Delhi High Court
Pico Deepali Overlays Consortium vs Organizing Committee ... on 27 February, 2019
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:27.02.2019
+ OMP (ENF.) (COMM.) 3/2016
PICO DEEPALI OVERLAYS CONSORTIUM ..... Decree Holder
Through: Ms. Tara Shahani, Advocate.
versus
ORGANIZING COMMITTEE COMMONWEALTH GAMES
2010 ..... Judgment Debtor
Through: Mr. Sandeep Sethi, Senior Advocate
with Mr. Raghvendra Singh and
Mr. Abhishek Gupta, Advocates for
applicant/Deepali Designs & Exhibit
Pvt. Ltd.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J. (ORAL)
O.A. No. 24/2019 (Against order dated 14.01.2019)
1. This is a chamber appeal filed against the order dated 14.01.2019,
passed by the learned Joint Registrar (Judicial) (in short "JR").
2. Via the impugned order, the JR has dismissed the application for
impleadment filed by an entity going by the name: Deepali Designs and
Exhibits Private Limited (in short "DDEPL").
3. Briefly, the background in which the application for impleadment and
the instant appeal is filed are as follows:-
4. An entity by the name: Pico Deepali Overlays (hereafter referred to as
O.M.P. (ENF) (COMM) 3/2016 Pg. 1 of 6
„Consortium‟) had undertaken work for the judgment debtor.
5. On account of disputes erupting between the Consortium and the
judgment debtor, arbitration proceedings were commenced.
6. The arbitration proceedings led to passing of an award dated
03.12.2015.
7. Pertinently, the Consortium comprised three entities, namely, Pico
Hong Kong Limited, Pico Event Marketing (India) Private Limited and
DDEPL.
8. Notably, the claimant in the arbitration proceedings was the
Consortium.
9. It is not in dispute that DDEPL had moved an application before the
concerned Arbitral Tribunal for impleadment as a Co-Claimant. This
application, however, was disposed of by the Arbitral Tribunal vide order
dated 22.04.2013.
10. While disposing of the application, the Arbitral Tribunal made the
following observations in the operative part of its order dated 22.04.2013:-
"(8) Considering all the facts and circumstances of
the case, the application is allowed in the following
terms and subject to the following conditions:
(i) The Claimant shall implead the Applicant as
Respondent No. 2 (Proforma) by filing an amended
memo of parties;
(ii) The present Respondent in the proceedings
shall be treated as the Respondent no. 1. The
reference in the claim petition to the „Respondent‟
wherever it occurs shall be treated as reference to
O.M.P. (ENF) (COMM) 3/2016 Pg. 2 of 6
Respondent No. 1.
(iii) The Respondent No. 2 shall not be
permitted to file any pleadings or documents except
by the specific leave of the Tribunal, in as much as
the Claimant is not seeking any relief against the
Respondent No. 2 (Applicant) and its impleadment
is being permitted only for the purpose of
protecting its own interest.
(iv) This impleadment, as permitted hereby, does
not prevent the Applicant (now Respondent No. 2,
in these proceeding) from filing its own Statement
of Claim against any of the present parties for
seeking enforcement of its own rights or claims but
that shall be only in such independent proceedings
as may be advised and the present order and
impleadment directed hereby shall not be so
construed as to bar that remedy to the
applicant/respondent No. 2.
(v) For all the future dates of hearing the
Applicant/Respondent No. 2 shall pay a fee of Rs.
10,000/- to each Member of the Tribunal. Fee in
advance for one date of hearing i.e. 15-07-2013
which is already appointed may be deposited.
Further directions in this regard will be made on
the appointed date."
(emphasis is mine)
O.M.P. (ENF) (COMM) 3/2016 Pg. 3 of 6
11. The net effect of the order dated 22.04.2013 of the Arbitral Tribunal
was that DDEPL was not arrayed as a Co-Claimant but was added as a
proforma respondent.
12. As a matter of fact, DDEPL was arrayed as respondent no. 2 in the
arbitration proceedings.
13. Counsel for the parties inform me that the award was challenged right
up to the Supreme Court and has been sustained in its entirety.
14. I am also informed by counsel for the parties that not only the
Consortium has filed an execution petition under Section 36 of the
Arbitration and Conciliation Act, 1996, which is the petition in which the
captioned application has been moved but that DDEPL has also filed a
separate enforcement petition which is numbered as: OMP (Enf.) (Comm)
No. 75/2017.
15. Concededly, in the applicant‟s/DDEPL‟s enforcement petition notice
has been issued and the same is coming up for hearing before this Court on
16.07.2019.
16. Mr. Sethi, who, appears for DDEPL, says that the reason impleadment
is sought in the Consortium‟s enforcement petition is on account of an
apprehension that the judgment debtor may release behind DDEPL‟s back,
so to speak, moneys under the award, albeit, without its knowledge.
17. Ms. Tara Shahani, who, appears on behalf of the non-
applicant/Consortium, on the other hand, says that the award is not divisible.
17.1 It is her submission that the only claimant in the arbitration
proceedings was the Consortium and therefore, DDEPL cannot be arrayed as
a party in the enforcement petition filed by the Consortium.
18. It is also Mr. Shahani‟s submission (and for this purpose she has
O.M.P. (ENF) (COMM) 3/2016 Pg. 4 of 6
referred to para 9.39 of the award) that payments up to Stage 4 were made
by the judgment debtor only to the Consortium.
18.1 It is, however, the submission of Mr. Sethi that payments up till Stage
4 were made in favour of one of the JV partners i.e. Pico Hong Kong
Limited, and not in favour of the Consortium as submitted by Ms. Shahani.
19. In rebuttal, Ms. Shahani says that since Pico Hong Kong Limited was
the lead partner, therefore, payments had been made to the said entity albeit
for and on behalf of the Consortium.
20. This aspect of the matter need not detain me qua the captioned
application.
21. What, crucially emerges from the record is that, as per the award, the
claimant continued to be the Consortium.
22. Given the fact that DDEPL has moved a separate and an independent
enforcement petition, to which, I have made a reference above, in my view,
impleadment of DDEPL in the Consortium‟s petition is neither necessary
nor proper. DDEPL‟s enforcement petition will have to stand on its own
legs, a second string to the bow is neither necessary nor permissible.
23. Therefore, apart from anything else, to my mind, this singular ground
should sustain the impugned order.
24. Mr. Sethi, however, says that certain observations are made in the
impugned order which may impact contentions, if any, which DDEPL may
like to advance in its enforcement petition.
25. Having regard to what has been said above, it is made clear that the
other observations made in the impugned order will not impact at least, for
the moment, the contentions that DDEPL may like to advance in its
enforcement petition. As and when DDEPL‟s enforcement petition is taken
O.M.P. (ENF) (COMM) 3/2016 Pg. 5 of 6
up for hearing, it shall be decided on its own merits.
26. The appeal is, accordingly, dismissed.
27. However, in order to facilitate the adjudication of the two
enforcement petitions, the Registry will place the same before the Court on
the same date.
28. Consequently, OMP (Enf) (Comm) 3/2016 will be listed on
16.07.2019 which is the date already fixed in OMP (Enf) (Comm) 75/2017.
29. This direction will continue to operate till one or the other
enforcement petition is disposed of.
30. At this stage, Mr. Sethi also states that DDEPL has filed a suit for
payments made outside the purview of the subject award and therefore,
these observations would impact those proceedings.
31. To my mind, the observations made in the proceedings which are
relatable to the subject award having a defined boundary cannot impact the
suit action.
RAJIV SHAKDHER, J.
FEBRUARY 27, 2019
c
O.M.P. (ENF) (COMM) 3/2016 Pg. 6 of 6
