- (1.) This appeal is directed against the order passed by the Delhi High Court dated 24.5.2005 challenging the partial award given by the International Chamber of Commerce, Arbitration Tribunal on 31.7.2002.
(2.) Brief facts which are necessary for disposal of this appeal are that on 6.12.1999 the parties entered into a contract for setting up of 817 MW Gas Based Combined Cycle Power Project at Dadri, U.P. at a price of DEM 324,405,000 equivalent to Rs. 2,190,000,000.00 (Rupees two thousand one hundred ninety million). At the request of the respondent - Siemens Atkeingesellschaft (hereinafter to be referred to as "SAG") three separate contracts were entered into with cross-fall breach clause. One contract was with respondent-SAG known as ":First Contract" and the other with its associates, namely Bharat Heavy Electricals Limited (BHEL), New Delhi and the third with Siemens Limited, Bombay. Considerable delay occurred in execution of the contract which was mostly attributable to the appellant- National Thermal Power Corporation (hereinafter to be referred to as "NTPC"), due to delay in opening of Letters of Credit in lavour of the respondent-SAG and in obtaining import licences for various equipments from Statutory Authorities. Respondent raised several claims against the appellant-NTPC for losses resulting from delay. On the other hand, the appellant was also facing acute difficulty in getting the critical components and spare parts and tools from the respondent. In order to sort out the said disputes, a high-powered meeting of the parties was held on 6/7.04.2002 in which several decisions were taken. One of the decisions taken in the meeting was that the respondent was to supply the critical components and spare parts etc. to the appellant-NTPC on its part and on the other hand the appellant-NTPC agreed to look into the claim raised by the respondent-SAG with more positive approach in view of the fact that there was delay in arranging import licences and opening of Letter of Credit by the appellant-NTPC. In pursuance to the decision, the respondent-SAG supplied the critical components etc. but the appellant-NTPC did not favourably consider the claim of the respondent-SAG for damages on account of the aforesaid delay. Subsequently, the respondent-SAG made a reference to ICC Court of Arbitration, Paris for settlement of their disputes/ claim to compensation on account of delay in terms of Clause 27 of the Contract. The ICC International Court of Arbitration registered the reference as Case No. 11728/ACS and on 5.05.2002 issued terms of reference. The ICC International Court of Arbitration was comprised of three Arbitrators, namely Mr.Arthur Marriott QC, Chairman and Mr. Justice R.S. Pathak and Mr. Justice A.M. Ahmadi, two former Chief Justices of the Supreme Court of India. While the claim of the respondent-SAG related largely to compensation on account of delay on the part of the appellant-NTPC in procuring the import licences and belated opening of the Letter of Credit in favour of the respondent, the appellant-NTPC besides filing their defence to the said claims also filed several counter claims on various counts amounting to hundreds of crores of rupees against the respondent-SAG. The respondent-SAG resisted the said counter claims of the appellant-NTPC inter alia on the grounds that the counter claims were not arbitrable because the claims had been waived and/or abandoned and /or discharged and/or satisfied or compromised and the appellant had failed to fulfil the condition precedent to arbitration specified in Clauses 26 & 27 of the General Conditions of Contract. Number of issues were framed and the Tribunal after considering the submissions of the parties, gave a partial award on 31.7.2002 and held that the claim of the respondent-SAG was maintainable and was not barred by limitation while the counter claims of the appellant-NTPC was not admissible because the same were caught by the agreement contained in the minutes of meeting (MoM) dated 6/7.04.2000. Aggrieved against this partial award so far as it non-suited the appellant-NTPC in respect of their counter claims, the appellant-NTPC directly approached the High Court by filing an appeal.
(3.) The preliminary objection which was raised before the High Court was whether the appeal filed against the partial award of the ICC International Court of Arbitration was maintainable or not. Learned Single Judge of the High Court after elaborate discussions on the subject, took the view that the appeal u/s. 37(2) (a) of the Arbitration & Conciliation Act, 1996 (hereinafter to be referred to as "the Act") was not maintainable. It was observed by the learned Single Judge as follows : "This Court on a thorough examination of the material obtaining on record, more particularly on a conjoint reading of the pleadings of the parties filed before the Arbitral Tribunal, the Terms of Reference framed by the International Chamber of Commerce, the written submissions filed by the parties before the Arbitral Tribunal prior and after the closure of the hearing, the tenor of the reasoning and finding recorded by the Arbitral Tribunal in its dispensation titled as "Partial Final Award" and on a true construction and scope of the provisions of Sec. 16 and Sec. 37 of the Act, is clearly of the view that the impugned dispensation dated 31.7.2002 rendered by the Arbitral Tribunal cannot by any stretch be said to be an order passed by the Tribunal either under the provisions of Sec. 16(2) or Sec. 16(3) of the Act and in any case deciding the question of jurisdiction in the negative which will fall within the ambit of appealable orders within the meaning of Sec. 37(2)(a) of the Act. In the opinion of this Court, the impugned partial Award is nothing but an Award of interim Award deciding the counter claims of the NTPC finally on merits. This Court, therefore, must hold that the present appeal filed by the NTPC against such a Partial Award under the provisions of Sec. 37(2)(a) of the Act is misconceived and is not maintainable. Aggrieved against this order, the present appeal has been filed by the appellant-NTPC.;