Supreme Court of India Psa Sical Terminals Pvt. Ltd. vs The Board Of Trustees Of V.O. ... on 28 July, 2021 Equivalent citations: AIR 2021 SUPREME COURT 4661, AIRONLINE 2021 SC 384 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 3699­3700 OF 2018 PSA SICAL TERMINALS PVT. LTD. ...APPELLANT(S) VERSUS THE BOARD OF TRUSTEES OF V.O. CHIDAMBRANAR PORT TRUST TUTICORIN AND OTHERS ...RESPONDENT(S) JUDGMENT B.R. GAVAI, J. 1. The appellant has approached this Court being aggrieved by the judgment and order dated 1 st November 2017, passed by the Division Bench of the Madras High Court in C.M.A. (MD) No. 345 of 2016 and C.M.P. (MD) No. 4867 of 2016, thereby Signature Not Verified allowing the appeal of the respondent No.1 herein under Digitally signed by R Natarajan Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 Date: 2021.07.28 16:20:39 IST Reason: (hereinafter referred to as ‘the Arbitration Act’) vide which the 1 High Court set aside the award dated 14 th February 2014, passed by the Arbitral Tribunal and the order passed by the District Judge dated 25th February 2016, rejecting the application filed by the respondent No.1 herein under Section 34 of the Arbitration Act. 2. The facts necessary for adjudication of the present appeals are as under:­ The respondent No.1­The Board of Trustees of V.O. Chidambranar Port Trust, Tuticorin (hereinafter referred to as ‘TPT’) issued a global tender on 9 th April 1997, inviting bids for development of the Seventh Berth at V.O. Chidambranar Port, Tuticorin as a Container Terminal and for operating and maintaining the same for 30 years on a Build, Operate and Transfer (hereinafter referred to as ‘BOT’) basis. In response to the tender, the appellant­PSA Sical Terminals Pvt. Ltd. (hereinafter referred to as ‘SICAL’) submitted its bid on 24 th October 1997. The financial offer was submitted by SICAL on 19th December 1997. Since SICAL’s offer was the highest, the same was accepted and a Letter of Intent (hereinafter referred 2 to as ‘LoI’) was issued to it on 29th January 1998 and the same was followed by a License Agreement dated 15 th July 1998. 3. In the meantime, the Tariff Authority for Major Ports (hereinafter referred to as ‘TAMP’) which is an authority constituted under the Major Port Trusts Act, 1963 adopted guidelines on 26th/27th February 1998. SICAL submitted its tariff proposal with regard to the Container Terminal on 28th September 1999. A revised proposal came to be submitted by SICAL on 8th October 1999, thereby including royalty as an element of cost. The said proposal was approved by TAMP’s order dated 8th December 1999. TAMP notified its order of 8th December 1999 vide gazette notification dated 28 th December 1999, thereby approving the tariff as proposed by SICAL vide proposal dated 8th October 1999. SICAL submitted a further proposal on 8th February 2002 for review in tariff, again including therein an increase in royalty to be paid as an element of cost and proposed for an increase in the tariff. TPT vide communication dated 10th April 2002, objected to the proposal of SICAL for increase in tariff. TAMP vide its order 3 dated 20th September 2002, rejected the proposal of SICAL for increase in tariff. 4. SICAL filed Writ Petition Nos. 40637­40639 of 2002 before the Madras High Court for quashing of the TAMP order dated 20th September 2002. In the said proceedings, the Madras High Court passed an order dated 8 th November 2002 granting interim relief in favour of SICAL, thereby staying the TAMP order dated 20th September 2002. Vide the said order, SICAL was permitted to charge tariff at the rate prevailing prior to the TAMP order impugned in those petitions. 5. Ministry of Shipping, Government of India (hereinafter referred to as ‘GoI’) vide notification dated 29 th July 2003, clarified that revenue sharing/royalty payment shall not be factored into as cost for fixation/revision of tariff by TAMP and further directed that the same shall be clearly indicated in subsequent bid documents. On 31st March 2005, T