Sterlite Telecables Limited vs Bharat Sanchar Nigam Limited And ...
2006 Latest Caselaw 226 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This is an petition under Section 9 of the Arbitration and Conciliation Act, 1996 whereby the petitioner has sought interim measures pre- arbitration. The peculiar facts of this case are that on 6.11.2000 when this Petition came up for hearing for the first time, this Court passed an order restraining the respondent No. 1 from enforcing the bank guarantee in question. The respondent No. 2, i.e., the Bank which offered the guarantee was also restrained from making any payment against the said bank guarantee dated 9.3.000 for a sum of Rs 42,60,000/-. That order has continued till date. It is now over five years since the passing of the first order and yet no arbitration proceedings have been initiated. Neither the petitioner nor the respondents has invoked the arbitration clause and sought arbitration of the disputes. Of course, it is for the petitioner to have invoked the arbitration clause because it is the petitioner who rushed to Court seeking the order under Section 9 of the said Act. Having obtained an order, it was incumbent upon the petitioner to invoke the arbitration clause and to set the wheels of arbitration in motion within a reasonable period of time. Five years is certainly not a reasonable period of time, and, therefore, the continuance of such a state of affairs cannot be permitted by this Court., 2. Under these circumstances, I feel that it would be appropriate that the orders passed on 6.11.2000, which have continued till date, shall continue to operate for a further period of fifteen days within which period, it shall be open to the parties including the petitioner to approach the arbitrator in terms of Clause 20 of the General Conditions of Contract. In such an eventuality, it would be open to the arbitrator to extend the orders or pass such other orders upon an appropriate application being made under Section 17 of the said Act. In case, the arbitrator is not approached within the said fifteen days' period, the order dated 6.11.2000 shall seized to operate automatically. The arbitrator on being approached within the said period of fifteen days shall take up any application under Section 17 moved by the petitioner immediately and pass orders thereon.

2. With these directions, this OMP stands disposed of.

3. dusty to both the parties.