Delhi High Court
M/S Technosat Comm ( India) Pvt. ... vs Bharat Sanchar Nigam Ltd And Anr. on 15 March, 2018
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment: 15th March, 2018
+ FAO(OS) (COMM) 46/2018
M/S TECHNOSAT COMM ( INDIA) PVT. LTD. ..... Appellant
Through: Mr. Aaditya V. K., Advocate.
versus
BHARAT SANCHAR NIGAM LTD & ANR. .....Respondents
Through: Mr. Rajat Arora and Ms. Vishalakshi
Singh, Advocate for BSNL.
Mr. P. K. Mullick, Mrs. Soma Mullick
and Mr. S. K. Deuzia, Advocates for
Bank of India.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
ORDER
% 15.03.2018
1. This is an appeal filed by the appellant under Section 37 of the
Arbitration and Conciliation Act, 1996 read with Section 13(1) of
the Commercial Courts Act, 2015 assailing the order dated
09.03.2018 passed in O.M.P (I) (COMM.) 14 of 2018.
2. Pursuant to a tender floated on 15.01.2015 by the respondent No.1,
the appellant submitted its bid and quoted Rs. 26,78,73,214/- as the
big price for supply of Satellite Communication Ground Segment
Equipment. Upon evaluation of the bid, the bid of the appellant
herein was accepted on 27.08.2015 and an advance purchase order
(APO) was issued. The appellant submitted a Fixed Deposit
Receipt in the name of the respondent No.1 in the amount of Rs. 1
crore as per the clause 10.10 of the BSNL Revised Procurement
Manual 2012. On account of disputes between the parties, a Short
Closure Notice has been given to the appellant and the Fixed
Deposit Receipt was sought to be encashed which led to the filing
of a petition under Section 9 of the Arbitration and Conciliation
Act, 1996.
3. The Learned Single Judge dismissed the Section 9 petition
primarily on the ground that since the Section 9 petition was
premised on the ground that the appellant had furnished a Bank
Guarantee and in fact no Bank Guarantee was furnished but the
appellant had submitted a Fixed Deposit Receipt in the name of
respondent No. 1 as a bid security in lieu of a Bank Guarantee.
Observing that the appellant (Petitioner before the Learned Single
Judge) had already parted with the funds which was lying in the
fixed deposit in the name of BSNL, no irretrievable loss or injury
would caused to the petitioner. A reading of the petition under
Section 9 so filed by the appellant herein would show the appellant
had disclosed that a Fixed Deposit Receipt was handed over to the
respondent No.1 but the nomenclature used by the appellant before
the learned Single Judge and in the appeal describing the FDR as a
Bank Guarantee. An identical stand has also been taken in this
appeal so filed by the appellant
4. The Clause 10.10 of the BSNL Revised Procurement Manual 2012
reads as under:-
"10.10 Acceptable Forms of Performance Security
The Performance Security should be in the form of a
Bank Guarantee issued by a scheduled bank in favour
of BSNL. Performance Security in the form of
Account Payee Demand Draft, Fixed Deposit Receipt
or Banker's Cheque, safeguarding the purchaser's
interest in all respects, shall also be acceptable.
However, no interest shall be payable on this
account."
5. The prayer made by the appellant before the learned Single Judge
is extracted below :
"(a) Pass an ex-parte ad-interim order of temporary
injunction restraining the respondent No. 2 and its officers
and any one claiming through or under the Respondent No. 2
from, in any manner, from adhering, acting upon or
disbursing or encashing the Bank Guarantee dated
23.12.2015 for a sum of Rs.1,00,00,000/- (Rupees One Crore
Only) bearing customer ID 107353990 / account No.
004645[]002465;
(b) Pass an ex-parte ad-interim order of injunction
restraining the Respondent No. 1 and its officers and any one
claiming through or under the Respondent No. 1 from, in
any manner, giving effect to the said communication dated
19.12.2017;
(c) Pass an ex-parte ad-interim order or temporary
injunction restraining the Respondent No. 1 from appointing
any other vendor to replace the Petitioner till the final
adjudication of the disputes;
(d) Pass an ex-parte ad interim order of temporary
injunction restraining the Respondents and its officers and
any one claiming through or under the Respondents from, in
any manner, from taking any coercive steps against the
Petitioner, in the nature of encashment of bank guarantees
and/or any other step;
(e) Pass such other or further order(s) or direction(s) as
this Hon'ble Court may deem fit in the facts and
circumstances of the above matter and in the interest of
justice and equity."
6. A reading of Clause 10.10 of the BSNL Revised Procurement
Manual 2012 would show that options were available to the APP
were to provide the Performance Security either in the form of (i)
Bank Guarantee issued by a scheduled bank in favour of BSNL;
(ii) Performance Security in the form of Account Payee Demand
Draft, Fixed Deposit Receipt or Banker's Cheque. The objective
of furnishing the Performance Security was to safeguard the
interest of BSNL in all respects. It was made clear that no interest
would be payable on this account. The appellant herein decided to
hand over a fixed deposit receipt to the respondent No.1. A copy
whereof has been placed on record.
7. The appellant as evident upon the reading the prayer Clause of the
Section 9 petition based his entire arguments and sought an
injunction against the respondent No. 1 and respondent No.2 bank
from encashing the bank guarantee dated 23.12.2015 in the sum of
Rs. 1,00,00,000/-. A perusal of the documents so relied upon by the
appellant leaves no room for doubt that the same is not a Bank
Guarantee as rightly held by the learned Single Judge but the same
is a Fixed Deposit Receipt in the name of respondent No. 1/Bharat
Sanchar Nigam Limited.
8. The effect of issuance of the Fixed Deposit Receipt in the name of
respondent No.1 would be that the amount of Rs. 1 Crore stands
transferred in favour of the beneficiary of Fixed Deposit i.e.
respondent No. 1 on the date of issuance of the Fixed Deposit
Receipt. Even in the appeal neither an alternate argument has been
raised nor foundation has been laid in support of seeking an
injunction from appropriating the amount of the Fixed Deposit
Receipt by the respondent No. 1.
9. At this stage, we are informed by the learned counsel of the
appellant that a sole Arbitrator since has been appointed to
adjudicate upon the disputes, claims and counter claim of the
parties, counsel submits that he would make an appropriate
application under Section 17 of the Arbitration and Conciliation
Act, 1996 before the Arbitrator to safeguard the interest of the
appellant raising all grounds available including the ground that the
Fixed Deposit Receipt was only a Security furnished by the
appellant to the respondent No. 1 and the Fixed Deposit Receipt
cannot be encashed till the disputes between the parties resolved
and settle.
10. Learned counsel for the respondent No. 1, who enters appearance
on an advance copy, submits that the appellant is a defaulter. He
did not supply the equipment within the time frame and thus
respondent No.1 was well within its right to short close the
agreement and encash the Fixed Deposit Receipt.
11. Leaving all grounds open to enable the parties to agitate before the
learned Arbitrator, the present appeal is dismissed as not pressed.
As prayed, the learned Arbitrator is directed to hear the petition
under Section 17 of the Arbitration and Conciliation Act, 1996 at
the first instance and decide the same preferably within one month
from filing the petition under Section 17.
12. We make it clear that any observations made in the order passed by
the learned Single Judge or by this Court, would not stand in way
of Arbitrator in deciding the matter.
13. Copy of this order be given dasti under the signatures of the Court
Master.
CM No.9794/2018 (stay)
The application stands disposed of, in view of order passed in the
present appeal.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
MARCH 15, 2018
gr
