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2020 Supreme(Del) 628
IN THE HIGH COURT OF DELHI AT NEW DELHI
Jyoti Singh, J.
Sterling And Wilson International Fze - Appellant
Versus
Sunshakti Solar Power Projects Private Limited & Ors. - Respondent
Original Miscellaneous Petition (I) (Comm) No. 460 of 2018, 461 of 2018; Interlocutory Application No. 9313 of 2019, 9356 of 2019, 9314 of 2019, 9358 of 2019
Decided On : 22-06-2020
Sandeep Sethi, Advocate, Darpan Wadhwa, Advocate, Farida Dholakawala, Advocate, Sameer Patel, Advocate, Shubhanshu Gupta, Advocate, Kabir Chilwar, Advocate, Sanjana Bakshi, Advocate, Hitesh Singhvi, Advocate, A.S. Chandiok, Advocate, Ritesh Kumar, Advocate, Tishampati Sen, Advocate, Riddhi Sancheti, Advocate, Abhisree Saujanya, Advocate, Tejasvi Chaudhary, Advocate, Mayur Shetty, Advocate, Aarti Kumar, Advocate, Sharan Jagtiani, Advocate, Dayan Krishnan, Advocate
Subject
Arbitration - Interim Relief
Act Referred
CIVIL PROCEDURE CODE: O.34 R.1, O.38 R.5, O.39 R.1, O.39 R.2
CONSTITUTION OF INDIA: Art.32
Headnote
(B) Preliminary findings - Contractual obligations, Joint Liability - Contractual provisions considered to establish petitioner's prima facie case for the claim and likelihood of irreparable injury due to financial precariousness of respondents. (Paras 82, 86) .
(C) Alternative dispute resolution - Powers of court under Section 9 applicable irrespective of arbitration seat; Direction issued for furnishing security by respondents in favor of petitioner. (Paras 63, 88) .
| Table of Content |
|---|
| 1. petitioner seeks interim relief under arbitration act. (Para 1 , 2 , 3) |
| 2. overview of respondents involved in the solar project. (Para 4 , 5 , 7) |
| 3. details of offshore supply agreement and payment terms. (Para 10 , 11 , 12 , 13 , 14) |
| 4. assertion of petitioner’s rights based on osa. (Para 20 , 21 , 22 , 23 , 24) |
| 5. respondents’ arguments against petitioner’s claims. (Para 25 , 26) |
| 6. restructuring of contractual responsibilities among parties. (Para 30 , 31) |
| 7. court's jurisdiction under section 9 of arbitration act explained. (Para 62 , 70 , 72) |
| 8. court's final order securing petitioner’s claims. (Para 88 , 89) |
JUDGMENT
Jyoti Singh, J. - Both these petitions have been filed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "Act") seeking interim reliefs. Prayers sought in OMP (I) (COMM) 460/2018 are as under:-
"(a) Direct the Respondents to furnish security to a tune of USD 34,723,013 being the Offshore Supply Price, by way of an unconditional and irrevocable bank guarantee in favour of the Petitioner pending the completion of arbitration proceedings and making of the Award; or
(b) In the alternative, direct the Respondents to furnish security by depositing a sum of USD 34,723,013 being the Offshore Supply Price, before this Hon''ble Court pending the completion of arbitration proceedings and making of the A ward; and
(c) Grant an order of temporary injunction restraining the Respondents, their respective directors, servants, officers and/or agents from in any manner directly and/or indirectly, voluntarily and/or involuntarily, transferring, conveying, alienating, dealing with, creating third party rights and/or otherwise encumbering the Project, including the land, plants, equipment and machinery and other articles at the site where the Project is situated pending the hearing and final disposal of the Petition and during the arbitration completion of arbitration proceedings and making of the Award; and
(d) Grant an order of temporary injunction restraining Respondent nos.2, 7 and 8 from transferring, disposing off, creating a charge and/ or encumbering, in any manner, their shares and other securities held by them directly and/ or indirectly in Respondent nos.1,3,4,5 and 6 pending the hearing and final disposal of the Petition and during the arbitration completion of arbitration proceedings and making of the Award; and
(e) Grant an order of temporary injunction restraining Respondent no.4, from transferring, disposing off, creating a charge and/ or encumbering, in any manner, its shares and other securities held by it in Respondent nos. 1 and 5 pending the hearing and final disposal the Petition and during the arbitration completion of arbitration proceedings and making of the Award; and
(f) Grant an order of temporary injunction restraining Respondent nos.3 ,5 and 6 from transferring, disposing off, creating a charge and/or encumbering, in any manner, the shares and other securities held by them in Respondent nos. 4, 6 and 1, respectively, pending the hearing and final disposal of the Petition and during the arbitration completion of arbitration proceedings and making of the Award; and
(g) Grant ex-parte ad interim relief in terms of the above; and
(h) Award the cost of this Petition to the Petitioner; and
(i) Pass such further and other reliefs as the nature and circumstances of the case may require in the interest of justice and equity."
2. With minor differences in the facts and dates of the documents, the two petitions involve common issues and questions of law and are being decided by a common judgment. Minor differences in the facts of the two cases will be detailed in the later part of the judgment. However, for the sake of convenience, facts and documents in OMP (I) (COMM) 460/2018 are being referred to.
3. Facts, as averred, on behalf of the Petitioner in OMP (I) (COMM) 460/2018 are that Petitioner is a Company incorporated under laws of United Arab Emirates ca
