Neutral Citation Number: 2023/DHC/001634

OMP (ENF.) (COMM.) 188/2021

Page 1 of 23

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Order reserved on: 24 February 2023

Order pronounced on: 07 March 2023

+

OMP

(ENF.)

(COMM.)

188/2021,

CCP(O)

46/2022,

EX.APPL.(OS) 1316/2021, EX.APPL.(OS) 1318/2021 (Stay),

EX.APPL.(OS)

1319/2021

(Necessary

Direction),

EX.APPL.(OS)

2822/2022,

EX.APPL.(OS)

3243/2022,

EX.APPL.(OS) 3311/2022

ITD CEMENTATION INDIA LIMITED

..... Decree Holder

Through:

Dr. Amit George, Mr. Piyo

Horold, Mr. Amol Acharya,

Mr. Rayadurgam Bharat and

Mr. Arkaneik Bhaumik, Advs.

versus

SSJV-ZVS JOINT VENTURE & ORS. ..... Judgement Debtors

Through:

Ms. Nupoor Maharaj, Adv. for

Judgement Debtor No. 1 & 2

Mr. Garnishee, Adv. with Mr.

Puneet Taneja, Adv. for NTPC.

CORAM:

HON'BLE MR. JUSTICE YASHWANT VARMA

O R D E R

EX.APPL.(OS) 3311/2022

1.

The instant application has been moved for Respondent No. 2

being struck off from the array of parties in the present petition. The

execution proceedings emanate from an Award rendered on 09 March

2019 in terms of which the Enforcement Petitioner became entitled to

realize an amount of Rs. 6,65,55,228/- along with interest @ 12%

Digitally Signed

By:NEHA

Signing Date:07.03.2023

13:31:50

Signature Not Verified

Neutral Citation Number: 2023/DHC/001634

OMP (ENF.) (COMM.) 188/2021

Page 2 of 23

from 07 November 2013 till the realization of the amount along with

costs.

2.

The first respondent is a joint venture which was constituted

between

M/s

SSJV

Projects

Private

Limited

and

M/s

Zarubezhvodstroy. The aforesaid joint venture as per the Applicant‟s

own admissions was formed for the purposes of execution of the

contract relating to the construction of a Barrage and a De-silting

Chamber for Tapovan- Vishnugad Hydroelectric Power Project. As is

evident from the records producedin these proceedings, the

Respondent had entered into a contract on 06 February 2009 for

construction of an upstream cut-off wall. Consequent to disputes

having arisen, the matter came to be referred to arbitration. Those

proceedings ultimately culminated in the pronouncement of an Award

of which execution is sought in the present petition.

3.

Undisputedly, SSJV Projects, the second Respondent, was a

constituent of the joint venture. It is the joint venture which was

arrayed as a Respondent before the Arbitral Tribunal.

4.

The Applicant Respondent No. 2 however contends that since it

was not individually placed on notice by the Arbitral Tribunal, the

execution proceedings as drawn against it are not maintainable.

Learned counsel appearing for the Applicant would contend that since

the second respondent is an entity duly incorporated and thus having a

separate and distinct identity in law, no proceedings for execution can

be taken against it.

5.

Learned counsel had also placed reliance upon a judgment

rendered by the Court in Consulting Engineers Group Limited v.

Digitally Signed

By:NEHA

Signing Date:07.03.2023

13:31:50

Signature Not Verified

Neutral Citation Number: 2023/DHC/001634

OMP (ENF.) (COMM.) 188/2021

Page 3 of 23

National Highways Authority of India (NHAI)¹in support of her

aforenoted submissions. It must however, and at the outset, be noted

that Consulting Engineers clearly cannot be read as an authority

supporting the arguments which have been addressed on behalf of the

Applicant. Consulting Engineers was considering the question

whether an individual member of a consortium could have invoked

arbitration or sought interim measures. While negativing the right of

an individual member to move such a petition, the learned Judge had

ultimately held that a constituent of a joint venture could not

individually petition for interim measures. It also held that a member

of the consortium cannot independently approach the Court seeking

relief and that it would be the joint venture alone which