NTPC LIMITED Vs. JINDAL ITF LIMITED & ANR.

JUDGEMENT

(1.) This appeal is filed under section 37(2) (b) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') seeking to impugn the order dated 15.7.2017 passed by the learned Arbitral Tribunal (hereinafter referred to as 'The AT') in exercise of powers under section 17 of the Act. The appellant entered into an MOU with respondent No.2/Inland Waterways Authority of India on 24.9.2008 pursuant to which it released a Request for Proposal dated 12.1.2011 for the selection of an operator for transportation of coal through waterways for the Farakka TPP. Respondent No.1 vide letter dated 26.7.2011 was selected as the Operator for transportation of the coal through waterways for the said Farakka TPP, on a Design Build Finance Operate and Transfer (DBFOT) basis. The appellant, respondent and IWAI/ respondent No.2 entered into a Tripartite Agreement on 11.8.2011.

(2.) The dispute between the parties centers around article 7.1(a) of the Agreement which states that a Minimum Quantity of 3MMT (MGQ) per annum of coal during the period will be transported through Inland Waterways Transport (IWT) to the Farakka Thermal Power Plant. Article 7.3 of the Agreement provides the Minimum Guarantee Coal Obligation whereby NTPC assures that it shall during each year utilize 3MMT of coal and further it shall pay the operator for the transportation of 90% of the Minimum Guaranteed Quantity, if the actual coal quantity made available is less than that of 90%.

(3.) It is the case of the appellant that though it was for the respondent in terms of the Tripartite Agreement to obtain requisite environmental clearance the appellant made the application to the Ministry of Environment and Forest for necessary permission. The permission was granted for 1.5 MMT coal only and hence it is urged that the Minimum Guaranteed Quantity stood reduced.