Delhi High Court
M/S B.R. Arora & Associates Pvt. ... vs National Highways Authority Of ... on 4 November, 2011
Author: S. Muralidhar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
#
+ O.M.P. 170/2009 and I.A. Nos. 2999/2011 & 11475/2010
Date of order: November 4, 2011
M/S B.R. ARORA & ASSOCIATES PVT. LTD. ..... Petitioner
Through: Ms. Anusuya Salwan, Advocate.
versus
NATIONAL HIGHWAYS AUTHORITY
OF INDIA (NHAI) ..... Respondent
Through: Ms. Garima Malhotra, Advocate for the
applicant in I.A. No. 2999/2011.
Mr. Mukesh Verma with Ms. Meenakshi Sood,
Advocates for NHAI.
CORAM: JUSTICE S. MURALIDHAR
ORDER
% 04.11.2011
IA No. 11475/2010 (u/S 151 CPC filed by the Respondent NHAI)
1. OMP No. 170 of 2009 by M/s. B.R. Arora & Associates Private Limited has been
filed under Section 9 of the Arbitration & Conciliation Act, 1996 („Act‟) seeking for
interim relief against the Respondent National Highways Authority of India („NHAI‟)
in relation to the construction of balance work of 8 laning of KM 16.500 to KM
29.300 of NH-1 in Delhi. The specific prayer is to restrain NHAI from preventing the
Petitioner from using the batch mixed plant at Jagdish Pur, Sonepat (Haryana) and wet
mixed plant at Jind Pur, Delhi and various other equipments like pavers, vibratory
rollers, PTR, loaders, bitumen sprayer, diesel generator set, lab etc.
2. At the hearing of the petition on 19th November 2009, on the oral request of learned
Senior counsel for the Petitioner, this Court permitted M/s. Bhola Singh Jaiprakash
Construction Limited to be impleaded as party Respondent. It was stated the
Petitioner‟s plant and machinery were not being utilized by NHAI and were lying idle
and that the Petitioner would like to utilize them. Learned Senior counsel for the
Respondent then sought time to obtain instructions.
3. On 23rd December 2009 the following directions were issued by this Court:
"5. After hearing both the parties it is considered appropriate that the
interest of justice would be served in case the Petitioner is allowed to
use the plant and machinery lying at the site subject to the following:
(a) The Petitioner would use the plant and machinery lying at
different sites of the Respondent as detailed in Annexure-A,
subject to the condition that the Petitioner would not remove the
same from the site till further orders by the disputes resolution
board/Arbitrator/Court. The machinery shall remain in the
custody and possession of the Respondent (NHAI).
(b) In case the Respondent requires to use any of the plant and
machinery, the Respondent would notify the Petitioner
whereupon the Petitioner would within 72 hours of such notice
stop use and thereupon the Respondent may use the said plant
and machinery.
(c) In case the said machinery is again not required by the
Respondent, the Respondent would again allow the Petitioner to
use the same.
(d) This permissive use shall not confer any equities in favour
of the Petitioner."
4. The parties were given liberty to approach the Court in case they wished to seek any
further direction.
5. The NHAI filed the present application, IA No. 11475 of 2010, on 27th August 2010
seeking direction to the Petitioner to pay for usage of plant and machinery as well as
watch and ward expenses to the NHAI for letting it use the plant and machinery at the
site of NHAI in furtherance of the Order dated 23rd December 2009 and also a
proportionate amount of rent borne by the NHAI for land on which the plant and
machinery have been retained. A further direction sought is that the Petitioner will use
the plant and machinery lying at the site of NHAI only for undertaking the projects in
its own name and to the exclusion of any party to which it may have sub-contracted
the work. The NHAI also seeks a clarification of the duration and the projects for
which the order dated 23rd December 2009 shall be applicable. It is further prayed that
the Petitioner should be directed to undertake any repair/maintenance/ overhaul the
equipments only at the site of NHAI and at the cost of the Petitioner.
6. In reply to the application, the Petitioner stated that the NHAI had not obeyed the
order dated 23rd December 2009 and had not allowed the Petitioner to utilize the plant
and machinery lying at the different sites despite several requests made by the
Petitioner.
7. In its rejoinder, the NHAI stated that it has not disobeyed the order dated 23rd
December 2009. It is further stated that it has filed this application only to seek
clarification.
8. This Court has considered the submissions of learned counsel for the parties. The
reliefs sought in this application are not merely by way of a clarification of the order
dated 23rd December 2009 passed by this Court. They seek to expand the scope of the
proceedings as well as the order dated 23rd December 2009. The order is self-
explanatory and ambiguous and does not require any further clarification or
modification. The liberty given to the parties to approach this Court was only if there
could be any difficulty in implementing the directions contained in the said order. The
NHAI does not explain why it waited for over eight months to file this application. It
does not state that there is any particular difficulty in implementing the directions
issued by this Court. The parties should first work out the order. As regards the
allegation made by the Petitioner that the NHAI disobeyed the order dated 23rd
December 2009 it will be open to the Petitioner to seek appropriate legal remedy in
respect thereof in accordance with law.
9. With the above observation, the application is disposed of.
IA No. 2999/2011 (u/O 1 Rule 10 CPC read with Section 151 CPC for
impleadment)
10. This is an application by Applicant/M/s. Starcon Infra Projects (I) Private Limited
seeking impleadment in OMP No. 170 of 2009. It is stated that the Petitioner which is
in joint venture with M/s. Bhola Singh Jai Prakash Limited hired the vibrator roller of
the Applicant in the month of October 2007 and a memorandum of understanding
(„MOU‟) was also executed between the parties on 18th October 2007. It is alleged by
the Applicant that the Petitioner failed to make the payment in terms of the said MOU.
The Applicant sent a legal notice to the Petitioner on 4th April 2009. In reply to the
legal notice the Petitioner informed the Applicant that the NHAI had retained the said
machinery. The subsequent legal notice sent by the Applicant to the NHAI on 21st July
2009 was not responded to by the NHAI.
11. The Applicant states that it has filed a suit for recovery of Rs. 18,00,000/- against
the Petitioner and the NHAI in the court of the learned Additional District Judge at
Delhi. In the circumstances, the Applicant seeks impleadment and a direction that the
machine (vibrator roller) be released immediately in its favour.
12. The above application has been opposed by the NHAI by referring to Clause 63.1
of the Contract which permits that the NHAI to enter upon the site and retain the
equipments and materials belonging to the Petitioner. It was in that background that
the order dated 23rd December 2009 was passed by this Court. With the Applicant not
being a party to the contract, it cannot seek any relief against the NHAI.
13. Having considered the above submissions it appears to this Court that the
Applicant cannot possibly seek impleadment in the present OMP No. 170 of 2009.
Not being the party to the Contract entered between the Petitioner and the NHAI, the
applicant cannot possibly seek any relief against the NHAI. In any event the Applicant
has filed an independent suit and has to work out its remedies in the said suit.
14. Consequently, this application is without merit and it is dismissed as such. It is
however clarified that the dismissal of this application will not come in the way of the
civil court dealing with any application the Applicant may file in the pending suit on
its own merits.
S. MURALIDHAR, J
NOVEMBER 4, 2011
RK
