Essar Power Limited vs India Infrastructure Fund
2016 Latest Caselaw 5530 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Order delivered on: 24th August, 2016

+                       Arb. A. (Comm). No. 29/2016

         ESSAR POWER LIMITED                                 ..... Petitioner
                       Through            Mr.Parag Tripathi, Sr. Adv. with
                                          Mr. Abhijeet Sinha, Mr. Rishabh
                                          Parikh, Mr. Rishi Agarwal,
                                          Mr.Mahesh Agarwal and Ms.
                                          Neeha Nagpal, Advs.

                                versuss

         INDIA INFRASTRUCTURE FUND               ..... Respondent
                        Through  Mr.A.S.Chandhiok, Sr.Adv. with
                                 Mr.Sanjeev Kapoor, Mr. Rajat
                                 Jariwal, Ms. Sweta Kakkad, Mr.
                                 Chaitanya Kaushik, Ms. Pallavi
                                 Kumar and Mr. Aakash Bajaj,
                                 Advs.
         CORAM:
         HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. Essar Power Ltd. has filed the present appeal under Section 37 (2) (b) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") against the impugned order dated 8th August, 2016.

2. I have been informed that the applications under Section 17 of the Act are coming before the Arbitral Tribunal on 5th September, 2016. The appellant has now filed the reply in the application. Mr. A.S.Chandhiok, learned Senior counsel appearing on behalf of the respondent submits that the respondent has no objection if the reply is taken on record.

3. While fixing the date of hearing in the pending applications, the directions were also passed by the Arbitral Tribunal on 8 th August, 2016 to the following effect:-

"The Respondent is directed that all information must be supplied to the Claimant, if asked for, in accordance with Clause 17 of the agreement, on or before 18th August, 2016. Wherever necessary the documents containing the information may also be supplied. The Respondent shall not take any further steps/actions in regard to "Reserved Matters" except in accordance with the terms and conditions of the agreement, till a final order is passed by this Tribunal on the application u/s 17 of the Act."

4. Mr. Parag Tripathi, learned Senior counsel appearing on behalf of the appellant submits that once the date of hearing is fixed, the interim orders ought not to have been passed, however, he admits that otherwise the Arbitral Tribunal is empowered to pass such orders.

5. Time of compliance of order has already expired.

6. Mr. A.S. Chandhiok, learned Senior counsel for the respondent submits that the impugned order dated 8th August, 2016 passed by the Arbitral Tribunal may not be interfered with by this Court since it only binds the appellant to express terms and conditions of the Investment Agreement. The ad interim directions passed by the Arbitral Tribunal only require the appellant to adhere to clause 11 and 17 of the Investment Agreement. Therefore, the impugned order is not called for interference by this Court. In fact, the impugned order passed by the Arbitral Tribunal is in extension of and/or in furtherance of the earlier orders dated 2nd December, 2014, 4th December, 2014 and 7th May, 2015 passed by this Court in the Section 9 petition filed by the respondent.

7. It is recorded in the impugned order that the various correspondences dated 4th January, 2016, 18th May, 2016 and 8th June, 2016 of the respondent requesting the appellant to give necessary information in terms of clause 17 of the Investment Agreement had not even been responded to by the appellant. The Tribunal therefore, merely directed the appellant to provide information as per clause 17 of the Investment Agreement. It is submitted by Mr. Chandhiok that the said directions were rightly passed in view of urgency in the matter as appeared from the actions of the appellant in breach of the terms of the Investment Agreement.

8. After hearing, I am not inclined to interfere with the interim order passed as it is not proper to decide the issue raised by the appellant on merit. Even I do not wish to express any opinion as these applications are coming up before the Arbitral Tribunal on 5th September, 2016. Once any opinion is expressed, the case of one of the parties would be prejudiced. Thus, while disposing of the above referred appeal, limited relief is granted to the extent that the compliance be made on or before 10th September, 2016 by extending the time for compliance. The appeal and all miscellaneous applications are disposed of. No further orders are required to be passed.

9. Copy of this order be given Dasti to both the parties under the signatures of the Court Master.

(MANMOHAN SINGH) JUDGE AUGUST 24, 2016