Delhi High Court National Thermal Power Corporation ... vs Siemens Atiengesellschaft (Sag) on 24 May, 2005 Equivalent citations: 2005(2)ARBLR172(DELHI), 121(2005)DLT36, 2005(83)DRJ46 JUDGMENT R. C. Jain, J. 1. This appeal under Section 37(2)(a) of the Arbitration and Conciliation Act 1996 (hereinafter referred to as the Act) read with Section 151 CPC is directed against the Partial Award dated 31st July, 2002 made by the International Chamber of Commerce, Arbitration Tribunal. Facts and circumstances giving rise to the appeal may be noted as under. 2. On 6th December 1989 the parties entered into a contract for setting up of 817 MW Gas Based Combined Cycle Power Project at Dadri in 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 respondentSAG, three separate contracts were entered into with crossfall breach clause. One contract was with respondentSAG, known as the "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 appellantNTPC, due to delay in opening of LCs in favor of the respondentSAG and in obtaining Import licenses for various equipments from Statutory Authorities. Respondent raised several claims against the appellantNTPC 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 highpowered meeting of the parties was held on 6th /7th April, 2000 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 appellantNTPC on its part and on the other hand appellantNTPC had agreed to look into the claims raised by the respondentSAG with more positive approach in view of the fact that there were delays in arranging import licenses and opening of LC by NTPC. It would appear that pursuant to the said decisions, the respondentSAG supplied critical components etc. but appellantNTPC did not favorably consider the claims of the respondentSAG for damages on account of the aforesaid delay. 3. Subsequently, the respondentSAG made a reference to ICC Court of Arbitration, Paris for settlement of their disputes/claim to compensation on account of delays. 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 Terms of Reference of the ICC International Court of Arbitration contained summary of parties' respective claims and counterclaims. 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 Judges of the Supreme Court of India. It is pertinent to note that while the claim of respondentSAG related largely to compensation on account of delay on the part of the NTPC in procuring the import licenses and belated opening of the LC in favor of the respondent, the NTPC besides filing their defense to the said claims also filed several counter claims on various counts amounting to hundreds of crores of rupees against the respondentSAG. The respondentSAG resisted the said counter claims of the NTPC, inter alia, on the grounds that counter claims were not arbitrable because the claims had been waived and/or abandoned and/or discharged and/or satisfied or compromised and the respondent had failed to fulfilll the conditions precedent to arbitration specified in Clauses 26 and 27 of the General Conditions of Contract. The Terms of Reference dated 5th May, 2002 contain the following issues: "The list of issues formulated below is not definitive, and may require expansion or reformulation as the arbitration progresses subject to article 19 of the Rules. A. Jurisdiction and Formulation of Claims 5.1 Has the Arbitral Tribunal jurisdiction under the Contract (i) to decide the disputes referred to it by the Claimant; (ii) for non compliance with the procedure envisaged under the Contract as a condition precedent for invoking arbitration? 5.2 Whether the claims / disputes are not bonafide and as such not referable to arbitration? 5.3 Whether the Claimant is estopped in equity and law from raising the claims / disputes against the Respondent? 5.4 Whether the claims now preferred stood abandoned by conduct and latches on the part of the Claimant and are not referable to the arbitrators? 5.5 Are the claims of the Claimant timebarred? 5.6 Has the Arbitral Tribunal jurisdiction under the Contract to hear the counterclaims raised