Calcutta High Court
Jalan Infrastructure vs Gannon Dunkerley & Co. Ltd on 18 May, 2022
IA No. GA 1 of 2022
IA No. GA 2 of 2022
APO No. 46 of 2022
with
AP No. 167 of 2022
IN THE HIGH COURT AT CALCUTTA
In Appeal from its
ORDINARY ORIGINAL CIVIL JURISDICTION
CIVIL APPELLATE JURISDICTION
(Commercial Division)
Jalan Infrastructure, LLP
Versus
Gannon Dunkerley & Co. Ltd.
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice ANIRUDDHA ROY
Date: 18th May 2022
Appearance:
Mr. Surajit Nath Mitra, Sr. Advocate
Mr. Kumarjit Banerjee, Advocate
Ms. Sanchari Chakraborty, Advocate
Mr. Sourajit Dasgupta, Advocate
Ms. Tanishka Kandelwal, Advocate
for the appellant
Mr. Rishav Banerjee, Advocate
Mr. Supriyo Gole, Advocate
Ms. Aishwarya Awasthi, Advocate
for the respondent
Mr. Prodyut Banerjee, Advocate
Mr. Pratip Mukherjee, Advocate
for Prachi Infra & Roads Pvt. Ltd.
The Court: An application under section 9 of the Arbitration &
Conciliation Act, 1996 was moved before a learned single judge of this
court on 12th April 2022. The order that his lordship passed on that day
was simply a direction upon the parties to exchange affidavits.
The petitioner in that application preferred an appeal before us. It
was moved on 25th April 2022. An affidavit of service was filed in court,
but none appeared for the respondent.
In those circumstances, on that day we, inter alia, observed and
directed as follows:
(a) The prima facie case of the parties could be fully appreciated in
the presence of the respondent and an organisation Kapasi
Infracon LLP (KIL). Advocate-on-record for the
appellant/petitioner was directed to serve a notice on these
entities.
(b) The case of the appellant/petitioner was that all machinery
belonging to KIL as detailed in annexures 2 and 2A of an
agreement dated 30th January 2022 between the parties were
charged in favour of the appellant/petitioner. Prima facie, the
appellant/petitioner on the strength of this legal relationship
was entitled to protection of the assets.
(c) Joint Special Officers were appointed to identify the machinery
and take symbolic possession thereof.
(d) An order of injunction was made restraining the respondent
from dealing with said machinery or parting with their
possession. They would be permitted to use them under the
Joint Special Officers strictly in the usual course of business.
Thereafter the respondent has made an application before this
court (IA No. GA 2 of 2022) for vacation of our order dated 25th April
2022.
On our hearing learned counsel for the parties, we are of the view
that our order dated 25th April 2022 adequately protects both the parties.
The first court has not had an opportunity to deal with the matter,
save and except at the motion stage when it directed filing of affidavits.
In our opinion, this section 9 application should be heard out by
the first court, subject to our interim order dated 25th April 2022 which
is to continue till disposal of the said application or until further order
whichever is earlier.
On the submission of Mr. Banerjee we only clarify the interim order
to the effect that if the machinery have to be moved from one site to
another under the contract between the respondent and KIL, it could not
amount to parting with their possession provided always that before
movement of the machinery, prior intimation to the Joint Special Officers
shall be given and that the machinery would be used under the said
officers in terms of our order dated 25th April 2022.
We have been shown a judgment and order of the Hon'ble Gauhati
High Court dated 18th April 2022 (WP(C)/2651/2022 M/s. Gannon
Dunkerley And Co. Ltd. vs. The Union of India And 4 Ors.) wherein it has
been inter alia recorded that the contract between the respondent and
the principal employer NHIDCL was terminated on 8th April 2022. The
matter is pending before that Hon'ble Court. On that basis, it has been
contended on behalf of the appellant/petitioner that since the
respondent's contract with the principal employer stands determined,
they have no use of the machinery. This fact they had suppressed from
this Court.
The Joint Special Officers shall be entitled to a further ad hoc
remuneration equal to the remuneration already received, to be paid in
the same manner as the initial remuneration.
Leave is given to Prachi Infra & Roads Private Limited to approach
the learned single judge for an appropriate order, if such right is vested
in them in this proceeding.
All points are kept open before the learned single judge.
The appeal (APO No. 46 of 2022) and the connected applications
(IA No. GA 1 of 2022 and IA No. GA 2 of 2022) are disposed of.
(I. P. MUKERJI, J.)
(ANIRUDDHA ROY, J.)
R. Bose
