- (1.) This execution proceeding (E.G. 37 of 2003) has been initiated by an application dated July 16th, 2003.
(2.) Disputes and differences between Damodar Valley Corporation (in short DVC) and Calcutta Electric: Supply Company Limited (in short CESC) were referred to arbitration. The arbitrators made the award dated June 27th, 2001 under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act"). Issue No. 3 was decided in favour of DVC, while the chief issue, that is issue No.1, was decided against it.
(3.) The disputes arose between the parties regarding the payment of charges for supplying electrical energy by DVC to CESC during the period from January 1st, 1995 to October 19th, 1998. During this period energy was supplied without there being any written contract between the parties. The previous written agreement dated April 30th, 1990 had expired on December 31st, 1994. DVC claimed that on account of change in the tariff rates, in the absence of a written agreement between the parties, it would be entitled to payment to be determined on the basis of Section 73 of the Indian Contract Act, 1872. CESC took the stand that it was liable to make such payment only in terms of Section 70 of the Indian Contract Act, 1872. The Arbitral Tribunal held that CESC would be liable to pay on the basis of calculation to be made by applying the provisions of Section 70 and not Section 73. Directions were given by the Arbitral Tribunal to pay the amount with interest after obtaining necessary permission from the West Bengal Electricity Regulatory Commission. CESC was directed to obtain such permission. Being aggrieved by the decision of the Tribunal on the chief issue, DVC filed an application under Section 34 of the Act. Such application was filed on September 26th, 2001, and it is pending decision. During pendency of Section 34 application, this execution proceeding has been started by filing the application dated July 16th, 2003. This execution application has been filed for enforcing the award insofar as the decision of the Tribunal on issue No. 3 is concerned.;