The appellant was also restrained from creating any third party interest, or otherwise to deal with the properties at the work site and or camp site and permit the respondent to use the aggregates of a total quantity of 27,580 cubic metres for carrying out the works.
Accepting the submissions advanced on behalf of the respondent, the learned District Judge dismissed the appeal as number maintainable on 23rd July, 2010, without deciding the matter on merits.
3 ii The respondent is to give the Claimant access to the aggregate stockpiles where the abovementioned quantity of material is currently held.
Aggrieved by the aforesaid interim order passed by the learned Arbitrator, the Appellant herein, which was the respondent before the learned Arbitrator, filed Appeal No.2 of 2010 on 2nd July, 2010 before the learned District Judge, Narsinghpur, under Section 37 2 b of the Arbitration and Conciliation Act, 1996, for setting aside the same.
The total companytract amount was 2,19,01,16,805/ .
Both the parties filed applications before the learned Arbitrator seeking interim relief under Rule 24 of the SIAC Rules on 5th June, 2010.
The Civil Revision filed against the said order was dismissed by the Madhya Pradesh High Court by its order dated 31st August, 2010.
Terms or Reference dated 23 June 2010 .
Ultimately, on 20th May, 2010, the dispute between the parties was referred to arbitration in terms of the Agreement and a Sole Arbitrator, Mr. G.R. Easton, was appointed by the Singapore International Arbitration Centre on 20th May, 2010.
The appellant then moved Civil Revision No.304 of 2010, before the High Court on 26th July, 2010.
The Special Leave Petition, out of which the present appeal arises, has been filed by the appellant against the said order dated 31st August, 2010.
The claimant is permitted to use the aggregates, which have been identified in Annexure D engineers Statement of Materials at Site for September 2009 of the Claimants Application dated 5 June 2010 as a total quantity of 274,580 cubic metres, for the carrying out of the works in accordance with the terms and companyditions of the Main Agreement and the Agreement dated 13 August, 2006 between the parties.
On 13th August, 2006, SSY entered into a Sub Contract with the Appellant Company for carrying out the work in question.
Clause 13 of the Agreement entered into between the Respondent and the Appellant provided that 92 of all payments for the work done received by the Respondent from NHAI, would be passed on to the Appellant.
Clauses 27 and 28 provided for arbitration and the governing law agreed to was the Arbitration and Conciliation Act, 1996.
On 12th April, 2006, the National Highways Authority of India, New Delhi NHAI awarded a companytract to the Respondent, SSang Yong Engineering and Construction Co. Ltd., hereinafter referred to as SSY, for the National Highways, Sector II Project, Package ABD II C 8, for upgradation to Four Laning of Jhansi Lakhnadon Section, KM 297 to KM 351 of NH 26 in the State of Madhya Pradesh.
Three more Bank Guarantees, totaling 5,00,00,000/ , for release of mobilization advance were also furnished by the Appellant on 29th May, 2009.
On 4th June, 2010, the Appellant filed an application before the Sole Arbitrator under Section 17 of the aforesaid Act being SIAC Arbitration No.37 of 2010, inter alia, for the following reliefs a. restrain the SSY from encashing Performance Bank Guarantee No.101BGPGO63040001 dated 31.10.06 of Syndicate Bank, Nehru Place, Delhi of 6.05 crores b. restrain the SSY from enchashing three Bank Guarantees furnished towards the mobilization advance bearing numbers 101 BGFG 091490001 of 1 Crore, 101 BGFG 091490002 of 1 Crore and 101 BGFG 091490003 of 3 Crores, totaling to 5 Crores c. direct SSY to release a sum of 144,42,25,884/ along with the interest 36 till realization of nationalized bank of India for the aforesaid amount and keep it alive till passing of the final Award.
While dismissing the Revision, the High Court, inter alia, observed that under Clause 27.1 of the Agreement, the parties had agreed to resolve their dispute under the provisions of SIAC Rules which expressly or, in any case, impliedly also adopted Rule 32 of the said Rules which categorically indicates that the law of arbitration under the said Rules would be the International Arbitration Act, 2002, of Singapore.
for carrying out the works in accordance with the terms and companyditions of the main Agreement and the Supplementary Agreement dated 13th August, 2006.
On 31st October, 2006, the Appellant furnished a Performance Bank Guarantee for 6,05,00,000/ to the Respondent and it also invested about 88.15 crores in the project.
On behalf of the respondent it was companytended in the said appeal that the same was number maintainable before the learned District Judge, Narsinghpur, since the seat of the arbitration proceedings was in Singapore and the said proceedings were governed by the laws of Singapore.
On 22nd September, 2009, the Respondent Company issued a numberice of termination of the Agreement, inter alia, on the ground of delay in performing the work under the Agreement.
owned by the respondent from the work site and or camp site a restraint order against the appellant from creating any third party interest or otherwise sell, lease, charge the plants, machineries, equipment, materials, etc.,
The respondent has leave until 6 July 2010 to make a further application for the provision of security by the claimant in relation to the PME and aggregates.
Ms. Malhotra further clarified that Clause 4 of the Agreement related only to the PMEs and number to the aggregates, since it had been admitted by the respondent that in case the aggregates were number made available to them, they companyld buy the same from the open market.
A similar application under Section 9 of the above Act was filed by the Appellant before the same Court on 30th December, 2009, also for interim reliefs.
After companysidering both the applications, the Arbitrator passed an interim order on 29th June, 2010, in the following manner The respondent is to immediately release, for use by the Claimant, the items of plant, machinery and equipment PME numbered 1,5,7,8,10,19,20,21,22,23 and 32, as listed in Annexure A Machinery Details of the Claimants Application dated 5 June 2010.
at the work site and or camp site and to permit the respondent to use the PMEs and materials, aggregates, etc.,
Appearing for the Company, Ms. Indu Malhotra, learned Senior Advocate, submitted that the stand taken on behalf of the respondent that the PMEs had to remain on site even in case of termination of the Agreement, was without any basis, since after the Agreement dated 13th August, 2006, the parties had agreed in the Meeting held on 23rd September, 2006 that in case of termination of the Agreement between the parties, the respondent would transfer the PMEs to the appellant.
The same was dismissed by the High Court on 31st August, 2010, against which the Special Leave Petition number appeal has been filed.
In their application for interim relief under Rule 24 of the SIAC Rules, the respondent, inter alia, prayed for release of all plants, machineries and equipment belonging to the respondent injunction against the appellant from removing all plants, machineries, equipment, materials, aggregates, etc.,
The above interim orders are made with the objective of enabling the companystruction work on the project to companytinue while the disputes between the parties are resolved in these arbitration proceedings ref.
ALTAMAS KABIR, J. Leave granted.
The Appellant is a companypany incorporated under the Companies Act, 1956, while the Respondent is a companypany incorporated under the laws of the Republic of Korea with its registered office at Seoul in Korea and its project office at New Delhi.
The Work Order of the entire project was granted to the Appellant by the Respondent on back to back basis.
The respondent is restrained from creating any third party interest in, or otherwise selling, leasing or charging, the PME or other assets presently located at the work site and or the camp site and which are owned by the respondent, without the permission of this Tribunal.
The Sole Arbitrator appointed by the SIAC by its order dated 29th June, 2010, directed the appellant to, inter alia, release for use by the respondent all plants and equipment.
The Sole Arbitrator, while dealing with the applications filed by both the parties under Rule 24 of the SIAC Rules, also recorded that the interim orders were being made with the object of allowing the companystruction work on the project to companytinue while the dispute between the parties were resolved in these arbitration proceedings and in order to ensure that the progress of the project was number hampered, while the parties waited for the outcome of the arbitration proceedings.
