Lucknow Varanasi Tollways Pvt Ltd vs National Highways Authority Of ...
2013 Latest Caselaw 4891 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 24.10.2013

+                        O.M.P. 1216/2012
      LUCKNOW VARANASI TOLLWAYS PVT LTD ..... Petitioner
                 Through: Mr Amar Dave, Mr Chirag M. Sheriff &
                 Mr Abhishek Singh, Advs.

                         versus

      NATIONAL HIGHWAYS AUTHORITY
      OF INDIA & ORS                               ..... Respondents

Through: Mr Ramesh Singh, Ms Anne Mathew & Ms Megha Mukherjee, Advs. for R-1.

Mr N.S. Yadav, proxy counsel for Mr Ajant Kumar, Adv. for R-3/ Corporation Bank.

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J (ORAL)

1. After some arguments it has come to light that the petitioner has approached this court based on a letter dated 18.12.2012 issued by respondent no. 1.

2. In so far as the letter dated 18.12.2012 is concerned, respondent no. 1 has requested the petitioner to furnish the performance security, amounting to Rs. 52.18 crores, in respect of the project in issue, by 22.12.2012. Respondent no. 1 has also put the petitioner to notice that the petitioner should not link the submission of a performance security to the fulfilment of conditions precedent, by it. Furthermore, respondent no. 1 has also

indicated in the very same communication that if the performance security is not furnished by the petitioner, then the respondent would be compelled to take appropriate action under clause 9.1.2 of the concession agreement, without prejudice to any other right that may be available to it under the said agreement.

3. Decidedly, there is no formal letter of invocation issued to the concerned bank by respondent no. 1 for encashment of the bank guarantee. The principal argument of the petitioner is that since the state support agreement has not been executed between respondent no. 1 and the concerned State Government, it would be inequitable to call upon the petitioner to furnish the performance security. 3.1 To be noted, Mr Dave, learned counsel for the petitioner says that there are other averments also made in the petition in support of its prayers made in the petition.

4. Based on the aforesaid, this court had passed in the present proceedings, an ex-parte ad-interim order on 21.12.2012, restraining respondent no. 1 from taking coercive steps pursuant to letter dated 18.12.2012. This order was made subject to the petitioner keeping the bank guarantee in issue (relating to the bid security) alive. I am informed that the bank guarantee in issue is alive even today.

5. Learned counsels for the parties inform me that the arbitral tribunal has been constituted in the matter and has entered upon reference. I am further informed that arbitral tribunal has fixed 30.10.2013, as the next date of hearing.

6. In these circumstances, Mr Dave says that he will withdraw the captioned petition and approach the arbitral tribunal with an application

under Section 17 of the Arbitration & Conciliation Act, 1996 to seek the reliefs, which are prayed for, in the present petition.

7. Having regard to the fact that there is no invocation of the bank guarantee in issue by respondent no. 1, to seek encashment in respect of the same, respondent no. 1 shall give at least ten (10) days prior written notice to the petitioner, in case, it proposes to proceed to invocation and consequent encashment. In my view this direction should sufficiently protect the interest of the petitioner till such time it approaches the arbitral tribunal to obtain necessary orders.

8. The petition is, accordingly, dismissed as withdrawn. The arbitral tribunal, if moved, is requested to pass appropriate orders in respect of the prayers made in the petition, if otherwise thought fit, after giving due opportunity to the parties herein.

RAJIV SHAKDHER, J OCTOBER 24, 2013 kk