Reliance Infrastructure Limited vs Damodar Valley Corporation

Arindam Mukherjee, J

The Court : This is an interim application made in an execution application. The petitioner says that the petitioner holds an unanimous award dated 21st

December, 2019 which directs the respondent to pay the petitioner a sum of Rs.623,28,81,733/- and Euro 34,909,610 as also release six bank

guarantees given by the petitioner at the time of execution of the contract awarded to it by the respondent. The petitioner says that the award has

been challenged by the respondent in this Court by filing an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter

referred to as 'the said Act'). In the said application for setting aside of the award the respondent has also filed an application under Section 36(2) of

the said Act. The respondent in order to avoid the securing of the entire awarded amount has not pressed the application under Section 36(2) of the

said Act. The main application for setting aside was, however, taken up for hearing and there is no stay of the award. The petitioner is therefore

entitled to seek execution of the award. The petitioner further submits that taking advantage of the situation the respondent on one hand has not

secured the awarded amount and did not return the bank guarantees and on the other hand had applied for invoking the bank guarantees when the

same were about to expire. The petitioner under compelling circumstances had to renew the bank guarantees, some of which are to expire in August

and some of them thereafter. The petitioner, therefore, seeks release of the bank guarantees as directed by the award in this interim application.

The respondent submits that the execution application is prematured inasmuch as the award has not achieved finality and as such is not executable.

The release of the bank guarantees are integral part of the award and as such cannot be directed to be released at this stage.

The petitioner in response to this submits that there is no stay of the award and as such the application cannot be said to be premature.

Mr. Anindya Kumar Mitra, Learned Senior Advocate appearing on behalf of the respondent submits that his client has affirmed an affidavit, a copy

whereof has been also served on the petitioner. Mr. Surajit Nath Mitra, Learned Senior Advocate appearing on behalf of the petitioner does not

dispute the service of the said affidavit upon the petitioner. The affidavit-in-opposition has been affirmed though there was no direction for filing of the

same. In order to expedite the matter the affidavit-in-opposition filed in G. A.907 of 2020 is taken on record.

The petitioner prays for a short time to file an affidavit-in-reply with an additional prayer to direct the respondent to file an affidavit of assets under the

provision of Order 21 Rule 41(2) of the Code of Civil Procedure, 1908, which relief has been made in the main execution application. Since the

maintainability point has been raised, I am not inclined to pass any direction for filing of affidavit of assets at this stage.

Affidavit-in-reply is to be filed by 27th July, 2020. Let the execution application being E. C. 77 of 2020 be listed before the appropriate Bench on 28th

July, 2020 along with all other connected applications including G. A. 907 of 2020.