Full Text
FAO(OS) No.345/2010 & CM Nos.9062/2010, 21064/2010
& CM 7691/2011
Larsen & Toubro Limited …..Appellant through
Mr P.H.Parekh, Senior Advocate with Mr Sameer Parekh, Mr Sumeet Lall, Mr Arjun Garg, Ms Smita Bhargava and Ms Ritika
Sethi, Advocates
Mr Parag P.Tripathi, ASG with Mr Vikas Goel and Mr Kunal Dutta, Advocates
Date of hearing: 6th May, 2011
Date of Decision: 3rd June, 2011
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
JUDGMENT
1. Whether reporters of local papers may be allowed to see the Judgment? No
2. To be referred to the Reporter or not? No
3. Whether the Judgment should be reported in the Digest? No VIKRAMAJIT SEN, J. The present Appeal arises from the Order of the learned Single Judge dated 9th September, 2009 dismissing the Objections against an Award dated 13th May, 2009. The pivotal question raised in the Objections to the Award by the Petitioner/Appellant was the interpretation of Clause 70 of the Conditions of Particular Application (COPN) interpreted by FAO(OS) 345/2010 2011:DHC:3134-DB the learned Arbitrator in relation to the reimbursement of enhanced royalty charges. The Petitioner’s contention before the learned Single Judge was that Boulder and sand, which were not included in the 58 commodities, fluctuation in price whereof would determine the Whole Sale Price Index (WPI), should have been considered while calculating the enhancement in light of Clause 70.8, which stipulates fluctuation of WPI on account of Subsequent Legislation. Though NHAI –vs- ITD Cementation India Ltd., 2008 (100) DRJ 432 was cited before the Single Judge, same was not applied. However, in our view, the questions raised by the Appellant are similar to the ones raised in ITD Cementation. In FAO(OS) 140/2008 decided on 29.11.2010 and FAO(OS) 347/2010 decided on 9.2.2011. Two Division Benches have held that the questions raised in those Appeals were covered by ITD Cementation against which an SLP is said to be pending before the Hon’ble Supreme Court. However, instead of keeping the Appeals pending, awaiting the decision in the SLP, the Division Benches disposed of those Appeals in terms of ITD Cementation. Mr Tripathi, learned ASG sought to argue that this course of action would amount to interference with the finding of the learned Arbitral Tribunal which is not warranted by the Arbitration & Conciliation Act,
1996. The Course of action which commends itself to us in the present Appeal is to allow the Appeal as well in the light of ITD Cementation. Any other course of action would amount to inconsistency in views of the Division Benches. In these circumstances, the Appeal is allowed. All pending Applications stand disposed of.
VIKRAMAJIT SEN, J. SIDDHARTH MRIDUL, J. June 03, 2011