O.M.P. (I) (COMM) 325/2021

Page 1 of 9

$~18

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

%

+

O.M.P.(I) (COMM.) 325/2021 & I.A. 12675/2021

DIMECO THROUGH ITS INDIAN AGENT

KRITI INTER TRADE

..... Petitioner

Through: Mr. Rakesh Tiku, Sr. Advocate

with Mr. N.L. Ganapathi and Mr. Sidhant

Garg, Advocates

versus

CENTRAL ORGANISATION FOR MODERNIZATION

OF WORKSHOPS THROUGH CONTROLLER OF

STORES & ANR

..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

[Hearing held through video conferencing]

VIBHU BAKHRU, J. (ORAL)

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 as under: -

“i)

grant an interim injunction restraining

the Respondents from taking any

coercive measures based on the Final

Rejection

Memo

bearing

No.

2021:DHC:3105

O.M.P. (I) (COMM) 325/2021

Page 2 of 9

Mech/M&P/2300/11 dated 26.08.2021

issued by Respondent No.2;

ii)

pass an ex-parte ad interim order in

terms of prayer (I) above;

iii)

award costs of this Petition to the

Petitioner;”

2.

Respondent no.1 (hereafter „COFMOW‟) had invited a Global

Bid Invitation Notice to tender for the supply of „Cut to Length Line

machine on turnkey basis‟ (hereafter „the CTL Machine‟). The said

Notice Inviting Tender was published on 30.04.2010. On 01.07.2010,

the petitioner (a French company) submitted its bids through its Indian

agent. The bids were opened on 02.07.2010 and the petitioner was

found to be the Lowest Bidder (L-1). It is stated that between

September, 2010 to August, 2011, COFMOW sought certain

clarifications and the same were provided. Thereafter, on 02.09.2011,

COFMOW issued a Letter of Acceptance. Thereafter, on 13.10.2011,

the parties entered into a contract (hereafter „the Contract‟), whereby

the petitioner agreed to supply the CTL Machine. The petitioner

claims that on 20.07.2012, the Deputy Railway Advisor, Embassy of

India, Paris inspected the CTL Machine and certified that the same

conformed to the contractual specifications.

3.

On 02.08.2012, the petitioner raised a commercial invoice for

EUR 1,575,901.50 (for supply on FOB basis). It received 80% of the

said invoice payment being EUR 1,260,721.20 on 30.08.2012 but, has

not received the balance payment as yet.

4.

The petitioner states that on 08.10.2012, the CTL Machine was

2021:DHC:3105

O.M.P. (I) (COMM) 325/2021

Page 3 of 9

delivered to the Rail Coach Factory, Kapurthala (respondent no. 2).

Thereafter, it was installed at the site. The petitioner acknowledges

that its Indian Agent received a sum of ₹13,97,833/- from COFMOW.

The petitioner states that initially the „Prove Out‟ of the CTL Machine

could not be successfully conducted due to various reasons

attributable to the respondents including the poor quality of Input Coil.

However, the petitioner claims that „Prove Out‟ of the CTL Machine

was successfully conducted from 19.11.2014 to 20.11.2014.

5.

The petitioner states that respondent no. 2 was required to issue

a Proving Test Certificate (PTC), which was a pre-condition for the

petitioner to be paid the balance amount of 20%. The petitioner claims

that its Indian Agent sent several letters to COFMOW during the

period 2015 to 2018 regarding the issuance of PTC, however,

respondent no. 2 failed to issue the same. The petitioner claims that

the delay was on account of certain internal issues inter se the

respondents with regard to the unilateral change in the parameters of

„Levelling Accuracy‟ by respondent no.2.

6.

The petitioner alleges that in the meanwhile respondent no. 2

did not maintain the CTL Machine and failed and neglected to take

measures for