The main legal point established in the judgment is that under Section 9(3) of the Arbitration and Conciliation Act, 1996, the Court should intervene only in exceptional circumstances when the Arbitral Tribunal cannot render an effective remedy under Section 17 of the Act.

JUDGMENT :

CHANDRA DHARI SINGH, J.

The instant petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter “Act”) has been filed on behalf of the petitioner seeking the following reliefs:—

“(a) the reference is made to the Ld. Sole Arbitrator in terms of and on the basis of the original Bipartite agreement dated 29.3.2019 (coloured copy filed alongwith this petition) instead of the earlier reference in terms of and on the basis of the photocopy of the Bipartite agreement dated 29.3.2019 (which is forged and fabricated);

(b)the proceedings before the Ld. Sole Arbitrator be commenced de nova protecting the interim orders already passed;

OR IN THE ALTERNATE

(c) the issue with regard to the genuineness or otherwise of the photocopy of the forged and fabricated bi-partite agreement dated 29.3.2019 and the original bi-partite agreement be first decided by the Ld. Sole Arbitrator in accordance with law before proceeding any further in the matter.

(d) pass such other or further orders as this Hon'ble Court may deems fit and proper in the facts and circumstances of the present case.”

FACTUALMATRIX

2. The petitioner is engaged in the business of Engineering, Procurement and construction of Power Transmission, sub-station, and Rural Electrification. While the respondent is a Partnership firm and is an Electrical and Civil Contractor engaged in rural electrification, sub-station and construction of power transmission operating in the state of Chhattisgarh.

3. M/s. Chhattisgarh State Power Distribution Company Ltd. (hereinafter referred as “CSPDCL”) is a government undertaking company which awarded the petitioner, the work of supply and Erection of Bilaspur region on Semi Turnkey Basis qua the Letter of Award dated 29th October, 2016.

4. A Tripartite Agreement dated 8th March, 2019 was entered between CSPDCL, petitioner and respondent wherein the work was sub-contracted to respondent. Pursuant to it, a letter dated 19th March, 2019 was issued by the CSPDCL for the approval of Tripartite Agreement and the exact amount of sub-contracted balance works to the respondent.

5. The respondent entered into Bi-partite Agreement dated 29th March, 2019 with the petitioner for the work of all 5 districts of Bilaspur package for various works. The total price of the work was Rs. 68,32,51,637.20/- (Rupees Sixty-Eight Crores Thirty-Two Lakhs Fifty-One Thousand Six Hundred Thirty-Seven and Twenty Paisa Only).

6. In the interregnum, State Bank of India filed an application under Section 7 of Insolvency and Bankruptcy Code against the petitioner and vide its order, National Company Law Tribunal admitted the said application and initiated Corporate Insolvency Resolution Process (CIRP). Resolution plan for petitioner (present management) was submitted by IM+ Capitals Ltd. which was approved by National Company Law Tribunal.

7. CSPDCL invoked Bank Guarantee of Rs. 14,99,74,934/- (Rupees Fourteen Crores Ninety Nine Lakhs Seventy Four Thousand Nine Hundred and Thirty Four Only) of petitioner invoking the ground of incompetence of respondent in completion of works as per the contract and inability of the respondent to provide reconciliation statement of materials and documents. CSPDCL further invoked two more Bank Guarantees of the petitioner due to breach and non - compliance of the Terms of the Award Contract and Tripartite Agreement by the respondent. As a consequence of breach of the Agreement committed by the respondent, the petitioner terminated the Bipartite Agreement qua notice dated 19th February, 2022.

8. The petitioner filed a petition under Section 9 of the Act before this Court bearing OMP(I)(COMM.) No. 69/2022 wherein this Court qua its order dated 28th February, 2022 appointed the Sole Arbitrator to adjudge the dispute between the parties and gave liberty to parties to seek interim measures before the Arbitral Tribunal.

9. In consonance with the directions of this Court, the petitioner filed an application on 10th March, 2022 under Section 1