VISHAL MALLEABLES LTD. Vs. BHARAT HEAVY ELECTRICALS LTD.

JUDGEMENT

(1.) Challenge has been made to the award dated 15.06.2003 passed by the three member Arbitrators.

(2.) The dispute was preferred by the claimant on the basis of the agreement dated 13.12.1995. As per the agreement dated 13.12.1995, ten numbers of Wind Mills were to be supplied to the respondent-M/s.Vishal Malleables and the claimant agreed for supply, erection, commissioning, operation and maintenance for one year. The respondent agreed to pay the contract price as per the scheduled payments. Wind electric generator machines were commissioned to the specification of the respondent before 01.07.1996, the respondent did not make the full payments and the payments as per the terms of the contract and there was belated payments. Therefore, the claimant has sent reminders/preferred for recovery of balance amount payable to the 10 Wind Mills supplied by them. The respondent however, raised contentions that there are defects in the Wind Mill and it was verified that the Wind Mills supplied were not up to the mark and not produced energy as guaranteed. Therefore it is the contention of the respondent that their reduction of the money is valid. Besides they also raised the plea of limitation, however the plea of limitation has been given up during Arbitral proceedings. Despite the fact of plea of limitation has been given up, the learned Arbitrator has gone into the issue of limitation and found that the supply agreement and O and M, shall forms part of the same contract and also taking note of the several correspondence between the parties, came to the conclusion that the claim is not barred by limitation and passed an award. As against the the award the present petition is filed.

(3.) The learned counsel appearing for the petitioner herein canvassed only two points. The foremost challenging to the award is that the claim is barred by limitation and the second point is that there is no reference as per Section 21 of the Act to decide the issue by Arbitrator. The first notice does not contemplate the recovery of the outstanding due amount based on the supply agreement, but it deals only with O&M, therefore the Arbitrators ought not to have decided the issue beyond the scope of reference.