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* IN THE fflGH COURT OF DELHI AT NEW DELHI
+ OMPNo.1304/2013
IVRCL LTD.
Petitioner
Through: Mr. A.T.M. Rangaramanujan, Sr.
Adv. with Mr. Rajiv K Garg and Mr. Ashish Garg, Advocates
* IN THE fflGH COURT OF DELHI AT NEW DELHI
+ OMPNo.1304/2013
IVRCL LTD.
Petitioner
Through: Mr. A.T.M. Rangaramanujan, Sr.
Adv. with Mr. Rajiv K Garg and Mr. Ashish Garg, Advocates
VERSUS
ENGINEERS PROJECTS (INDIA) LTD. & ANR., Respondents
Through: Mr. Tanmaya Mehta, Adv. for R-1 with Mr. S.K. Bathija, GM, EPIL
Through: Mr. Tanmaya Mehta, Adv. for R-1 with Mr. S.K. Bathija, GM, EPIL
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
% 20.12.2013
LA. No.21129/2013 (Exemption)
Exemption allowed, subject to all just exceptions. The application stands disposed of.
Cav No. 2013
Since the caveator has put in appearance, the caveat stands discharged.
OMP No.1304/2013
This petition under section 9 has been prefeited by the petitioner, iBbrstly, to seek a restraint against the invocation of performance bank guarantee bearing No.008BG00067012 dated 01.10.2011 valid till 31.03.2014
2013:DHC:8412 furnished at the instance of the petitioner by respondent no.2 in favour of respondent no.l. Secondly, the petitioner seeks the retum/re-deposit of the proceeds reahsed by respondent no.l upon invocation of the mobilisation bank guarantee and further seeks that the amount be kept in a separate interest bearing account. Thirdly, the petitioner seeks appointment of a receiver to see as to what extent the drawing/designs werb supplied and the
% 20.12.2013
LA. No.21129/2013 (Exemption)
Exemption allowed, subject to all just exceptions. The application stands disposed of.
Cav No. 2013
Since the caveator has put in appearance, the caveat stands discharged.
OMP No.1304/2013
This petition under section 9 has been prefeited by the petitioner, iBbrstly, to seek a restraint against the invocation of performance bank guarantee bearing No.008BG00067012 dated 01.10.2011 valid till 31.03.2014
2013:DHC:8412 furnished at the instance of the petitioner by respondent no.2 in favour of respondent no.l. Secondly, the petitioner seeks the retum/re-deposit of the proceeds reahsed by respondent no.l upon invocation of the mobilisation bank guarantee and further seeks that the amount be kept in a separate interest bearing account. Thirdly, the petitioner seeks appointment of a receiver to see as to what extent the drawing/designs werb supplied and the
work done by the petitioner under the contract.
So far as the first relief is concerned, in my the view, the same is premature, inasmuch, as, learned counsel for the respondent no.l points out that the performance bank guarantee has not been invoked till date. No relief can be predicated on the possibility of an invocation of the said performance guarantee. As and when the same is invoked, it goes without saying, the petitioner will have its remedy.
So far as the second relief is concerned, the same is in the nature of attachment before
So far as the first relief is concerned, in my the view, the same is premature, inasmuch, as, learned counsel for the respondent no.l points out that the performance bank guarantee has not been invoked till date. No relief can be predicated on the possibility of an invocation of the said performance guarantee. As and when the same is invoked, it goes without saying, the petitioner will have its remedy.
So far as the second relief is concerned, the same is in the nature of attachment before
ORDER
under Order 38 Rule 5 CPC. The respondent is a Government of India undertaking. I see no reason why any such direction should be issued requiring the respondent to deposit the Iproceeds received upon invocation ofthe mobilisation bank guarantee in a separate account. In case the petitioner eventually succeeds in the arbitration proceedings in relation to the disputes with regard to the invocation of the mobilisation bank guarantee, the petitioner shall be restituted with the requisite amount.
So far as the third relief is concerned, I may note that the contract has still not been terminated by the respondent no.l. Howeyer, it appears that according to respondent no.l, the petitioner has carried' out only a small fraction of the work. Obviously, there are disputes between the parties with regard to the performance/non performance. The petitioner attributes the
So far as the third relief is concerned, I may note that the contract has still not been terminated by the respondent no.l. Howeyer, it appears that according to respondent no.l, the petitioner has carried' out only a small fraction of the work. Obviously, there are disputes between the parties with regard to the performance/non performance. The petitioner attributes the
same to respondent no.l, and respondent no.l attributes the same to the petitioner. These are disputes which shall be resolved in appropriate proceedings.
However, it is considered appropriate and is also agreeable to both the parties, without prejudice to their rights and contentions, that this courtmay direct joint measurement of the work done by the petitioner be taken. The parties are agreeable thatthe same be done inthe presence of an independent technically qualified person. Accordingly, I appoint Mr. S.M. Adnan
Engineer (Mobile No.9811387669) to carry out local inspection of the work site in the presence of the parties. The Local Commissioner shall record the work actually carried out by the petitioner. The same shall be measured by him and the proceedings shall be signed by the parties. He shall also take photographs. In case there is any dispute between the parties with regard to
I the extent of the work done, or the manner of its calculation, the Local
Commissioner shall record the objections/versions ofthe parties.
The fees of the Local Commissioner is fixed at Rs.75,000/- to be borne by the petitioner in the first mstance. It goes without saying that if either of the parties is not satisfied with the report, it sha.ll be open to such partyto take appropriate steps in that regardin appropriate proceedings.
Petition stands disposed of in the aforesaid terms.
Dasti.
VlPm SANGHI, J
DECEMBER 20, 2013 sr
However, it is considered appropriate and is also agreeable to both the parties, without prejudice to their rights and contentions, that this courtmay direct joint measurement of the work done by the petitioner be taken. The parties are agreeable thatthe same be done inthe presence of an independent technically qualified person. Accordingly, I appoint Mr. S.M. Adnan
Engineer (Mobile No.9811387669) to carry out local inspection of the work site in the presence of the parties. The Local Commissioner shall record the work actually carried out by the petitioner. The same shall be measured by him and the proceedings shall be signed by the parties. He shall also take photographs. In case there is any dispute between the parties with regard to
I the extent of the work done, or the manner of its calculation, the Local
Commissioner shall record the objections/versions ofthe parties.
The fees of the Local Commissioner is fixed at Rs.75,000/- to be borne by the petitioner in the first mstance. It goes without saying that if either of the parties is not satisfied with the report, it sha.ll be open to such partyto take appropriate steps in that regardin appropriate proceedings.
Petition stands disposed of in the aforesaid terms.
Dasti.
VlPm SANGHI, J
DECEMBER 20, 2013 sr