Mc-Rotem-Melco Consortium vs M/S Delhi Metro Rail Corporation ...
2009 Latest Caselaw 1595 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                   Date of Reserve: April, 16 2009
                                                      Date of Order: April 22, 2009

+OMP 304/2007 & IA NO.4917/2009
%                                                           22.04.2009
    MC-Rotem-Melco Consortium                        ...Petitioner
    Through : Mr. Rajiv Nayyar, Sr. Adv. with Mr. Manu Nair, Mr. Siddharth
    Datta and Mr. Arun Mohan, Advocates


      Versus


      M/s Delhi Metro Rail Corporation Ltd.                         ...Respondent
      Through: Mr. Rakesh Agarwal, Advocate


      JUSTICE SHIV NARAYAN DHINGRA

1.    Whether reporters of local papers may be allowed to see the judgment?

2.    To be referred to the reporter or not?

3.    Whether judgment should be reported in Digest?


      JUDGMENT

1. On 4th April 2007, the Arbitral Tribunal in this case passed an interim

award and directed the parties to appear before it on 8th October 2007 at 5.30

pm for adjudicating remaining issue that was to be decided after rendition of

accounts by Claimant. The petitioner has challenged this interim award by

filing a petition under Section 34 of the Arbitration & Conciliation Act, 1996.

The arbitral record was sent back to the Arbitrator for concluding the arbitral

proceedings and for giving final award. Counsel for the petitioner has raised

objections against continuing of arbitral proceedings further. It is submitted

that although the award was termed as an interim award but the said award

had rejected all the claims of the petitioner and was a final award as far as

petitioner was concerned. The Arbitrator has allowed some of the claims of

OMP 304.07 MC-Rotem-Melco Consortium v. M/s Delhi Metro Rail Corporation Ltd. Page 1 Of 2 the respondent and while allowing the claims of the respondent, in order to

evaluating exact value of the claim made in favour of the respondent, , the

Arbitrator has to go in the accounts. This would not be necessary if the

petition of the petitioner is allowed and the claim awarded to the respondent

is set aside. It is submitted that in view of Section 36 of the said Act, it was

not permissible for the Arbitrator to proceed further.

2. I consider that this argument of the counsel for the petitioner is

misconceived. The petitioner has a right to challenge the interim award but

only because the petitioner has challenged the interim award, the arbitral

proceedings for deciding leftover questions, does not come to stay. Filing an

application under Section 34 challenging an interim award would only result

into the non-implementation of the interim award. The determination of the

remaining questions by the Arbitrator does not amount to implementation of

the award. Section 36 of the Arbitration & Conciliation Act, 1996 prohibits

enforcement of the award till the pendency of the application under Section

34. It does not prohibit the Arbitrator from proceeded further and also from

concluding the arbitral proceedings.

3. The objection raised by the petitioner against the Arbitrator's

proceeding further with the arbitration and passing a final award is not

tenable. It is made clear that the Arbitral Tribunal is at liberty to proceed

further and to conclude the proceedings and give a final award.

April 22, 2009                                       SHIV NARAYAN DHINGRA J.
rd

OMP 304.07 MC-Rotem-Melco Consortium v. M/s Delhi Metro Rail Corporation Ltd. Page 2 Of 2