SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

2023 Supreme(Del) 1561

IN THE HIGH COURT OF DELHI AT NEW DELHI
Yashwant Varma, J.
Tahal Consulting Engineers India Pvt. Ltd. – Appellant
Versus
Promax Power Ltd. – Respondent
Arb. A. (COMM.) 89 of 2022, I.A. 20727 of 2022 (Delay in Re-filing Appeal and ARB. A. (COMM.) 92 of 2022
Decided On : 11-04-2023

Advocates appeared:
Mr. Arvind Nayar, Senior Advocate with Ms.Ritwika Nanda, Ms.Akshita Mr. Akshay Joshi and Mr. Shubham Pandey, Advocates, for the Petitioner in ARB. A. (COMM.) 89 of 2022, I.A. 20727 of 2022 (Delay in Re-filing Appeal & for the Respondent in ARB. A. (COMM.) 92/2022.
Mr. Moazzam Khan, Mr. Vidit Gupta, Ms. Anvita Goel, Mr. Anany Gupta, Mr. Prince Kumar and Mr. Chetan Singh, Advocates, for the Respondent in ARB. A. (COMM.) 89 of 2022, I.A. 20727 of 2022 (Delay in Re-filing Appeal & for the Petitioner in ARB. A. (COMM.) 92/2022.

Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 37(2)(b) and Section 17 - Appeals challenging orders by the Arbitral Tribunal regarding release of deposits and interim measures - Requests by sub-contractor for securing amounts based on prima facie claims - Court found no justification for ordering attachment before judgment and upheld Tribunal's discretion - Financial difficulties of the defendant, standing alone, do not warrant securing claims without substantial evidence of asset dissipation. (Paras 36-56)

Facts of the case:
Disputes arose from a sub-contract related to a water supply project, with the subcontractor seeking secured payment for work completed. The contract was terminated, leading to competing claims and counterclaims. (Paras 1-4)

Findings of Court:
The Tribunal denied the request for releasing the deposited amount until final adjudication, recognizing no compelling evidence of financial distress or risk of asset disposal by the respondent. (Paras 52-56)

Issues: Whether sufficient justification existed for attachment before judgment in the absence of established asset dissipation; whether the Tribunal exercised discretion appropriately in denying interim relief. (Paras 35-56)

Ratio Decidendi: The Court maintained that the order for securing amounts should not be issued simply based on claimed difficulties without clear evidence of asset risk, affirming the Tribunal's discretion to refuse immediate release based on broader competing claims. (Paras 48-56)

Result: Appeals dismissed.

ORDER

1. These two appeals preferred under Section of the 37(2)(b) of the Arbitration and Conciliation Act,1996 [Act] assail the order of 19 September 2022 passed by the Arbitral Tribunal. The appellant in Arb. A.(COMM) No.92/2022 has additionally questioned the validity of the order dated 14 November 2022. The order of 19 September 2022 has been passed on applications made by respective parties purporting to be under Section 17 of the Act. By the order of 14 November 2022, the Arbitral Tribunal has proceeded to reject an application moved by the appellant in Arb. A. (COMM) No.92/2022 seeking review of the order dated 19 September 2022 and additionally dismissing an application made for an interim Award being rendered. For the sake of convenience, the appellant in Arb. A. (COMM) No.89/2022 shall be referred to as "Tahal" and the appellant in Arb. A. (COMM) No.92/2022 as "Promax".

2. The dispute between the parties emanates from a sub-contract which was awarded by Tahal to Promax in connection with the work awarded to the former by the Bangalore Water Supply and Sewerage Board [BWSSB] for improvement of the water supply distribution system, reduction in UFW and leakage control in N-2, N-3, C-2 & SE-2 sub-divisions limits of BWSSB, Bangalore. The principal contract was awarded to Tahal by BWSSB on 23 February 2018. Promax came to be engaged by Tahal as a sub-contractor on 18 December 2022 when a Letter of Intent was issued. This was followed by a formal sub-contract agreement being executed by the parties on 27 January 2021.

3. Prior to proceedings being taken before the Arbitral Tribunal, Promax had approached this Court by way of a petition under Section 9 of the Act. In terms of that petition, Promax had sought release and/or preservation of an amount equivalent to Rs.3,93,08,407.98/- with the aforesaid sum being asserted to be the amount payable in respect of bills which had been raised by Promax upon Tahal.

4. The aforesaid petition under Section 9 of the Act came to be disposed of on 28 April 2022 in the following terms:

    "1. The petitioner has filed the present petition under Section 9 of the Arbitration and Conciliation, Act, 1996 (hereafter `the A&C Act'), inter alia, praying that respondent nos. 1 and 3 be directed to release and/or preserve an amount equivalent to Rs.3,93.08,407.98/-. According to the petitioner, this amount is payable in respect of bills already raised for the work done by the petitioner.

    2. Respondent no.3 had invited bids for execution of the work relating to improvement of water supply distribution system, reduction in UFW and leakage control in N-2, N-3, C-2 & SE-2, Sub-Division limits of BWSSB, Bangalore to be completed on or before 13.03.2021. Respondent no.1 successfully bid for the said work and by a Letter of Acceptance dated 23.02.2018, the aforementioned Contract was awarded to respondent no.1.

    3. It is stated that thereafter, the petitioner and respondent no.1 entered into a Sub-Contract Agreement dated 27.01.2021, whereby the petitioner was required to execute a portion of the said work and the proceeds of the same were required to be shared in the ratio of 95% and 5%.

    4. The said Sub-Contract Agreement was terminated by respondent no. 1 on 05.01.2022. Essentially, the petitioner seeks protection of its claims for the work done prior to the said date.

    5. Mr Nayar, learned senior counsel appearing for respondent no.1, states on instructions that respondent no.1 shall deposit a sum of Rs.1,14,00,000/- (Rupees One Crore fourteen lacs) with the Registry of this Court as according to respondent no.1, that is the value which is required to be paid to the petitioner. He states that this is the amount, which is payable to the petitioner, subject to the other claims that respondent nos. 1 and 2 may have against the petitioner. But without prejudice to it rights and contentions, respondent no.1 will deposit that amount with the Registry of this Court.

    6. It is also apparent that certain amounts are p

Click Here to Read the rest of this document
1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon Back to top