IN THE HON'BLE HIGH COURT OF DELHI AT, NEW DELHI

J^^o. w of 2023
O.M.P. (COMM) 68/2023

IN THE MATTER OF:

AKSH OPTIFIBRE LIMITED PETITIONER

VERSUS

NANTONG SIBER COMMUNICATION

CO. LTD. RESPONDENT

INDEX
SL.NO. PARTICULARS PAGES
1.
APPLICATION UNDER SECTION 151
CPC ON BEHALF OF THE
RESPONDENT FOR PRE-DEPOSIT OF
100% ENTIRE AWARDED AMOUNT
UNDER THE ARBITRAL . AWARD
DATED 08.11.2022 ALON^ WITH
AFFIDAVIT

2. Proof of service

10- U
Place: New Delhi
Dated: 08 .08.2023
FILE
^^#
^NCT OF DELHI COURT FEE o
DLCT0312581G2356I*O Jitender Chaudhary and Shilpa Chohan
Advocate for the Respondent
Juris Consult
Advocates and Legal Consultants
B-22, First Floor, Jangpura Extension
t New Delhi-110014
DLCT0312584G2356M „ -.
_ ^03 JUL-2023o •* O o Tel: (Oil) 9810494638
E-Mail: juris consult@rediffmail.com
^^" ^^o:g
 IN THE HON'BLE HIGH COURT OF DELHI AT, NEW DELHI

LA No.of 2023
IN
O.M.P. (COMM) 68/2023

IN THE MATTER OF:

AKSH OPTIFIBRE LIMITED. PETITIONER

VERSUS

NANTONG SIBER COMMUNICATION

CO. LTD.RESPONDENT

APPLICATIONAON BEHALF OF THE RESPONDENT FOR PRE-

DEPOSIT OF 100% ENTIRE AWARDED AMOUNT UNDER THE
ARBITRAL AWARD DATED 08.11.2022

MOST RESPECTFULLY SUBMITTED:

1.That the respondent has filed their reply to the appeal of the

petitioner challenging the Arbitral Award dated 08.11.2022

passed by the Ld. Arbitral tribunal. The applicant/respondent

prays to refer to and rely upon the contents of the reply and the

same are not being repeated for sake of brevity and to avoid

repetition.

2.That the Ld. Arbitral Tribunal awarded the amount of claim i.e.

$194336.91 from the respective due dates of the Invoices (As Per

Column E of the Table ) till the date of actual payment along with
^" >•

an interest of 8% p.a. to the respondent. The claim filed by the

respondent before the Ld. Arbitral Tribunal was for payment of

$194336.91, (principal amount) along with interest, an amount

owed by the petitioner to the respondent for supply of goods. The

principal amount of $194336.91 was admitted payable by the

petitioner to the respondent. Despite admission that the principal

amount is payable, it was not been paid to the respondent. The

intention of the petitioner is to just to renege on its contractual

obligations to the respondent.

3. That the petitioner has filed the present appeal challenging the

Arbitral Award. The present being a money decree, the petitioner

has to be directed to deposit 100% of awarded amount before the

appeal of the petitioner can be heard on merits. This is required to

secure the awarded amount in order to secure the valuable rights

.of the respondent. The Arbitration and Conciliation Act, 1996 (

'A&C Act') also makes a provision for securing the amount in

1 ' ' i -'-• '•
arbitration and tKe same is evident from section 9 (ii)(b). The
.. .|''
relevant portion bf Section 9 (ii)(b) of A&C Act is extracted

hereinbelow:

"9. Interim measu^es, etc., by Court. - (1) A party may, before or

during arbitral proceedings or at any time after the making of the

arbitral award but before it is enforced in accordance with section 36,

apply to a court-

(ii) for an interim measure of protection in respect of any of the

following matters, namely: —•.
 M
(b) securing the amount in dispute in the arbitration;"

4. The Supreme Court in Manish v. Godawari Marathawada

Irrigation Development Corporation has stated that in cases of

money decrees, orders for 100% deposit of awarded amount has

to be passed before the appeal under section 34 can be heard on

appeal. The dictum of Supreme Court has been relied upon by

Delhi High Court to order 100% deposit in Power Mech Projects

Ltd. v. Sepco Electric Power Construction Corporation

(MANU/DE/0553/2020).

5. That the respondent is a Chinese company manufactured and

supplied the material on the specific demand and requirement

of the petitioner and further in compliance with the purchase

order issued by the petitioner during the period of June 2018 —

October

2018 through their authorized person from time to time. The

respondent promptly supplied the goods between the period of

July, 2018 to October, 2018. The payment for the supplied goods

became due i.e. 90 days from B/L. It is submitted that

goods/material were received by the petitioner in terms of the

contract and invoices were raised by the respondent to the

petitioner. The petitioner has admitted the liability but has

refused and deliberately avoided to release the payment in favor

of the respondent. The present being an international

commercial arbitration, the efficacy of arbitral proceedings

would be tested on the ground of the Ld. Hon'ble Court

 5
securing the awarded amount during the pendency of the

appeal.

6. That in the facts and circumstances stated hereinabove, it is in

the interest of justice to allow the present application and direct

the petitioner to deposit 100% awarded amount with the registry

of this Hon'ble Court as a precondition to hearing the appeal on

merits.

PRAYER

In light of the above it is therefore most respectfully submitted

that this Hon'ble Court may graciously be pleased to:

A.Allow the present application;

B.Direct the petitioner to pre-deposit 100% of the entire awarded

amount under the Arbitral Award dated 08.11.2022;

C.Pass such other order/directions as are deemed fit and proper in

the facts and circumstances of the present case.

Place: New Delhi

Dated: 0^.08.2023
FILED

Jitender Chaudhary and Shilp^Chohan

Advocate for the Respondent
Juris Consult
Advocates and Legal Consultants
B-22, First Floor, Jangpura Extension
 New Delhi-110014
Tel: (Oil) 9810494638
E-Mail: juris_consult@rediffmail.com
.•' -..

IN THE HON'BLE HIGH COURT OF DELHI AT, NEW DELHI

IA no .of ^on i^ O.M.P. (COMM) 68/2023

IN THE MATTER OF:

AKSH OPTIFIBRE LIMITED PETITIONER

VERSUS

NANTONG SIBER COMMUNICATION

CO. LTD. RESPONDENTS

AFFIDAVIT

I, Abhinav Goyal age around 32 years S/o Sh. Pradeep Kumar Goyal

Resident of 743, Shivpuri, Kaysthwara, Deoband, Saharanpur, Uttar

Pradesh-247554 presently at New Delhi, do hereby solemnly affirm

and declare as under: -

1. That I am the Authorised Signatory of the petitioner in the

abovementioned ma^er^dadly conversant with the facts and

^y
circumstances/o^fhe. case, as such I am competent to swear to

this affidavit ^ -j

2. That the accohrpariyirigy .^-Lhas^been drafted by the counsel

upon my instruc%innsVL,haiv;^gp;0.etli/bugh the contents whereof

and state that same are true and correct to my knowledge.

3.' That the annexures are the true copies of the originals.
 DEPONENT
Verification:

7i
Verified at New Delhi on this ^- day of IffLU^^, 2023, that
he contents' of the above affidavit are true and correct to my

now!jat%e and no part of it is false and nothing material has been

therefrom.

- '• 0 7 ,AUG 2023

DEPONENT

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