* 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%

OMP (ENF.) (COMM.) 188/2021 Page 1 of 23 Signature Not Verified Digitally Signed 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 produced in 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.

OMP (ENF.) (COMM.) 188/2021 Page 2 of 23 Signature Not Verified Digitally Signed National Highways Authority of India (NHAI), [2022 SCC OnLine Del 3253] in 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 would have the authority to invoke the dispute resolution clause. The judgment in Consulting Engineers thus in fact runs contrary to what was contended on behalf of the Applicant.

6. Dr. George while explaining the concept of a joint venture firstly relied upon a judgment rendered by the Division Bench of the Gujarat High Court in Asia Foundations & Constructions Ltd., Bom