Delhi High Court
National Telecom Of India Limited vs Bharat Sanchar Nigam Limited on 4 October, 2018
$-25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 04.10.2018
+ OMP (ENF.) (COMM.) 165/2016 & IA 1518/2018
NATIONAL TELECOM OF INDIA LIMITED
..... Decree Holder
Through: Mr.Raman Kapur, Sr. Adv. with
Mr.Pramod Singh, Mr.Anmol Stephen,
Mr.Sanjay Kumar, Advs.
versus
BHARAT SANCHAR NIGAM LIMITED
..... Judgment Debtor
Through: Mr.Chandan Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. The present application bearing No.1518/2018 has
arisen due to very peculiar circumstances that have occurred
because of the delay in final adjudication of the disputes that
had arisen between the parties in relation to the Advance
Purchase Order dated 11.12.1996 placed by the respondent on
the petitioner. By the said Purchase Order, the respondent had
agreed to purchase the following goods from the petitioner:
"(i) Subscriber Line Concentrators - 6/15 lines of 266
nos. @ Rs.51,792/- per unit (all inclusive) for a total
value of Rs.1,37,76,672/- (Rupees One Crore, Thirty
Seven Lacs, Seventy Six Thousand, Six Hundred and
OMP (ENF.) (COMM.) No. 165/2016 Page 1
Seventy Two Only).
(ii) Subscriber Line Concentrators - 16/90 lines of 20
nos. @ Rs.3,75,777/- per unit (all inclusive) for a total
value of Rs.75,15,540/- (Rupees Seventy Five Lacs,
Fifteen Thousand, Five Hundred and Forty Only)."
2. The dispute between the parties was in relation to the
refusal of the respondent to purchase 266 nos. of 6/15
Subscriber line Concentrators from the petitioner on the
ground that the same were no longer required in view of the
subsequent development of the technology.
3. The Arbitrator by his Award dated 10.07.2007 issued
the following directions:
"(i) that the respondent shall pay to the
petitioner/claimant a sum of Rs.1,09,00,000/- (Rupees
One Crore Nine Lacs only) towards cost of goods (SLC
6/15, numbering 266) fabricated/manufactured by the
petitioner/claimant in pursuance of Advance Purchase
Order dated 11.12.1996, issued by the respondent
together with simple interest @ 12% p.a. on the above
amount from 01.04.1997 till actual payment;
(ii) that in addition to (i) above the respondent shall
also pay to the petitioner/claimant a sum of
Rs.3,46,580/- (Rupees Three Lacs Forty Six Thousand
Five Hundred Eighty only) towards the cost of the
present proceedings; and
(iii) that on receipt of the payment of the above
awarded sum from the respondent, the
petitioner/claimant within 15 days from the receipt of
such payment shall offer delivery/return of the goods
(SLC 6/15, numbering 266) manufactured by the
petitioner/claimant in pursuance of APO dated
11.12.1996 to the respondent. In case the respondent,
OMP (ENF.) (COMM.) No. 165/2016 Page 2
despite receipt of such a communication, fails to take the
delivery/lift the above mentioned goods in question
within a period of 30 days from the date of receipt of
such communication from the end of the
petitioner/claimant, the petitioner/claimant in such an
eventuality would be at liberty to dispose of those goods
in the manner as may be deemed fit by the
petitioner/claimant but after advance notice to the
respondent. The proceeds of those goods, so received by
the petitioner/claimant, after the disposal of the goods in
question, in the manner stated above, shall be paid by
the petitioner/claimant to the respondent soon
thereafter. This is being ordered keeping in view the
equity because after the payment of the awarded amount
the goods so manufactured virtually belong to the
respondent."
4. The respondent had challenged the said Award by way
of a petition under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as the 'Act')
being OMP No.525/2007. The same was dismissed by this
Court vide order dated 05.01.2016.
5. The respondent challenged the above order by way of an
appeal under Section 37 of the Act being FAO(OS)
No.102/2017. The same was also dismissed by the Division
Bench of this Court vide order dated 10.04.2017.
6. The respondent still not being satisfied, challenged the
above order before the Supreme Court by way of SLP(C)
No.23955/2017. The same was also dismissed by the Supreme
Court vide order dated 15.09.2017.
7. In this manner, the above Award became final. In the
OMP (ENF.) (COMM.) No. 165/2016 Page 3
meantime, in the present execution proceeding, pursuant to the
order dated 21.03.2017, the respondent deposited a sum of
Rs.3,68,61,878/- with the Registry of this Court and the said
amount was withdrawn by the petitioner.
8. On the claim of the petitioner that the above amount
would not be a complete satisfaction of the Award passed in its
favour, the respondent, pursuant to the order dated 08.12.2017
passed by this Court, deposited a further sum of Rs.5,81,333/-
with the Registry of this Court.
9. At this stage, the respondent, on 09.01.2018 made a
submission that as the entire decretal amount has been
deposited, the equipment in terms of the arbitration Award
should be directed to be delivered to it.
10. The petitioner has thereafter filed the above application
being IA no.1518/2018 contending therein that the factory of
the petitioner had been closed in 2003; thereafter, it seems that
unknowingly the equipment had been removed by the
caretaker of the premises considering it to be scrap. It is
submitted that even otherwise, with the passage of time, the
equipment had become useless. The petitioner has, therefore,
prayed for the following:
"a. Direct the Judgment Debtor and the Decree
Holder to mutually agree at the present value of the said
goods which may be adjusted towards the payment of
decretal amount by the Judgment Debtor;
Or in the alternative
Appoint 'Valuer' for arriving at the present value of the
said goods manufactured by the Decree Holder in 1997.
OMP (ENF.) (COMM.) No. 165/2016 Page 4
b. Allow the Decree Holder to adjust the present
value of the said goods either through the 'Valuation
Amount' so arrived at mutually or by the valuation done
by 'Valuer' towards the payment of decretal amount by
the Judgment Debtor; and /or"
11. Counsel for the respondent, however, relying upon the
judgments of the Supreme Court in Jai Narain Ram Lundia
vs. Kedar Nath Khetan & Ors. MANU/SC/0004/1956 and
Kohinoor Transporters vs. State of Uttar Pradesh
MANU/SC/0890/2018, submits that this Court would not have
jurisdiction to modify the Decree/Award and as the Award
directs that upon payment of money directed therein, the
equipment has to be returned to the respondent, incase the
petitioner is not able to return the said equipment, it must
return the entire amount received by it in terms of the Award.
12. I have considered the submissions made by the counsels
for the parties. In the present case, as noted above, the
Purchase Order in question had been issued by the respondent
in favour of the petitioner in 1996. The Award had been
passed in 2007 and the final payment was made by the
respondent to the petitioner only in 2017.
13. It is not denied that before the Arbitrator, the goods had
been duly inspected through a Local Commissioner. The
Arbitral Award in its direction allowed the respondent to take
away the goods only 'keeping in view the equity'. Such equity
would certainly change with the passage of time for which the
OMP (ENF.) (COMM.) No. 165/2016 Page 5
respondent alone is to be blamed. The respondent has delayed
the enforcement of the Award by a period of almost ten years.
It is not as if, in the Award, the respondent was to further pay
or has infact paid any storage charges to the petitioner. The
Award in direction (iii) quoted hereinabove merely required
the petitioner to offer delivery /return of the goods to the
respondent and infact also stated that incase the respondent
fails to take the delivery/lift the same within 30 days from the
date of receipt of this communication, the petitioner shall be at
liberty to dispose of these goods in the manner as it may be
deemed fit. The respondent, never offered to take delivery of
these goods and it is only on the deposit of the full amount,
that too was deposited pursuant to the orders being passed
against it in the present enforcement petition, the respondent
finally woke up after a period of ten years to claim these
goods. The Court accepts the explanation given by the
petitioner that in the interregnum, the factory of the petitioner
had to be closed down and the equipment, due to some
inadvertence, has been sold as scrap. The petitioner, therefore,
cannot be denied the fruits of the Arbitral Award only because
it is not in a position any longer to return these goods. Because
of the abovementioned peculiar facts in hand, the judgments of
the Supreme Court that have been referred to by the counsel
for the respondent, in my opinion, would not be of any help to
the respondent.
14. At the same time, the respondent has to be compensated
OMP (ENF.) (COMM.) No. 165/2016 Page 6
for the value of these goods. The respondent has not placed on
record any material to show the value of these goods as on
today. The petitioner has also not placed on record the amount
received by the petitioner on selling of these goods.
15. In view of the above situation, while allowing the
respondent to withdraw the amount of Rs. 5,81,333/-
alongwith interest accrued thereon from the Registry of this
Court, it is further directed that the petitioner shall pay a
further amount of Rs.10 lacs to the respondent within a period
of four weeks from today.
16. The petition is disposed of with the above directions,
with no order as to cost.
NAVIN CHAWLA, J
OCTOBER 04, 2018
RN
OMP (ENF.) (COMM.) No. 165/2016 Page 7
