Priya Gour
Published on: 23 August, 2022 at 18:48 IST
Adani Ports has moved to the Supreme Court while challenging the Bombay High Court’s order of dismissal of its plea.
The plea had challenged the disqualification for upgradation of the container terminal in Navi Mumbai by the Board of Trustees of the Jawaharlal Nehru Port Authority (JNPA). The plea was being heard by the bench of Chief Justice of India NV Ramana, Justices C.T. Ravikumar and Justice Hima Kohli.
The Plea:
AM Singhvi, Counsel for the Adani Port Trust, submitted that that the disqualification was on the ground that one of the subsidiaries of the Adani had terminated a 2011 contract with Vishakhapatnam Port Trust(VPT) in 2020 and that this dispute with the Vishakhapatnam Port Trust is a pending arbitration case and thus is sub-judice. As a result, the current JNPA tender cannot be cancelled.
“They then terminated me as a counterblast much later. The matter went to arbitration, it is pending in arbitration today. There is no judicial adjudication.
Using this first one, which was is a dispute of 2011 pending in arbitration, they gave three cascading disqualification on that basis and that is why the writ challenges clause 2.28 with abundant precaution saying that a clause cannot be interpreted without an adjudication.”
The counsel also said that the orders had resulted in Adani being disqualified in other tenders. The order has had a cascading effect on the goodwill of the company as a whole.
“Disqualification in that SLP is such that it disqualifies me and makes him eligible. This has a cascading effect on three other ports and in future every day more contracts are coming. That disqualification should be stayed”.
The counsel noted the clause of the tender and stated that the bidder should not have any contract terminated by any public entity on grounds of breach by such Applicant or Consortium members.
However, the same was dismissed by the Bombay High Court in June, filed by Adani Ports challenging this clause with a cost of Rs 5 lakhs.
He stated that all the three cancellations were on the same ground of contract termination. Request was made before the court to stay the second disqualification (by the JNPA).
The plea said,
“Before somebody adjudicates, it cannot be that the Port Trust is a judge in its own case. Secondly, when you are actually under adjudication one case under arbitration, in other case under writ; then to apply it in future cases, gives you a complete power of arbitrariness.”
Solicitor General of India, Tushar Mehta, Counsel for the Centre, said that the clause under issue was included due to a direction of Niti Aayog in this regard, noting,
“If there is a termination and termination is stayed, if there is an arbitration and the award is stayed then that stands on a different footing.”
He also noted that the petitioner participated in the tender with open eyes, that this is the condition in the tender and now we are at a stage where we are opening bids.
“At that stage, he comes and says stay this disqualification. “The matter shall be resumed to be heard by the bench tomorrow.