ORDER
SHEET T.
31 of 2014 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE SHYAM SEL & POWER LTD Versus W.B.MINERALS DEVELOPMENT & TRADING CORP.
LTD & ANR.
BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 30th January, 2014.
For Petitioner : Mr.Pratap Chatterjee, Sr.Mr.Abhrajit Mitra, Mr.Sanjev Kr.
Trivedi, Mr.Sarvapriya Mukherjee, Ms.Swati Agarwal, Mr.Sounak Mitra, Mr.Soumabha Ghose, Adv.Adv.Adv.Adv.Adv.Adv.Adv.For Respondents : Mr.Ashok Banjerjee, Sr.Adv.The Court : The agreement, which was entered into between the petitioner and the respondents as far back as on 04.02.08 for supply of the coals to the petitioner firm from the coal blocks allotted to the respondents, contains an arbitration clause for resolution of the disputes.
Subsequently a Memorandum of Understanding was entered into on 01/03/2011 wherefrom it is apparent that the Trans Damodar Sector Coal Block is allotted by the Ministry of Coal, Government of India to the respondents for the purpose of extracting coal.
It however appeaRs.that the respondents agreed to sell fifty per cent of the quantity extracted from the mine to the petitioner as per the requirement of the projects for its integrated steel and captive power plant at Jamuria.
The disputes arose between the parties and the matter is referred to the Arbitral Tribunal constituted by the Hon’ble Chief Justice under Section 11 of the Arbitration and Conciliation Act, 1996.
Though the respondents have assailed the said order before the Supreme Court but there is no interim order granted which may put fetter on the Arbitral Tribunal to proceed with the arbitral proceedings.
Before an Arbitral Tribunal an application under Section 17 of the said Act was taken out by the petitioner on 18.11.2013.
The directions were passed for filing affidavits by the respective parties and thereafter the matter was fixed after successive dates on 18.01.2013.
The Arbitral Tribunal records the submission of the respondents that the e-auction of the corporation is not likely to be held before the next date of hearing fixed on 15-16.02.2014.
The respondents corporation was further allowed to file affidavit-in-opposition by 31.01.2014.
On 22.01.2014 the respondents records their objection to the fact recorded in the said order dated 18.01.2014 to the extent that it was never conveyed on behalf of the respondents that e-auction shall not be held before the next date of hearing.
The said objection has not been disposed of as yet and pending before the Arbitrarl Tribunal.
According to the petitioner in spite of having assured the Arbitral Tribunal that there shall not be any e-auction to be held before the next date of hearing, the respondents corporation have advertised for e-auction to be held on 03.02.2014.
Since the Arbitral Tribunal is not otherwise available because of some exigency this application has been taken out precisely on the above grounds.
Much argument is advanced over the recording of the facts by the Arbitral Tribunal relating to e-auction before the next date of hearing which according to the petitioner was the correct recording of the fact but the respondents denies the same as they have already put their objection before the Arbitral Tribunal.
This Court does not intend to go into the correctness of the recording of the facts as the events which occur before the Aribitral Tribunal who records such facts is competent to take decision thereupon.
According to the petitioner, the agreement provides for supply of fifty per cent quantity of the coal extracted from the mines allotted to the respondents corporation and, therefore, the e-auction for sale of the entire quantity cannot be undertaken by the corporation.
Precisely, on the above facts the prayer made in this application is restricted to the fifty per cent of the coal extracted on opencast portion.
It is brought to the notice of this Court by the respondents that though the e-auction is scheduled to be held on 03.02.2014 but the delivery of the coal cannot be made before 19.02.2014 as last date for deposit of the coal value is fixed on 18.02.2014.
According to Mr.Banerjee, learned senior advocate appearing for the respondents corporation, if any blanked order of stay is passed restraining his client from selling the coal which are kept in an open space, it would not only be a threat to the inhabitants of the locality but also affect the revenue to be generated.
Mr.Banerjee further submits that since the matter is already fixed on 15-16.02.2014 and there is no chance to handover the coal to any person other than the petitioner before 19.02.2014 there would not be any inconvenience to the petitioner and they will not be suffer any irreparable loss and injury.
Mr.Chatterjee, learned senior advocate says that the integrated steel and captive power plat was set up by his client on a clear understanding that they would be provided coal in terms of the said agreement and if such coals are sold to other person it would cause irreparable loss and injury and, therefore, ad interim order of injunction as prayed for, should be passed.
My attention is drawn to the fact that while the arbitral proceeding is pending and even after the application under Section 17 is filed, the petitioner have participated in the e-auction held by the respondents corporation and in fact have been supplied the coals upon the depositing amount.
This Court, therefore, does not find any exigencies for passing ad interim order at this stage.
Furthermore, even after taking out an application under Section 17 of the said Act in the month of November 2013, the Arbitral Tribunal has not passed any ad interim order of injunction and directed the parties to exchange their affidavits.
This Court as already indicated is not going to decide whether the recording made in the order dated 18.01.2014 is correct or not as the same is within the domain of the arbitratORS.the consideration is completely restricted to the instant application taken out under Section 9 of the said Act.
Since, the coal is not to be delivered or handed over to third party on or before 19.02.2014 and the matter is already fixed before the Arbitral Tribunal on 15-16.02.2014, this Court, does not find that the balance of convenience and inconvenience lies in favour of the petitioner warranting the Court to pass ad interim order at this stage is refused.
Since the petitioner have participated in the earlier eauction there is no impediment on the part of the petitioner to participate in the e-auction scheduled to be held on 03.02.3014 pending the disposal of the disputes as such an occasion was always be treated to have been without prejudice to their rights.
The respondents are directed to file affidavit-in-opposition to this application within two weeks from date; reply thereto, if any, be filed within one week thereafter.
Let this matter appear after three weeks before the regular bench subject to convenience of His Lordship.
(HARISH TANDON, J.) SBI