G.S Developers and Contractors Pvt Ltd v. Mahindra Lifespace Developers Ltd. & Anr

1. The captioned petitions have been filed under Section 9 of the Arbitration & Conciliation Act, 1996(in short the Act). The subject matter ofthe captioned petitions are the seven(7)bank guarantees,the details of O.M.P.853/2013 & 1061/2013 Page | of[4] 2013:DHC:8409 which are given hereinafter: s. No. Date of issue New BG No. Beneficiary Amount Due date Purpose OMP NO.853/2013 1 11.3.11 JOIGOPG110700002 Respondent No. 1 (Pli-ll) 83,99,000/- 7.4.14 Mobilisation Advance 2 11.3.11 JOIGOPG110700003 Respondent No. 1 (Ph-ll) 25,00,000/- 7.4.14 Mobilisation Advance 3 23.5.11 JOIGPGEl 1 1430001 Respondent No. 1 (Ph-Il) 81,06,893/- 19.9.13 Performance OMP NO.1061/2013 4 29.6.11 JOIGOPGl 11800002 Respondent No. 1 (Ph-Il) 81,06,893/-. 25.3.14 Retention Money 5 23.6.12 JOIGOPG121750001 Respondent No. 1(STP) 6,60,473/- 20.3.14 Retention Money 6 02.8.10 JOIGPGE102140001 Respondent No. 1 (Ph-1) 91,98,006/- 27.4.14 Performance 7 29.6.11 JOIGOPGl11800001 Respondent No. 1 (Ph-I) 91,98,006/- 26.9.14 Retention Money

2. Learned counsels for the parties are agreed that the captioncd petitions can be disposed ofwith the following directions:

(i) This court to appoint a sole arbitrator,to decide the disputes obtaining between the parties.

(ii) The bank guarantee mentioned at serial no. 1, will be encashed and the concerned bank,i.e.,respondent no.2,will remitthe amountto this court by way ofa demand draft favouring the Registrar General ofthis court. On the registry receiving the sum ofRs.83.99 lacs,the same shall be invested in an interest bearing fixed deposit opened with a nationalized bank. The initial period ofdeposit will be six months.

(iii) The bank guarantees mentioned at serial nos. 2,3,4,[5] & 7,shall not be encashed pending adjudication by the arbitrator, subject to the petitioner keeping the same alive during the pendency ofthe proceedings. O.M.P.85.1/2013 & 1061/2013 Pagg 2of[4] ?

(iv) The bank guarantee mentioned at serial no. 6 shall be encashed by respondent no. 2/ bank and proceeds remitted to respondent no.l. The validity ofthe encashment will be examined by the learned arbitrator while deciding the main disputes.

(v) The petitioner will be entitled to seek release ofthe bank guarantees mentioned at serial nos. 2,3,4,5&7 by moving an appropriate application under Section 17 of the Act. Respondent no. 1 shall be heard before the learned arbitrator,ifat all, orders release ofthe said bank guarantees.

(vi) Respondent no. 1 shall also be at liberty to move the arbitrator for release of monies qua bank guarantee mentioned at serial no. 1,the monies in respect ofwhich would be available with the registry ofthis court. As in the earlier ease, the petitioner will be entitled to approach the learned arbitrator. The arbitrator will also decide this aspect.

3. Accordingly, Hon'ble Mr Justice S.B. Sinha, a former Judge of the Supreme Court(Mb No.986821966[6]), is appointed as an arbitrator, in the matter.

4. Needless to say,parties will be free to prefer their claims and counter claims, if any, which the learned arbitrator will decide, in accordance with law.

5. Counsels for the parties are agreed that the sole arbitrator will decide the fee to be paid in the matter in consultation with the counsels for the parties. Parties and their counsel shall appear before the learned arbitrator, on 29.11.2013,at 3.00 p.m.

6. Needlessto say,the demand drafts already received by respondent NO. 1,in relation to the bank guarantees referred to atserial nos.4,5&7,shall O.M.p.853/2013 & 1061/2013 Page 3of[4] r not be encashed by it. The concerned bank, i.e., respondent no.2, will be authorized to cancel the drafts on the aforesaid order being shown by the petitioner.

7. Mr Bindra, learned counsel for the petitioner, says that the petitioner will hand over the key(s) pertaining to the phase-I, without prejudice to its rights and contentions to contest that the termination vis-a-vis phase-I was carried out by the respondent illegally.

8. The petitions are disposed ofwith the aforesaid directions. Dasti. RA^VSHAKDHER,J NOVEMBER 06,2013 kl<