STERLITE TECHNOLOGIES LIMITED Vs. BHARAT SANCHAR NIGAM LIMITED

JUDGEMENT

(1.) These two petitions arise out of a common award passed by the Arbitral Tribunal on 22.11.2010 in a dispute that has arisen between the claimant, M/s.Sterlite Optical Technologies Ltd. and the respondent, Bharat Sanchar Nigam Ltd. The parties are referred to as "Sterlite" and "BSNL" respectively.

(2.) O.P.No. 200 of 2011 has been filed by the ''Sterlite'' and O.P.No.774 of 2011 by the "BSNL". The facts in brief preceeding the filing of the above petitions by the respective parties are as follows:

(3.) The respondent had filed a counter which was in a form of a parawise comments where their primary contention was that they had not received the copy of Amended Fall Clause issued by the Central office of the BSNL. They would therefore contend that since they had not received the said letter/circular, the same had not been incorporated in the tender entered into between them and the petitioner. They would further contend that the dispute had been raised belatedly. They denied the receipt of the petitioner's letter dated 14.10.2005 marked as Ex.P3. In the counter, the respondents have admitted that the the petitioner has adhered to the delivery schedule and there has been delay in the purchase order being placed at the BSNL's end. The primary argument which has been put forth by the respondent is that the STP rate finalized for 24F OF Cable was Rs.35,400 per Km at Kolkata on 27.06.2006 and Rs.33,369 is per kilometer on 12.10.2006 at Kerala. Therefore it is the contention of the respondent that they have taken the lowest quote namely the quote given at Kerala. It was this price that was fixed by the supplies made after 12.10.2006. The argument of the respondent was that having signed the dotted line, it is not open to the petitioner to now turn around and contend that the price variation cannot be incorporated into the existing contract. However, the Arbitral Tribunal by its award dated 22.11.2010 held that for all these supplies made on or before 08.08.2006, the rates, as mentioned in the purchase order, was to be paid, but thereafter, it was only the lower revised price that was to be paid by "BSNL" to "Sterlite". The interest was denied since the disputed amount was not withheld with a malafide intention. However, the Arbitral Tribnal had stated that if the payment was not made beyond the period of 60 days, the same would carry simple interest at the rate of 12% per annum. The Arbitral Tribunal had arrived at its conclusion on the basis of the fact that "Sterlite" had signed the tender document, in which, the unamended Clause 24 was incorporated, and the Tribunal would observe that the said Clause was not objected to by "Sterlite" when they signed the documents. Further, as per Clause 24 in case "Sterlite" was not accepting the new price, it was well open to "Sterlite" to terminate the contract prospectively. However, such termination was to be at the risk and responsibility of "Sterlite". The Arbitral Tribunal has also observed that the letter dated 14.10.2005 sent by "Sterlite" to "BSNL" asking them to incorporate the amended Fall Clause 24 has not been received by "BSNL" and therefore, in the light of the above, the Tribunal had passed the order, which is the subject matter of challenge in these petitions. BSNL has challenged the award with reference to the portion that was against them in O.P.No.774 of 2012 and the Sterlite has challenged that portion which is against them in O.P.No.200 of 2011.