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
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
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An attachment before judgment requires a strong prima facie case and demonstration of urgency, which the appellant failed to establish.
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