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6. TMT could not rectify the system as a result HPCL terminated the contract for non-performance and sought refund of the amount of Rs.56,15,925/- with interest. HPCL claimed to have performed their part of the contract for 585 units which were installed. Thus, admittedly 285 units were functioning. Later in the course of arbitration, it was revealed that even the remaining units were installed but had not been properly commissioned. HPCL contended that the project was a key project and could be considered as completed only upon implementation and performance of all units. The job scope was not divisible and there was no scope for making payment on piece meal basis. Correspondence was exchanged between the arbp1225.2012.odt parties, however, disputes were not resolved HPCL contended that they had given enough opportunities to TMT and six trials were allowed yet the results were not satisfactory. HPCL claimed refund of Rs.56,15,925/- being the amount paid to TMT and interest thereon at 18% from 20th November, 2007 to 20th November, 2008 and refund of Rs.29.41 lakhs allegedly paid to Airtel towards telephone charges and costs of arbitration.

12. Mr.Seksaria in the course of his submissions invited my attention to the fact that HPCL was not desirous of leading any evidence since it had relied only on the documents and in absence of evidence being led, the arbitrator could not have concluded that HPCL was entitled to refund of the amount paid. He submitted that the award itself acknowledged the fact that 285 units had been installed and commissioned and were arbp1225.2012.odt performing properly. It is only the remaining 266 units that were not commissioned. He submitted that 285 units were used and were in possession of HPCL and were not returned and HPCL was utilising the same at all material time and there was no justification for order of refund. Mr.Seksaria alluded to the fact that HPCL had not adduced any evidence and merely filed the documents in support of its claim. The documents could not be treated as evidence as contemplated under the Evidence Act. HPCL had not examined any witness so that TMT could have cross examined such person. An opportunity of cross examination was not available to TMT.

13. Mr.Seksaria invited my attention to the statement of claim in which HPCL had stated that in response to demand for refund TMT had vide letter dated 17th November, 2008 accepted delay on their part and requested HPCL to provide them an opportunity to demonstrate the efficacy of system at any of depots with two tankers at their cost. However, HPCL had demanded refund and threatened to invoke the arbitration agreement. According to TMT they have successfully demonstrated working of the system and also called upon HPCL to give them an opportunity to replace all devices with new devices. That TMT had agreed to replace existing devices without any additional cost and within the contract terms but this proposal was rejected by HPCL. It is submitted that even though proposal had been rejected, there arbp1225.2012.odt was no occasion for refund since HPCL were using 285 units in respect of which were satisfactorily installed and commissioned. He submitted that TMT had denied the claim and had instead made a counter claim in a sum of Rs.1,70,56,977/- which came to be incorrectly rejected. He submitted that in support of counter claim, TMT had led evidence of two Executive Engineers Mr.Sanjeev Telang and Mr.Milind Dalal. It is further submitted that testing carried in January 2009 were found acceptable and hence the claim for refund was unsustainable.

19. The agreed procedure therefore did not leave any room for the objections now sought to be raised. He therefore submitted that there was no irregularity as sought to be contended on behalf of TMT. At the subsequent meeting on 3rd December, 2009 after recording compliance, the submissions on behalf of HPCL were heard and in the course of submissions HPCL had opposed application filed by TMT to lead oral evidence. On that date the further course of action was agreed by both parties whereby HPCL was to file a written statement by email and the proceedings were adjourned to 28th December, 2009 for further hearing of oral evidence and a further course of action was agreed by both parties. On 28th December, 2009, the minutes to which my attention was drawn by Mr.D'Souza record that TMT would file their reply written submissions by email and inter alia agreed to the venue, sharing of fees/expenses and time fixed for filing evidence by way arbp1225.2012.odt of proof affidavits of the two witnesses. Thus, it was submitted that the arbitrator permitted TMT to lead evidence and there was no objection as to the fact that HPCL did not lead oral evidence. The two proof affidavits were filed at a subsequent meeting held on 9th March, 2010, on behalf of TMT one sworn by Mr.Milind Dalal and the other one by Mr.Sanjeev Telang. The proceedings indicate that after hearing the parties it was noted HPCL were to file counter affidavits or proof affidavits in response to proof affidavits filed by the TMT. If HPCL were filing proof affidavit/s, TMT would be at liberty to file counter affidavits within time specified and the deponent of affidavits were liable to be cross examined. The proceedings were then adjourned for cross examination of the witnesses. These witnesses were then cross examined as seen from the minutes of meeting dated 12th April, 2010 and 4th May, 2010. The matter came to be adjourned to 3rd September, 2010 and that date was rescheduled to 13th September, 2010. Oral arguments remained incomplete and the proceedings were then continued on 11th October, 2010. The proceedings continued on further dates when oral submissions were advanced.