ARB. P. 1098/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 25.02.2022

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ARB.P. 1098/2021

TALAIPALLI COAL MINING PVT. LTD.

..... Petitioner

versus

NTPC LIMITED

..... Respondent

Advocates who appeared in this case:

For the Petitioner:

Mr Parag P Tripathi, Senior Advocate with

Mr Atul Shanker Mathur, Mr Prabal

Mehrotra, Mr Umang Katariya, Ms Mishika

Bajpai and Mr Amlaan Kumar, Advocates.

For the Respondent:

Mr Puneet Taneja, Ms Laxmi Kumari and

Mr Manmohan Singh Narula Advocates.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.

The petitioner (hereafter ‘TCMPL’) has filed the present petition

under Section 11(6) of the Arbitration and Conciliation Act, 1996

(hereafter the ‘A&C Act’) praying that an Arbitrator be appointed on

behalf of the respondent (hereafter ‘NTPC’), in accordance with Clause

23 of the Project Agreement. TCMPL had nominated its Arbitrator and

it further prays that the two Arbitrators (one nominated by TCMPL and

the other as may be appointed by this Court on behalf of NTPC), be

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directed to appoint the Presiding Arbitrator.

Factual Context

2.

On 31.12.2015, NTPC had issued a Notice Inviting Tender

(hereafter ‘NIT’) for the “Development and Operation of the Talaipalli

Coal Block, State of Chhattisgarh, India” and for the appointment of a

Mine Development Operator for the said Coal Block.

2.1

M/s NCC Limited and M/s BGR Mining and Infra Limited

(hereafter referred to as the ‘Consortium Members’) participated in

the tendering process as NCC-BGR Consortium.

2.2

The bid submitted by NCC-BGR Consortium was accepted and

they were declared as the ‘Selected Bidder’. Thereafter, on 13.11.2017,

NTPC issued a Letter of Acceptance (hereafter ‘LoA’) to the NCC-

BGR Consortium.

2.3

In terms of the Instructions to Bidders (hereafter ‘ITB’), the

Consortium Members constituted and incorporated TCMPL as a Joint

Venture Company on 11.12.2017. It is stated in the petition that NTPC

was informed on 12.12.2017 that TCMPL was incorporated by the

Consortium Members as a representative of the Mine Operator.

2.4

Thereafter, on 13.12.2017, the Consortium Members informed

NTPC regarding certain intimations issued by TCMPL on behalf of the

NCC-BGR Consortium. This was followed by certain other

communications issued by TCMPL seeking issuance of a No Objection

Certificate from NTPC for approval of construction of the Diesel Bunk

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in Raikera Village.

2.5

On 14.12.2017, TCMPL requested NTPC to issue a Form-III

certificate as it was proposing to apply for a labour license for the

Talaipalli Coal Mining Project operations.

2.6

NTPC states that after issuance of the LoA, the Central Bureau

of Investigation (CBI) registered an FIR (being FIR No. RC AC1 2017

A0007 dated 07.12.2017) against one of the directors of M/s BGR

Mining and Infra Limited under various provisions of the Indian Penal

Code, 1860 and the Prevention of Corruption Act, 1988. NTPC states

that in view of the registration of the FIR, it did not recognise the

incorporation of TCMPL and declined to sign the Project Agreement

with TCMPL.

2.7

However, TCMPL contends to the contrary. It relies upon a letter

dated 19.12.2017 addressed by NTPC to TCMPL conveying it’s‘No

Objection’ for construction of a Diesel Bunk in Raikera Village. It also

claims that NTPC had issued a Form-III certificate to TCMPL for

obtaining a labour license under the provisions of the Contract Labour

(Regulation and Abolition) Act, 1970 and its relevant rules. However,

NTPC had thereafter, on 26.12.2017, called upon TCMPL to return the

original copy of the Form-III certificate and to desist from seeking any

license on the strength of th