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9. Shortly thereafter, the appellant/HSCL filed an application under Section 34 of the Arbitration & Conciliation Act, 1996 for quashing the order dated 11.2.2015 passed by the Appellate Authority whereunder, the Awards dated 10.4.2012 and 10.5.2012 were set aside and for setting aside the subsequent order dated 30.3.2016, dismissing the two review petitions filed by it (OMP (COMM) 411/2016). The respondent/NTPC entered appearance in the said proceedings and filed an application for seeking rejection of the petition on the ground that the dispute between the parties was referred for settlement in terms of the PMA and the Awards made by an Arbitrator appointed under the said mechanism, were challenged by it in appeal before the Law Secretary, Government of India, designated as the Appellate Authority under the PMA and having exhausted all the remedies available to it under the said mechanism, the appellant/HSCL's petition was not maintainable. In support of the aforesaid submission, learned counsel for the respondent/NTPC had placed reliance on a decision of the Supreme Court dated 13.7.2016 in 'M/s. Northern Coldfield Ltd. vs. Heavy Engineering Corp. Ltd& Anr.', reported as (2016) 8 SCC 685.

12. Aggrieved by the impugned order dated 7.12.2016 and the stand taken by the respondent/NTPC in its communication dated 3.1.2017, the appellant/HSCL has filed the present appeal.

13. Mr. Patwalia, learned Senior Advocate appearing for the appellant/ HSCL canvassed that the learned Single Judge ought to have followed the decision of the Supreme Court in the case of M/s. Northern Coldfield Ltd. (supra) and taken the view expressed therein to its logical conclusion by directing the respondent/NTPC to agree for the appointment of a Sole Arbitrator instead of leaving the matter to the whims of the respondent/NTPC who has now declined its consent for being referred to arbitration under the A&C Act. It was argued that the position taken by the respondent/NTPC in its communication dated 3.11.2017, has virtually left the appellant/HSCL without a legal remedy. Learned counsel contended that in any event, the stand of the respondent/NTPC that the disputes between the parties ought to be referred to the Cabinet Secretariat under the PMA, runs contrary to the judgment of the Supreme Court in the captioned case, wherein it has been held that arbitration proceedings conducted by an Arbitrator appointed under the PMA, is outside the statutory framework and any award made in terms of the PMA, is neither amenable for being set aside under the statute (earlier the Arbitration Act, 1940 and subsequently replaced by the A&C Act) and nor could the same be made rule of the court, for being enforceable as a decree.

27. In ordinary course, institution of a suit could have been an option available to the appellant/HSCL for setting aside the order dated 11.02.2015 passed by the Appellate Authority under the PMA, it being an inherent right vested in every person/entity, unless and until the statute imposes a bar on such an institution. But we cannot lose sight of the fact that the parties herein have themselves by means of an agreement in writing, agreed to settle all their disputes arising from the contract through arbitration. In fact, para 22.1.0 of the LOA dated 31.07.2003 stipulates that all differences and disputes between the parties arising out of the contract shall be settled by the process of settlement and arbitration and the provisions of the A&C Act shall apply to the said proceedings. Even though OM dated 12.06.2013 issued by the Department of Public Enterprises states in Para V that all CPSEs and Government Departments shall ensure inclusion of an arbitration clause in all existing and future contracts in favour of PMA and without such an incorporation, the PMA shall not entertain the disputes referred to it, the aforesaid clause governing the parties herein has not been altered, amended or modified by them in any manner. In any event, the arbitration clause incorporate in the subsequent LOA dated 3.2.2004 executed by the parties no longer holds good in view of the law declared in the case of Northern Coalfields (supra).

36. We cannot lose sight of the fact that arbitration is an alternate disputes resolution mechanism that is founded on an agreement in writing between the parties and once they have expressed their intent to submit themselves to arbitration for resolution of their disputes, the respondent/NTPC cannot be heard to state that if aggrieved by the orders passed under the PMA, instead of seeking recourse under the A&C Act as contemplated under the LOA's, the appellant/HSCL must be relegated to instituting a civil suit, merely because the said remedy is not barred in law. The Awards made under the PMA and challenged before the Appellate Authority under the very same mechanism were and continue to remain outside the framework of law governing arbitration and cannot be legally enforced in any court of law. Thus under the PMA, no quietus can be achieved to the dispute between the parties, unless and until both sides agree to be bound by the advise that may be given by the Cabinet Secretariat and undertake not to question the same by seeking recourse before the Court. But that is not so.