Delhi High Court
State Bank Of India vs Asha Enterprises Private Limited on 9 February, 2024
Author: Prateek Jalan
Bench: Prateek Jalan
$~10 to 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 9th February, 2024
+ O.M.P. (COMM) 465/2022, I.A. 19054/2022, & I.A. 991/2024
STATE BANK OF INDIA ..... Petitioner
versus
ASHA ENTERPRISES PRIVATE LIMITED ..... Respondent
+ O.M.P. (COMM) 466/2022, I.A. 19058/2022, & I.A. 995/2024
STATE BANK OF INDIA ..... Petitioner
versus
M/S ASHA ENTERPRISES PRIVATE LIMITED ..... Respondent
+ O.M.P. (COMM) 467/2022, I.A. 19062/2022, & I.A. 979/2024
STATE BANK OF INDIA ..... Petitioner
versus
ASHA ENTERPRISES PRIVATE LIMITED ..... Respondent
+ O.M.P. (COMM) 468/2022, I.A. 19066/2022& I.A. 996/2024
STATE BANK OF INDIA ..... Petitioner
versus
M/S A. K. BUILDERS ..... Respondent
+ O.M.P. (COMM) 469/2022, I.A. 19070/2022, & I.A. 993/2024
Signature Not Verified
Digitally Signed O.M.P. (COMM) 465/2022 & connected matters. Page 1 of 11
By:SHITU NAGPAL
Signing Date:13.02.2024
16:24:41
STATE BANK OF INDIA ..... Petitioner
versus
M/S ASHA ENTERPRISES PRIVATE LIMITED ..... Respondent
+ O.M.P. (COMM) 470/2022, I.A. 19076/2022, & I.A. 994/2024
STATE BANK OF INDIA ..... Petitioner
versus
M/S A. K. BUILDERS ..... Respondent
Appearances:
Mr. Rajiv Kapur, Mr. Akshit Kapur, Mr. Aditya Saxena, Advocates for
petitioner.
Mr. Sanjay Bansal, Advocate for respondents.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
I.A. 19056-19057/2022 (condonation of delay in filing and refiling) in
O.M.P. (COMM) 465/2022
I.A. 19060-19061/2022 (condonation of delay in filing and refiling) in
O.M.P. (COMM) 466/2022
I.A. 19064-19065/2022 (condonation of delay in filing and refiling) in
O.M.P. (COMM) 467/2022
I.A. 19068/2022 (for condonation of delay in filing) in O.M.P. (COMM)
I.A. 19072-19073/2022 (condonation of delay in filing and refiling) in
O.M.P. (COMM) 469/2022
I.A. 19078/2022 (for condonation of delay in filing) in O.M.P. (COMM)
1. The petitions are pending for issuance of notice as learned counsel
for the respondent has raised a preliminary objection with regard to
limitation.
2. It is the admitted position that the impugned awards in four cases1,
are dated 02.05.2022, and were received by the petitioner on 06.05.2022.
The petitions were filed on 13.08.2022, within the maximum condonable
period of 30 days, after the period of three months provided in Section
34(3) of the Arbitration and Conciliation Act, 1996 ["the Act"].
3. In the other two cases2, the awards are dated 31.05.2022, and are
stated to have been received on 02.06.2022. The original filing was
delayed for two days in each case.
4. It is, however, the contention of Mr. Sanjay Bansal, learned
counsel for the respondent, that the delay in refiling of the petition
renders the petitions deemed to have been filed on the date when it was
refiled, and not on the date of original filing. That refiling having
occurred beyond the maximum condonable period of 30 days, Mr. Bansal
submits that the petitions are barred by limitation.
5. It is specifically stated by Mr. Bansal that, in these cases, there is
no allegation that the original filing was non-est for want of any
documents crucial to a valid filing.
6. Having heard learned counsel for the parties, I am of the view that
it is appropriate to condone the delay in these applications. The judgment
of the Supreme Court in Northern Railway vs. Pioneer Publicity
Corporation Pvt. Ltd.3 clearly states that the maximum condonable period
OMP (COMM) 465/2022, OMP (COMM) 466/2022, OMP (COMM) 467/2022 and OMP (COMM)
469/2022.
OMP (COMM) 468/2022 and OMP (COMM) 470/2022.
(2017) 11 SCC 234.
of limitation [3 months + 30 days] under Section 34(3) of the Act is not
applicable to delays in refiling of petitions. The delay in original filing in
these cases is only of two days in OMP (COMM) 468/2022 and OMP
(COMM) 470/2022 and of nine days in the other four petitions.
7. In the circumstances of the cases, for the reasons stated in the
applications, the delay in filing and refiling are condoned.
8. The applications are disposed of.
I.A. 23158/2023 (for early hearing) in O.M.P. (COMM) 466/2022
I.A. 23157/2023 (for early hearing) in O.M.P. (COMM) 467/2022
As the petitions are listed today, these applications for early
hearing of the petitions have become infructuous.
The applications stand disposed of.
O.M.P. (COMM) 465/2022, O.M.P. (COMM) 466/2022, O.M.P.
(COMM) 467/2022, O.M.P. (COMM) 468/2022, O.M.P. (COMM)
469/2022, O.M.P. (COMM) 470/2022
1. Mr. Bansal takes a preliminary objection that the pecuniary
jurisdiction to entertain these petitions, lies before the District Court as
the sum claimed by the respondent in each case was less than Rs. 2
crores.
2. Under Section 5(2) of the Delhi High Court Act, 1966, the ordinary
original civil jurisdiction of this Court is attracted in a suit valued at over
Rs. 2 crores. Section 12(2) of the Commercial Courts Act, 2015, relevant
for valuation of these petitions under Section 34 of the Act, provides that
the "specified value" in an arbitration of a commercial dispute will
include the value of both the claims and counter claims. Under Section
2(1)(e) of the Act, the jurisdiction for filing of proceedings in a Court-
including a petition under Section 34 of the Act- would lie with the Court
which would have had jurisdiction to entertain the claims if they were the
subject matter of a suit. The effect of these statutory provisions is that a
petition under Section 34 of the Act can be entertained in this Court only
if the value of the claims and counter claims adjudicated by the learned
arbitrator in each case, exceeds Rs. 2 crores.
3. It is clear from a perusal of the record that this threshold is not met
in any of these cases. Each of the impugned awards contains a tabular
statement of the claims made and the amounts awarded against each
claim. The statements are reproduced below:
In O.M.P. (COMM) 465/2022:
Claim Claim on account of Amount of claim Amount of
No. (Rs.) award (Rs.)
1 Release of Security Deposit 18,99,874 18,99,874
(Rs.9,49,937) and Release
of wrongly recovered LD
(Rs.9,49,937)
2 Balance payment for work 39,11,396 37,40,846
done.
3 Interest @12% p.a. since Not quantified 37,32,148 till
date of submission of bill
date of award
till date of invocation of
arbitration, i.e. 09.08.2018
and further interest @12%
p.a. from 10.08.2018 till
date of award and future
interest.
4 Idle establishment for the 3,80,000 NIL
extended period.
5 Interest @ 12% p.a. for all Not quantified NIL
such periods on above
claims.
6 Cost of arbitration and Not quantified 2,00,000
litigation.
TOTAL 95,72,868
(A)
In O.M.P. (COMM) 466/2022:
Claim Claim on account of Amount of claim Amount of
No. (Rs.) award (Rs.)
1 Release of Balance 13,54,254 13,37,246
Security (Rs.4,92,098),
Release of wrongly
recovered LD
(Rs.7,87,357) and interest
(Rs.74,799) on account of
delay in release of part
amount of LD.
2 Balance payment for work 38,51,167 27,98,236
done.
3 Interest @12% p.a. since 17,44,411 till 25,06,930 till
date of submission of bill 09.08.2018 and date of award
till date of invocation of further @ 12 p.a.
arbitration, i.e. 09.08.2018
(Rs.17,44,411) and further
interest @12% p.a. from
10.08.2018 till date of
award and future interest.
4 Idle establishment for the 3,80,000 NIL
extended period.
5 Interest @ 12% p.a. for all Not quantified NIL
such periods on above
claims.
6 Cost of arbitration and Not quantified 2,00,000
litigation.
TOTAL 68,42,412
(A)
In O.M.P. (COMM) 467/2022:
Claim Claim on account of Amount of claim Amount of
No. (Rs.) award (Rs.)
1 Release of Security Deposit 18,99,874 18,99,874
(Rs.9,49,937) and Release
of wrongly recovered LD
(Rs.9,49,937)
2 Balance payment for work 52,87,306 46,92,525
done.
3 Interest @12% p.a. since Not quantified 43,61,820 till
date of submission of bill date of award
till date of invocation of
arbitration, i.e. 09.08.2018
and further interest @12%
p.a. from 10.08.2018 till
date of award and future
interest.
4 Idle establishment for the 3,80,000 NIL
extended period.
5 Interest @ 12% p.a. for all Not quantified NIL
such periods on above
claims.
6 Cost of arbitration and Not quantified 2,00,000
litigation.
TOTAL 1,11,54,219
(A)
In O.M.P. (COMM) 468/2022:
Claim Claim on account of Amount of claim Amount of
No. (Rs.) award (Rs.)
1 Balance payment for work 32,98,322 30,81,192
done
2 P/F Girders for Lifts 30,000. 30,000
3 Service Tax 6,49,482 6,49,482
4 Liaisoning charges so paid 2,00,000 NIL
for obtaining NOC from
Fire Department
5 Interest @12% p.a. for 10,30,306 7,77,585
delay in payment of
admitted final bill amount,
delay in refund of security
deposit and delay in release
of withheld amount as LD
6 Interest @ 12% p.a. on all @ 12% p.a. 27,88,131
claims from the due date
upto the date of the award.
7 Cost Not quantified 1,88,650
TOTAL 75,15,040
(A)
In O.M.P. (COMM) 469/2022:
Claim Claim on account of Amount of claim Amount of
No. (Rs.) award (Rs.)
1 Release of Balance 13,43,704 13,26,849
Security (Rs.4,88,265),
Release of wrongly
recovered LD
(Rs.7,81,223) and interest
(Rs.74,216) on account of
delay in release of part
amount of LD.
2 Balance payment for work 43,57,012 33,30,586
done.
3 Interest @12% p.a. since 19,13,010 till 28,28,100 till
date of submission of bill 09.08.2018 and date of award
till date of invocation of further @ 12 p.a.
arbitration, i.e. 09.08.2018
(Rs.19,13,010) and further
interest @12% p.a. from
10.08.2018 till date of
award and future interest.
4 Idle establishment for the 3,80,000 NIL
extended period.
5 Interest @ 12% p.a. for all Not quantified NIL
such periods on above
claims.
6 Cost of arbitration and Not quantified 2,00,000
litigation.
TOTAL 76,85,535
(A)
In O.M.P. (COMM) 470/2022:
Claim Claim on account of Amount of claim Amount of
No. (Rs.) award (Rs.)
1 Balance payment for work 29,22,653 21,81,014
done
2 P/F Girders for Lifts 30,000. 30,000
3 Service Tax 5,95,440 5,95,440
4 Liaisoning charges so paid 2,00,000 NIL
for obtaining NOC from
Fire Department
5 Interest @12% p.a. for 8,60,566 7,58,670
delay in payment of
admitted final bill amount,
delay in refund of security
deposit and delay in release
of withheld amount as LD
6 Interest @ 12% p.a. on all @ 12% p.a. 21,42,413 @
claims from the due date
10% p.a.
upto the date of the award.
7 Cost Not quantified 1,70,500
58,78,037
(A)
4. As there was no counter-claim in any of the cases, the question of
pecuniary jurisdiction has to be determined on the basis of the value of
the claims. We must, therefore, turn to the enumeration of the claim
amounts in the above tables, and are not concerned with the awarded
amounts. Although some of the interest claims were not quantified at the
stage of filing of the statements of claim, it is clear from the quantum of
the principal claims and the rate of interest claimed that, even upon
addition of interest until the date of invocation of the arbitration, the
claims would not cross the Rs. 2 crore mark in any of these cases. The
principle that, for this purpose, interest would have to be computed until
the date of invocation of the arbitration is laid down in a recent judgment
of a Coordinate Bench in Simentech India Pvt. Ltd. vs. Bharat Heavy
Electricals Ltd.4
5. The petitioner has proceeded to invoke the jurisdiction of this
Court on the basis of the total value of each of the award in question, and
has cited Section 42 of the Act, on the basis of the fact that the learned
Arbitrator was appointed by this Court under Section 11 of the Act. This
approach is fallacious. The award value, for the reasons aforesaid, is not
the applicable metric. In any event, it is less than Rs. 2 crores in each
case. Further, exercise of Section 11 jurisdiction by the Supreme Court,
or a High Court does not vest jurisdiction for all future petitions in that
Court. Reference, for this purpose, may be made to an order of the
Judgment dated 12.01.2024 in O.M.P.(COMM.) 348/2022.
Supreme Court dated 31.10.2022 in Yashpal Chopra and Co. vs. Union of
India & Ors.5, and to a decision of a Coordinate Bench in Mahavir
Prasad Gupta vs. Union of India & Anr.6.
6. For the aforesaid reasons, these petitions do not attract the
pecuniary jurisdiction of this Court and stand disposed of from the file of
this Court.
7. The Registry is directed to return the petitions to the petitioner for
presentation before the Court of competent jurisdiction.
PRATEEK JALAN, J
FEBRUARY 9, 2024
„Bhupi/SS'/Adhiraj/
SLP (C) No. 18324/2022.
(2022) 288 DLT 637, ¶ 41.
