Madras High Court
Arkay Energy (Rameswarm) Limited vs Tidel Park Limited on 23 March, 2023
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
Arb.O.P.No.274 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on 23.02.2023
Order pronounced on 23.03.2023
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
Arb.O.P.No.274 of 2021
and
A.No.4623 of 2021
Arkay Energy (Rameswarm) Limited,
Rep. by its Authorised Signatory
Mr.T.S.Das,
No.20, Old No.129, Chamiers Road,
Nandanam, Chennai – 600 035.
... Petitioner
Vs.
TIDEL Park Limited
Rep. by its Managing Director,
Mr.B.Elangovan
No.4, Rajiv Gandhi Salai,
Taramani, Chennai – 600 113.
... Respondent
PRAYER : This Arbitration Original Petition has been filed to set aside the
impugned award dated 07.01.2021 and additional award dated 05.03.2021.
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For Petitioner : M/s.Anirudh Krishnan
Mr.K,Ramkishore
Mr.Varun Venkatesan
For Respondent : Mr.M.Jose John
Mr.M.Narendran
Ms.Lilly Francis
For M/s.King and Partridge
ORDER
The petitioner, Arkay Energy (Rameswarm) Limited (Arkay), was the respondent before the Arbitral Tribunal. Arkay is a gas based electricity generation company. After obtaining permission from the Tamil Nadu Electricity Board (TNEB) for supply of electricity to third party consumers, Arkay entered into two separate agreements [a shareholders agreement (SHA) and a power supply agreement(PSA)] with the respondent, TIDEL Park Limited (TIDEL Park), on 10.11.2005. Pursuant thereto, disputes arose between Arkay and TIDEL Park with regard to alleged breach of the PSA. Eventually, the PSA was terminated by TIDEL Park on 19.01.2011.
2. After such termination, initially, TIDEL Park initiated civil proceedings before this Court (C.S.No.389 of 2011) in relation to disputes Page 2 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 arising both under the SHA and PSA. Arkay filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (the Arbitration Act) for reference of disputes to arbitration in view of the arbitration clause in the PSA. The application under Section 8 was allowed. The order was carried in appeal by TIDEL Park before the Division Bench but the Division Bench dismissed the appeal. In these circumstances, after issuing a notice under Section 21 of the Arbitration Act, the Arbitral Tribunal was constituted.
3. Before the Arbitral Tribunal, TIDEL Park claimed a sum of Rs.4,85,32,773/- towards short supply and non-supply of power by Arkay. The said claim was made by computing the difference between the TNEB tariff and the rate at which Arkay was required to supply power. Interest was claimed on the above amount at the rate of 13% per annum. Arkay made a counter claim for a sum of Rs.23,66,140/- towards unpaid dues and interest thereon at the rate of 13% per annum from the date the amount became payable until realization. Upon examining the pleadings and material documents, the Arbitral Tribunal framed 11 issues. TIDEL Park adduced Page 3 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 evidence by examining Mr.N.R.S.Ganesh Babu, General Manager (Finance) as CW-1 and by exhibiting 60 documents as Exs.C1-C60. Arkay examined Mr.T.S.Das, Vice-President (Commercial), as RW-1 and exhibited 57 documents as Exs.R1-R57. By a majority award dated 07.01.2021 and additional award dated 05.03.2021, the principal claim of Rs.4,85,32,773/- was allowed with interest thereon at the rate of 13% per annum from 11.09.2017 until realization. In addition, the petitioner was directed to pay a sum of Rs.66,10,000/- as costs. By the minority award, all the claims and counter claims were held to be barred by limitation. By this petition, Arkay challenges the above mentioned awards under Section 34 of the Arbitration Act. For ease of reference, the majority award, including the additional award, is referred to as the Award in this order.
4. Oral arguments on behalf of Arkay were advanced by Mr.Anirudh Krishnan, learned counsel; and on behalf of TIDEL Park by Mr.Jose John, learned counsel. Written arguments were also provided by the parties.
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5. The first contention of Mr.Anirudh Krishnan was that the claims are barred by limitation because both the supply and payment obligations were monthly and, therefore, limitation for non-supply and short supply should be computed from the end of the relevant month. Learned counsel submitted that the PSA provided for supply of power on monthly basis by Arkay to TIDEL Park. In this connection, he referred to the definitions of “Billing Period” and “Billing Month” in Article I and to Article – II.1.3 which stipulates that the captive consumer shall consume the monthly guaranteed energy in a billing month. He also referred to Article – III.1.2 and pointed out that TIDEL Park was required to pay Arkay on monthly basis for the monthly delivered energy at the TNEB's prevailing tariff less 10% on TNEB's prevailing energy charges. By drawing reference to the statement of claim, particularly paragraphs 29 and 30 thereof, he submitted that the claims for payment were also made on monthly basis.
6. According to learned counsel, the appropriate article for purposes of limitation is Article 55 of the Limitation Act, 1963 (the Limitation Act). In terms thereof, he contended that the limitation period would run from the date of breach. Since the supply obligation and payment Page 5 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 obligation were on monthly basis, learned counsel contended that limitation should be computed from the date of the respective breach. He further contended that these are, therefore, alleged consecutive breaches and not alleged continuing breaches as per Article 55. In order to substantiate this contention, he referred to and relied upon the judgment of the Hon'ble Supreme Court in State of Gujarat v. Kothari and Associates (State of Gujarat), (2016) 14 SCC 761, particularly paragraph 11 thereof. By inviting my attention to the said judgment, learned counsel submitted that the Court was dealing with a contract for providing lining to the main canal line. In that factual context, the Supreme Court applied Article 55 of the Limitation Act and concluded that the breaches were successive or multiple breaches and not a continuing breach. Likewise, learned counsel submitted that the claim, in this case, relates to short supply or non-supply of the monthly contracted quantity. Therefore, the alleged breaches are successive and limitation should have been computed from the date of each breach. He concluded his arguments on this aspect of limitation by contending that the Award is liable to be set aside because a binding precedent, State of Page 6 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 Gujarat, was disregarded and that disregarding a binding precedent contravenes the fundamental policy of Indian law. He also pointed out that the plausible interpretation qualification that attaches to Section 34(2A) of the Arbitration Act does not apply when public policy is contravened.
7. With regard to limitation, the next aspect that was dealt with by learned counsel was the implication of filing a civil suit by TIDEL Park. According to learned counsel, the filing of a civil suit does not stop the limitation clock as regards the commencement of arbitral proceedings because limitation is remedy-specific. As regards arbitral proceedings, he contended that the limitation clock stops only upon receipt of the Section 21 notice by the counter party. Consequently, he submitted that the decision of the Calcutta High Court in M.D.Enterprise v. Whirlpool of India Ltd. (M.D.Enterprise), 2013 SCC Online Cal. 22787, is patently erroneous and results in rewriting Article 55 of the Limitation Act. He substantiated this contention by inviting my attention to the portion of the judgment where the Court holds that the limitation clock stops qua the primary claim upon the suit being filed. He also drew my attention to the finding that the limitation Page 7 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 clock would re-start upon the Section 8 application being allowed and that a further three years would be available to institute arbitral proceedings. Mr. Anirudh Krishnan contended that this approach contravenes Section 9 of the Limitation Act, which provides that the limitation period does not stop once it starts. By way of an alternative argument, he submitted that Section 14 of the Limitation Act could have been considered by the Arbitral Tribunal but the Arbitral Tribunal decided the matter solely with reference to the judgment of the Calcutta High Court.
8. Learned counsel concluded his arguments on limitation by reiterating that the law on limitation is part of public policy and, therefore, the contravention of the Limitation Act results in the Award being contrary to public policy. Consequently, interference is warranted as per the law laid down in Associate Builders v. Delhi Development Authority (Associate Builders), (2015) 3 SCC 49, and Ssangyong Engineering and Construction Co. Ltd. v. National Highways Authority of India (Ssangyong Engineering), (2019) 15 SCC 131.
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9. Turning to the merits of the adjudication, learned counsel submitted that the Arbitral Tribunal committed patent errors in failing to examine Section 54 of the Indian Contract Act, 1872 (the Contract Act) with regard to the performance of reciprocal obligations. By referring to paragraph 10 of the Award at internal page 104 and typed set page 441, he submitted that the Arbitral Tribunal only examined the contractual clauses and not Section 54 of the Contract Act. He also referred to paragraphs 15, 17 and 19 at internal pages 107, 108, 109 and 110 of the Award to reiterate the contention that Section 54 was disregarded. In order to establish that Section 54 was placed before the Arbitral Tribunal, learned counsel referred to paragraph 168(iv) of the written arguments of Arkay before the Arbitral Tribunal at pages 288 to 315 of the typed set, wherein Section 54 was expressly referred to. Learned counsel further relied upon the letter dated 24.04.2008 from Arkay to TIDEL Park (Ex.C-15) and pointed out that TIDEL Park was put on notice that supply would be stopped unless payments were made in full.
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10. Therefore, learned counsel contended that the Arbitral Tribunal posed and answered the wrong question: whether the contract enables the petitioner to stop supplies instead of the pertinent question:
whether Section 54 of the Contract Act enables the petitioner to stop supplies. Learned counsel further contended that the Award is rendered patently illegal on account of the Arbitral Tribunal failing to consider and answer the pertinent question.
11. Learned counsel next contended that the Arbitral Tribunal disregarded material evidence on the obligation to supply power on monthly basis. He submitted that letters dated 07.12.2010 (Ex.C-44) and 28.12.2010 (Ex.C-45) by which TIDEL Park had raised claims for short supply and non- supply by tabulating the quantities that should have been supplied monthly were disregarded. By drawing reference to the note on limitation dated 08.01.2020 of TIDEL Park before the Arbitral Tribunal, learned counsel contended that it contained an admission that the payment obligation is a monthly obligation, but such admission was disregarded. Since material evidence was disregarded, learned counsel contended that interference is Page 10 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 called for as per principles formulated in Associate Builders and Ssangyong Engineering. According to learned counsel, mere extraction of contractual clauses is insufficient to salvage the Award and that the conclusion that the breaches are continuous is unreasoned and falls short of the standard of proper, intelligible and adequate reasons prescribed in Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd. (Dyna Technologies),(2019) 20 SCC 1 .
12. Learned counsel also advanced the contention that the respondent waived its right to receive supplies and that such waiver is discernible from the course of dealing between the parties. In this connection, he referred to and relied upon the judgment of the Court of Appeals in Amalgamated Investment and Property Co. Ltd. v. Texas Commerce International Bank Limited, (1982 1 QB 84). By referring to the conclusions of the Arbitral Tribunal at internal pages 103 to 111 of the Award, wherein issue nos.2 and 3 were determined, learned counsel submitted that the Arbitral Tribunal failed to consider the evidence on waiver and course of dealing. This resulted in recording unsubstantiated Page 11 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 conclusions. For these reasons, he submitted that the Award is liable to be set aside.
13. Mr.Jose John, learned counsel, made submissions in response and to the contrary. After providing an overview of the statutory regime under the Electricity Act, 2003 in relation to captive consumers, learned counsel submitted that the obligations under the PSA are continuing obligations. By turning to the recitals of the PSA, he pointed out that the said recitals record the agreement of the parties that TIDEL Park would purchase 26 million kilowatts per year, which is equivalent to 3 megawatts per year on 'firm' basis. By turning his focus on Articles – II and III, he pointed out that the reciprocal obligations of parties to supply and pay for power, respectively, are set out therein. By drawing my attention to Article – XI.2, he submitted that the obligation to supply and pay compensation for short supply survives even on termination of the PSA.
14. In these circumstances, learned counsel submitted that the conclusion of the Arbitral Tribunal that the supply obligation was a Page 12 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 continuing obligation cannot be faulted. By drawing reference to paragraphs 23 and 24 of the Award, he pointed out that the Arbitral Tribunal examined the clauses of the PSA before recording the conclusion that the supply obligation is continuous and that the case does not present the situation of successive or multiple breaches as contended by Arkay.
15. He also submitted that the Award does not warrant interference on the ground that the Arbitral Tribunal should not have relied upon the judgment of the Calcutta High Court in M.D.Enterprises. Learned counsel contended, in this regard, that the reliance on the above mentioned judgment does not lead to the conclusion that the Award is patently illegal. When more than one view on the interpretation of the Limitation Act is possible, the Arbitral Tribunal considered the law and chose to apply the interpretation placed on the Limitation Act by the Calcutta High Court. According to learned counsel, even if such interpretation is erroneous, it does not justify interference under Section 34 of the Arbitration Act. Page 13 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021
16. With regard to non-payment of deemed demand charges and peak hour charges, learned counsel referred to the findings at internal pages 104 and 115 of the Award to the effect that the PSA does not confer on Arkay the right to stop supply of power for non-payment of the said charges. He refuted the contention with regard to waiver and course of dealing by referring to communications from TIDEL Park to Arkay between April 2006 and March 2008 (Volume II, pages 95-119; 200 and 204).
17. With regard to reliance on the Section 9 orders, learned counsel submitted that it is open to the Arbitral Tribunal to adopt the reasoning of this Court even if such reasoning is contained in interlocutory orders. Therefore, learned counsel submitted that no case is made out for interference with the Award.
18. By way of rejoinder, learned counsel for Arkay reiterated that an arbitral award may be interfered with if a binding precedent is disregarded. For this proposition, he relied upon paragraph 20 of Ssangyong Engineering wherein paragraph 27 of Associate Builders was cited with approval. According to learned counsel, the Award is vitiated Page 14 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 because the Arbitral Tribunal disregarded the judgment in State of Gujarat. He further contended that paragraphs 23 and 24 of the Award do not contain any justification for recording the conclusion that State of Gujarat is distinguishable. On the issue of limitation, he submitted that stopping and starting the clock of limitation is contrary to Section 9 of the Limitation Act and that the judgment of the Calcutta High Court, which was relied upon by the Arbitral Tribunal, rewrites Article 55 of the Limitation Act. He further submitted that the conclusion that the Section 8 application would amount to invoking the arbitration clause is contrary to the judgment of this Court in Cash and Gain Finance and Investments v. Manjula Udaya Shankar, 2009 (2) CTC 234. By referring to the judgment of the Supreme Court in Dyna Technologies, he contended that an arbitral award may be interfered with if it is unintelligible and that the Award is unintelligible because the Arbitral Tribunal posed and answered the wrong question.
Discussion, analysis and conclusions
19. The first question that falls for consideration is whether the conclusions of the Arbitral Tribunal on limitation call for interference. The Arbitral Tribunal recorded two conclusions with regard to limitation after Page 15 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 framing issue no.1 in relation thereto. In order to determine this issue, the Arbitral Tribunal carefully examined the PSA (Ex.C-7). After extensively setting out the articles of the PSA, the Arbitral Tribunal recorded the conclusion at paragraphs 23 and 24 (internal pages 93 to 95 of the Award) that the supply obligation under the PSA is continuous and not successive. Paragraphs 23 and 24 are set out below:-
“23) The argument of the learned counsel for the Respondent that the breach is not continuous and there are successive breaches, which are different from continuous cause of action are far-fetched and is unacceptable for the reason that there are sub-clauses and conditions that exists in the Power Supply Agreement. Article 1.1.7 defines Contracted demand is equal to the demand of Captive consumer contracted with the Respondent for drawl of power on firm basis other than the option to purchase on non-firm basis. Similarly, Article I.1.12 stated that "Monthly Guaranteed Energy" means the power requirement specified by the Captive Consumer for a month and intimated to the Respondent as the drawl schedule of the Captive Consumerfor the month. "Contract Year" means [Art.1.1.6] the period starting on the first supply date of power and extending through the first anniversary of the Start Date and each anniversary thereafter except that for the year during Page 16 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 which the expiration date of this Agreement occurs.
24) The obligations of the Respondent as per Ex.C-7 is, it should supply the contracted energy to the captive consumer during the currency of the Agreement [Art.XI.2.2].
The term of Agreement is six years from the date of commencement of supply [Art.VI.1.1]. Even if the agreement is terminated as per the provisions contained in Article VI, the obligations in this Agreement will remain unaffected [Art.VI.5]. The obligation of the parties shall survive cancellation, expiration or termination of the Agreement, on compensation for short supply by the Respondent to the Claimant or payment by the Claimant to the Respondent for the energy consumed. It stipulates cancellation, expiration or termination of the Agreement shall not relieve the parties of their obligations under the Agreement [Art.XI.1 and XI.2]. Schedule I appended to Ex.C-7 makes it very clear that the Annual Power requirements from the Respondent is 26 million units on firm basis and 32 million units on non-firm basis. A combined reading of all the above clauses in Ex.C-7 would definitely point out that the obligation is continuous during the term of the Contract and the case does not present a successive or multiple breaches as contended by the learned counsel for the Respondent. The judgment relied on by the learned counsel, State of Gujarat Vs. Kothari and Associates is clearly distinguishable on facts as Ex.C-7 contains excessive clauses Page 17 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 as have been referred in the previous paragraphs and therefore this argument does not hold water.
20. From the above paragraphs, it is evident that the Arbitral Tribunal took into account the fact that the supply obligation continues not only during the currency of agreement (Article XI.2.2) but even after termination (Article XI.1 and Article XI.2). By examining and interpreting these clauses holistically, the Arbitral Tribunal concluded that the supply obligation is continuous. On that basis, the Arbitral Tribunal also concluded that the judgment in State of Gujarat is distinguishable. The reasons indicated by the Arbitral Tribunal cannot be characterized as unintelligible or inadequate. Therefore, the test formulated in Dyna Technologies is satisfied.
21. In State of Gujarat, the Supreme Court dealt with a particular contract. By interpreting the said contract, the Supreme Court concluded that the breaches were successive and not continuous. Any judgment is rendered in a specific factual matrix, which may include a specific Page 18 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 contractual context. The Arbitral Tribunal, in this case, recorded cogent reasons for concluding that the supply obligation is continuous and not successive and, on that basis, declined to apply the judgment in State of Gujarat. The said decision of the Arbitral Tribunal certainly cannot be construed as disregarding a binding precedent.
22. The Arbitral Tribunal also examined the law laid down by the Calcutta High Court in M.D.Enterprises. In that case, the Calcutta High Court reached two conclusions: first, that the limitation clock for the primary claim stops upon the institution of the suit; and secondly, that from the date on which the Section 8 application is allowed, arbitral proceedings should be initiated within three years. The said principle was applied by the Arbitral Tribunal. With regard to application of law, after the amendment of the Arbitration Act by Act 3 of 2006, mere erroneous application of the law is not a ground for interference. This principle is recognized in paragraph 37 of Ssangyong Engineering. Even assuming that the reliance on M.D.Enterprises by the Arbitral Tribunal is not justified, at worst, it would Page 19 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 amount to mere erroneous application of the law.
23. Learned counsel for Arkay contended that the law on limitation is part of public policy. There can be no quarrel with this submission, but it does not lead to the inference that any error in interpreting or applying provisions of the Limitation Act per se contravenes the fundamental policy of Indian law. As held in Vijay Karia v. Prysymian Cavi E Sistemi SRL, 2020 SCC OnLine SC 177, the fundamental policy of Indian law refers to non-derogable principles, which are enshrined in statute or otherwise, and from which no deviation or compromise is acceptable. While it is conceivable that such breach of fundamental policy may arise out of a decision concerning the law of limitation, this case does not provide an illustration thereof. Indeed, a patent or egregious error in determining an issue relating to limitation could result in an arbitral award being set aside as patently illegal. Because the Award does not contain such patent or egregious error in the decision on limitation, interference is not warranted with the conclusions in the Award in such regard. The contentions on merits remain to be considered.
24. Learned counsel for the petitioner contended that Section 54 Page 20 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 of the Contract Act was disregarded although it was placed for consideration before the Arbitral Tribunal. Section 54 provides as under:-
“ 54. Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises.—When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract.”
25. On examining Section 54, it is evident that it deals with a contract consisting of reciprocal promises, of which one promise cannot be performed or claimed without performing the other. Learned counsel for Arkay submitted that the payment of peak hour charges and deemed demand charges is a prerequisite or precondition for Arkay to fulfil the reciprocal supply obligation. This contention was negatived by the Arbitral Tribunal, Page 21 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 after considering the contractual clauses, by recording, in relevant part, the following findings at internal pages 114 and 115 of the Award:-
“.... In view of the above mentioned clauses, it is not open to the Respondent to contend that they could not supply power for March 2008 due to non-payment of deemed demand charges and peak hour charges. For the non-payment and default, the Respondent can send a default notice and consequently terminate the Agreement itself, provided it has complied with all the provisions of the PSA. Admittedly, the Respondent is also a violator of the PSA and admittedly the Respondent did not come forward to terminate the Agreement. Further, nowhere in the PSA, there is any right reserved to the Respondent to stop supplying power for non-payment of deemed demand charges and peak hour charges by the Claimant. Even otherwise, it cannot be said that the Claimant defaulted in the payment of the amount raised in the invoice consistently as contemplated in Article VI.....”
26. From the above extract, it is evident that the Arbitral Tribunal Page 22 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 concluded that the supply obligation is not contingent on payment of deemed demand charges and peak hour charges. Effectively, the conclusion is that these are not reciprocal or corresponding obligations. In order to justify default by relying upon Section 54 of the Contract Act, Arkay had to cross two hurdles. The first hurdle was with regard to establishing that the obligations are reciprocal. As discussed above, even that hurdle was not crossed. The second hurdle under Section 54 is that the reciprocal obligations should be such that the supply obligation cannot be fulfilled or the performance thereof cannot be claimed until the obligation to pay deemed demand charges and peak hour charges is fulfilled by the counter party. It certainly cannot be said that the supply obligation is incapable of being performed unless deemed demand charges and peak hour charges are paid. As to whether performance of the supply obligation cannot be claimed, in the context of non-payment of deemed demand charges and peak hour charges, the Arbitral Tribunal has, upon appreciation of the relevant contractual clauses, recorded categorical findings negativing the said contention. These conclusions are based on a reasonable appraisal of the relevant contractual clauses. Therefore, I see no reason to interfere. Page 23 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021
27. Learned counsel for Arkay also contended that the pleading on waiver and course of dealing were disregarded. Before the Arbitral Tribunal, Arkay primarily relied upon force majeure and restrictions imposed by TNEB to justify non-supply of power. After considering these contentions, the Arbitral Tribunal recorded cogent reasons, including by adopting the reasoning of this Court in Section 9 orders to conclude that the non- performance of the supply obligation is not justified under the force majeure clause or because of the alleged restrictions imposed by TNEB. Learned counsel for TIDEL Park also adverted to the communications at pages 95-119; 200 and 204 of Volume II to contend that there was no waiver. In these circumstances, the alleged non consideration of contentions on waiver and course of dealing do not go to the root of the matter. Therefore, Arkay has completely failed to make out a case warranting interference with the Award.
28. For reasons set out above, Arb.O.P.No.274 of 2021 is Page 24 of 26 https://www.mhc.tn.gov.in/judis Arb.O.P.No.274 of 2021 dismissed. Consequently, A.No.4623 of 2021 is closed. In the facts and circumstances, the parties shall bear their own costs.
23.03.2023
NCC :Yes/No
Internet :Yes/No
Index :Yes/No
PKN
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Arb.O.P.No.274 of 2021
SENTHILKUMAR RAMAMOORTHY, J.
PKN
Arb.O.P.No.274 of 2021
and
A.No.4623 of 2021
23.03.2023
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