M/S. Techtrans Construction ... vs M/S. Technic Construction Co.,
2021 Latest Caselaw 2103 Tel

Item No.30

     THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
                        AND
     THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

                       COMCA. No.24 of 2021

JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)

1.    On the last date of hearing, noting that the appellant

(respondent No.1 in COP No.100 of 2020), is aggrieved by an order

dated 17.03.2021, passed by the Special Court for Trial and Disposal

of Commercial Disputes at Hyderabad, whereby a petition filed by the

respondent No.1 under Section 9 of the Arbitration and Conciliation

Act ('the Act', for short) for restraining the appellant from invoking

and encashing the bank guarantee of a sum of Rs.16,72,50,000/-, was

allowed in favour of the respondent No.1 and the appellant was

restrained from invoking the said bank guarantee, this court had

enquired from learned counsel for the appellant as to whether the

Arbitral Tribunal had been constituted so far.

2. Surprisingly, though the dispute between the parties had arisen

in the year 2014, no effort was made by them, till the aforesaid date,

to constitute an Arbitral Tribunal. Instead, they were busy in battling

it out before a legal forum in Iran.

3. On the last date of hearing, Mr. S. Ravi, learned Senior

Advocate appearing for the respondent No.1 had informed this court

that though his client had given a written intimation to the appellant

on 01.06.2021 suggesting the name of an Arbitrator, the other side had

not taken any steps to nominate an Arbitrator. Mr. Vedula Srinivas

learned Senior Advocate appearing for the appellant had assured this

court that the appellant shall convey the name of the nominated

Arbitrator to the otherside within one week.

4. Today, we are informed by learned counsel for the parties that

both sides have nominated the Arbitrators and they have inturn,

appointed an Umpire. The Arbitral Tribunal has entered upon

reference and issued a Memo dated 12.07.2021, calling upon the

parties to appear before it. Neither side is in a position to assist the

court by giving the exact date on which the parties have been directed

to appear before the Arbitral Tribunal.

5. In view of the aforesaid developments, Mr. S. Ravi, learned

Senior Advocate appearing for the respondent No.1 states that though

the impugned order has been passed in favour of the respondent No.1

and the appellant has been restrained from invoking and encashing the

subject bank guarantee, his client is willing to move an application

before the Arbitral Tribunal for the very same relief on the condition

that the respondent No.1 may be extended adequate protection till a

decision is taken on said application proposed to be moved under

Section 17 of the Act. He assures this court that the respondent No.1

shall move the said application within ten days from today.

6. Mr. Vedula Srinivas, learned Senior Advocate appearing for the

appellant submits on instructions that he is agreeable to the said

suggestion, but states that it should be left to the Arbitral Tribunal to

take decision on the application proposed to be moved by the

respondent No.1 under Section 17 of the Act, the matter should be

argued and decided afresh uninfluenced by the impugned order.

7. The present appeal is disposed of accordingly along with the

pending applications, if any. The respondent No.1 is given ten days

time to move an application under Section 17 of the Act before the

Arbitral Tribunal, with a copy to learned counsel for the appellant

who shall file a reply thereto within ten days therefrom. When the

parties appear before the Arbitral Tribunal on the next date of hearing,

the order passed in the present appeal shall be placed before it for

perusal with a request to hear and decide the above application,

proposed to be filed by the respondent No.1, as expeditiously as

possible, preferably within a period of four weeks from the date of

concluding arguments on the said application, uninfluenced by the

observations made in impugned order dated 17.03.2021 passed in

COP No.100 of 2020. Neither side shall be accommodated for any

adjournment. Till the said application is decided, the appellant is

restrained from invoking/encashing the subject bank guarantee.

_________________ HIMA KOHLI, CJ

______________________ B. VIJAYSEN REDDY, J 14.07.2021 KTL/PLN