Delhi High Court - Orders
Italian Thai Development vs Ntpc Ltd on 22 August, 2022
Author: Prateek Jalan
Bench: Prateek Jalan
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 343/2022
ITALIAN THAI DEVELOPMENT ..... Petitioner
Through: Mr. Narender Hooda, Senior
Advocate with Mr. Aditya Mishra
& Mr. Shaurya Lamba, Advocates.
[M:-9810188819]
versus
NTPC LTD ..... Respondent
Through: Mr. Tarkeshwar Nath, Advocate
for Mr. S.B. Upadhyay, Senior
Advocate with Mr. Lalit Mohan,
Mr. Harshit Singh & Mr. Shivam
Roy, Advocates for NTPC
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 22.08.2022 I.A. 13045/2022(exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of.
O.M.P. (COMM) 343/2022
1. By way of this petition under Section 34 of the Arbitration and Conciliation Act, 1996, the petitioner assails an arbitral award dated 16.03.2022 [as modified by an order dated 12.05.2022] arising under a contract for "Main Civil Works Package I: Dam, Spillway and Power Signature Not Verified Digitally signed O.M.P.(COMM) 343/2022 Page 1 of 3 By:SHITU NAGPAL Signing Date:23.08.2022 12:08:57 Intake Package" dated 12.12.2003 ["the Contract"].
2. Mr. Narender Hooda, learned Senior Counsel for the petitioner, assails the award on two grounds:-
a. In so far as it directs refund of the amount of ₹169,43,69,562/- by the petitioner to the respondent.
b. In so far as it declines award of interest on the claim for damages awarded to the petitioner.
3. As far as the order for refund is concerned, Mr. Hooda submits that the respondent had made an application for set-off of any amount awarded in favour of the petitioner against amounts of advance furnished by it to the petitioner, and had also sought permission of the Arbitral Tribunal to raise a claim for refund of the balance amount, but had not sought any direction for refund of the amount in these proceedings. Mr. Hooda submits that the respondent's application to this extent was allowed by the Arbitral Tribunal vide an order dated 27.08.2021, but in the impugned award, the Arbitral Tribunal has directed refund of the balance amount to the respondent. He contends that this is beyond the scope of the reference and without giving the petitioner any opportunity to contest the case for a refund.
4. As far as the interest is concerned, Mr. Hooda submits that clauses 77 and 78 of the Agreement do not bar the award of interest on the claim for damages. He points out that the limited scope of Clauses 77 and 78 is recognized in paragraph 4.11 of the award, but submits that the Arbitral Tribunal in paragraph 4.12 of the award takes a different view by stating that the payment of interest is barred in its entirety.
5. I am of the view that the aforesaid contentions merit further Signature Not Verified Digitally signed O.M.P.(COMM) 343/2022 Page 2 of 3 By:SHITU NAGPAL Signing Date:23.08.2022 12:08:57 consideration.
6. Issue notice. Mr. Tarkeshwar Nath, learned counsel, accepts notice on behalf of the respondent. At his request, the respondent is granted liberty to file a reply to point out certain inconsistencies in the stand taken by the petitioner in this petition, as opposed to the stand taken by it in other proceedings. He may do so within four weeks. The respondent may also file any additional documents which were part of the arbitral record within four weeks.
7. Both parties may file their written submissions not exceeding five pages each, alongwith copies of any judgments/orders upon which they wish to rely within the same period.
8. List on 21.11.2022.
PRATEEK JALAN, J AUGUST 22, 2022 'pv' Click here to check corrigendum, if any Signature Not Verified Digitally signed O.M.P.(COMM) 343/2022 Page 3 of 3 By:SHITU NAGPAL Signing Date:23.08.2022 12:08:57