020 and 14th September, 2020.

When this IA No.1 of 2020 was taken up Mr. Suryavanshi who

was then appearing submitted that amount awarded will be paid

with interest immediately upon the respondent recovering monies

in the proceedings pending in Delhi High Court. The applicants

were thus led to believe that the settlement as contemplated by the

court in February 2020 would eventually take place, however, it

did not. On 28th September, 2020 time was sought by the

21.ial-13958-21.doc wadhwa respondent to file an affidavit, time was granted. An affidavit

came to be filed and on 7 th October, 2020 the applicants

submitted that the disclosure was incomplete. The respondents

were directed to provide all particulars of legally recoverable

claims by 12th October, 2020. On 19th October, 2020 extension

of time was sought by the respondent that too was granted.

5. On 2nd November, 2020 the disclosure affidavit having been

served upon the applicants. It was noticed that two Awards dated

4th July,2020 in arbitration between respondent no.1 and Sewa

HEP and one dated 14th February, 2020 between respondent no.1

and Patna Water Supply were in favour of the respondent no.1.

The respondents were directed to inform the applicants as to

when the arbitration proceedings would culminate in Awards, if

any. Extension of time was sought to file affidavit on behalf of the

Executive Director of the company, that time having been granted

the matter was not listed till the applicants once again not having

received any funds or any contract payment and they moved this

court on 21st April, 2021. Notice was directed to be served upon

NHAI. Upon service of notice, NHAI appeared in court on 28 th

April, 2021 and submitted that a sum of Rs.32,71,00,000/- due to

the original respondent no.1 had already been paid to the

21.ial-13958-21.doc wadhwa respondent. None of this was disclosed by the respondent no.1 to

the court when time was repeatedly being sought and granted. It

is thereafter that the present application has been moved having

experienced the conduct of the 1st respondent in not complying

with earlier statements made by them through counsel obviously

on instructions. Therefore, today the application made by way of

interim application in terms of prayer clauses (d) and (e) to my

mind is fully justified.

6. Having noticed that the awards are against Sewa HEP and Patna

Water Supply, these two parties name did not appear to be

entities. As expected, on a query from the court both learned

counsel state that they are not entities but are the names of the

projects of NHPC Limited and Bihar Urban Infrastructure

Development Corporation Limited respectively.

7. In view of the above, I pass the following order;

(i) There will be an ad-interim relief in terms of prayer clauses (d)

and (e).

(ii) The entities M/s. NHPC Limited and Bihar Urban

Infrastructure Development Corporation Limited are restrained

from making any remittance to the respondent no.1 or any other

21.ial-13958-21.doc wadhwa group concern under the Awards dated 4 th July, 2020 and 14th

February, 2020. The amounts, if any, payable by them shall be

deposited in this court to the credit of the Execution Application.

(iii) M/s. NHPC Limited and Bihar Urban Infrastructure

Development Corporation Limited which are stated to be

judgment debtors in sums of Rs.150,55,08,024/- and

Rs.94,18,66,862/- will collectively deposit Rs.4.50 crores each till

further orders. Such amount(s) shall remain invested by

Prothonotary and Senior Master in short term deposit of three

months till further orders.

(iv) In the event of any reservation against making any deposits,

these parties shall file affidavits setting out whether there is any

challenge to the Award and consequent of such challenge.

(v) The applicant's Advocate shall serve authenticated copies of

this order forthwith upon the two companies and file in the

registry affidavits of service along with their forwarding letter

within one week thereafter.

(A. K. MENON, J.)

21.ial-13958-21.doc wadhwa