ARB.P. 217/2020&O.M.P.(I) (COMM.) 162/2020 Page 1 of 76

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 3^rd

Pronounced on: 17

February, 2021

th

February, 2021

+

ARB.P. 217/2020 and I.A.6503/2020

MAHINDRA SUSTEN PRIVATE LIMITED ..... Petitioner

Through:

Mr. K.V. Viswanathan, Mr.

Sanjeev Kapoor, Mr. Prateek Kumar, Ms.

Sneha Janakiraman, Mr. Apoorv Singhal,

Ms. Smriti Nair, Advs.

versus

NHPC LIMITED

..... Respondent

Through:

Mr. Tejas Karia, Mr.Gauhar

Mirza, Mr. Prakhar Deep and Mr.Nishant

Doshi, Advs.

+

O.M.P.(I) (COMM.) 162/2020 and I.A.6502/2020

MAHINDRA SUSTEN PRIVATE LIMITED ..... Petitioner

Through:

Mr. K.V. Viswanathan, Mr.

Sanjeev Kapoor, Mr. Prateek Kumar, Ms.

Sneha Janakiraman, Mr. Apoorv Singhal,

Ms. Smriti Nair, Advs.

versus

NHPC LIMITED

..... Respondent

Through:

Mr. Tejas Karia, Mr. Gauhar

Mirza, Mr. Prakhar Deep and Mr. Nishant

Doshi, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

2021:DHC:579

ARB.P. 217/2020&O.M.P.(I) (COMM.) 162/2020 Page 2 of 76

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J U D G M E N T

1.

This judgment disposes of Arb. P. 217/2020 and OMP (I)

(Comm) 162/2020.

2.

Arb. P. 217/2020 seeks reference of the disputes, between the

petitioner and respondent, to arbitration, under Section 11(6) of the

Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the

1996 Act”). OMP (I) (Comm) 162/2020 seeks certain pre-arbitral

interim reliefs. Mr. Viswanathan, learned Senior Counsel for the

petitioner submitted, at the outset, that, if Arb. P. 217/2020 were to be

allowed, and the disputes between the petitioner and the respondent

referred to arbitration as prayed therein, he would have no objection to

OMP (I) (Comm) 162/2020 being also referred for adjudication to the

arbitrator, treating it as an application under Section 17 of the 1996

Act. As such, the necessity of adjudicating, on merits, OMP (I)

(Comm) 162/2020 would arise only if Arb. P. 217/2020 were not to be

allowed.

3.

Mr. Tejas Karia, learned counsel for the respondent, vehemently

opposed Arb. P. 217/2020. The ground for opposition would become

clearer from the recital that follows. Suffice it to state, at this stage,

that I am of the opinion that the opposition of Mr. Tejas Karia is

without substance and that, therefore, the dispute between the

petitioner and the respondent ought to be referred to arbitration. As

such, in view of the submission made by Mr. Viswanathan, noted

supra, OMP (I) (Comm) 162/2020 would also be decided by the

2021:DHC:579

ARB.P. 217/2020&O.M.P.(I) (COMM.) 162/2020 Page 3 of 76

Arbitral Tribunal under Section 17 of the 1996 Act. The necessity of

this Court adjudicating on the said petition, thereby, stands obviated.

Facts

4.

A notice, dated 5^th

July, 2018, was issued by the respondent-

NHPC, inviting tenders for “Engineering Procurement Construction

(EPC) Contract for 10 MW capacity Floating Solar Power Project at

West Kallada in the State of Kerala with its Comprehensive Operation

and Maintenance for 10 years”. For the sake of convenience, the

notice would be referred to, hereinafter, as “the NIT”.

5.

The following Clauses of the NIT are relevant:

“3.2.A.1.2

The bidder should have experience of having successfully

completed a project of any nature involving floating

structures/platform/ deck/ underwater cable works, in last five

(5) years on Engineering, Procurement and Construction

(EPC) basis.

Note:-

Floatation Device Technology Provider: The bidder should

propose name of the float technology provider with whom

they expect to tie-up for supply of the floats. Bidder may

propose any number of vendors (including bidders own

design) along with their credentials as part of their technical

bid. However, prior to signing of the contract agreement, the

successful bidder shall communicate their finalised float

v