M.R.SHAH,J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.02.2018 passed by the Commercial Appellate Court/Division Bench of the High Court of Judicature for Rajasthan, Bench at Jaipur in D.B. Civil Miscellaneous Appeal No. 3785 of 2017, by which the High Court has allowed the said appeal preferred by the respondent herein - Rajasthan Rajya Vidyut Utpadan Nigam Limited and has quashed and set aside the award passed by the learned Arbitrator, confirmed by the Commercial Appellate Court at Jaipur, the appellant - the original claimant - Parsa Kente Collieries Limited has preferred the present appeal.
(2.) That in the month of March, 2006, the respondent floated a tender for joint venture to undertake coal block development, mining and transportation of coal and delivery. That one Adani Enterprises Limited (AEL) submitted a bid which was accepted on 12.05.2006. A Letter of Intent was issued to AEL by the respondent on 23.10.2006. Respondent and AEL entered into a joint venture, namely, Parsa Kente Collieries Limited, the appellant herein. A Coal Mining Service Agreement was entered into between the said Parsa Kente Collieries Limited and AEL. That a Coal Mining and Delivery Agreement (hereinafter referred to as 'CMDA') was executed between the appellant and the respondent on 16.07.2008 for supply of coal. 2.1 As per CMDA, the date of commencement of the contract was 25.06.2011. As per CMDA between the appellant and the respondent, the coal supply was to commence at the earliest within 42 months, or within 48 months from the date of allotment of coal blocks, i.e., by 25.06.2011. CMDA also provided a clause for extending the date of commencement. Clause 3.2.1 of the CMDA provided for scope of work; Clause 4.1.3 and 4.1.4 provided for responsibility of the respondent to inform the appellant as regards the requirement of coal in advance. Clause 4.5 provided for commencement of the date; clause 5.1 provided for contract of price; clause 5.2.2. provided for calculation of basic price; clause 5.4.3 provided for escalation in price; clause 7.1 provided for force majeure and clause 7.3 provided for effect of force majeure. There was a delay of 21 months in obtaining the forest clearance and environmental clearance. The appellant started supply of coal to the respondent with effect from 25.3.2013, i.e., after a delay of 21 months. It appears that the date of commencement was extended by mutual agreement from 25.6.2011 to 25.3.2013. However, certain disputes arose between the parties, more particularly the escalation price, fixed costs, amount lying in Escrow account and cost of construction of railway siding. Therefore, the appellant invoked clause 10.2 of the CMDA and sought arbitration. A retired Hon'ble Judge of the Rajasthan High Court was appointed as the sole arbitrator. The appellant submitted the statement of claim and thereafter filed another statement of claim. 2.2 Before the learned Arbitrator, the claim was bifurcated into four heads, namely, (1) Price Adjustment; (2) Fixed Costs; (3) Escrow Account; and (4) Construction of Railway Siding. The learned Arbitrator passed an award dated 27.05.2015 allowing the claims under the heads of 'Price Adjustment', 'Fixed Costs' and 'Escrow Account' and rejected the claim under the head 'Construction of Railway Siding'. While allowing the claim under the head 'Price Adjustment', the learned Arbitrator held that the date of commencement of the first operating year for the purposes of clauses 5.2.2 read with 5.4.3 would be 25.06.2011. The learned Arbitrator further held that thus the Zero year for the purpose of price escalation has to be 2011-2012. The learned Arbitrator accordingly held that because the date of commencement of the agreement for the purpose of price escalation is 25.06.2011, the appellant shall be entitled to the enhanced amount as applicable in 2013-2014. Accordingly, the learned Arbitrator held that the appellant is entitled to the coal price at Rs. 837/- PMT in F.Y. 2013-14 and thereafter the escalated price in the subsequent years as per the relevant clauses of the contract - CMDA. 2.3 That while allowing the claim with respect to 'Fixed Costs', the learned Arbitrator held that the respondent could not take the required delivery of the coal from the appellant, thus causing loss to the appellant. The learned Arbitrator held that therefore the appellant is entitled to compensation as claimed for Rs. 78 crores. 2.4 That while allowing the claim with respect to 'Escrow Account', the learned Arbitrator held that the undertaking given by the appellant was limited to a contingency where on account of failure of completion of mine closure activity by the appellant led to the forfeiture of any amount deposited in the escrow account, the respondent would be entitled to recover the same from the monthly running bills of the appellant. The learned Arbitrator observed, however, as no such occasion has arisen, the question of any deduction on the said count does not arise. Consequently, the learned Arbitrator directed the respondent to return that amount which was lying in the escrow account which was deducted from the monthly running bills of the appellant. 2.5 As observed hereinabove, the learned Arbitrator rejected claim no.4, namely, under the head 'Construction of Railway Siding'. The award declared by the learned Arbitrator came to be confirmed by the learned Commercial Court, Jaipur in an application under section 34 of the Arbitration and Conciliation Act.
(3.) Feeling aggrieved, the respondent preferred an appeal under Section 37 of the Arbitration Act before the Commercial Appellate Court/Division Bench of the High Court of Rajasthan at Jaipur. By the impugned judgment and order dated 28.02.2018, the High Court has allowed the said appeal and has set aside the award passed by the learned Arbitrator and confirmed by the Commercial Court, Jaipur.;