The Court : In this application under Section 9 of the Arbitration & Conciliation Act, 1996, as amended by Act 3 of 2016 (in short, "the Act of 1996"), the petitioner has prayed for an order of injunction restraining the respondent nos.1 and 2, namely, NTPC Limited and MSTC Limited, respectively from taking any step in pursuance of the e-auction scheduled to be held on today.
Admittedly, the arbitration agreement invoked by the petitioner is between itself and the respondent no.2. The letter of acceptance/sale order dated March 24, 2017,containing the arbitration clause, was issued by the respondent no.2 under which the petitioner was to obtain delivery of 2500 MTs of scrap, described as Lot No.26/16-17 in the notice inviting offer for sale belonging to respondent no.1. According to the petitioner, in terms of the sale order dated March 24, 2017, the respondent no.2 was obliged to allow the petitioner to take delivery of 2500 MTs of the scrap in two instalments of 1250 MTs each. The petitioner claims that the respondent no.2 had delivered 1250 MTs of the scrap of the first lot within the stipulated date upon payment of the price thereof by the petitioner. The dispute arises with regard to the delivery of the second lot of 1250 MTs of scrap by the respondent no.2. The petitioner claims that the respondent no.2 had called upon it to make payment of the entire quantity of 1250 MTs of the scrap towards delivery of the second instalment but, in fact, the respondent no.1 was unable to deliver the entire 1250 MTs of the said scrap. By a communication dated December 18, 2017 addressed to the respondent no.1 the petitioner claimed that since the respondents were unable to deliver the entire balance quantity of 1250 MTs of the said scrap it would obtain delivery of the available 400 MTs of the scrap.
The petitioner claims that although the respondents were unable to discharge their obligation under the contract relating to the said sale order dated March 24, 2017 but, they have wrongfully and illegally issued a fresh e-tender notice inviting offers for supply of further quantities of the scrap, including the balance 850 MTS of the said sale order dated April 03, 2017 from the factory of the respondent no.1, NTPC Limited.
Mr. Chayan Gutpa, led by Mr. Banerjee, learned counsel appearing for the petitioner strenuously contended that the said contract between the parties relating to the said sale order dated March 24, 2017 is still subsisting and the respondents cannot commit breach of the same by issuing the fresh e-tender notice as mentioned in the application.
From the affidavit of service filed on behalf of the petitioner, it appears that a copy of the application has been served upon the respondent no.2, MSTC Limited at its Kolkata office. A copy of the application has also been sent to the respondent no.1, NTPC Limited by an e-mail. However, none appears on behalf of any of the respondents to oppose this application.
I have considered the materials made available on record.
The contract relating to the said sale order dated March 24, 2017 is between the petitioner and the respondent no.2. Consequently, the arbitration agreement contained in the Special Conditions of Contract issued by the respondent no.2 invoked by the petitioner in this application is also confined to the petitioner and the respondent no.2. Thus, I am unable to find any reason as to why in purported enforcement of the said arbitration agreement the petitioner has impleaded NTPC Ltd. in this application. Further, the communication dated December 18,2017, appearing at page 35 of the application, expressly mentions that the same was issued with regard to the deposit of second and final instalment of Lot No.24/16-17 mixed iron scrap and the petitioner deposited the value for 400 MTs against the second and final instalment.
Further, in paragraph 50 of the application, the petitioner has mentioned that the e-auction which is sought to be stalled by it is scheduled to be held on August 28, 2018. However, nothing has been stated in the petition as to when the notice of such eauction has been issued by either of the respondents. The factum of issuance of the e-auction has been verified in the application as humble submission of the petitioner before this Court. Even no copy of the e-auction notice issued by the concerned respondent has not been disclosed by the petitioner.
Considering all the above facts, I am unable to find that the petitioner has made out a prima facie case to obtain any order in this application. So far as the second requirement for passing an interim order of injunction, that is, whether refusal of such prayer would result in the petitioner suffering any irreparable loss and injury concerned, the same is also against the petitioner.
For the reasons as aforesaid, I do not find any scope to pass any interim order in this application to stall the process of eauction ini
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tiated by the concerned respondent towards sale of scrap lying at the factory of the respondent no.1, NTPC Limited. The point of maintainability of this application shall be decided at the later stage of hearing of this application. The petitioner is directed to forthwith communicate the operative portion of this order refusing to pass any interim order in this application to the respondents. Let this application appear in the list after two weeks. The petitioner shall file an affidavit-of-service on the next date of hearing.