- (1.) Heard Sri B.K. Saxena, learned Counsel for the appellant and Sri R.N. Trivedi, Senior Advocate, assisted by Sri Akhilesh Kalra, on behalf of the respondent.
(2.) Before coming to the merits and demerits of the appeal, it would be useful to mention certain relevant background of the case. The parties entered into a contract in March, 1981. On account of dispute, the matter was referred to Arbitrators appointed by the parties. As there was disagreement between the Arbitrators on certain points, the matter was referred to the Umpire, who delivered the Award on 20.3.1998. Thereafter the matter went to the Civil Court. The orders passed by the Civil Court were assailed before this Court in the instant appeal.
(3.) On 18.12.2008, a Division Bench of this Court while hearing the matter came to the conclusion that as the factual dispute is involved it can be adjudicated by the mediator. On the agreement of the parties, the matter was relegated to mediator for amicable settlement. Later on Justice O.P. Srivastava [Former Judge of this Court] was appointed as mediator. The Division Bench further provided that U.P. Power Corporation shall deposit an amount of Rs. 40 lacs in interest bearing account within a month. As the parties could not arrive to amicable settlement inspite of lapse of considerable time, an application for recalling the FAFO from the Mediator was moved by the respondent. On 24.3.2009, this appeal was listed before a Division Bench in which one of us, namely, Rajiv Sharma was a member. The Division Bench considering the peculiar circumstances of the case appointed Sri Navneet Shegal, Secretary, Energy Department, State of U.P. as Conciliator on 25th March, 2009. The Conciliator was required to submit his report on 27.3.2009. The Conciliator in his report indicated that the gap between the two offers is so large that it is very difficult to narrow it down and it is not possible to settle the dispute through conciliation. By the order dated 22.5.2009, the Hon'ble the Chief Justice nominated a Bench comprising of one of us, namely, Rajiv Sharma and Justice U.K. Dhaon [as he then was] to hear the recall application of the orders dated 24.3.2009,25.3.2009 and 27.3.2009. In between, Justice U.K. Dhaon retired and the matter was again placed before Hon'ble the Chief Justice. Hon'ble the Chief Jutice vide order dated 24.7.2009 nominated that the matter shall be placed before a Bench of which one of us, namely, Rajiv Sharma is a member. When the matter came up before us, the parties counsel stated that as the parties are litigating since more than a decade, it would be appropriate that the matter is heard finally on merits and did not press the pending misc. applications. Consequently, we proceeded to hear the matter finally.;