LAWS(DLH)-2012-3-11

KEI INDUSTRIES LTD Vs. D V B

Decided On March 14, 2012
KEI INDUSTRIES LTD Appellant
V/S
D.V.B. (SINCE RENAMED ,,DELHI POWER SUPPLY COMPANY) Respondents

JUDGEMENT

(1.) THE agreement between the parties having an arbitration clause, claim raised by the appellant and counter-claim by the erstwhile Delhi Vidyut Board was referred to an arbitral tribunal consisting of three members and the claim of the appellant was in sum of Rs.2,06,10,961.64. As per the appellant a contract concluded between the parties on August 10, 1993 when appellants offer as per Notice Inviting Tender was accepted. THE appellant was to supply 760 km cable within the period prescribed under the contract. It was pleaded by the appellant that it could not commence the supply of cables within the prescribed period on account of delay on part of respondent No.1 in approving the cables to be supplied. It was further pleaded that payment had to be secured by opening a Letter of Credit which was not opened in spite of the appellant writing a letter on January 13, 1994 requiring an irrevocable Letter of Credit to be opened. It was the case of the appellant that thereafter till January 09, 1995 it sent 32 reminders on the subject and in spite of the respondent not opening a letter of credit in its favour, the appellant supplied 7 lots of cables on 27.01.1994, 24.06.1994, 08.07.1994, 19.07.1994 and 08.08.1994. Since a letter of credit was not opened till August 08, 1994, it was constrained to suspend further supply. That thereafter, vide letter dated November 01, 1995 the respondent illegally cancelled the contract between the parties and sought to encash the 3 bank guarantees which were furnished by the appellant to secure the performance of the contract. Subsequent thereto, the appellant filed an application under Section 41 of Arbitration Act, 1940 before a learned Single Judge of this Court seeking injunction to restrain the respondent from encashing the bank guarantees, which application was dismissed on August 07, 1995 and thus the bank guarantees were encashed. THE appellant claimed a sum of Rs.2,06,10,901.64 together with interest @19.75% per annum under following heads from the respondent:-

(2.) BEING relevant for our decision, pleadings in paras 11, 13 and 14 of the Claim Petition filed by the appellant need to be noted. They read as under:-

(3.) IN para 11 of the rejoinder filed by the appellant, it pleaded as under:-