(Dhananjaya Y. Chandrachud and M.R. Shah, JJ.)
NHPC Limited _____________________________________ Appellant
v.
M/s. Patel Engineering Limited _____________________ Respondent
Civil Appeal No. 11700 of 2018 [Arising out of SLP (Civil) No. 26787 of 2016], decided on November 30, 2018
The Judgement of the Court was delivered by
Dhananjaya Y. Chandrachud, J.:—
1. Leave granted.
2. The High Court by its impugned order dated 22 August 2016, allowed a post-award application under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’). As a result, the appellant was called upon to release the amount covered by the arbitral award along with interest subject to the respondent furnishing a Bank Guarantee equal to the awarded amount for a period of one year.
3. The grievance of the appellant is that the order of the High Court dated 22 August 2016 was passed even though the period of limitation for challenging the award under Section 34 was still to expire. The award of the arbitral tribunal was made on 22 April 2016. Applications under Section 33 were disposed of on 04 June 2016. Hence according to the appellant, the period of limitation for filing the petition under Section 34 of the Act would have expired on 03 September 2016.
4. It has been urged on behalf of the appellant that the application under Section 9, which was filed on 13 June, 2016 within the period of limitation prescribed for challenging the award ought not to have been entertained and, in any event, such an order could not have been passed by the High Court within the parameters of Section 9 of the Act.
5. Notice in these proceedings was issued on 18 September 2016 and the operation of the impugned order of the High Court was directed to remain stayed till the next date of listing.
6. During the course of the hearing, we have been apprised of the fact that the award of the arbitral tribunal has been set aside on 29 November 2018 by the Additional District Judge-cum-Presiding Judge, Special Commercial Court, Gurugram. Since the arbitral award has been set aside, the basis on which the impugned order was passed by the High Curt ceases to survive.
7. Hence, the order of the High Court dated 22 August 2016 is set aside.
8. Before concluding, it would be necessary for this Court to observe that the present judgment should not be construed as an expression of opinion by the Court on the correctness of the order passed by the High Court, particularly, in view of the submission which has been urged in the present proceedings that even on the date on which the order was passed by the High Court, it had acted in excess of its jurisdiction.
9. The Civil Appeal is disposed of. No costs.
10. All the rights and contentions of the parties in regard to the challenge to the arbitral award are kept open to be urged in accordance with law.
Petition(s) for Special Leave to Appeal (C) No(s). 26787/2016
NHPC Limited ____________________________________ Petitioner
v.
M/s. Patel Engineering Ltd __________________________ Respondent
(IA No. 79715/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES, IA NO. 49794/2017 – PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES, IA 1/2017 – PERMISSION TO FILE ANNEXURES)
Date : 30-11-2018 These matters were called on for hearing today.
(Before Dhananjaya Y. Chandrachud and M.R. Shah, JJ.)
For Petitioner(s) Mr. N.K. Kaul, Sr. Adv.
Mr. Ajit Pudussery, AOR
Mr. K. Vijayan, Adv.
Mr. Ajeet Singh Verma, Adv.
For Respondent(s) Mr. Mahesh Agarwal, Adv.
Mr. E. C. Agrawala, AOR
UPON hearing the counsel the Court made the following
ORDER
11. Leave granted.
12. The Civil Appeal is disposed of in terms of the Signed Reportable Judgment. No costs.
13. Pending applications, if any, also stand disposed of.
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