NTPC LIMITED Vs. JINDAL ITF LIMITED & ANR

JUDGEMENT

(1.) Cav 295/2018

(2.) By way of the present appeal under Section 37 of the Arbitration and Conciliation Act, 1996, the appellant seeks to challenge the order dated 20.12017 passed by the Arbitral Tribunal in arbitration proceedings between the parties insofar as it directs the appellant to make a payment corresponding to second annual Minimum Guaranteed Quantity (MGQ) within sixty days from the receipt of the order subject to the respondent/claimant furnishing bank guarantees of equivalent amount as stipulated in the contract. The learned senior counsel for the appellant submits that the above direction could not have been passed as an interim order as the same amounts to grant of final relief claimed by the respondent in its Statement of Claim before the Arbitral Tribunal. He further draws my attention to Clause 7.3 of the contract to contend that the MGQ is to be calculated for each completed year. He submits that in the present case, due to certain force majeure condition, the second year could not be treated to have been completed and therefore, the direction passed by the Arbitral Tribunal is even otherwise incorrect and premature. He further submits that though in Clause 7.3 of the agreement the MGQ is prescribed as 3MMT per annum of coal, the Ministry of Environment and Forest has given a clearance of only 1.5 MMT per annum in favour of the appellant and therefore, the MGQ as provided in Clause 7.3 of the agreement has to be revised accordingly. He further submits that the contract between the parties was terminated by the appellant by its notice dated 24.07.2017 and if the force majeure condition is taken into account, the termination would have been effected in the second year of operation and accordingly the respondent would not be entitled to the MGQ as provided in Clause 7.3 of the agreement.

(3.) I have considered the submissions made by the learned senior counsel for the appellant, however, I am unable to agree with the same. One of the important aspects of this case is that for the first year of operation the respondent has made a similar plea for release of MGQ in its favour. The same was granted by the Arbitral Tribunal in favour of the respondent on a similar condition of furnishing a bank guarantee by its order dated 15.07.2017. The appellant, being aggrieved of the same, challenged the order before this Court by way of ARP. A. (COMM.) 28/2017. The same was dismissed by this Court by its order dated 25.10.2017. The appellant thereafter, challenged the said order before the Supreme Court by way of Special Leave Petition to Appeal (c) No. 35103/2017, however, the same was also dismissed by order dated 09.01.2018. In my opinion, the plea raised by the learned senior counsel for the appellant is an attempt to have a second bite of the cherry. All pleas raised by the appellant have already been considered by the Arbitral Tribunal, by this Court and even by the Supreme Court in its earlier orders. The appellant cannot be allowed to re-agitate the same issues second time over.