9911796707
TMI Blog2017 (2) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... that is, on the last date of limitation. 3. It is also not disputed that the petition as initially filed, was not accompanied by a certified copy of the arbitral award. In addition, there were large number of other defects and consequently, the petition was returned on 01.12.2016. It was re-filed on 16.12.2016 but the defects were not cured and the petition was returned on 17.12.2016. The petition was again re-filed on 02.01.2017 and was returned on 03.01.2017. Repeated opportunities were given to the petitioners to cure the defects but the petitioners took considerable time to do so and it is averred that the petitioners finally re-filed the petition on 23.01.2017, that is, more than 54 days after the petition was initially filed. The logs maintained by the registry indicate that the petition was re-filed on 24.01.2017; 28.01.2017 and 30.01.2017.The petition was also not accompanied with the applications for exemption and condonation of delay (IA 1332/2017 and 1333/2017) which were filed subsequently. It is seen that total period taken by the petitioners to file the defect free petition is beyond the period of 120 days as contemplated under Section 34(3) of the Act. 4. A Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Special Leave to Appeal (C) No. 30818/2015. The subject disputes referred to the sole arbitrator arose between the parties in connection with the Coal Purchase Agreement dated 27.08.2013 (hereafter 'CPA') and the Amended Coal Purchase Agreement dated 12.09.2013 (hereafter 'amended CPA') entered into between JSPL and the petitioners. In terms of the CPA, petitioner no. 1 (hereafter 'GNCL') undertook to supply 50,000 MT of NRE Australian Hard Coking Coal of the agreed specifications from mines at Australia (hereafter referred to as 'the product') between the period 01.09.2013 to 31.03.2014. JSPL claimed that it had made an advance payment of Rs. 24.75 crores in terms of the CPA, which was also secured by pledge of certain shares held by the petitioners in Bharat NRE Coke Limited. JSPL claimed that thereafter the petitioners demanded additional advance which was agreed to and on 12.09.2013, the amended CPA was executed. In terms of the said amended CPA, GNCL undertook to supply 65,000 MT of the product instead of 50,000 MT as agreed under the earlier CPA. JSPL also agreed to enhance the advance from Rs. 24.75 crores to Rs. 39 crores. 8. It is JSPL's case that GN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its defence as it may lead to an adverse impact on the creditors and can frustrate the move"; they, accordingly, prayed that they be permitted to file their response and counter claims after after the proceedings in the Company Application No. 112/2016 were over. The said application was heard and the arbitrator rejected the same by a detailed order dated 07.04.2016. 11. However, thereafter, the petitioners abandoned the arbitral proceedings and did not participate in the said proceedings any further. 12. Admittedly, the arbitrator continued to inform the petitioners as to the scheduled dates of hearings including for framing of issues and for recording of evidence. The arbitrator also adjourned the proceedings for crossexamination of JSPL's witnesses. Even though, the petitioners did not participate in the arbitral proceedings, the arbitrator ensured that they were duly informed of the same. 13. Three witnesses of JSPL were examined and after considering the evidence and material on record, the arbitrator passed the impugned award. The arbitrator awarded a sum of Rs. 36,89,15,520/- being the balance unadjusted advance payable by GNCL. Although, the amended CPA provided for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CL had failed to supply the product as contracted. On these admitted facts alone, JSPL would be entitled to refund of the advances made. It is also not disputed that the arbitrator has the discretion to award interest and thus the interest awarded, cannot be questioned in these proceedings. 17. The damages awarded by the arbitrator are also as contemplated under the CPA/amended CPA. JSPL had led evidence to prove that it had purchased the undelivered quantity of product from the market at a higher price. It had led evidence to indicate that JSPL had received quotation from various parties to procure the short supplied coal; the price quotation received from BHP Billiton was selected and in order to minimise the losses, JSPL had procured the coal from BHP Billiton. 18. Thus, the contention that the award of damages is unsubstantiated by material on record is erroneous. Indisputably, JSPL would be entitled to damages being the difference between the base price of the product and the market price at which it was available. JSPL had also produced the affidavits of witnesses and the arbitrator had given full opportunity to GNCL to crossexamine the witnesses. However, GNCL had wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
