Delhi High Court
Ntpc Limited vs M/S Larsen & Toubro Limited on 3 June, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 3rd June, 2016
+ ARB. A. (COMM.) No.8/2016
NTPC ..... Appellant
Through Mr.Tarkeshwar Nath, Adv. with
Mr.Mukul Gautam and Mr.Param
Kr. Mishra, Advs.
versus
LARSEN & TOUBRO LIMITED ..... Respondent
Through Mr.Rajiv Nayar, Sr. Adv. with
Mr.Kirat Singh Nagra, Mr.Kartik
Yadav & Mr.Kawaljit Singh
Bhatia, Advs.
+ ARB. A. (COMM.) No.12/2016
LARSEN & TOUBRO LIMITED ..... Appellant
Through Mr.Rajiv Nayar, Sr. Adv. with
Mr.Kirat Singh Nagra, Mr.Kartik
Yadav & Mr.Kawaljit Singh
Bhatia, Advs.
versus
NTPC LTD. ..... Respondent
Through Mr.Tarkeshwar Nath, Adv. with
Mr.Mukul Gautam and Mr.Param
Kr. Mishra, Advs.
+ ARB.A. No.13/2014
NTPC LIMITED ..... Appellant
Through Mr.Tarkeshwar Nath, Adv. with
Mr.Mukul Gautam and Mr.Param
Kr. Mishra, Advs.
Arb.A.(Comm.)No.8/2016, 12/2016 & Arb.A. No.13/2014 Page 1 of 5
versus
M/S LARSEN & TOUBRO LIMITED ..... Respondent
Through Mr.Rajiv Nayar, Sr. Adv. with
Mr.Kirat Singh Nagra, Mr.Kartik
Yadav & Mr.Kawaljit Singh
Bhatia, Advs.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The appeal being Arb. A. No.13/2014 has been filed by NTPC
against Larsen & Toubro Limited, under Section 37 of the Arbitration
and Conciliation Act, 1996, challenging the order dated 19 th April,
2014 passed by the Arbitral Tribunal. The prayer is made in the
petition to set-aside the said order passed with a majority view to
the extent it has injuncted the petitioner from seizing/selling the
plant, equipments and material and from encashing the Bank
Guarantees furnished by the Respondent of Rs.45,59,21,664/-
towards performance Bank Guarantees.
2. The NTPC has also filed another appeal being Arb. A. (COMM.)
No.8/2016 under Section 37(2) of the Act challenging the order
dated 22nd February, 2016 passed by the Arbitral Tribunal, limited to
the extent directing the appellant/NTPC to furnish Bank Guarantees
in favour of Larsen & Toubro Limited and to negotiate with the
bidder in regard to hire charges and to deposit the same in escrow
account.
3. The said order dated 22nd February, 2016 has also been
challenged by Larsen & Toubro Limited by filing an appeal being Arb.
A. (COMM.) No.12/2016 seeking to set-aside the said order and
grant the reliefs as prayed in the interim application dated 3rd
February, 2015 under Section 17 of the Act.
4. These matters were discussed from time to time in Court by
both the parties and ultimately, the parties submit that all the three
appeals may be disposed of on the following terms and conditions,
for which an affidavit dated 2nd June, 2016 has also been filed by the
NTPC in the Registry:-
(i) The NTPC shall furnish a Bank Guarantee in terms of the
order dated 22nd February, 2016 passed by the Arbitral
Tribunal within six weeks and the same shall be kept
alive till the pendency of the arbitration proceedings.
(ii) The NTPC shall pay the hire charges of the TBM and
other instruments on a monthly basis to be worked out
by the Committee consisting of Experts of both the
parties.
(iii) The said monthly amount of hire charges shall be
deposited in an Escrow Account of a Bank to be worked
out at the time of passing of the final Award of the
Arbitral Tribunal.
(iv) Mr.J.K.Sharma, Ex-Director (Projects) of NHPC is
nominated as Expert from NTPC side to determine hire
charges of the said TBM and other machineries. Prof. T.
Ramamurthy, IIT, Delhi is nominated as Expert on behalf
of Larsen & Toubro Limited for the said purpose. As
agreed by both the parties, Committee of nominated
Experts to give its report within a period of two weeks
from the date of commencement of proceedings. The
outer limit for submitting the report before the Arbitral
Tribunal would be 45 days. In case the report is
received within a period of two weeks, then the NTPC
would be entitled to use the instruments immediately
and shall deposit the hire charges. It is understood
between the parties that in case there is a substantial
difference of opinion about the hire charges of the
members of the committee then the aggrieved party will
immediately approach to the Court to determine the said
aspect. In case the report is not submitted within two
weeks but within the outer period of 45 days, under
those circumstances, after expiry of two weeks, without
prejudice, the petitioner shall deposit a sum of Rs.5
crores in the escrow account, subject to adjustment of
the amount after the receipt of the report. (The said
direction is being passed by the Court, as the same is not
agreeable by NTPC).
(v) The respondent has agreed to cooperate and hand over
the keys and documents of TBM and other machineries
to NTPC accordingly in view of the above said conditions
as mentioned above without any delay after the expiry of
two weeks and on deposit of Rs.5 crores.
(vi) The parties are given liberty to raise all the issues
involved in the above said appeals, before the Arbitral
Tribunal.
5. The present appeals and pending application are disposed of
accordingly.
6. Copy of order be given Dasti to both the parties under
signatures of Court Master.
(MANMOHAN SINGH)
JUDGE
JUNE 03, 2016
