- (1.) THE present appeals have been preferred against the order passed by the Sole Arbitrator dated 11th March, 2013, which is at Annexure 17 to the memo of the appeals, whereby, the major objection raised by the appellant is that the stay against encashment of the bank guarantees by the Arbitrator. The details of the bank guarantee are as under: BG against Security Deposit amount Released: Sl.No. BG No. & Date Bank Name Name of Cities Against Amount Expiry Date 1. 86/2010 Corporation Palamu (G) Supply 7604715 31.03.2013 Bank 1 Dated 27.03.10 RA 11 to RA 20 ex. dt. 27.03.12 S D 2. 89/2010 Corporation Palamu (G) Supply 101944351 31.03.2013 Bank Dated 27.03.10 RA 01 to RA 10 ex. dt. 27.03.12 S D Total 177991502 3. 88/2010 Corporation Garhwa (F) Supply 78516236 31.03.2013 Bank Dated 27.03.10 RA 11 to RA 20 ex. dt. 27.03.12 S D 4. 90/2010 Corporation Garhwa (F) Supply 66824324 31.03.2013 Bank Dated 27.03.10 RA 01 to RA 10 ex. dt. 27.03.12 S D Total 145340560 5 87/2010 Corporation Latehar (E) Supply 59662294 31.03.2013 Bank Dated 27.03.10 RA 11 to RA 20 ex. dt. 27.03.12 S D 6 91/2010 Corporation Latehar (E) Supply 56357481 31.03.2013 Bank Dated 27.03.10 RA 01 to RA 10 ex. dt. 27.03.12 S D Total 116019775 Total Security Deposit Bank Guarantees 439351837 2 BG against Performance Bank Guarantee: Sl.No. BG No. & Date Bank Name Name of Cities Against Amount Expiry Date 1. 008BG0000015507 ICICI Latehar (E) PBG 194746339 31.03.2013 Dated 19.02.2007 Amendment dated 05.05.10 ex. dt. 27.03.12 2. 008BG0000016107 ICICI Garhwa (F) PBG 228718312 31.03.2013 Dated 19.02.2007 Amendment dated 05.05.10 ex. dt. 27.03.12 3. 008BG0000015907 ICICI Palamau (G) PBG 277988148 31.03.2013 Dated 19.02.2007 Amendment dated 05.05.10 ex. dt. 27.03.12 Total Performance Bank Guarantees 701452799 BG against Mobilisation Advance: Sl.No. BG No. & Date Bank Name Name of Cities Against Amount Expiry Date 1. 008BG0000000309 ICICI Latehar (E) Mobilisation 33200000 31.03.2013 against Supply Dated 01.01.2009 Amendment dated 29.03.10 ex. dt. 27.03.12 2. 008BG0000000609 ICICI Latehar (E) Mobilisation 22772880 31.03.2013 against Supply Dated 01.01.2009 Amendment dated 29.03.10 ex. dt. 27.03.12 Total 55972880 3. 008BG0000000209 ICICI Garhwa (F) Mobilisation 30200000 31.03.2013 against Supply Dated 01.01.2009 Amendment dated 29.03.10 ex. dt. 27.03.12 4 008BG0000000109 ICICI Garhwa (F) Mobilisation 24857492 31.03.2013 against Erection Dated 01.01.2009 Amendment dated 29.03.10 ex. dt. 27.03.12 Total 55057492 5 008BG0000000409 ICICI Palamau (G) Mobilisation 46300000 31.03.2013 against Supply Dated 01.01.2009 Amendment dated 29.03.10 ex. dt. 27.03.12 6 008BG0000000509 ICICI Palamau(G) Mobilisation 24332488 31.03.2013 against Erection Dated 01.01.2009 Amendment dated 29.03.10 3 ex. dt. 27.03.12 Total 70632488 Total Mobilisation Advance Bank Guarantees 181662860 Total Bank Guarantees submitted to JSEB against RE Projects 1322467496
(2.) IN pursuance of the aforesaid stay, the appellant and respondent nos. 1 and 2 are unable to encash the bank guarantees and the bank guarantees are going to be expired on 31st March, 2013. The total amount of the bank guarantees comes to Rs. 132,24,67,496/ . It is submitted by learned counsel for the appellant that respondent no. 3 had entered into the contract with the appellant for execution of the contract and as per Clause 47 of the General Condition of Contract, whenever any dispute is raised the matter will go for conciliation before the Engineer in -Chief and within 30 days the dispute will be appeared to be resolved by the Engineer in -Chief. The 30 days' period was not over and immediately a letter was written for appointment of an Arbitrator under Clause 48 thereof on 25th June, 2012 and 29th June, 2012, which are at Annexures 7 and 8 respectively to the memo of the appeals and an application under Section 9 of the Arbitration and Conciliation Act, 1996 was moved by respondent no. 3 on 31st August, 2012 before the Hon'ble Delhi High Court, thereafter, initially stay was granted by the Hon'ble Delhi High Court on 31st August, 2012 in Original Miscellaneous Petitions 791 of 2012, 792 of 2012 and 793 of 2012, thereafter, the appellant appeared before the Hon'ble Delhi High Court and filed their reply and raised several objections and after hearing both the parties, at length, the Hon'ble Delhi High Court has vacated the stay order vide order dated 8th March, 2013 and Original Miscellaneous Petitions 791 of 2012, 792 of 2012 and 793 of 2012 were withdrawn. This order is annexed at Annexure 9 series. Thus, it appears that opposite party no. 3 had unnecessarily preferred Original Miscellaneous Petitions 791 of 2012, 792 of 2012 and 793 of 2012 and they have avoided the encashment of the bank guarantees. The Court process has been misused by respondent no. 3. Ultimately, they have to withdraw their own Original Miscellaneous Petitions and it appears that respondent no. 3 is avoiding encashment of bank guarantees. Now, they are moving an application before the Sole Arbitrator. There is dispute raised by the appellant about the appointment of the Sole Arbitrator because in fact an Arbitrator should be nominated by each party to the dispute and these two Arbitrators will appoint as an umpire. Before these three Arbitrators, the dispute could have been proceeded. These objections have also been raised by the appellant before the so called Sole Arbitrator about his jurisdiction and authority to decide the dispute. This dispute was raised in the month of December 2012 and that application was dismissed without assigning any reason in the month of March 2013. One thing should be kept in mind that on 31st March, 2013, the bank guarantees are going to expire, which are worth Rs. 132,24,67,496/ . Too much time has been taken from 3rd December, 2012 to 10th March, 2013, as stated in paragraph 7 of the impugned order at Annexure 17.
(3.) SO far as interim relief is concerned, it appears that there is prima facie case in favour of the appellant. Moreover, the appellant is the Jharkhand State Electricity Board, which is the "State" within the meaning of Article 12 of the Constitution of India, is being capable of returning this amount. Once the bank guarantees expire on 31st March, 2013, it will not be possible to recover the amount, which is at Rs. 132,24,67,496/ from respondent no. 3.;