JUDGMENT

Navin Chawla, J. (Oral)

Cav.255/2018

Since the learned counsel for the respondent has appeared on advance notice, the Caveat stands discharged.

IA No.4353/2018 (Exemption)

Allowed, subject to all just exceptions.

ARB. A. (COMM.) 17/2018

1. This is an appeal challenging the order dated 15.03.2018 passed by the Arbitral Tribunal in Arbitration Case No.1 between the parties.

2. The Arbitral Tribunal by way of its Impugned Order has directed as under:

"17. The Tribunal directs that the FDR deposited with the Registrar General of the Hon'ble High Court of Delhi pursuant to the Order dated 22nd December, 2017 in Green Infra Wind Energy Limited v. Regen Infrastructure and Services Private Limited, O.M.P. (I) COMM 485/2017, be released to the Claimant upon the following conditions being fulfilled by the Claimant:

i. Handing over of the balance Original Sale Deeds in possession of the Claimant to the Arbitral Tribunal forthwith, to await further Orders that it may pass;

ii. The Claimant should file an undertaking that they will execute the documents securing the easement rights of the Respondent with respect to the Wind Power Project in Rojwas, and depositing them with the Arbitral Tribunal forthwith, to await further Orders that it may pass;

iii. In case the above condition is not complied with by the Claimant, the Tribunal may pass appropriate Orders, including bringing back the amount which is being released pursuant to this Order.

iv. Furnishing a Bank Guarantee to the Respondent securing the principal amount along with interest at a rate of 9% per annum, in the event that this Tribunal orders the encashment of the BG;

v. It is made clear that the Bank Guarantee is to be kept alive during the pendency of these proceedings and to be made over to the Respondent in the event that this Tribunal holds in its favour."

3. As a brief background, it may be noted that the parties have entered into certain contracts particularly the Operation and Management Agreement dated 12.08.2015 and the Maintenance Agreement dated 12.08.2015 with respect to the setting up and operation of 60MW Wind Farm Project comprising of 40 Wind Turbine Generators (WTGs) at Rojwas, District: Shajapur and Ujjain, in the State of Madhya Pradesh. The respondent, in terms of the Agreement(s) had given bank guarantee(s) to the appellant for a sum of Rs.26,75,70,000/-. Alleging defaults in their performance of the obligations under the Agreement(s), the appellant invoked and encashed the bank guarantee(s). On the other hand, the respondent claiming proprietary right over the Flash Cards removed the same from the site in a manner disabling the Wind Turbine. The respondent claimed that the Flash Cards were not removed in order to disable the Wind Turbine, but were removed for maintenance purposes and as disputes arose, the same were not returned. This led to the filing of the cross petitions under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Act') being OMP(I)(COMM) 485/2017 by the appellant and OMP(I)(COMM) 84/2017 by the respondent.

4. On 22.12.2017 an ad-interim arrangement was arrived at between the parties and the following order was passed with the consent of the parties:

"With the consent of the parties, the following directions are passed:

The petitioner undertakes to deposit a sum of Rs.26,75,70,000/- in this Court in form of a Fixed Deposit in the name of Registrar General of this Court. The fixed deposit would be created on 26th December, 2017, however, as the Court would be closed for Vacation, the same will be deposited with the Registrar General on the immediate date of re-opening i.e. 2nd January, 2018.

On receipt of intimation of creation of such Fixed Deposit by the counsel for the respondent, the respondent would ensure that the flash cards required for operationalization of the WTGs are produced at the site on 27th December, 2017. The WTGs will be made operational in front of the Local Commission