( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITON (LODGING) NO.193 OF 2009 ARBITRATION PETITON (LODGING) NO.193 OF 2009 ARBITRATION PETITON (LODGING) NO.193 OF 2009 M/s.Vedanta Aluminium Limited .. Petitioner /s M/s.Mayatas Infra Limited .. Respondent Mr.F.Devetre, Senior Counsel i/by M/s.Thakore Jariwala & Associates for the Petitioner. Mr.Aspi Chinoy, Senior Counsel with Mr.Chetan Kapadia i/by Mr.Ashu Thakur for the Respondent. WITH WITH WITH ARBITRATION PETITON (LODGING) NO.278 OF 2009 ARBITRATION PETITON (LODGING) NO.278 OF 2009 ARBITRATION PETITON (LODGING) NO.278 OF 2009 M/s.Mayatas Infra Limited .. Petitioner V/s M/s.Vedanta Aluminium Limited .. Respondent Mr.Aspi Chinoy, Senior Counsel with Mr.Chetan Kapadia i/by Mr.Ashu Thakur for the Petitioner. Mr.F.Devetre, Sr.Counsel i/by M/s.Thakore Jariwala & Associates for the Respondent. CORAM : CORAM : CORAM : R.Y.GANOO, J. R.Y.GANOO, J. R.Y.GANOO, J. DATE : 13TH MARCH, 2009. DATE : 13TH MARCH, 2009. DATE : 13TH MARCH, 2009. P.C. P.C. P.C. 1. Petition (L) No.193 of 2009 is filed by M/s.Vedanta Aluminium Limited hereinafter referred to as "M/s.Vedanta" against M/s.Mayatas Infra Limited hereinafter referred to as "M/s.Mayatas" for certain interim relief u/s.9 of the Arbitration and Conciliation Act, 1996 hereinafter referred to as the "said Act" ( 2 ) 2. Petition (L) No.278 of 2009 is filed by M/s.Mayatas Infra Limited against M/s.Vedanta Aluminium Limited under Section 9 of the said Act. 3. These two petitions are filed for the respective reliefs claimed by the Petitioners, which revolve around the machinery, more particularly described in Exhibit ‘C’ to the petition filed by M/s.Vedanta, and which machinery is at the work site where the work of M/s.Vedanta is being carried out. 4. M/s.Vedanta entered into an agreement with M/s.Mayatas on 20th March, 2008 by which M/s.Mayatas were called upon to construct certain work at site and for that M/s.Mayatas had brought at site the machinery described in Exhibit ‘C", hereinafter referred to as the "said machinery". The record shows that some events took place between two parties, and ultimately, M/s.Vedanta by their notice dated 29th January, 2009 has terminated the contract. It is seen that soon after the said termination, the work at site is suspended and the machinery is lying at site. 5. According to M/s.Vedanta, the presence of the said machinery at site is interfering with the area which is to be used for construction activity. According to M/s.Vedanta the said machinery is required to be taken away by M/s.Mayatas, and hence the application u/s.9 of ( 3 ) the said Act is filed by M/s.Vedanta seeking removal of the said machinery by M/s.Mayatas and for other reliefs. M/s.Mayatas are of the view that the said machinery was Project Specific Machinery. According to M/s.Mayatas, it is of no use to them at some other site and that M/s Vedanta have illegally terminated the agreement and have illegally enforced Performance Gaurantees and have taken away some of Rs.42 crores causing substantial financial loss to M/s.Mayatas. 6. Both the parties now wish to go for arbitration with regard to the disputes on account of termination of the contract pursuant to the notice dated 29th January, 2009. Rival claims in regard to this termination are set forth by Counsel for both the parties. M/s.Mayatas have approached this Court u/s.9 of the said Act and have prayed that a joint survey and measurements be conducted by the approved Surveyors in regard to the work carried out by M/s.Mayatas at site. They also want that the security agency be appointed and the inventory be taken and the said machinery be sold by a public auction or by a private treaty and the sale proceeds be paid to them. By prayer clause (c) M/s.Mayatas want that neither M/s.Vedanta nor M/s.Siddharth Construction should use the said machinery lying at site. They also want the order directing M/s.Vedanta to make payment to the sub-contractors to the tune of Rs.7.55 crores which is well set out in Exhibit ‘J’ to the Petition filed by ( 4 ) M/s.Mayatas. 7. I have heard Counsel on both sides and perused the petitions. M/s.Mayatas have filed an affidavit in reply opposing the petition filed by M/s.Vedanta and M/s.Vedanta want that their petition u/s.9 be treated as an affidavit in reply to the petition filed by M/s.Mayatas as the said petition filed by M/s.Mayatas was served yesterday. It must be mentioned that the petition filed by M/s.Vedanta was on board for the first time on 2nd March, 2009 and on that day it was adjourned to 6th March, 2009 to enable M/s.Mayatas to remain present. On 6th March, 2009 when M/s.Mayatas appeard before the Court through Counsel, it was decided that the petition can be heard and disposed of finally, considering the point involved in the matter. It is thereafter, M/s. Mayatas have filed their petition u/s.9 of the said Act, which is also taken up for final hearing today. 8. Considering the arguments on both sides and the record, it is clear that M/s.Vedanta have sent notice dated 29th January, 2009 terminating the agreement dated 20th March, 2008. That letter of termination has resulted in series of events, that is to say both the parties wish to raise claims before the Arbitral Tribunal for getting certain reliefs in the nature of compensation etc. ( 5 ) 9. The case of M/s.Vedanta appears to be clear that the machinery which is lying at site is causing obstruction and interference in the smooth enjoyment ot their property and it is causing hindrance in the construction which is proposed to be carried out by M/s.Vedanta at site. M/s.Mayatas claimed that the said machinery is of no use to them and as such their intention is clearly manifested as set out in the reliefs sought by them that they would like to have said machinery sold and have the sale proceeds of the same. It is in the light of this desire, prayer clause (b) has been set out. 10. In addition to the question pertaining to machinery, M/s.Mayatas want survey to be done in regard to the work carried out on or after 1st January, 2009 till the work came to be suspended at site. This is borne out by prayer clause (a) of the petition filed by M/s.Mayatas. 11. Counsel for M/s.Vedanta, upon instructions, has indicated to the Court that M/s.Vedanta are willing to pay Rs.7.55 crores to the Contractors listed in Exhibit ‘J’ to the petition filed by M/s.Mayatas, subject of course to the putting up the question of said payment and recoverry of the same in the Arbitration proceedings and at the risk of M/s.Mayatas. ( 6 ) 12. With all the aforesaid facts and rival claims, the question is what order the Court should pass in the interest of both the parties keeping in view their rival contentions. One thing is sure that as a result of termination of the contract M/s.Mayatas would not be able to carry out any further work and therefore it will follow that the machinery which is lying at site and which is undoubtedly owned by M/s.Mayatas cannot remain over there any longer. The demand of M/s.Mayatas that the machinery should be sold while it is lying at site cannot be accepted, because today one does not know how much time it will take to sell the machinery if at all it is to be sold and/or whether the said machinery would get sold. The demand of M/s.Vedanta that the machinery owned by M/s.Mayatas which is of no use to them should not remain at the site of M/s.Vedanta, to my mind appears to be just. What is to be done of the said machinery is the concern of M/s.Mayatas and they cannot use the property of M/s.Vedanta to store the said machinery till such time it is sold or for an indefinite period. If it is permitted, the property rights of M/s.Vedanta would be affected or interfered with. In such a situation when it is accepted by M/s.Mayatas that the said machinery belongs to them, in principle, they should remove the said machinery from the property of M/s.Vedanta and that is how I am inclined to pass the order directing M/s.Mayatas to remove the said machinery on or before 31st March, 2009. ( 7 ) 13. I am also inclined to pass a further order that if M/s.Mayatas do not remove the said machinery from the site of M/s.Vedanta on or before 31st March, 2009, M/s.N.K.Chakravarty & Co. be appointed as receiver of the said machinery, who shall visit the site of M/s.Vedanta on or after 1st April, 2009 and carry out the inventory and arrange to sell the said machinery by a public auction. Out of the sale proceeds, the expenses for sale as well as charges of said receiver M/s.N.K.Chakravarty & Co.will be deducted and the rest of the sale proceeds would be paid to M/s.Mayatas without any guarantee or security. In my view this arrangement will meet the ends of justice. 14. So far as reliefs sought by M/s.Mayatas as regards carrying out the survey of the work done at site, I see that there is no difficulty in granting such a relief so that the stage at which the work has been stopped can be noted, particularly when it appears to be the common ground that the work carried out upto 31st December, 2008 has been noted by both the parties. Since M/s.N.K.Chakravarty & Co. who are the registered valuers are being appointed as receiver in respect of the machinery, the job of carrying on survey can be entrusted to them. Of course, the charges of such survey will be borne by M/s.Mayatas as the request is comming from them. To that extent prayer clause (a) of ( 8 ) the petition filed by M/s.Mayatas can be attended to. This survey, of course, will have to be carried out as expeditiously as possible, and that the said Surveyors M/s.N.K.Chakravarty & Co.shall complete the said job within a span of about 15 days after an authenticated copy of this order is served upon them and after the willingness is shown by M/s.Mayatas to pay their charges by writing the suitable letter to M/s.N.K.Chakravarty & Co. 15. So far as the relief of payment of monies to the tune of Rs.7.55 crores, I see no reason to pass an order as sought by M/s.Mayatas in terms of prayer clause (d) of their petition, because if certain monies are payable by M/s.Mayatas to their sub-contractors, M/s.Vedanta cannot be put to terms to pay the said monies. At the same time, I do not wish to pass an order directing M/s.Vedanta to make payment to various contractors, at the risk and consequences of M/s.Mayatas, as was suggested by the Counsel for M/s.Vedanta. It will not be possible for this Court to pass such an order so that the payment made by M/s.Vedanta would be at the risk of M/s.Mayatas. If M/s.Vedanta want to make payment, as suggested by them, they are free to do so without any specific order from this Court, particularly because it is seen that M/s.Vedanta have come forward to make this payment to avoid the law & order situation at site as these various contractors are causing disturbance, and ( 9 ) hence, no specific order is passed in that behalf. Clarificatory order will be passed in the above terms. Counsel for Vedanta has made a statement that neither they nor M/s.Siddharth Construction are interested in using the said machinery lying at site. That statement can be recorded and prayer clause (c) of the petition filed by M/s.Mayatas can be dispoed of. 16. Keeping in view the aforesaid discussion, both the petitions are disposed of by passing the following common order:- (i) M/s.Mayatas Infra Limited hereinafter referred to as "M/s.Mayatas" are directed to remove the machinery lying at site of M/s.Vedanta Aluminium Limited hereinafter referred to as "M/s.Vedanta", which machinery is more particularly set out in Exhibit ‘C’ to the petition filed by M/s.Vedanta and the existence of which is not disputed. This be done by M/s.Mayatas on or before 31st March, 2009. (ii) If M/s.Mayatas do not remove the said machinery on or before 31st March, 2009 as aforesaid, M/s.N.K.Chakravarty & Co. having their office at 13, Basant Bose Road, Kolkata - 700026 shall be appointed as receiver in respect of the said machinery, who shall proceed to sell the said machinery by a public auction after taking inventory of the said machinery. ( 10 ) This be done as expeditiously as possible. The expenses for such a sale and survey shall be deducted from the sale proceeds and appropriated accordingly. The charges for carrying out the job as receiver for selling the said machinery shall also be deducted from the sale proceeds. Charges shall be fixed by M/s.N.K.Chakravarty & Co.accordingly. (iii) Whatever amount remains after carrying out the aforesaid exercise, shall be paid to M/s.Mayatas, absolutely. (iv) After M/s.N.K.Chakravarty & Co.are appointed as receiver, they shall move the said machinery to a suitable location on the premises of M/s.Vedanta, or to a place as may be directed or suggested by M/s.Vedanta. (v) M/s.N.K.Chakravarty & Co.are hereby appointed as Surveyors in respect of the work carried out at site on or after 1st January, 2009 upto the day when the work was suspended by M/s.Mayatas. (vi) M/s.N.K.Chakravarty & Co.shall give seven days’ notice to both the parties before commencing the work of survey, and naturally fix the date & time of carrying out survey. ( 11 ) (vii) The expenses for said survey shall be borne by M/s.Mayatas, and the work of survey shall be taken up by M/s.N.K.Chakravarty & Co. only after M/s.Mayatas informing them about the willingness of M/s.Mayatas to pay the charges of the said survey. The consent to carry out the survey by M/s.N.K.Chakravarty & Co. and bearing the costs thereof shall be communicated by M/s.Mayatas on or before 21st March, 2009 to M/s.N.K.Chakravarty & Company and to M/s.Vedanta. If this is not complied with, there is no question of any survey being carried out at site as prayed for by M/s.Mayatas. (viii) Statement made by Counsel for M/s.Vedanta that M/s.Vedanta or M/s.Siddharth construction would not use the said machinery of M/s.Mayatas lying at site, is recorded. (ix) Request for directing M/s.Vedanta to make payment to various Contractors to the tune of Rs.7.55 crores cannot be granted. At the same time, it is open for M/s.Vedanta to make such payment on such terms as they may desire, and the Court is not specifying on what terms they may make such payments if they so desire. 17. Both the petitions stand disposed of in the above terms, with no order as to costs. Copy of this order ( 12 ) duly authenticated by the P.A. shall be served upon M/s.N.K.Chakravarty & Company by M/s.Vedanta soon after it is received by them. 18. Office is directed to get both the petitions numbered accordingly. (R.Y.GANOO, J.) (R.Y.GANOO, J.) (R.Y.GANOO, J.)