Bhadra International (India) ... vs Airports Authority Of India & Ors.
2018 Latest Caselaw 6911 Del

*     IN THE HIGH COURT OF DELHI AT NEW ELHI
                            Judgment reserved on:02.11.2018
                          Judgment pronounced on:20.11.2018

+     O.M.P. (I) (COMM) No.335 of 2018
      BHADRA INTERNATIONAL (INDIA)
      PVT. LTD. & ORS.
                                                               ..... Petitioners
                   Through:       Mr. Amit Sibal, Sr. Adv. with Mr. Ashish
                                  Mohan, Mr. Chetan Rai Wahi, Mr. Akshit
                                  Mago, Mr. Om Prakash, Mr. Soham Kumar
                                  and Mr. Aditya Swarup, Advs.

                             Versus


      AIRPORTS AUTHORITY OF INDIA & ORS.                   ..... Respondents
                   Through:       Mr. Vikas Singh, Sr. Adv., Mr. Sukumar
                                  Pattjoshi, Sr. Adv. with Mr. Sonal Kr.
                                  Singh, Mr. Rajat Dasgupta, Mr. Somesh
                                  Dubey and Ms. Srishti Banerjee, Advs. for
                                  R-1/NHAI.
                                  Mr. Sarfaraz Khan, Adv. for R-2/UCO
                                  Bank.

CORAM:-
HON'BLE MR. JUSTICE RAJIV SHAKDHER
%
RAJIV SHAKDHER, J.

I.A. No.13640/2018

1 The substantive reliefs sought for in this application read as follows:

OMP (I) (COMM) No.335/2018 Pg. 1 of 21 "A. Direct Respondent No.2 to not treat the amount of Rs.34,28,75,000/- (Rupees Thirty Four Crores Twenty Eight Lakhs Seventy Five Thousand Only) as outstanding due for payment from the petitioners till the disposal of OMP (I) (COMM) 335 of 2018/arbitration invoked vide notice dated 18.09.2018;

B. Direct Respondent No.2 to not declare/ treat the Petitioners account as NPA till the disposal of OMP (I) (COMM) 335 of 2018/arbitration invoked vide notice dated 18.09.2018;

C. Direct Respondent No.1 to refund the amount of Rs.34,28,75,000/- (Rupees Thirty Four Crores Twenty Eight Lakhs Seventy Five Thousand Only) to the Respondent No. 2 and in turn Respondent No.2 may be directed to furnish a Bank Guarantee of an equivalent amount, without prejudice to the rights and contentions of the parties in the arbitration proceedings. "

2 Upon notice being issued in the application, a reply has been filed by

respondent No.1 followed by a rejoinder by the applicants/petitioners.

2.1 As would be evident, a perusal of the record shows that the main

dispute, which obtains between the contesting parties i.e. the

applicants/petitioners and respondent No.1, is as to the rate at which royalty

is to be paid by the petitioners to respondent No.1 on account of ground

handling services.

OMP (I) (COMM) No.335/2018                                        Pg. 2 of 21
 2.2    The petitioners, apparently, entered into a Licence Agreement dated

29.11.2010, for rendering ground handling services at Chennai and Kolkata

Airports. Likewise, another Licence Agreement of even date i.e.

29.11.2010, was entered into between the applicants/petitioners and

respondent No.1 with respect to carrying out ground handling activities at

five Southern Airports; these being: Trivandrum, Calicut, Coimbatore,

Mangalore and Trichy.

2.3 It is not in dispute that provisioning of ground handling services falls

within the scope and ambit of the Airports Authority of India (General

Management, Entry for Ground Handling Services) Regulations, 2007

(hereafter referred to as '2007 Regulations').

3 It is the case of the applicants/petitioners that respondent No.1 had

breached the licence agreements by permitting third party "non-entitled

entities" to render ground handling services in respect of airports covered

by the said agreements.

3.1 The applicants/petitioners also claim that what added to their woes

was that the so called non-entitled entities/third parties rendered services to

the Subsidiary/Joint Venture of Air India, i.e. National Carrier Aviation

OMP (I) (COMM) No.335/2018 Pg. 3 of 21 Company India Ltd., as well as to various other airlines at rates of royalty

much less than the rate which they were expected to pay royalty.

3.2 According to the applicants /petitioners, they were required to pay

royalty at the rate of 32.5%/31.81%, albeit, on the applicable minimum

gross turnover while the non-entitled entities/third parties were required to

pay royalty at the rate of 13% of the turnover, net of royalty.

4 It is in this background that the parties chose to have their disputes

adjudicated upon by an Arbitrator. The applicants/petitioners, accordingly,

filed their Statement of Claims ('SOC') seeking recovery of damages and

loss suffered by them including moneys payable to them on account of loss

of profit.

5 Respondent No.1 apart from filing the Statement of Defence

(„SOD‟), also lodged its Counter Claim with the learned Arbitrator. In the

counter claim, respondent No.1 sought payments amounting to

Rs.313,69,62,890/-.

6 It appears that the learned Arbitrator, during the course of the

arbitration proceedings, passed an interim order dated 25.08.2016, which

was modified on 27.01.2017. The impact of these interim orders was that

OMP (I) (COMM) No.335/2018 Pg. 4 of 21 the applicants/petitioners, during the course of the arbitration proceedings,

were in substance required to pay, in the interregnum, royalty at the rate of

13% calculated on the basis of actual turnover.

6.1 The modification, which was brought about by the order dated

27.01.2017, partly modified the earlier interim order dated 25.08.2016 to

the extent that insofar as the tie up between petitioner No. 1 & petitioner

No. 2 was concerned, royalty was required to be paid to respondent No.1 at

the rate of 13% of the gross turnover.

7 The record shows that the learned Arbitrator, via his final Award

dated 30.07.2018, dismissed not only the claims lodged by the

applicants/petitioners but also the counter claim preferred by respondent

No.1.

8 The applicants/petitioners apprehending that the subject bank

guarantee would be encashed and cash deposit would be forfeited

approached this Court by way of a petition (i.e., OMP (I)(COMM)

322/2018), preferred under Section 9 of the Arbitration and Conciliation

Act, 1996 (in short '1996 Act').OMP (I)(COMM) 322/2018. This petition

OMP (I) (COMM) No.335/2018 Pg. 5 of 21 was listed on 13.8.2018.1 On that date the Court was informed that not only

the subject bank guarantee had been encashed but the cash deposit had been

forfeited.

9 As would be evident, the captioned application has, however, been

filed in OMP (I) (COMM) No.335/2018 which is also a petition under

Section 9 of the 1996 Act. A quick glance of the prayers made in the said

petition would show that the reliefs were sought vis-à-vis several bank

guarantees including the subject bank guarantee.

9.1 The prayer with reference to the subject bank guarantee in the

Section 9 petition was incorporated in prayer clause (I). The said prayer

reads as follows:

"I. Revert Bank Guarantee already encashed amounting to Rs.34,28,75,000/- (Rupees Thirty Four Crores Twenty Eight

I.A. No. 10766/2018 (Exemption)

1. Allowed, subject to just exceptions.

O.M.P.(I) (COMM.) 322/2018

2. Issue notice.

3. Mr. Sonal Kr. Singh, accepts notice on behalf of the respondents.

4. Mr. Pattjoshi, learned senior counsel on instructions of Mr. Sonal Kr. Singh and also Mr. Avijit Dev, DGM, says that not only the subject bank guarantee has already been encashed (as of 11:44 am) but also the cash deposit has been forfeited.

4.1 The said statement is taken on record.

5. In case, the bank has not already remitted the amount, it shall continue to hold the same till the further orders of the Court.

6. Renotify the matter on 24.08.2018.

OMP (I) (COMM) No.335/2018 Pg. 6 of 21 Lakhs Seventy Five Thousand Only) furnished by the Petitioners with Respondent No. 2."

10 The record shows that the petition under Section 9 (i.e. OMP (I) (COMM) 335/2018), was listed for hearing before this Court on 21.08.2018. On that date, notice was issued in the petition, which was accepted on behalf of respondent No.1 by Mr. Sonal Kumar Singh, while on behalf of respondents No. 2 & 3 notice was accepted by Mr. Sarfaraz Khan and Ms. Nishi Chaudhary, respectively. After giving opportunity to the parties to file their replies and rejoinders, the following was observed with reference to the bank guarantees qua which reference was made in the main petition:

"4 I am informed by Mr. Dutta that the bank guarantees, referred to in prayer clauses (c) to (h), have validity till 2020. 5 Mr. Pattjoshi, who, appears on behalf of respondent No.1/AAI says that these bank guarantees do not relate to the subject licence dated 29.11.2010.

5.1 Mr. Dutta, learned senior counsel, on instructions, affirms this position. It is Mr. Dutta‟s submission, though, that there is an apprehension that respondent No.1/AAI would invoke the bank guarantees, referred to in prayer clauses (c) to (h) to claim their dues even though the counter claim filed by respondent No.1/AAI before the learned Arbitrator stands dismissed. 6 To be noted that the learned Arbitrator has also dismissed the claims preferred by the petitioners. The result is that a „nil‟ Award has been returned by the learned Arbitrator. 7 Therefore, till the next date of hearing, respondent No.1/AAI is injuncted from encashing the bank guarantees referred to in prayer clauses (c) to (h) in respect of dues, if any, which are relatable to the subject licence i.e. license dated 29.11.2010.

OMP (I) (COMM) No.335/2018                                         Pg. 7 of 21
       8         Renotify the matter on 29.11.2018.
      9     In the meanwhile, the petitioners will by way of an

affidavit disclose the details of contracts/licences to which, the bank guarantees, referred to in prayer clauses (c) to (h), are linked"

10.1 Clearly, the injunction was only confined to the bank guarantees in

respect of which reference was made in prayer clause (c) to (h). The subject

bank guarantee did not fall within the realm of the order dated 21.08.2018.

The applicants/petitioners via this application seek to reverse the position

and, in effect, seek an injunction which was declined on 21.08.2018 after

brief arguments were heard in the matter.

11 It is in this background, arguments on behalf of the

applicants/petitioners were advanced by Mr. Amit Sibal, Sr. Advocate,

instructed by Mr. Ashish Mohan, while respondent No.1 was represented by

Mr. Vikas Singh and Mr. Sukumar Pattjoshi, Sr. Advocates, instructed by

Mr. Sonal Kr. Singh.

12 Briefly, the submissions advanced by Mr. Sibal were as follows:

(i) The learned Arbitrator had returned a 'Nil' Award and, therefore, the

encashment of the Subject Bank Guarantee was fraudulent.

OMP (I) (COMM) No.335/2018                                       Pg. 8 of 21
 (ii)    Respondent No.1 had sought a clarification of the Award dated

30.07.2018 by moving an application under Section 33 of the 1996 Act

which was rejected by the learned Arbitrator via order dated 26.09.2018.

(iii) The counter claim preferred by respondent No.1 included its claim

for payment of royalty at the rate of 32.5% based on actual turnover. In

other words, in the counter claim, respondent No.1 had sought payment of

royalty at the rate of 32.5% on the minimum gross turnover and, hence,

logically the claim for royalty at the rate of 32.5% on actual turnover was a

sub-set of what was clearly a larger claim.

(iv) This Court, while passing the order dated 21.08.2018 in the main

petition, had observed that the learned Arbitrator had returned a 'Nil' Award

and, therefore, this aspect read with the Award, whereby, the counter claim

of respondent No.1 was rejected, would demonstrate that the encashment of

Subject Bank Guarantee was fraudulent.

(v) In case the status quo ante is not ordered by this Court, the

applicants/petitioners' account with respondent No.2 would get classified as

a Non Performing Asset (NPA). Furthermore, this would also impact its

sister concern i.e. TDI International (India) Private Limited, which had won

OMP (I) (COMM) No.335/2018 Pg. 9 of 21 tenders with respect to three airports and qua Line No. 1 of DMRC

Network. Given the fact that respondent No.2 is a common banker, defaults

by the applicants/petitioners would affect the fortune of its sister concern

TDI International (India) Private Limited as well.

(vi) Respondent No.1 had, in fact, issued an "Outstanding Dues

Certificate" („Certificate‟) which showed that no dues towards royalty were

payable. For this purpose, my attention was drawn to Annexure P-9 (Colly)

annexed to the application and Annexure P-1 (Colly) which is appended to

the rejoinder filed by the applicants/petitioners.

13 On the other hand, Mr. Vikas Singh contended as follows:-

(i) Respondent no. 1 merely claimed the difference in the royalty paid to

it based on actual turnover and minimum gross turnover. The learned

Arbitrator in paragraph 229 of the Award has held that the

applicants/petitioners would be liable to pay royalty on actual turnover and

not on minimum guarantee royalty till the disposal of the SLP (C)

No.7764/2011. The applicants/petitioners are, thus, liable to pay royalty on

actual turnover, albeit, at the rate of 32.5%.

OMP (I) (COMM) No.335/2018                                      Pg. 10 of 21
 (ii)    In any event, without prejudice to the aforesaid contention, the

counter claim qua royalty was made only uptil 2016.

(iii) The applicants/petitioners owe to respondent No.1, a sum of

Rs.143,63,45,816/- towards royalty, calculated at the rate of 32.5% on the

basis of actual turnover, in respect of Chennai, Kolkata and five Southern

Airports.

(iii)(a) In order to buttress this submission, reliance was placed on the

cross-examination of CW-2 (Mr. Vipin Mahajan) and CW-1 (Mr. Hiyav

Bajaj).

(iii)(b) The financial condition of the applicants/petitioners is tenuous.

For this purpose, my attention was drawn to the extracts from the Director's

Report for the period 2011-2016.

(iv) The applicants/petitioners have all along taken the stand that they are

required to pay royalty at the rate of 32.5% based on actual turnover as

against demand for royalty at the same rate, albeit, on minimum gross

turnover. In this behalf, reference was made to letters exchanged between

the parties. The letters to which reference was made are dated: 16.02.2011,

03.03.2011, 18.07.2012 and 18.03.2013.

OMP (I) (COMM) No.335/2018                                        Pg. 11 of 21
 14      I have heard the arguments of learned counsel for the parties and

perused the record. What clearly emerges from the record, pertaining to

this case and the inter-connected cases is that:

(i) Two petitions under Section 34 of the 1996 Act were filed. These

were OMP (COMM) No.414/2018 and OMP (COMM) No.415/2018. Both

petitions assailed a common Award dated 30.07.2018.

(ii) On 28.09.2018, in respect of the two petitions preferred under

Section 34 along with connected Section 9 petitions, i.e. OMP (I) (COMM)

No.380/2018 and OMP (I) (COMM) No.378/2018, an interim arrangement

was put in place, whereby, the applicants/petitioners were directed to pay

royalty at the rate of 13%, based on actual turnover and for the differential

amount (i.e. the difference between the royalty payable at the rate of 32.5%

/ 31.81% and the royalty payable at the rate of 13% calculated on the basis

of actual turnover), bank guarantees were to be furnished to the satisfaction

of the Registrar General of this Court.

(iii) The said arrangement was to kick in from 01.10.2018.

(iv) Furthermore, the very same order also recorded respondent No.1's

stand that royalty at the rate of 32.5%/31.81% was, in fact, payable on

minimum gross turnover. As the rate of royalty varied depending on the

OMP (I) (COMM) No.335/2018 Pg. 12 of 21 Airports, with respect to which the claims were made, the figure of

minimum gross turnover would concededly also vary. In the case of

Chennai and Kolkata Airports, the minimum gross turnover is pegged at Rs.

211 crores while in the case of five Southern Airports, it is fixed at Rs. 126

crores.

15 As noticed above, the learned Arbitrator via the impugned Award has

rejected not only the claims lodged by the applicants/petitioners but also the

counter claims preferred by respondent No.1. Therefore, to that extent I had

noticed in the order dated 21.08.2018, passed in OMP (I) (COMM)

No.335/2018, that the learned Arbitrator had returned a „Nil‟ Award. I find

nothing wrong with this observation. Therefore, the assertions made in the

reply filed by respondent No.1 to the application that the observation made

in that behalf based on record was not binding on the parties as this Court

had not rendered a finding on merits, is untenable. The reason why I say so

is that since via the impugned Award, concededly, both the claims as well

as the counter claims stand rejected, the Award is binding on parties, till

such time the Award is reversed by this Court. The conclusion arrived at by

the learned Arbitrator remains intact till it is overturned by a competent

Court.

OMP (I) (COMM) No.335/2018 Pg. 13 of 21 15.1 If, there was any doubt with regard to the same, it would stand

addressed upon perusal of the following portions of the Award:

"AWARD NOW, FOR THE REASONS GIVEN ABOVE, I JUSTICE S.S.NIJJAR (RETD.) HEREBY AWARD, ORDER AND DIRECT THAT:

(i) The Claim Petition is dismissed.

(ii) The Counter-Claim is also dismissed.

(iii) In the peculiar facts and circumstances of this case the parties shall bear their own costs for these proceedings."

15.2 Thus, the stand taken by respondent No.1 in its reply dated

16.10.2018 to the notice invoking arbitration wherein, it stated that the

observations made by this Court in its order dated 21.08.2018, passed in

OMP (I) (COMM) No.335/2018, are "erroneous and without jurisdiction",

failed to appreciate the rudiments of law.

15.3 A litigant in inter se correspondences cannot, to my mind, make an

assertion that an observation of the Court is erroneous and/or without

jurisdiction. A litigant may canvass this plea before an Appellate Court but

certainly cannot make such an assertion in parties‟ correspondences. In any

event, as observed above, the assertion is completely misconceived.

15.4 Insofar as respondent No.1 is concerned, the Award is binding, till

such time it is reserved via an appropriate petition filed under Section 34 of

the 1996 Act. For respondent No.1 to contend that the observations made

OMP (I) (COMM) No.335/2018 Pg. 14 of 21 by this Court on 21.08.2018 were not binding is untenable both in law and

on facts.

16. That being said, the record, as produced by the applicants/petitioners,

also shows that the Certificates in respect of undisputed royalty were issued

by respondent No.1. In this behalf, as noted above, my attention was drawn

to the Certificates dated 22.06.2018 and 26.10.2018, issued vis-à-vis

Chennai and Kolkata Airports and the attendant correspondence exchanged

with regard to other charges as well. On a query being put to learned

counsel for respondent No.1, I was told that action was proposed to be

taken against the officers, who had issued these certificates as well as

communications which form part of Annexure P-1 (Colly).

17 Therefore, what emerges is that, on the one hand, respondent No.1

avers in its reply that a sum of Rs.143.63 crores (approximately) was due

and payable by the applicants/petitioners, while the applicants/petitioners

contend that nothing was payable.

17.1 It has to be, however, kept in mind that the said claim made by

respondent No.1 is based on a demand raised by taking into account the

OMP (I) (COMM) No.335/2018 Pg. 15 of 21 actual turnover qua Chennai and Kolkata and five Southern Airports, which

is than quantified by taking the rate as 32.5%/31.81%.

18. Given these extreme positions taken by the parties before me, all that

I am required to consider is that whether the reliefs claimed by the

applicants/petitioners in the instant application ought to be allowed at this

stage.

19 As noted above by me, on 21.08.2018, an interim protection was

granted against the encashment of some bank guarantees excluding the

subject bank guarantee. This application, in a sense, seeks to reverse the

said order. Therefore, the question before me is as to whether I should

modify the said order while granting the reliefs claimed in the instant

application. The entire thrust of the applicants/petitioners' case in this

application is that the encashment is fraudulent. This argument in turn is

based on the assertion that the learned Arbitrator has returned a „Nil‟

Award. While the latter is true, insofar as the first assertion is concerned,

that is, whether or not the encashment is fraudulent, one would have to go

back to the point in time prior to the encashment of the subject bank

guarantee and then consider as to whether I would have injuncted the

encashment of the subject bank guarantee had the applicants/petitioners

OMP (I) (COMM) No.335/2018 Pg. 16 of 21 approached this Court in time i.e. before invocation and I had before me, on

record, the stand of respondent no. 1. For this purpose, I would have to look

at the terms of the subject bank guarantee2 and the surrounding

circumstances to ascertain as to whether the beneficiary had employed any

fraud in seeking its encashment which would have had me injuncted its

invocation. A perusal of the subject bank guarantee would show that it is

payable on demand and without demur. There is no case made out before

me by the applicants/petitioners that invocation was not in terms of the

bank guarantee.

19.1 Fraud, as understood by this Court, is one which is egregious in nature,

is established, and is in the knowledge of the concerned bank i.e., the bank

which issues the bank guarantee. In this behalf I may only set forth the

following observations made by the Supreme Court in U.P. Cooperative

Federation Ltd v. Singh Consultants and Engineers (P) Ltd.3: -

2 1. Now therefore in consideration of the promises aforesaid and at the request of the licensee, we, UCO BANK FLAGSHIP CORPORATE CENTRE 5 PARLIAMENT STREET NEW DELHI 110001 do, hereby irrevocably and unconditionally undertake to pay you, the Authority on demand and without demur or protest and without reference to the Licensee, any sums of money at any time or from time to time demanded by the Authority on account of the Licence Fee and Royalty and other charges due from the Licensee (inclusive of any costs or expenses and interest) and or by way of losses and damages caused or that would be caused to the Authority by reason of any breach by the Licensee of any of the terms or conditions of the said Licence Agreement: PROVIDED that our liability under this Guarantee shall be limited to a sum of Rupees 34,28,75000.00 (Rupees Thirty Four Crore Twenty Eight Lacs Seventy Five Thousand only) and extended for the amount increased from time to time as aforesaid.

(1988) 1 SCC 174

OMP (I) (COMM) No.335/2018 Pg. 17 of 21

"54. The Court, however, should not lightly interfere with the operation of irrevocable documentary credit. I agree with my learned brother that in order to restrain the operation of irrevocable letter of credit, performance bond or guarantee, there should be serious dispute to be tried and there should be a good prima facie acts of fraud. As Sir John Donaldson, M.R. said in Bolivinter Oil SA v. Chase Mannattan Bank & ors. [1984] 1 All E.R. 35 1 at 352:

"The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the bank‟s knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a bank‟s credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it discharged."

55. From the above discussion, what appears to me is this: The sound banking system may, however, require more caution in the issuance of irrevocable documentary credits. It would be for the banks to safeguard themselves by other means and generally not for the court to come to their rescue with injunctions unless there is established fraud.In the result, this appeal must be allowed. The judgment and order of the Allahabad High Court dated 20-2- 1987 must be set aside and the order of learned Civil Judge, Lucknow dated 8-8-1986 restored."

(emphasis is mine)

19.2 Clearly, the bank has no knowledge as to the amount, if any, payable

by the applicants/petitioners to respondent no. 1. Thus, in the normal course

of things, based on the records which obtain now and had they obtained

OMP (I) (COMM) No.335/2018 Pg. 18 of 21 then I possibly would not have had granted an injunction against

encashment of the bank guarantees. Therefore, the argument that I had

reached a prima facie view on 13.08.2018 does not hold out.

19.3 The post facto events which the applicants/petitioners have sought to

bring to fore whereby, in effect, a direction is sought that the money be put

back in its account maintained with respondent No.2 against a bank

guarantee being issued by respondent No.1 for an equivalent amount would,

to my mind, require further inquiry.

20 Furthermore, as has been correctly argued on behalf of respondent

No.1, the counter claims made on account of sums payable towards royalty

does not go beyond August, 2016. Therefore, while the

applicants/petitioners appear to have produced Certificates pertaining to

Chennai and Kolkata Airports and correspondence to demonstrate that

nothing is owed, it is an aspect which would require further enquiry given

the disparate positions taken by parties.

21 The fact that respondent no. 1 has claimed that a sum of Rs 143.63

crores (approximately) is due and payable to it, the Certificates, on which

OMP (I) (COMM) No.335/2018 Pg. 19 of 21 the applicants/petitioners seek to rely, cannot fully, at least, at this stage

settle, the issue.

21.1 Qua this aspect it is pertinent to note that in the course of arguments,

learned counsel for respondent No.1 did convey that respondent No.1

intended to file a petition under Section 34 of the 1996 Act to assail the

Award. Since, the Section 33 application was dismissed only on 26.09.2018

there is, in fact, time left for respondent no. 1 to file a petition under Section

34.

22 Furthermore, the argument advanced on behalf of the

applicants/petitioners that the learned Arbitrator had dismissed the

application under Section 33 of the 1996 Act, to my mind, would not add

much to their case, at this stage, for the reason that the jurisdiction of the

learned Arbitrator is limited while exercising powers under the said

provision. An error on merits, if at all, can be corrected by the learned

Arbitrator after this Court, in exercise of its powers under Section 34(4) of

1996 Act were to remit the Award to the learned Arbitrator. Since, no such

direction has been passed as yet, quite naturally, the Arbitrator's hands are

tied as he has become functus officio upon rendering the Award.

OMP (I) (COMM) No.335/2018                                           Pg. 20 of 21
 23    The arguments advanced on behalf of the applicants/petitioners that if

the relief as prayed for in the application are not granted then its account

with respondent no. 2 would turn into a NPA and that, it would also impact

the fortunes of its sister concern, in my view, is a submission that lacks

substance as the reasons why the applicants/petitioners failed to repay its

loans could be manifold and not necessarily the outcome of the encashment

of the subject bank guarantee. In any case, the details of the loans taken by

the petitioner and material particulars are not set forth in the application.

Therefore, this contention is unmerited and hence, rejected.

24 Therefore, for the moment, I am not inclined to grant reliefs prayed

for in the instant application. The application is, accordingly, dismissed.

25 Needless to say, the observations made hereinabove will not impact

the merits of the case.

                                                     RAJIV SHAKDHER, J
NOVEMBER 20, 2018
A




OMP (I) (COMM) No.335/2018                                        Pg. 21 of 21