National Thermal Power Corporation Ltd vs Siemens Atkeingesellschaft

2. Brief facts which are necessary for disposal of this appeal are that on 6-12-1999 the parties entered into a contract for setting up of 817 MW Gas Based Combined Cycle Power Project at Dadri, U.P. at a price of DEM 324,405,000 equivalent to Rs.2,190,000,000/- (Rupees two thousand one hundred ninety million). At the request of the respondent- Siemens Atkeingesellschaft (hereinafter to be referred to as "SAG") three separate contracts were entered into with cross-fall breach clause. One contract was with respondent -SAG known as "First Contract" and the other with its associates, namely Bharat Heavy Electricals Limited (BHEL), New Delhi and the third with Siemens Limited, Bombay. Considerable delay occurred in execution of the contract which was mostly attributable to the appellant- National Thermal Power Corporation (hereinafter to be referred to as "NTPC"), due to delay in opening of Letters of Credit in favour of the respondent-SAG and in obtaining import licences for various equipments from Statutory Authorities. Respondent raised several claims against the appellant-NTPC for losses resulting from delay. On the other hand, the appellant was also facing acute difficulty in getting the critical components and spare parts and tools from the respondent. In order to sort out the said disputes, a high-powered meeting of the parties was held on 6th/7th April, 2002 in which several decisions were taken. One of the decisions taken in the meeting was that the respondent was to supply the critical components and spare parts etc. to the appellant-NTPC on its part and on the other hand the appellant-NTPC agreed to look into the claim raised by the respondent-SAG with more positive approach in view of the fact that there was delay in arranging import licences and opening of Letter of Credit by the appellant-NTPC. In pursuance to the decision, the respondent-SAG supplied the critical components etc. but the appellant-NTPC did not favourably consider the claim of the respondent-SAG for damages on account of the aforesaid delay. Subsequently, the respondent-SAG made a reference to ICC Court of Arbitration, Paris for settlement of their disputes/claim to compensation on account of delay in terms of Clause 27 of the Contract. The ICC International Court of Arbitration registered the reference as Case No. 11728/ACS and on 5th May, 2002 issued terms of reference. The ICC International Court of Arbitration was comprised of three Arbitrators, namely Mr. Arthur Marriott QC, Chairman and Mr. Justice R.S. Pathak and Mr. Justice A.M. Ahmadi, two former Chief Justices of the Supreme Court of India. While the claim of the respondent-SAG related largely to compensation on account of delay on the part of the appellant- NTPC in procuring the import licences and belated opening of the Letter of Credit in favour of the respondent, the appellant-NTPC besides filing their defence to the said claims also filed several counter claims on various counts amounting to hundreds of crores of rupees against the respondent- SAG. The respondent-SAG resisted the said counter claims of the appellant- NTPC inter alia on the grounds that the counter claims were not arbitrable because the claims had been waived and/or abandoned and/or discharged and/or satisfied or compromised and the appellant had failed to fulfil the condition precedent to arbitration specified in Clauses 26 & 27 of the General Conditions of Contract. Number of issues were framed and the Tribunal after considering the submissions of the parties, gave a partial award on 31-7-2002 and held that the claim of the respondent-SAG was maintainable and was not barred by limitation while the counter claims of the appellant-NTPC was not admissible because the same were caught by the agreement contained in the minutes of meeting (MoM) dated 6th/7th April, 2000. Aggrieved against this partial award so far as it non-suited the appellant-NTPC in respect of their counter claims, the appellant-NTPC directly approached the High Court by filing an appeal.

10. Learned counsel for the appellant tried to refer to some of the decisions of this Court but we do not think those decisions need to be noted in the present case as the whole question turned on the facts involved in the present case and we are satisfied that the partial award can be given and against this partial award the appellant has remedy under section 34 of the Act and thereafter they could file appeal under Section 37 of the Act. But no direct appeal would lie before the High Court because no jurisdictional issue was involved. The counter-claim was disposed of on the basic fact that the counter-claims had been settled by the MoM dated 6th/7th April, 2000. In this view of the matter, we need not refer to the decisions cited by learned counsel and other written submissions made by the appellant. We are satisfied that the view taken by the High Court is correct, appeal was not maintainable under Section 37(2) of the Act before the High Court and there is no ground to interfere with the order passed by the High Court. Accordingly, the appeal is dismissed with no order as to costs.