Delhi High Court
Regen Powertech Private Limited vs Green Infra Wind Farm Assets ... on 27 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) 22/2017
O.M.P.(I) 23/2017
Date of decision: 27th November, 2017
REGEN POWERTECH PRIVATE LIMITED ..... Petitioner
Through Mr.Jayant Mehta, Mr.Anshul
Raajan and Mr.S.Aravindan,
Advs.
versus
GREEN INFRA WIND FARM ASSETS LIMITED & ANR.
..... Respondents
Through Mr.Abhinav Vasisht, Sr. Adv.
with Mr.Shankh Sengupta,
Ms.Tine Abraham and
Ms.Prerna Jain, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
Cav. 1014/2017 in OMP(I) 22/2017
Cav. 1016/2017 in OMP(I) 23/2017
As respondents appear on receipt of advance notice, Caveats
stand discharged.
IA No.13988/2017 (Exemption) in OMP (I) 22/2017
IA No.13989/2017 (Exemption) in OMP (I) 23/2017
Allowed, subject to all just exceptions.
OMP(I) 22/2017 & OMP(I) 23/2017 Page 1
OMP(I) 22/2017 & OMP(I) 23/2017
1. These petitions raise common issues, hence are disposed of
together. I may only take the facts of OMP(I) 22/2017.
2. I have heard learned counsel for the petitioner and learned
Senior counsel for the respondent No.1.
3. This petition under Section 9 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as the 'Act') has been filed by the
petitioner inter alia praying for the following reliefs:
"a) Pending disposal and final adjudication of the
arbitration proceedings, the Respondent NO.1 be
directed to pay back the sum of INR 13,90,50,000
in to the Petitioner's bank that was received by it
pursuant to the invocation of the Performance
Bank Guarantee BG No. 0993015BG0000178
dated 30 September 2015 and with a further
direction to restore the BG No.
0993015BG0000178 dated 30 September 2015 as it
stood on 19 November 2017; and
b). Pending disposal and final adjudication of the
arbitration proceedings, the Respondent No. 1 be
directed that the amount of INR 13,90,50,000,
received by the Respondent NO.1 upon encashment
of the subject Performance Bank Guarantee BG
No. 0993015BG0000178 dated 30 September 2015
be kept in an interest bearing escrow account with
lien marked in favour of the petitioner's banker
State Bank of India, Industrial Finance Branch,
No.2, Harrington Road, KRM Plaza, Ground
Floor, Chetpet, Chennai-600 031 and; or
OMP(I) 22/2017 & OMP(I) 23/2017 Page 2
c). Pending disposal and final adjudication of the
arbitration proceedings, the respondent No.1 be
directed to maintain status quo ante as on 19
November, 2017 with regard to the sum of INR
13,90,50,000/- that was received by it pursuant to
the invocation of the Performance Bank Guarantee
BG No.0993015BG0000178 dated 30 September,
2015."
4. It is the case of the petitioner that the petitioner had entered into
a Wrap Agreement dated 28.03.2012 with the respondents whereunder
the petitioner was to supply 30 Nos., ReGen Make, V-82, 1500 KW
Wind Energy Converters (WECs), Towers, Transformers and
Equipment of Unit Substation at Dalot Site (District Pratapgarh) in
Rajasthan (hereinafter referred to as 'Agreement'). It is further
submitted that the petitioner has duly commissioned these WECs and
for this reliance is placed on the Commissioning Certificates dated
20.09.2012, 27.11.2012 and 27.01.2013. Learned counsel for the
petitioner relying upon Clause 3.6 of the Agreement submits that the
Bank Guarantees in question were given against the release of balance
10% of the WECs price. These Bank Guarantees were to remain valid
for a period of one year from Commercial Operation Date and,
therefore, should have remained valid only till 20.09.2013, 27.11.2013
and 27.01.2014 respectively. Learned counsel for the petitioner
further relies upon a Certificate dated 03.05.2014 to submit that the
parties, in a joint inspection, had also certified regarding the successful
completion of the project in terms of Clause 3.6(ii) of the Contract.
5. Learned counsel for the petitioner further draws my attention to
the notice dated 18.11.2017 and submits that this is the only Notice of
OMP(I) 22/2017 & OMP(I) 23/2017 Page 3
Default received by the petitioner, however, this notice is not under
the Wrap Agreement but under the Operation and Management
(O&M) Agreement and Maintenance Agreement both dated
30.05.2012. It is submitted that the respondent could not have
invoked the Bank Guarantees relying upon this Notice of Default.
6. I have considered the submissions made by counsel for the
petitioner. It is a fact that as on today that Bank Guarantees have been
encashed and money thereunder has passed on to the respondents. To
grant the relief as claimed in the petitions, the petitioner, in my
opinion, would, therefore, have to make out a case which would meet
the standards as laid down under Order XXXVIII Rule V of the Code
of Civil Procedure, 1908 i.e. it would have to be shown that the
respondents, with the intent to obstruct or delay the execution of any
decree that may be passed against it, is about to dispose of the whole
or any part of its property, or about to remove the whole or any part of
its property from the local limits of the jurisdiction of the Court. I find
no such case been made out or pleaded by the petitioner in its petition.
Learned Senior counsel for the respondent in this regard has drawn my
reference to the judgment of this Court in Mala Kumar Engineers
Pvt. Ltd. v. B.Seenaiah & Co. (Project) Ltd. 2005 SCC Online Del
38.
7. Learned counsel for the petitioner has placed reliance on
judgment of Supreme Court in M/s Gangotri Enterprises Ltd. v.
Union of India, AIR 2016 SC 2199, however, I am afraid that the
same is not applicable to the present case inasmuch as the case before
the Supreme Court was with respect to seeking restrain on the
OMP(I) 22/2017 & OMP(I) 23/2017 Page 4
encashment of Bank Guarantee, however, in the present case, as noted
above, the Bank Guarantees have already been invoked and the
petitioner is now seeking a direction against the respondent to secure
the amount so received. This payer would have to be considered on
different parameters as noted by me above.
8. I may only note that the petitioner is yet to invoke the
arbitration clause in terms of Article 7 of the Agreement and the
question whether the invocation of Bank Guarantees was in
accordance with the terms of the Agreement and/or consequences of
such invocation has to be determined by the Arbitrator.
9. In view of the above discussion, I find no merit in the present
petition. The same is accordingly dismissed.
10. I may, however, hasten to add that my above observations are
prima facie in nature and would in no manner bind the Arbitral
Tribunal who shall adjudicate the disputes between the parties on its
own merits. Either party would be free to raise any further claims,
submissions, defence or pray for interim relief from the Arbitral
Tribunal, which would be constituted in terms of the Arbitration
Agreement.
NAVIN CHAWLA, J
NOVEMBER 27, 2017/vp
OMP(I) 22/2017 & OMP(I) 23/2017 Page 5
