Rajiv Shakdher, J.

I.A. No.291/2019

Prefatory facts:

1. The applicants before me are plaintiffs in a suit instituted by them for declaratory and permanent injunctive reliefs. In effect, the reliefs sought against the defendant both in the suit and the interlocutory application is to injunct the defendant from commencing arbitration proceedings.

1.1 The defendant, it appears, seeks to commence arbitration proceedings for claiming “incentive payments” under Clause 14 of the Securities Purchase Agreement dated 19.9.2012 (in short 'SPA'). The plaintiffs via this suit and/or the instant interlocutory application seek to resist the arbitration action initiated by the defendant on the plea that it is, inter alia, barred by res judicata.

1.2 It is the plaintiff's stand that the controversy with respect to the reliefs which were claimed or could have been claimed was set at rest between the parties herein, which included its parent company, that is, NCC Limited (in short 'NCC') by virtue of an earlier award dated 24.1.2018.

2. For the sake of convenience, hereafter, I would be referring to the parties in the following manner:

2.1 Plaintiff No.1, that is, Himachal Sorang Power Private Limited would be referred to as 'HSPL'; Plaintiff No.2, that is, TAQA India Power Ventures Pvt. Ltd. would be referred to as 'TAQA'; and the Defendant, that is, NCC Infrastructure Holdings Limited would be referred to as 'NCCL'.

2.2 Furthermore, unless the context requires me to state otherwise, the two plaintiffs and the defendant will be, collectively, referred to as parties.

3. Before I proceed further, it may be necessary to delve into the background in which the present proceeding has been instituted.

4. NCCL along with NCC, and an entity by the name: IL&FS Energy Development Company Limited (in short 'IL&FS') incorporated HSPL as a Special Purpose Vehicle (in short 'SPV').

5. HSPL was awarded a run of the river Power Project by the Government of Himachal Pradesh (hereafter referred to as 'Power Project'). This Power Project was required to be set up on the Sorang tributary of the Sutlej river.

6. Notably, the equity stake of each of the shareholders in HSPL was as follows:

(i) NCCL held 94.92% of the shares;

(ii) NCC held 0.08% of the shares; and

(iii) the balance 5% shares were held by IL&FS.

6.1 The Power Project was required to have a generation capacity of 100 Mega Watt ('MW').

6.2 In order to execute the Power Project, between 2007-2010, HSPL entered into several sub-contracts. It appears that Abu Dhabi National Energy Company PJSC, an Abu Dhabi based company, which is in the business of generation, transmission and distribution of power in India (and is the holding company of TAQA) was exploring ways and means of investing in suitable projects.

7. It is in this background that in 2011, IL&FS approached NCCL and its holding company i.e. NCC, to invest in HSPL's Power Project.

8. This resulted in the SPA being executed between TAQA, NCCL, NCC and IL&FS. Broadly, the SPA envisaged that TAQA would purchase in two tranches the equity shares of the aforementioned three shareholders and in addition thereto, the entire lot of Fully Convertible Debentures (FCDs) held by NCCL and IL&FS.

8.1 It is not in dispute that TAQA has paid the entire consideration in respect of the equity shares and FCDs to NCCL, NCC and IL&FS.

9. The disputes, it appears, arose on account of the purported breach of certain material conditions and consequently, the purported violation of rights and obligations, which had been conferred on the parties under the SPA. The material conditions around which the disputes swirled were, broadly, as follows:

(i) Insofar as NCCL and NCC were concerned, they were required to complete the works in all respects qua the Power Project by 31.3.2013. Under the SPA, this date is described as the Wet Commissioning Date (WCD). As would be evident, even though the SPA was executed at an earlier point in time, TAQA did not take over the responsibility of completing