Rashmi Metaliks Limited v. Nem Engineering Projects Private Limited
2022-01-11
RAVI KRISHAN KAPUR
body2022
DigiLaw.ai
JUDGMENT Ravi Krishan Kapur, J. - This is an application under Section 36(2) of the arbitration and Conciliation act, 1996 ('the act'), wherein the petitioner has prayed for stay of operation of an award dated October 6, 2021 (as corrected by a letter dated October 7, 2021)[the award] passed by the arbitrator. 2. The disputes by and between the parties relate to the process of setting up of a D.I Pipe Manufacturing Plant at Kharagpur. Pursuant to negotiations, the parties had entered into a contract dated 31 March, 2021, whereby construction and installation work for sanction of a D.I. Manufacturing Plant was entrusted to the respondent. The contract contained an arbitration clause and the award is a culmination of the disputes and differences which had been referred to arbitration. 3. By the said award, the arbitrator has directed the petitioner, to pay a sum of Rs.75,69,103.66/- to the respondent, particulars whereof are set out hereinbelow: Sl. No. Particulars of award amount (i) Principal sum : Rs.35,29,760.75 (ii) Interim Interest @ 10% per annum calculated from 7 th august, 2012 to 30 th September, 2021 : Rs.32,30,939.91 (iii) Interest for pre-reference period @ 18% P.a. from due dates of the four unpaid bills to date of reference. : Rs.3,08,403.00 (iv) Cost of arbitration : Rs.5,00,000.00 Total : Rs.75,69,103.66 4. The primary contention made on behalf of the petitioner is that by an ad-interim order dated 29 October, 2021 passed by a Coordinate Bench, stay of operation of the award was granted on the condition that, the petitioner would deposit 50% of the principal amount of the award by way of bank draft to the Registrar Original Side, High Court Calcutta. Hence, it is contended on behalf of the petitioner, that the order dated 29 October, 2021 ought to continue till the disposal of the application under Section 34 of the act. In this connection reliance is also placed on an unreported judgement in Kolkata Metropolitan Development vs. South City Projects Calcutta Ltd. 5. On behalf of the respondent, it is submitted that, there is no question of permitting the petitioner to secure only 50% of the principal amount. The award is a composite award for an amount of Rs.75,69,103.66/- and the petitioner is obliged to secure the entire awarded amount.
On behalf of the respondent, it is submitted that, there is no question of permitting the petitioner to secure only 50% of the principal amount. The award is a composite award for an amount of Rs.75,69,103.66/- and the petitioner is obliged to secure the entire awarded amount. In respect of the ad-interim order dated 29 October, 2021, it is contended that, the same was only an ad-interim measure and cannot be binding at the final hearing of this application. The respondent also relied on Pam Developments Private Ltd. Vs. State of West Bengal aIR 2019 SC 3937 , Hyder Consulting (UK) Limited vs. Governor, State of Orissa (2015) 2 SCC 189 , Board of Trustees for the Port of Kolkata vs. aBG Kolkata Container Terminal Private Limited 2019 SCC OnLine Cal 4009 and Kanpur Jal Sansthan and another vs. Bapu Constructions (2015) 5 SCC 267 . 6. I have considered the submissions made on behalf of the parties. 7. at the outset, I find that the award is a speaking award and has been passed after considering the rival contentions of the parties. The Learned arbitrator appears to have taken into consideration the pleadings filed on behalf of the parties, framed issues and dealt with the respective claims as well as the counterclaims of the parties. I also find that the arbitrator has held that:- 'It, therefore, appears from the record that excepting filing the counter statement of claim and counter claim, the respondent had not participated in the proceeding at all either to cross-examine the claimants' witness or by producing any witness of its own or by advancing any oral argument in the matter inspite of several notices were given by the tribunal'. 8. accordingly, at this prima facie stage and being fully aware that the application under Section 34 of the act is pending adjudication, I am prima facie satisfied that there is per se no illegality nor perversity nor violation of any law which ex facie appears from a plain reading of the award. I reiterate that these are my prima facie findings and the merits of the challenge to the award would be finally considered at an appropriate stage. 9.
I reiterate that these are my prima facie findings and the merits of the challenge to the award would be finally considered at an appropriate stage. 9. On the merits of this application, I do not find that the ad-interim order dated 29 October, 2021 passed at an interlocutory stage by a Coordinate Bench can or ought to be bind a Court finally hearing the application. 10. It is trite law that ad-interim orders by their very nature are orders of moment. Such orders are certainly capable or being altered or varied at different stages of the proceeding. a decision or direction at an ad interim or interlocutory stage of the proceeding is not of the kind which operates as res judicata. accordingly, the contention of the petitioner that this Court is bound to continue the order dated 29 October, 2021 stands rejected. In respect of the decision relied on by the petitioner, I am of the view that the same is inapposite and distinguishable in the facts and circumstances of this case. In the said decision, the Court had given due weight to the fact of the petitioner was a statutory corporation. 11. I also find merit in the argument of the respondent, relying on the decision reported in Hyder Consulting (UK) Limited vs. Governor, State of Orissa (2015) 2 SCC 189 that the awarded amount inclusive of interest constitutes a 'sum' for which the award has been made. accordingly, I am of the view that the award ought to be secured for the entire awarded amount of Rs.75,69,103.66/-. 12. I am also of the view that, the amended Section 36 of the act, contemplates securing the award holder for the entirety of the awarded amount. Moreover, the security must be real and not illusory nor meaningless. It is true that, pending the final hearing of the application under Section 34 of the act, the rights of the parties are not yet finally crystallized. Nevertheless, in view of the amended Section 36 of the act, an award holder is only entitled to be secured for the entirety of the awarded amount, unless there are reasons otherwise as contemplated under the amended section 36 of the act. 13.
Nevertheless, in view of the amended Section 36 of the act, an award holder is only entitled to be secured for the entirety of the awarded amount, unless there are reasons otherwise as contemplated under the amended section 36 of the act. 13. In view of the aforesaid, I direct that there shall be a stay of the award subject to the condition that the petitioner shall deposit 50% of the awarded amount of Rs.75,69,103.66/- by way of cash security or its equivalent to the satisfaction of the Registrar Original Side, High Court at Calcutta. Upon such deposit being made, the Registrar Original Side is directed to make a fixed deposit of the said amount with any nationalised bank and keep the same renewed till the disposal of the application under Section 34 of the act or until further orders of Court. The remaining 50% of the awarded amount of Rs.75,69,103.66/- shall be secured by way of bank guarantee(s) of a nationalised bank by the petitioner to the satisfaction of the Registrar Original Side, High Court. The aforesaid exercise is to be completed within a period of four weeks from the date of this order. In the event security as directed above is furnished, there shall be stay of execution of the award till disposal of aP 462 of 2021. 14. With the aforesaid directions, Ia No:Ga 1 of 2021 in aP 462 of 2021 stands disposed of.