HPSEBL Vs. GNG TRADING COMPANY PVT LTD

JUDGEMENT

(1.) Since, both the aforementioned appeals arise, from, an order pronounced by the learned Arbitrator, wherein, he while exercising powers, under Setion 17 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), as an interim measure, for, protection of the subject matter of the lis engaging the parties at lis, hence directed one M/s GNG Trading Company Pvt. Ltd., to, within 30 days from its pronouncement, hence, furnish bank guarantee in a sum of Rs. 10,29,70,180/-, AND also pronounced, of, its being revocable/enforceable, only, with the leave of the Tribunal. Both the parties are aggrieved therefrom, hence, they concert to beget its reversal, by theirs making motions before this Court.

(2.) The claimant/HPSEBL has ventilated its grievance vis-a-vis the impugned orders, on, the short ground, of the learned Tribunal (i) not revering its entire claim projected before the Tribunal, emphatically, in respect of the validly contracted claim, for liquidated damages, borne in clause 13, of the MOU, executed interse the parties at contest, clause whereof stands extracted hereinafter, (ii) besides its irrevering, the undertaking furnished by M/s GNG Trading Company, wherein, it undertook to, within 4 to 6 weeks since its execution, pay, the outstanding principal sum, of Rs.11.75 crores to HPSEBL, (iii) importantly also the apposite request,of M/s GNG Trading Company, borne, in the undertaking, comprised in Annexure A-9 appended with CARBA No. 2 of 2017, for, waiving of liquidated damages and, of, penal interest etc., also constituting acceptance, of, fastenability of liability(ies) vis-a-vis liquidated damages AND qua the penal interest, upon, the principal amount vis-a-vis, one M/s GNG Trading Company. Clause 13 of the MOU reads as under:-

(3.) The learned counsel appearing for the appellant M/s GNG Trading Company in CARBA No.2 of 2017, has, with much vigour contended before this Court, by placing reliance, upon, a judgment pronounced by the Hon'ble Delhi High Court in ARB. A. No. 5 of 2012 and I.A. No.22361 of 2012, titled as Intertoll ICS Cecons. O & M Co. Pvt. Ltd. Versus National High Ways Authority of India, to, erect an argument, that with a trite expostulation existing in paragraphs No. 20, 21 and 41 thereof, paragraphs whereof read as under:-