Alok Sharma, J. - (1.) Under challenge is the judgment dated 28-9-2016 passed by the Commercial Court (Additional District Judge No.1, Jaipur Metropolitan City, Jaipur) dismissing by a common order two objections i.e. No.18/2016 and No.15/2016 filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act of 1996') against a common award dated 29-6-2015 pursuant to two independent references by the High Court i.e. one in S.B. Arbitration Application No.71/2012 pertaining to disputes arising out of acceptance/ letter of notification of award regarding NIT dated 2-6-2011 pertaining to the supply of drugs and medicines for the year 2011-12 and the other S.B. Arbitration Application No.72/2012, to other disputes arising out of other letters of acceptance dated 1-5-2012 and 21-5-2012 pertaining to NIT dated 13-1-2012. The facts of the case that the appellant floated a Notice Inviting Tender (NIT) bearing No.F.01(01) RMSCL/ Procurement/ 2012/ 01 dated 13-1-2012 for the year 2012-13 for supply of drugs and medicines. The respondent company was found the most competitive bidder in respect of 11 drugs/ medicines and resultantly two letters of acceptance, i.e. one, No.1059 dated 1-5-2012 and the other No.1344 dated 21-5- 2012 in regard thereto were issued. Under the contract so formed the respondent company was obliged, as prescribed in the underlying NIT, to furnish performance bank guarantees (PBG) at 5% contract value of the letters of acceptance. In respect of acceptance letter dated 1-5-2012 the respondent company furnished a PBG for Rs.38,57,600/-. But in respect of the acceptance letter dated 21-5-2012 it did not submit the requisite PBG for Rs.1,83,69,610/-. In fact it refused to so do vide letters dated 25-5-2012 and 7-7-2012 for reason which it perceived to be relevant i.e. certain amounts of money allegedly due to it by the appellant in respect of supply of drugs and medicines for the year 2011-12 under NIT No.F.1(4)/ RMSCL/ TENDER/ 2011/01 dated 2-6-2011 remaining unpaid.
(2.) The respondent company was in the circumstances considered by the appellant to be in breach of conditions of the NIT No. No.F.01(01) RMSCL/ Procurement/ 2012/ 01 for supplies of drugs and medicines in the the year 2012-13. Resultantly the contract under acceptance letters dated 1-5- 2012 and 21-5-2012 for the supply of drugs and medicines was terminated. Consequences as set out in the conditions of the contract in issue, such as forfeiture of PBG of Rs.38,57,600/-, of earnest money of Rs.5 lacs, risk and purchase of the drugs not supplied with consequence of resultant liability on the respondent company and blacklisting.
(3.) Aside of the dispute as aforesaid relating to NIT No.F.01(01) RMSCL/ Procurement/ 2012/ 01 dated 2-6-2011 for the year 2012-13 and the following acceptance letters dated 1-5-2012 and 21-5-2012, in a previous contract between the appellant company and the respondent company also relating to supply of drugs and medicines but for the previous financial year 2011-12 (embedded in tender No.F.1(4)/ RMSCL/ Tender/ 2011/01 dated 2-6-2011 a dispute was festering on the one hand about moneys short paid and allegedly due to the respondent company for supplies made. On the other hand the appellant was claiming its entitlement for liquidated damages under conditions of supply of the drugs and medicines in issue for reason of supplies in issue being delayed beyond the delivery schedule/s 45 days from the date of the purchase order. The respondent company's case was that it had supplied drugs and medicines worth Rs.36,31,40,930/- (following the letter of acceptance/ notification of award dated 3-8-2011) under multiple purchase orders (PO)/ Notification of Award (NOA) but paid only Rs.28,39,36,570/- as a result of which an amount of Rs.7,92,14,360/- remained unpaid. This dispute came to a head with the termination of the respondent company's contract for supply of drugs and medicines for FY 2012-13 under the subsequent contract.;