Navayuga Engineering Company ... vs Ntpc Limited
2017 Latest Caselaw 5708 Del

$~10

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Judgment delivered on: 13.10.2017

+      O.M.P.(I) (COMM.) 265/2017
NAVAYUGA ENGINEERING COMPANY LIMITED...... Petitioner
                             versus

NTPC LIMITED                                               .....Respondent

Advocates who appeared in this case:
For the Petitioner           : Mr Abhinav Vashisht, Senior Advocate with Mr
                             Milanka Chaudhury, Ms Naina Dubey and Ms
                             Priya.

For the Respondent           : Mr Vikas Singh, Senior Advocate with Ms Kanika
                             Agnihotri, Mr Preet Singh Oberoi with Mr Shankar
                             Anand, Senior Manager, Law for NTPC.

CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                               JUDGMENT

13.10.2017

SANJEEV SACHDEVA, J. (ORAL)

1. By this petition, under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act'), the petitioner seeks a direction to the respondent to restitute/refund the amount of Rs.6,83,16,562/- recovered by the respondent by invoking/encashing the bank guarantee No.1303910BG0001940 dated 01.12.2005.

2. It is contended that an Award was passed on 31.05.2017 in favour of the respondent and prior to the time for filing of a petition under Section 34 of the Act, objecting to the Award, expired, an invocation letter dated 03.06.2017 was issued.

3. Learned senior counsel for the petitioner submits that a petition under Section 34 of the Act has been filed and notice has already been issued in the same. He submits that the invocation letter dated 03.06.2017 specifically stated that in case the bank guarantee was extended by a period of one year, the encashment was not to be acted upon.

4. It is submitted that though the bank guarantee was extended, the Bank still encashed the bank guarantee and remitted the amount to the respondent.

5. Learned senior counsel for the respondent submits that the condition of the invocation letter was that the extended bank guarantee had to reach the respondents and since the same was not transmitted to the respondent, the bank guarantee was liable to be encashed and has rightly been encashed.

6. Without prejudice to the rights and contentions, in view of the fact that the invocation was conditional and invocation letter stated that if the Bank guarantee was extended it was not to be encashed, it would be in the interest of justice, if the said amount of Rs.6,83,16,562/- received by the respondent by encashing of the bank

guarantee is secured, pending the decision in the Section 34 petition.

7. Accordingly, this petition is disposed of directing the respondents to deposit the said amount, i.e. Rs.6,83,16,562/- in a fixed deposit in the name of the Registrar General of this Court and deposit the Fixed Deposit Receipt with the Registrar General of this Court. This is subject to further orders to be passed in the petition under Section 34 of the Act filed by the petitioner being OMP(I)(COMM.) No.262/2017.

8. The Fixed Deposit be created and the receipt deposited within a period of two weeks from today.

9. The petition stands disposed of.

10. Order Dasti under signatures of the Court Master.

OCTOBER 13, 2017/'Sn'                     SANJEEV SACHDEVA, J