Bombay High Court
Orange City Water Private Limited vs Nagpur Environmental Services Limited on 4 August, 2025
1 34-CAM 106.2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL APPLICATION (M) NO. 106 OF 2025
IN
ARBITRATION APPEAL NO. 87 OF 2025
(Orange City Water Private Limited vs. Nagpur Environmental Services Ltd. and others)
Office Notes, Office Memorandum of Coram,
appearances, Court's orders or the directions, Court's or Judge's
order
and Registrar's orders.
Mr. Nikhil Padhye, Advocate for the applicant/appellant.
CORAM : ABHAY J. MANTRI, J.
DATE : AUGUST 04, 2025
1) Heard learned counsel for the appellant at length.
2) The applicant/appellant being aggrieved by the
judgment and order dated 07/07/2025, passed by learned
District Judge, Nagpur in Arbitration Case No.08/2025, whereby
the application for grant of interim relief under Section 9 of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as
the 'Act'), has preferred this appeal.
3) Learned counsel for the appellant has tendered
across the bar a pursis dated 31/07/2025 along with annexures
before the Court, the same is taken on record and marked as ' X'
for identification purposes. Similarly, learned counsel for the
appellant has filed an affidavit dated 02/08/2025 stating that the
appellant has served the respondent by email as well as the
counsel, who has appeared on behalf of the respondent before
the District Court. Despite the said fact, none appear for the
respondents.
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4) During the argument, learned counsel for the
appellant has taken me through the impugned judgment and
order, as well as the record. In support of his contention, he has
relied upon the following decisions.
1) Essar House Private Ltd. vs. Arcellor Mittal
Nippon Steel India Ltd. 2022 SCC OnLine SC 1219.
2) Jagdish Ahuja vs. Cupino Ltd. 2020 SCC
OnLine Bom 849.
3) Sundaram Finance Ltd. vs. NEPC India Ltd.
(1999) 2 SCC 479.
4) Demerara Distilleries Pvt. Ltd. and another vs.
Demerara Distillers Ltd. (2015) 13 SCC 610.
5) Ennore Port Ltd. vs. M/s. Chettinad
International Coal Terminal Pvt. Ltd. 2011 SCC
OnLine Mad 959.
6) J.P.Parekh and another vs. Naseem Qureshi
and others 2022 SCC OnLine Bom 6716.
7) Allora Electric & Cable Co. vs. Shiv Charan &
Bros. 1998 (45) DRJ.
8) Firm Ashok Traders and another vs. Gurumukh
Das Saluja and others (2004) 3 SCC 155.
5) He has drawn my attention to communication dated
12/09/2024 and submitted that in the said communication, no
detailed calculation was given for deducting Rs. 30,02,30,023/-
in 12 equal installments, i.e. Rs. 2,50,19,169/- per month from
the invoice bills submitted by the appellant with respondent
No.1.
6) He further canvassed that the respondents are trying
to recover the amount for the period from 2022 to 2023.
However, the appellant received no prior communication from
the respondent No.4 before receipt of the letter dated
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12/09/2024, and for the first time, they have issued said letter
about deduction towards the consumption of the excess water
and electricity by the appellant; however, no detailed calculation
or method has been given in it. How and on what basis was the
said amount calculated.
7) He also pointed out para 13 from the reply filed by
the appellant, wherein he has given a table and response to the
letter dated 12/09/2024. He has specifically shown the entries
No. 04, 06, 08 and 09 of the said reply. Thus, being aggrieved by
the same, the appellant has preferred the application under
Section 9 of the Act before the learned District Judge.
8) He further canvassed that, learned District Judge
though in the judgment has observed that Section 9 of the Act
empowers courts to grant interim measures of protection to
parties involved in arbitration proceedings and also considered
the judgments relied upon by the appellant, however in para 17
the District Judge has observed that for determining the
consumption of excess water and electricity, opportunity to
adduce evidence is required to be given to the parties. Despite
the said finding, the learned District Judge has erred in observing
that the appellant did not follow Clause No.24.1 of the
agreement before filing the application. According to the learned
counsel, the question of invocation of Clause 24.1 does not arise,
nor is it required to be dealt with while dealing with the
application under Section 9 of the Act; therefore, the Court has
erred in dealing with Clause 24.1 while considering the
application under Section 9 of the Act. Thus, the finding arrived
at by the District Judge is contrary to the facts on record.
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9) He further argued that the respondents made two
fold arguments before the learned District Court (i) the appellant
failed to make out prima facie case and no balance of
convenience lies in its favour (ii) the appellant has not followed
Clause 24.1 before invoking the application under Section 9 of
the Act, therefore, dismissed the petition.
10) He further propounded that, as per the appellant's
calculation, he is liable to pay Rs. 98 Lakh only. However, without
giving any detailed calculation or without intimating to the
appellant, the respondents have illegally deducted an amount of
Rs. 25 Crores from the invoice submitted by him. Therefore, he
urged to stay the impugned communication dated 12/09/2024.
11) He mainly emphasised that the learned District Judge
committed a grave error in holding that the appellant failed to
establish that it has a prima facie case and no balance of
convenience lies in its favour, and it will not suffer irreparable
loss. However, the learned District Judge neither considered the
reply filed by the appellant, nor given any finding as to how the
balance of convenience does not lie in favour of the appellant
and therefore, said finding cannot be sustained in the eyes of
law, hence he urged for grant of interim relief till filing of the
reply by the respondents.
12) Lastly, he submitted that in the letter issued by the
respondents, nothing has been explained on which basis they are
deducting an amount of Rs. 2.5 crores per month from the
invoice submitted by the appellant. In reply to the application,
the averment was denied evasively. However, the learned District
Judge has not considered the said fact in its proper perspective
and erred in rejecting the application, observing that the
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appellant failed to make out a prima facie case and the balance
of convenience does not lie in its favour. Therefore, he submitted
that the said finding is contrary to the material placed on record,
while dealing with the application under Section 9, a question of
adducing the evidence does not arise. Therefore, the said finding
of the learned District Judge is incorrect, unjust, and improper.
13) He further pointed out relevant paras from the
judgment on which he has relied and emphasised that under
Section 9 of the Act, the Courts have ample power while dealing
with the application to grant interim relief.
14) Having heard learned counsel for the appellant and
having gone through the record, as well as judgments relied
upon by him at the outset prima facie it appears that the basis
on which the respondents deducted the amount from the invoice
bill of the appellant, i.e. letter dated 12/09/2024, does not
reflect that on which basis, the respondents came to the
conclusion that appellant has consumed excess water and
electricity for the year 2022 to 2023, but vaguely observed in the
said letter about the excess consumption of the water and
electricity. Similarly, it appears that for the recovery of the dues
for the period of 2022 to 2023, the respondent No.1 for the first
time issued a letter dated 12/09/2024, and no reference had
been given in it about the prior communication, if any, issued by
them to the appellant. In the table, the respondent No.1 tried to
demonstrate the quantity and unit consumed by the appellant;
however, no detailed calculation has been given when he lifted
excess water or consumed more electricity than the permitted
limit.
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15) On perusal of the reply filed by the respondent No.1,
prima facie it appears that they have emphasised Clause 24.1 of
the agreement and only denied the contents of para 1 to 44, 50,
52 and 58. However, learned counsel for the appellant also
submitted that respondents have not sent any communication or
document along with their reply to demonstrate how they are
entitled to recover the dues/charges for the excess water and
electricity consumption by the appellant.
16) Thus, considering the above discussion, and
documents on record, as well as the dictum laid down in the
cited judgments, prima facie in my view, though the dispute is
relating to the recovery of amount, however, before deduction of
the enormous amount from the invoice bill of the appellant the
respondents ought to have demonstrate that they are entitled to
recover the said charges for the consumption of the excess water
and electricity from the appellant. The letter dated 12/09/2024,
prima facie, does not demonstrate the said fact. Moreover,
according to the learned counsel for the appellant, till this date,
the respondents have deducted Rs. 25 Crores out of the alleged
Rs. 30 Crores recovery instead of Rs. 98 Lakh.
17) Besides, despite the service of notice through email,
none appear for the respondents; therefore, in my view, if the
respondents are restrained from deducting the further amount
based on the letter dated 12/09/2024, it would not cause
prejudice to the respondents. On the other hand, if the
deduction is not stayed, it would cause prejudice to the
appellant. Thus, I am of the view that till the appearance of the
respondents, the effect, operation and implementation of the
impugned letter dated 12/09/2024 shall be stayed. As a result,
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ad-interim relief is granted in terms of the prayer clause (1) till
the next date.
18) List the matter on 22/08/2025.
( ABHAY J. MANTRI, J. )
KOLHE
Signed by: Mr. Ravikant Kolhe
Designation: PA To Honourable Judge
Date: 08/08/2025 10:43:19
