TECHNO AIRCON INDUSTRIES PVT. LTD Vs. ABB LIMITED

JUDGEMENT

(1.) This appeal under filed Sec. 37(1)(c) of the Arbitration and Conciliation Act, 1996 (the A&C Act) lays challenge to the judgment dtd. 20/12/2023 (impugned judgment) passed by the learned Single Judge in OMP(COMM) 266/2021 captioned Techno Aircon Industries Private Limited v. ABB Limited whereby the learned Single Judge has dismissed the application filed by the appellant herein under Sec. 34 of the A&C Act impugning the Arbitral Award dtd. 28/2/2019 (impugned award) passed by the learned Sole Arbitrator.

(2.) The learned Single Judge while dismissing the application under Sec. 34 of the A&C Act, stated in paragraph no.18 onwards as under:-

(3.) The facts as noted from the records are that the appellant - M/s Techno Aircon Industries Private Limited - is a company incorporated under the provisions of the Companies Act, 1956, which had a contractual relationship with the respondent - M/s ABB Limited - for fabricating the duct profile for respondent's customers using GSS sheets in coil form provided by the respondent. It was the case of the respondent and also the claim before the learned Arbitrator that the sheets were procured by the respondent at a cost of ?49,500/- per metric ton (MT), along with taxes and other charges. The appellant who was fabricating the duct profile was responsible for returning unutilized excess materials. On the aforesaid understanding, the case of the respondent is that it issued multiple purchase orders over the period of time including the purchase order dtd. 11/9/2008, which contained an arbitration clause. It was the case of the respondent before the learned Arbitrator that despite the explicit terms of the agreement, the appellant's performance fell short and it only partially completed the supplies by October 2009, and subsequently delayed further deliveries beyond the agreed schedule. It was the case of the respondent that the Minutes of Meeting (MoM) dtd. 10/10/2009 was issued wherein the appellant acknowledged the discrepancies in the raw material stock and unauthorized use of excess material for other purposes. It was the case of the respondent that the appellant was required to provide the material reconciliation statements along with the bills. Further, the MoM dtd. 20/1/2010 wherein the appellant accepted the liability to return the excess quantity of 179.278 MT of GSS sheets to the respondent. Despite these MoMs, the appellant had failed to fulfill their commitments. It is in these background, the demand notice dtd. 10/8/2010 was issued. The legal notice was also got issued by the respondent on 27/10/2011 invoking the arbitration clause specified in the purchase order dtd. 11/9/2008. The appellant failed to respond to the legal notice issued by the respondent. Consequently, the respondent filed the petition under Sec. 11 of the A&C Act (Arb P. 502/2012) before this Court, which resulted in the appointment of the learned Arbitrator vide order dtd. 8/2/2013.