BHARAT HEAVY ELECTRICALS LIMITED Vs. ABB INDIA LTD

JUDGEMENT

(1.) These appeals are preferred by the appellant Bharat Heavy Electricals Limited under Sec. 37(1)(c) of the Arbitration and Conciliation Act, 1996 (Arbitration Act 'in short') and Sec. 13 of Commercial Courts Act, 2015 against the common judgment dtd. 18/9/2021 (impugned judgment 'in short') passed by the Learned District Judge (Commercial-2), South District, Saket Courts, New Delhi, (-Ld. District Judge, Commercial-2' in short) whereby two petitions under Sec. 34 Arbitration Act bearing numbers [OMP (COMM) No. 54/2021 and OMP (COMM) No. 56/2021)] filed by the appellant herein seeking setting aside of the consolidated award dtd. 2/6/2021 with respect of arbitration cases no. 2/3/2019 and 3/3/2019, were dismissed;

(2.) Briefly stating, facts relevant for disposal of these appeals are that the appellant BHEL placed two purchase orders on the respondent bearing no. PSNR/SCP/BOP-BHAWANA/AC/SUP/1926 dtd. 26/8/2019 for supply of air-conditioning system for 2x750 MW Units at Pragati/III,CCPP,BHAWANA (supply portion) and PSNR/SCP/BOP-BHAWANA/COMP-E&C/1927 dtd. 26/8/2009 for Erection and commissioning of equipment of air-conditioning system for 2x750 MW Units at Pragati/III,CCPP,BHAWANA (E&C portion). The supply portion of the purchase order was subject matter of Arb. Case No. 02/03/2019. The E&C portion of the purchase order being subject matter of Arb. Case No. 03/03/2019 envisaged erection and commissioning of the equipment. A performance Bank Guarantee No. 0002BG00060609 dtd. 25/8/2009 for the amount of Rs.41,80,242.00 for the supply portion of the purchase order and Bank Guarantee No. 0002BG00063509 dtd. 1/9/2009 for the amount of Rs.4,64,315.00 for the E&C portion of the purchase order, respectively were submitted by the respondent in terms of clause 7 of the General Commercial Terms and Conditions of the agreement between the parties.

(3.) It is not disputed that the principle employer of the appellant namely PPCL issued a notice of the completion of work by the claimant/respondent herein on 30/8/2016. The Arbitral Tribunal noted that in view of the stand taken by the appellant herein, the respondent's claim revolved around whether under clauses 9 and 22 of the present Bawana contracts, the appellant was entitled to recover or withhold or have lien over the amounts payable to the respondent under the present two contracts for the Bhawana project against the claim of the appellant raised in other two contracts for supply portion and E&C portion for the Anapara project pending adjudication before another Tribunal.