BSES RAJDHANI POWER LTD Vs. R.C. GUPTA

JUDGEMENT

(1.) THIS appeal/petition has been preferred under Section 37 of the Arbitration and Conciliation Act, 1996 (in short 'the Act') against an order of the Arbitrator dated 27.2.2006 passed on an interim application under Section 17 of the Act.

(2.) THE facts in nutshell are that during the pendency of dispute before the learned Arbitrator, petitioner herein had come out with a scheme in December, 2005 called Late Payment Surcharge (LPSC) Waiver Scheme. Under the scheme, those consumers who were having disputes and whose claims were under litigation were given an opportunity to apply to the petitioner and avail the scheme of the petitioner for waiver of late payment surcharge under the scheme. As per the scheme, the consumer was to pay full principal dues and get 100% waiver of LPSC without prejudice to the pending litigation. Option was also given to the consumer that the consumer may withdraw the cases pending before the Court/Legal forums and pay full amount as per the scheme and in case consumer did not wish to withdraw the cases but only wish to mitigate the liability in the event of an adverse outcome, he may pay the entire principal amount under the dispute and obtain waiver of LPSC on an understanding that depending upon the outcome of the case any differential between the amount paid by the consumer under the waiver scheme and the amount finally decreed by the Court/forum shall be adjusted after the decree. The respondent herein wrote a letter dated 5.1.2006 to the petitioner stating as under: 1. Please refer to your letter dated 29.12.22005 wherein you have as a prerequisite to re -energizing our premises at 221, Okhla Industrial Estate sought payment of Rs. 75,65,321.70/ - which according to you is the principal amount outstanding against K. No. XI -378 -BS. As per our records the said amount above mentioned is subjudice and is subject to the final outcome of pending litigation. 2. However keeping in mind our urgent need for electricity the undersigned has no choice but to accept your proposal for payment of Rs. 75,65,321.70/ - in the mode and manner mentioned herein after as a prerequisite to re -energizing. The said payment shall be subject to any further orders/directions of the ocurt and/or arbitrator and without prejudice to the rights of the undersigned as may be finally decided by the appropriate adjudicatory authority and BRPL will be solely liable to refund any amounts due to us. This is consistent with the third terms and condition mentioned in overleaf in your LPSC waiver scheme application form, already submitted by us.

(3.) IT was stated by you, during our meeting on 28th Dec 2005, that all costs incurred on re -energizing will be borne by BRPL with the possible exception of cable cost. 5. The undersigned shall be provided a commercial connection instead of the industrial connection. In view of this letter, the petitioner's officer made a note on the letter itself that 'the proposal given in paras 1 -4 shall be subject to assessment and for equipment of consumer refurbishment/replacement cost shall be payable by the consumer/BRPL as per norms'. It was also noted that five cheques each of Rs. 15,13,064/ - were received from the consumer. 3. After availing the scheme and after encashment of first cheque only, the respondent moved an application before the learned Arbitrator that the petitioner should be stopped from encashing remaining cheques but should be directed to energize the commercial connection without encashment of the remaining cheques and the petitioner should also bear the cost of energization. The learned Arbitrator allowed the application and directed that the petitioner should get only second cheque dated 6.2.2006 cleared and on second cheque being cleared, the petitioner shall re -energize the electric connection within 15 days on encashment of second cheque and the cost of the installation and re -engerization shall also be borne by the petitioner. The petitioner was restrained from presenting the rest of the three cheques till further orders. It is this order which is subject matter of the present appeal. 4. The first objection of the respondent is that the appeal was not maintainable under Section 37 of the Arbitration and Conciliation Act, 1996 since the proceedings before the learned Arbitrator were under Arbitration Act, 1940 and there was no provision of appeal under the old Act of 1940.