NATIONAL HIGHWAY AUTHORITY OF INDIA Vs. VINOD GOEL

JUDGEMENT

(1.) The present appeal is directed against the impugned order dated 5th October, 2005 passed by the learned Single Judge in IA No.2931/2005 filed by respondent No.5 herein under Section 9 of the Arbitration and Conciliation Act, 1996 in OMP No.316/2003. By the aforesaid order the learned Single Judge appointed a Receiver to take charge of the Batching Plant and other equipments, allegedly belonging to the respondent No.5, lying at Village Saveli, Opp. Haryana Sheet Glass Factory, Kundali, District Sonepat, Haryana, with a further direction to the Receiver to take inventory of the equipments lying at the site. It was also directed that after preparation of the inventory and taking charge of the said equipments, the same shall be handed over to respondent No.5 on superdari of appropriate amount with a direction to produce the same in Court as and when required. The appellant, although was not a party to the said petition under Section 9 of the Arbitration and Conciliation Act, filed this appeal on the ground that the aforesaid order which was passed behind the back of the appellant, has affected adversely the interest of the appellant, inasmuch as the Batching Plant and other equipments in respect of which the Receiver was appointed were in fact lying in the custody and possession of the appellant at the site. It was also submitted before us that the aforesaid order was also passed on a miscellaneous application being IA No.2931/2005 in OMP No.316/2003 which was finally disposed of by order dated 4th March, 2005. It was submitted that after passing of the order dated 4th March, 2005, disposing of the petition, there was no scope for entertaining a miscellaneous application being IA No.2931/2005 and for passing an order on the said miscellaneous application appointing a Receiver, thereby affecting the valuable rights of of the appellant

(2.) We have heard the learned counsel appearing for the appellant and learned counsel appearing for respondents No. 1,2 and 4 and also for the respondent No.5 and have also perused the records.

(3.) The records placed before us clearly establish that the main contract was between the appellant and M/s. Maharia Raj, who is respondent No.2 herein, which was entered into by the aforesaid parties on 31st May, 2001 for construction work of six laning of KM 44.300 to KM 66.000 of NH-1 in the State of Haryana. Respondent No.2 is incidently a joint venture of respondents 3 and 4 and respondent No.1 is the Managing Partner of the respondent No.2. Respondent No.5 is the sub-contractor of respondent No.2 who had alleged in the aforesaid application on which the impugned order was passed, that it is the owner of the Batching Plant in question. Pursuant to the aforesaid contract dated 31st May, 2001, entered into between the appellant and M/s.Maharia Raj, respondent No.2 herein, mobilisation advance as well as additional advances were disbursed to respondent No.2 for mobilisation of equipments which were required for execution of the work, in accordance with the stipulations as contained in the said contract. During the execution of the aforesaid contract, disputes arose between the appellant and respondent No.2, for which the contract dated 31st May, 2001 entered into between the appellant and respondent No.2 was terminated on 11th December, 2004 Clause-61.1 of the said contract provided that all material on the site plant, equipments temporary works and works are deemed to be the property of the employer, if the contract is terminated because of contractor's default. In terms of and in accordance with the aforesaid contractual stipulation, the appellant took over all the materials lying at the site including the Batching Plant, equipments temporary and other works as the contract was terminated allegedly on the ground of contractor's fault. The appellant submitted that upon termination of the contract, the Batching Plant and other equipments lying at the site in question would be deemed to be the property of the appellant since advances had already been accepted by respondent No.2 in respect of the said equipments. In this connection, reference was also made by the appellant to the undertaking given by respondent No.2 on 22nd April, 2003, which is annexed as Annexure A-2. The said undertaking indicates that respondent No.2 had utilised the mobilisation and equipment advances for purchasing the equipments including the Batching Plant in question. During the course of arguments, reference was also made by the appellant to the interim order dated 15th April, 2005, passed by the learned Single Judge of this Court in OMP No.119/2005 to the following effect: