Delhi High Court
Vishwa Bvsr (Jv) vs Ministry Of External Affairs & ... on 25 November, 2014
Author: Rajiv Shakdher
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. 1483/2014 and IA No.23047/2014 (u/o. 39 R. 1 & 2 CPC)
VISHWA BVSR(JV) ..... Petitioner
Through: Mr. Arun Kathpalia and Mr. Angad
Mehta, Advocates
versus
MINISTRY OF EXTERNAL AFFAIRS & ORS ..... Respondents
Through: Mr. Sanjay Jain, ASG with Mr. B.S.
Shukla, CGSC, Ms. Pallavi Shali and Mr. Rajur
Jain, Advocates for the respondent/UOI
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 25.11.2014
1. Issue notice to the respondents.
2. Mr. Shukla accepts notice on behalf of respondent no.1.
3. I am informed by Mr. Jain, the learned ASG that the contract in issue
is being executed through the Engineering Consultant i.e., RITES Ltd.
(respondent no.2). Therefore, in view of the order that I propose to pass,
both counsels say that the notice need not be issued to the other respondents
including respondent no.2.
4. Mr. Kathpalia, the learned counsel for the petitioner at the very outset
says that the letter dated 19.11.2014 issued by respondent no.2 which, inter
alia, issues a notice of termination of the contract in issue can operate as an
order of termination; albeit without prejudice to the petitioner's rights and
contentions, to agitate the legality of the termination.
O.M.P. 1483/2014 page 1 of 3
5. At the outset, Mr Jain, the learned ASG, submitted that he is
agreeable to the following offer made by the petitioner:
(i). out of the six bank guarantee, four bank guarantees bearing
nos.0192111BG0000715, dated 12.02.2011, for Rs.1,92,49,000/-; and
no.0192111BG0000716, dated 12.02.2011, for Rs.1,92,49,000/-;
no.0192111BG0000717, dated 12.02.2011, for Rs.1,92,49,000/-; and
no.0192111BG0000718, dated 12.02.2011, for Rs.1,92,49,000/- (which are
in the nature of advance bank guarantees) will be encashed by respondent
no.1 subject to the petitioner's lodging their claim with respect to work done
before the learned arbitrator;
(ii). in so far as remaining two bank guarantees bearing no.
110133IBGP00070, dated 08.02.2011, for Rs.7,70,00,000/-; and
no.110133IBGP00071 dated 08.02.2011 for Rs.7,70,00,000/- (which are in
the nature of performance bank guarantees), are concerned, they shall not be
encashed, till such time, respondent no.1 moves an appropriate application
before the arbitrator, to be appointed in the matter. The result of these bank
guarantees will abide by the order(s) of the arbitrator, subject to the said
bank guarantees being kept alive;
(iii). the claims of the petitioner with regard to retrieval of plant and
machinery, tools, etc. lying at site will be agitated before the learned
arbitrator by way of an application under Section 17 of the Arbitration and
Conciliation Act, 1996 (in short the Act);
(iv). the petitioner will give name of their nominee for his appointment as
an arbitrator out of the approved panel of Indian Roads Congress, within two
weeks from today. Respondent no.1 shall do likewise within two weeks
O.M.P. 1483/2014 page 2 of 3
from today. The third arbitrator will be appointed by the two
nominees of the petitioner and respondent no.1, who shall act as a Presiding
Officer;
5.1 In view of what is stated by the learned ASG, whereby in effect he
has accepted the offer of the petitioner, no further orders are called for in the
petition filed under Section 9 of the Act. Parties will abide by the contents
of paragraph 5(i) to (iv), which have fructified into a consent order.
5.2 Needless to say, the parties will be free to lodge their claims and
counter claims, as they may be advised in the matter.
6. Since, counsels for parties are agreed that the procedure of DRE, as
encapsulated in the contract in issue, has been rendered inefficacious, the
parties will proceed to arbitration straightaway, as indicated above.
7. With the aforesaid observations in place, the captioned petition is
disposed of.
RAJIV SHAKDHER, J
NOVEMBER 25, 2014
Yg
O.M.P. 1483/2014 page 3 of 3
