The High Court · 2018

Counsel for the Petitioner: Sri Saksham Gogia Counsel for the Respondent: Mr. Mohammad Adnan, Standing Counsel The Court made the following: ORDER r'\ HONOURABLE SRI IUSTICE B. VIJAYSEN REDDY ARBITI:ATION APPLICATION No.301 OE 202,1 ORDER: (ORl\l-) This appl ication is filed seeking to appoint a sole artritrator to adjudicate the djsrutes arisen between the applicant and the rt:spondent under the contrar:t /articles of agreement dated 05.11.2018.

2. It is stale,l that in the tender process floated by the re:spondent bearing No.e-pct-B/01 ICEITPC/2014, M/s Energo Engineerirg Private Limited (for sh rtt 'EEPL') was declared as successfu[ bidder. The contract valu: for the main project was Rs.25,60.72,440/- (Rupees twenty five croreri sixty lakhs seventy two thousand four anc. hundred and forty only). It is stated that the respondent issued letter of intent (LOI) dated 15.(14.2015 to EEPL and with consent, the applicant was appointed as subcontractor for performing the contract. That two (2) work orde rs bearing W.O. No.EEPL/WO/1501507 and W.O. No.EEPLI\I1O11285513 were issued by EEPL to the applicant incorporating t-he scope of work, commercial terms and conditions, payment terms ()1.c. Accordingly, the applicant comme nced its operations towardr; the execution of main project as per the work orders. As per the terms under the work orders, it was agreed that the llayments I I I Il i i I 2 were to be released to the applicant only when EEpL reoe ives the corresponding payments from the respondent. The respondent owed a fiduciary duty and was obligated to make payments towards execution of works by the applicant. It is stated that the applicant continued to perform its obligations as a subcontractor. However, EEPL was admitted into corporate insolvency resolution process vide order dated

05.09.2017 and ultimately liquidation order was passed by the National Company Law Tribunal, New Delhi which led ro the EEPL's inability to continue as a contractor. The respondent requested the applicant to step into the shoes of the EEPL and complete the main project. The applicant by representation dated 09.03.2018, conveyed its willingness to the respondent to execute the remaining works under t}re main project. The terms of discussion were reduced to writing and it was categorically agreed to comply with the twin conditions put forth by the applicant for carrying out the remaining works in the main project: a) that the balance scope of civil works be awarded to the applicant at the respondenVs existing rates with EEPL, b) that the respondent releases the outstanding amount of Rs.5,22,46,010/- (Rupees five crores twenty two lakhs forty six thousand and ten only) to the applicant. 3

3. It is stated that the respondent issued LOI dated29.09.2( )18 to the applicant grantinll the contract for the balance civil worl:s to the applicant. Subst:c trent to the issuance of LOI, the tenns and conditions agreed upon betw,:en the parties in the LOI were formalized an'l detailed through the cont"r rcVarticles of the agreement for execution of balance civil works of A.dditional Coal Handling Plant except control room and switchgear builclirrg and levelling and grading around ERH at Kakatiya Thermal Power Prrject, Chelpur Village, Ghanpur Mandal, Ja'/ashankar (Bhupalpally) Di itrict for a sum of Rs.7,45,99,7241- (Rupt:es seven crores forty five akhs ninety nine thousand seven hundred and twenty four only). It is r;ubmitted that the parties are governed by the General Conditions of (l:ntract (GCC). From time to time, the app.icant had been requesting tne respondent to release the outstanding amount, but, the respondent never released the same. That despite, non-release of the outstanding arrount, the applicant continued to fulhl contractual obligations and completed the main contract. To that e ffect, the respondent issuec work completion certificate dated 23.03 -2022, which unequivocally cotfirmed that the applicant had satisfactorily ':ompleted r! all the works. C,rr request of the applicant, the respondent iLnanged a meeting on 29.A8.')-022 at its office to decide the issues pertaining to the outstanding dues. The minutes of the meeting were subsequertly shared 4 o by the applicant to the respondent vide e-mail dated 15.09.2022 as well as letter dated 31.08.2022. ltis submitted that as the respondent failed to release the outstanding amount, despite several reminders for its consideration, the applicant issued notice dated, 23',09.2024 in terms of clause 2 of the contract/articles of the agreement for adjudication of disputes between the parties before an arbitrator.

4. It is submitted that notice sent by the applicant was served on the respondent through registered post and e-mail. As there was no response, the applicant was constrained to file this instant application.

5. Mr. Mohammed Adnan, leamed Standing Counsel for the respondent, requested further time for frling counter, However, his request is declined.

6. As there is no contest from the respondent, this application is allowed appointing Sri Justice N.R.L. Nageswara Rao, (Former High Court Judge) H.No.12-19-24, Prakashnagar, .Near Sapthapadi, Kalyanamandapam, Narasaraopet, Guntur Dist-522 601, Plot No. 14, H.No. 2-4-121, Road No. 19-A, Snehapuri, Colony, Nagole, Hyderabad - 35, as Arbitrator to adjudicate the claims and disputes between the parties and to pass an award in accordance with law. The parties are at *i-7./ / liberty to raise all frctual and legal grounds in support oftheir respective 5 claims.

7. The leame,l Arbitrator is entitled to fees as per the rates ripecified intheFourthSc,heduletotheArbitrationandConbiliationllct1996 inserted by the Arbitration and Conciliation (Amendment) A ct 20 l 5' No.3 of 2016, witt effect ftom23'lO'2015, which shall be bom': by both parties in equal shirres. There shall be no order as to costs' As a sequel thereto, miscellaneous applications, if any' pending in this application stiurd closed. //TRUE COPY// \ SD/- M. VIJTYA BHASKER f INT REGISTRAR Urcrtou oFFlcER To,

1. Sri Justicr: l{,R.L. Nageswara Rao, Former JUdge, High Court for the State of " i"fr"gr", at Hyderabad, H.t'to t2-ts-Z+, Prakashnagar' Ne;ar Sapthapadi' 601' PIot No 14' xutyuiura-r,t"pirn, tttrtr",t,opet, Guntw .District-522 H.No.2-4-1:l-l , noaO No.tS-n, dnehapuri, Colony' Nagole' Hyderabad - 35 (By Specirrl ruessenger)- (Atong with a Copy of affidavit and material papers) z bne Ci t': liri Saksham Gogia, Advocate [OPUC] 5. One CC t,c tulr. lt4ohammad Adnan, Standing Counsel [OPUC] 4. Two CD Cc Pies kam,iDL ,9, I HIGH COUFIT DATED:1 1l(1312025 / ORDER ARBAPPL. 1,1o.301 of 2024 ,/.e ajTAf€ 1 o a 1u [eH u6 C)j' * I Dt-c,-'-i\)( ALLOWING THE ARBITRATII)N APPLICATION q\u I