- (1.) With the consent of the learned counsels for the parties all the four appeals are heard finally at the admission stage.
(2.) All the four appeals arise out of the common order dated 18.2.12 passed by the Addl. District Judge No.9, Jaipur Metropolitan Court, Jaipur (hereinafter referred to as 'the court below) in Applications being Civil Misc. Application (Arbitration) No. 438/11, 439/11, 440/11 and 445/11, under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the said Act'), whereby the court below has allowed the said applications filed by the respective respondents-applicants in all the matters, and has restrained the appellant-non-applicant from proceeding further with the notice inviting tender (NIT for short) dated 24.8.11 and also from causing any obstruction to the respondent-companies in the supply of fly ash till the pendency of the arbitration proceedings that may be initiated between the parties.
(3.) The short facts giving rise to the present appeals are that the appellant company is engaged in the process of electricity generation, having its thermal power plant at Kota and the respondent-companies are the companies registered under the Companies Act, and are the manufacturers of the cement. The appellant company generates the electricity by using the coal and during such generation, the ash which is produced as a waste, is being used by the cement companies in the production of the cement. The appellant company, therefore, had invited the respondent-companies for the disposal of the fly ash being generated in its different units Since the respondent-companies also intended to utilise the fly ash blending for the production of cement, the appellant entered into the four separate agreements with four respondent-companies i.e. with Manglam Cement Ltd. on 14.10.04, with Shree Cement Ltd. on 2.11.04, with Ultratech Ltd. (earlier Grasim Industries Ltd.) on 15.10.04 and with ACC Cement Ltd on 7.10.04. Pursuant to the said agreements, the said respondent companies installed the fly ash commissioning system on 31.7.07, 16.10.07, 30.3.07 and 10.07.07 respectively. The relevant clauses of the agreements in question entered into between the appellant and the respondents are reproduced herein for the sake of convenience. "2.2 KSTPS will provide the above land on lease to GIL for installing infrastructure facility on token lease money. The lease of land shall be initially for a period of 5 years only which may be extended by RRVUNL. Ownership and other rights shall remain with KSTPS. 2.8 RRVUNL agrees to supply fly ash free of cost, initially for a period of 5 years and the same may be reviewed every year on the basis of performance of the firm (GIL) and then prevailing circumstances. The agreement shall finally be reviewed on fresh terms and conditions as agreed mutually for continuation beyond the period of 5 years. 2.11 In case GIL may not be able to take delivery of fly ash from Units 4 and 5 for a period of more than a month for reasons other than unforeseen situations/routine break downs or any other conditions beyond the control of GIL, KSTPS will reserve the right to own the system. Similarly under any other situation of non-fulfillment of AGREEMENT on the part of GIL, the permission will be withdrawn and the installed system shall be taken over by RRVUNL/KSTPS. 2.12 The system installed by GIL shall become sole property of KSTPS/RRVUNL on expiry/termination of the agreement. 2.13 GIL agrees to pay Rs. 12 lakhs per annum to RRVUNL, out of which, Rs. 10 lakhs will be reimbursement towards maintenance cost of the approach road from storage silos to Gate No.4 and Rs. 2 lakhs for maintaining the cleanliness of the surrounding, where the transit silos and storage silos will be installed and the road used for the purpose. 2.14 The dry ash collection system to be installed by GIL will be generally in line with the proposal submitted by GIL as annexed at Appendix A, subject to technical feasibility and system requirements and the terms and conditions shall be in accordance to guidelines issued by KSTPS and accepted by GIL as annexed at Appendix B. 6. VALIDITY This AGREEMENT will be in force for a period of 5 years from the date of commissioning of the system or six years from the date of signing of the agreement, whichever is later. 9. SETTLEMENT OF DISPUTES ETC. In the event of any question, dispute or difference arising between the parties hereto touching the construction of any clause therein contained or the rights, duties and liabilities of the parties hereto or in any way touching or arising out of these presents, the same shall be referred for determination by arbitrator to be appointed by the CMD, RRVUNL. Arbitration proceedings shall be in accordance with the provisions of the Indian Arbitration Act, 1996 or any other amendment or modification thereof for the time being in force. 10. CONTINUITY. Services under the AGREEMENT notwithstanding the existence of any dispute, question of recovery, shall continue during the arbitration proceedings and no payments due and payable by GIL or supply of fly ash by RRVUNL to GIL shall be withheld on account of such arbitration proceedings unless such payment or supply itself is the direct subject matter or one of the subject matters of arbitration.";