M/S. JAY PRESTRESSED PRODUCTS LTD.  Vs UNION OF INDIA THROUGH NORTHERN RAILWAYS

TR.P.(C.) 6/2021 & 7/2021 Page 1 of 6$~9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25thJanuary, 2021
+ TR.P.(C.) 6/2021 & CM APPL.1635/2021
+ TR.P.(C.) 7/2021 & CM APPL.1636/2021
M/S. JAY PRESTRESSED PRODUCTS LTD. ….. Petitioner
Through: Mr. Sahil Garg and Mr. Ankit Gupta,
Advocates. (M:9560690036)
versus
UNION OF INDIA THROUGH NORTHERN
RAILWAYS ….. Respondent
Through: Mr. Jagjit Singh and Mr. Vipin
Choudhary, Advocates.
(M:9711161241)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done in hybrid mode (physical and virtual
hearing).
2. These petitions have been filed by M/s Jay Prestressed Products
Limited seeking transfer of two petitions under Section 34 of the Arbitration
and Conciliation Act, 1996 pending before the Patiala House Courts to this
Court.
3. The brief background is that tenders were invited by the Railways for
manufacture and supply of pre-stressed mono-black line concrete (pre-
tensioned type) for broad gauge (1673 mm) to RDSO Drg. No. T-2496 to
suit 60 Kg. UIC rail for quantity 3,05,334 nos. and the Petitioner had
submitted its offer on 15thJanuary, 2009. The contract was awarded to the
Petitioner on 16thDecember, 2009 and performance had started under the
2021:DHC:274TR.P.(C.) 6/2021 & 7/2021 Page 2 of 6contract. However, disputes arose between the parties leading to the
imposition of liquidated damages upon the Petitioner. The Railway
appointed an Arbitrator as per the conditions of the contract. The arbitration
proceedings culminated into four different awards dated 26thMarch, 2019,
all in favour of the Petitioner. Details of the liquidated damages which were
imposed and the amounts awarded in each arbitration are set out herein
below:
S. No. Letter imposing
Liquidated
DamagesAmount of LD Awarded
amount
1. 187-
S/10/B/TS/JPP/C
S-162 dated
18.12.2012Rs.88,58,173/- Rs.4,97,589/-
2. 187-
S/10/B/TS/JPP/C
S-162 dated
29.08.2012Rs.80,699,10/- Rs.5,37,041/-
3. 187-
S/10/B/TS/JPP/C
S-162 dated
01.12.2011Rs.16,03,708/- Rs.25,88,796/-
4. 187-
S/1017/TS/JPP/C
S-162 dated
22.02.2012Rs.31,26,735/- Rs.25,88,796/-
5. 187-
S/10/B/TS/JPP/C
S-162 dated
14.09.2012Rs.13,35,475/- Rs.62,395/-
4. Since four separate awards were passed awarding four separate
amounts, the Respondent filed four separate OMPs, the details of which are
as under:
2021:DHC:274TR.P.(C.) 6/2021 & 7/2021 Page 3 of 6“
S. No. Award Forum Reference
1. Award dated 12.03.2019
pertaining to Letter
No.187-
S/10/B/TS/JPP/CS-162
dated 18.12.2012Delhi High
CourtOMP
(Comm)
352 of 2019
2. Award dated 26.03.2019
pertaining to Letter
No.187-
S/10/B/TS/JPP/CS-162
dated 29.08.2012Delhi High
CourtOMP
(Comm)
342 of 2019
3. Award dated 12.03.2019
pertaining to Letter No.
187-S/B/TS/JPP/CS-162
dated 14.09.2012Patiala House
CourtsOMP
(Comm)
127 of 2019
4. Award dated 12.03.2019
pertaining to Letter
No.187-
S/10/B/TS/JPP/CS-162
dated 01.12.2011 and
Letter No.187-
S/1017/TS/JPP/CS-162
dated 22.02.2012Patiala House
CourtsOMP
(Comm)
128 of 2019
”
5. Out of the four OMPs, the first two are pending before the Delhi High
Court and the OMPs at serial nos.3 and 4 are pending before the Patiala
House Courts. The present transfer petitions have been moved seeking
transfer of the cases pending in the Patiala House Courts to this Court.
6. Heard ld. counsels for the parties. This court had the occasion to
consider the consequence of multiple arbitral tribunals, multiple awards and
multiple challenges in Gammon India Ltd. & Anr. v. NHAI [OMP
680/2011 (New No. O.M.P. (COMM) 392/2020), decided on 23rdJune,
2021:DHC:274TR.P.(C.) 6/2021 & 7/2021 Page 4 of 62020]. It was observed therein as under:
“44. The issue of multiplicity in arbitral
proceedings also needs to be effectively dealt with
to ensure that a long-drawn arbitral journey, as in
the present case, is avoided. Parties to arbitration
are expected to adhere to a bona fide discipline of
use of arbitral processes. There appears to be a
clear need for streamlining the same. The Delhi
High Court has issued several practice directions
under the Act. One such direction when petitions
under Section 9 of the Arbitration and Conciliation
Act, 1996, are filed, it is mandatory for the party to
mention that no other petition on the same cause of
action was filed. In an attempt to further avoid
multiplicity of Tribunals and
inconsistent/contradictory awards, as has arisen in
the present case, the following directions are
issued:
i. In every petition under Section 34 of
the Arbitration and Conciliation Act, 1996
(hereinafter, “Section 34 petition”), the
parties approaching the Court ought to
disclose whether there are any other
proceedings pending or adjudicated in
respect of the same contract or series of
contracts and if so, what is the stage of the
said proceedings and the forum where the
said proceedings are pending or have been
adjudicated.
ii. At the time when a Section 34 petition
is being heard, parties ought to disclose as
to whether any other Section 34 petition in
respect of the same contract is pending and
if so, seek disposal of the said petitions
together in order to avoid conflicting
findings.
iii. In petitions seeking appointment of an
Arbitrator/Constitution of an Arbitral
2021:DHC:274TR.P.(C.) 6/2021 & 7/2021 Page 5 of 6Tribunal, parties ought to disclose if any
Tribunal already stands constituted for
adjudication of the claims of either party
arising out of the same contract or the same
series of contracts. If such a Tribunal has
already been constituted, an endeavor can
be made by the arbitral institution or the
High Court under Section 11, to refer the
matter to the same Tribunal or a single
Tribunal in order to avoid conflicting and
irreconcilable findings.
iv. Appointing authorities under
contracts consisting of arbitration clauses
ought to avoid appointment or constitution
of separate Arbitrators/Arbitral Tribunals
for different claims/disputes arising from the
same contract, or same series of contracts.”
7. There is no doubt as to the fact that the parties in all the petitions are
the same. The contract concerned is also the same, however, the liquidated
damages imposed are for different claims and four separate awards have
been passed. This Court is of the opinion that the validity and otherwise of
the imposition of liquidated damages ought to be comprehensively
considered in one case, inasmuch as if the same are adjudicated before
different forums, there is a possibility of there being contradictory findings.
8. Since the background of the liquidated damages may be similar in
nature, it is deemed appropriate to transfer the two petitions pending before
the Patiala House Courts i.e., OMP (Comm) No.127/2019 & 128/2019, to
this Court, to be heard and disposed of along with OMP (Comm)
No.352/2019 & 342/2019. The said petitions are stated to be listed before
the appropriate Bench on 1stMarch, 2021. Accordingly, the Registry is
directed to summon the records of the two cases pending before the Patiala
2021:DHC:274TR.P.(C.) 6/2021 & 7/2021 Page 6 of 6House Courts and list the same along with the matters pending before this
Court on 1stMarch, 2021.
9. The present petitions are disposed of in the above terms. All pending
applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
JANUARY 25, 2021/ dk/T
2021:DHC:274