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TMI Blog2017 (10) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... for generation of power should be ensured by the seller at the Project Site , which must be reflected in the quoted tariff. The significant aspect is that the working of the contract is on the basis of Project Site . It has to be, however, simultaneously kept in mind that the present project is in the nature of a Case-2 project which provides for a fuel specific procurement, having a pre-identified site. The contract did not provide for a fixed energy charge, or a periodic revision of that charge, as the formula for energy charge was designed in such a manner that it would be influenced by the actual cost of coal. Thus, the basis is the actual cost incurred with regards to the coal. Of course, a major controversy has arisen as to whether the cost of coal has to be determined on the basis of the purchase price from SECL at the mine-end , when the property is supposed to pass to the appellant, or whether it is the cost of coal to be used for the plant as incurred by the appellant at site of the project, or the project-end . The variable component of FCOALn refers to the actual cost to the seller/appellant of the three components, i.e., (a) purchasing; (b) transporting; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for washing as well as the last mile to the project, on account of the Railway siding not being located at the project site for a certain specified period of time. It is for that period of time that the actual transportation cost through road is sought to be recovered by the appellant. There is no hesitation in concluding that the point at which the Calorific Value of the coal is to be measured is at the project-site. The plea of the first respondent that there is no such methodology of measuring the Calorific Value at the project-site is belied by the sample reports of different financial years filed by the appellant along with the synopsis, which itself referred to the joint sampling and testing of the coal received and is duly signed by both sides. It is surprising how such a bald denial was made despite the position existing at the site. These sample reports are for years 2014, 2015, 2016 and 2017. Thus, the reading of the energy formula leads to only one conclusion that all costs of coal up to the point of the project site have to be included and the Calorific Value of the coal has to be taken as at the project-site. The appellant is held entitled to the washing c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while the second respondent is the Punjab State Electricity Regulatory Commission ( PSERC ). 5. On 10.6.2009, a Request for Qualification ( RFQ ) and a Request for Proposal ( RFP ) inviting proposals to supply 1200 MW of power from the Rajpura Thermal Power Project was issued. The RFQ specified that the following tasks had already been completed: i. 1078 acres of land had been acquired. ii. Environmental clearance had been obtained. iii. Fuel arrangements had been tied up in the form of LoA dated 11/18.12.2008. iv. Water arrangement had been tied up. While the RFP specifically provided that: i. The source of primary fuel (coal) would be coal from SECL since SECL had already issued the LoA. ii. The Railways had given assurance for transportation of coal from SECL over a distance of 1600 km. 6. On the bidding document being issued on 16.9.2009, certain queries and clarifications were raised by the prospective bidders in terms of the bidding documents for which clarifications were issued. The significant clarifications qua the matter at hand, noticed even in the impugned order, are as under: i. SECL would supply Grade F coal from Korba/Raigarh field, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of certain components of monthly tariff by the first respondent. The State Commission, post admission, dismissed this petition vide order dated 1.2.2016. The appellant, thus, filed Appeal No.64 of 2016 before the Appellate Tribunal ( AT ). The appeal was, however, rejected vide order dated 14.12.2016 on most grounds except the non-payment of capacity charges allowed in favour of the appellant. It may be noticed that in the course of the appeal various questions of law were framed but ultimately the same were restricted only to five issues. 10. The dispute really is about the interpretation of the provisions of the PPA dated 18.1.2010 and is, thus, one of pure interpretation of the terms of the contract. The plea of the Appellant: 11. Mr. Mukul Rohatgi, learned Senior Advocate, argued on behalf of the appellant. Mr. Rohatgi contended that the significant aspect is that the bidding process for the power project was in terms of the Guidelines for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees, 2005 (hereinafter referred to as the Guidelines ), which have a statutory flavor under Section 63 of the EA. Para 2.2 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for thepower station: Requisite proposal for the forest clearance should have been submitted before the concerned administrative authority responsible for according final approval in the Central/State Govt., as the case may be, before the issue of RFP. (iv) Fuel Arrangements: If fuel linkage or captive coalmine(s) are to be provided, the same should be available before the publication of RFQ. In case, bidders are required to arrange fuel, the same should be clearly specified in the RFQ. (v) Water linkage: It should be available before thepublication of RFQ. (vi) Requisite Hydrological, geological, meteorologicaland seismological data necessary for preparation of Detailed Project Report (DPR), where applicable. These should be available before the issue of RFP. The bidder shall be free to verify geological data through his own sources as the geological risk would lie with the project developer. The project site shall be transferred to the successful bidder at a price to be intimated at least 15 days before the due date for submission of RFP bids. 12. The essential difference between Case-1 and Case-2 procurement route is stated to be that a Case-2 is a fuel spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed coal. The PSPCL, however, took a contrary stand that the term washing is not part of the energy charges formula, while the appellant sought to include (A) the actual cost of unwashed coal procured by NPL from SECL, including the cost of coal lost in washing (around 20 per cent); and (B) washing charges paid for getting the coal washed. The appellant s stand, thus, is that the clarification that the successful bidder would have to arrange for washing of coal, would not imply that the washing cost has to be fastened on to the appellant, as in terms of the PPA, the energy charge formula expressly provided for actual cost incurred, to be reimbursed. 14. The significant contention of the appellant is that the operation cost mentioned in clause 2.7.1.4(3) of the RFP only referred to the cost towards operating and maintenance of power plant, and cannot refer to any cost associated with the cost of coal, which is a part of the energy charges. 15. The appellant also invoked the principle of business efficacy and the maxim Reddendo Singula Singulis for interpreting the terms of the PPA and the Energy Charges Formula, as set out at Article 1.2.3 of Schedule 7 of the PPA. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of a separate prayer for the payment of interest, it has been pleaded, cannot deny the appellant such benefit which must enure in case of the appellant succeeding in the adjudication. Also the appellant having been deprived of the use of money, this deprivation cost should be compensated with interest/damages. We may note at the end of such submissions of the appellant, that along with certain synopsis, some documents have been filed showing joint sampling in the presence of NPL and PSPCL representatives for the coal received at the project-site including coal received after washing, to deny the plea of respondent No.1 that such verification was being done only at the mine-site. Plea of the First Respondent: 22. The first respondent through Mr. V. Giri, learned Senior Advocate canvassed that any claim of the appellant relatable to coal has to be considered in terms of Clause 1.2.3 of Schedule 7 of the PPA. In terms thereof, there are stated to be only three distinct identifiable components of coal recognized for tariff: (a) Purchase; (b) Transportation and (c) Unloading. Thus, until and unless the claims squarely fall under one of these three heads, the same cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it was submitted that the clarification which they actually sought was as to whether the coal to be supplied would be washed or unwashed, to which a categorical answer was given. Had the appellant any doubt about bearing the cost for the washed coal, they could easily have raised a specific query in that behalf. This is sought to be read along with Clause 2.7.1.4 providing for the quoted tariff to be an all inclusive tariff with no exclusion allowed. Thus, the washing of coal and other activities in relation thereto, are to be included in the quoted tariff, which is as per unit tariff. The relevant clause, in this regard, reads as under: 2.7.1.4 The Bidder shall inter alia take into account the following while preparing and submitting the financial Bid: . . . . . 3. The Quoted Tariff in Format 1 of Annexure 4 shall be an all inclusive tariff and no exclusions shall be allowed. The Bidder shall take into account all costs including capital and operating costs, statutory taxes, duties, levies while quoting such tariff. Availability of the inputs necessary for generation of power should be ensured by the Seller at the Project Site and all costs involved in proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31. The land for the Railways siding was to be acquired by the bidder (appellant) as per the requirement, and the Government of Punjab was to facilitate the acquisition of land. 1078 acres of land was already acquired. The relevant extract of the RFP is as under: B. Other Project Related Activities/Milestones Sl. No. Project Inputs/clearances Parameters Status of activities/milest ones 1. Land ii) Railway sidings and rail lines from nearby station to site To be acquired by Selected Bidder as per requirement. Govt. of Punjab will facilitate acquisition of Land as desired by the selected Bidder. 32. The endeavour to get any other linked claim arising from coal is also thus denied, as is the claim for interest, which was not even claimed. It is added by providing a copy of the order dated 7.6.2017 of the Commission dealing with the remand proceedings, that since the claim for interest there has been rejected now on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are business men; not impose on one side all the perils of the transaction, or to emancipate one side from the all chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils or chances. (Emphasis supplied) 35. The significant issue was the principle of business efficacy to the transactions which are intended at all events by parties who are businessmen. 36. The aforesaid was, once again, relied upon in Shirlaw v. Southern Foundries (1926) L.D. wherein MacKinnon, L.J., observed as under: I recognize that the right or duty of a Court to find the existence of an implied term or implied terms in a written contract is a matter to be exercised with care; and a Court is too often invited to do so upon vague and uncertain grounds. Too often also such an invitation is backed by the citation of a sentence or two from the judgment of Bowen L.J. in The Moorcock (1939) 2 KB 206. They are sentences from an extempore jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce have disagreed as to what the position was. Unless we are satisfied that it is an implication which must necessarily have been in the minds of both parties, we cannot imply a term which they have not expressed, especially when I see that they have thought sufficiently about the matter to express two conditions on which the agreement is to be determined, first, the obvious one on the death of the agent; and, secondly, by six months' notice after the expiration of the seven years. 39. In Liverpool City Council vs. Irwin , Lord Denning M.R., observed as under: It is often said that the courts only imply a term in a contract when it is reasonable and necessary to do so in order to give business efficacy to the transaction: see The Moorcock (1889) 14 P.D. 64, 68. (Emphasis is put on the word necessary : Reigate v. Union Manufacturing Co. (Ramsbottom) Ltd. [1918] 1 K.B. 592, 605.) Or when it is obvious that both parties must have intended it: so obvious indeed that if an officious bystander had asked them whether there was to be such a term, both would have suppressed it testily: Yes, of course : see Shirlaw v. Southern Foundries (1926) Ltd. [1939] 2 K.B. 206, 227. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 259.) In 1956, Lord Radcliffe put it elegantly when he said of the parties to an implied term: their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself : see Davis Contractors Ltd. v. Fareham Urban District Council [1956] A.C. 696, 728. In 1969, Lord Reid put it simply when he said: no warranty ought to be implied in a contract unless it is in all the circumstances reasonable, see Young Marten Ltd. v. McManus Childs Ltd. [1969] 1 A.C. 454, 465: and Lord Upjohn echoed it when he said, at p. 471, that the implied warranty was imposed by law. 40. The aforesaid judgment was carried in appeal to the House of Lords in Liverpool City Council vs. Irwin [H.L. (E.)] . However, it was clarified that the touchstone for interpreting commercial documents, cannot be mere reasonableness as Lord Denning had observed, but necessity : Edmund Davies, L.J.,: That set the Court of Appeal off on considering in what circumstances a contractual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for That is not to say, of course, that consideration of what is reasonable plays no part in determining whether or not a term should be implied. Thus, in Hamlyn Co. v. Wood Co. [1891] 2 Q.B. 488, decided only two years after The Moorcock (to which he had been a party), Lord Esher M.R. said, at p. 491: the court has no right to imply in a written contract any such stipulation, unless , on considering the terms of the contract in a reasonable and business manner , an implication necessarily arises that the parties must have intended that the suggested stipulation should exist. It is not enough to say that it would be a reasonable thing to make such an implication. It must be a necessary implication in the sense that I have mentioned. Bowen and Kay L.JJ., who had also been members of the Moorcock court, delivered similar judgments. The touchstone is always necessity and not merely reasonableness : see, for example, the judgment of Scrutton L.J. in Reigate v. Union Manufacturing Co. (Ramsbottom) Ltd. [1918] 1 K.B. 592, 605, and in the case cited below by Roskill L.J., In re Comptoir Commercial Anversois v. Power, Son and Co. [1920] 1 K.B. 868. 899. But be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker (both of whom give interesting illustrations); and Liverpool City Council v. Irwin [1976] 2 W.L.R. 562, 571 by Lord Cross of Chelsea, and at p. 579 by Lord Edmund-Davies. In such relationships the problem is not to be solved by asking what did the parties intend? Or would they have unhesitatingly agreed to it, if asked? It is to be solved by asking: has the law already defined the obligation or the extent of it? If so, let it be followed. If not, look to see what would be reasonable in the general run of such cases: see by Lord Cross of Chelsea at p. 570H: and then say what the obligation shall be. The House in Liverpool City Council v. Irwin [1976] 2 W.L.R. 562 went through that very process. They examined the existing law of landlord and tenant, in particular that relating to easements, to see if it contained the solution to the problem: and, having found that it did not, they imposed an obligation on the landlord to use reasonable care. In these relationships the parties can exclude or modify the obligation by express words; but unless they do so, the obligation is a legal incident of the relationship which is attached by the law itself and not by reason of any implied term. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Will you agree not to discriminate abnormally against the buyer? I think they would have declined. it might be a reasonable term, but it is not a necessary term. Nor can it be formulated with sufficient precision. On this point I agree with Kerr J. It should be noticed that in the Esso case Mocatta J. also refused to make such an implication: see [1966] 2 Q.B. 514, 536 541; and there was no appeal from his decision. In the circumstances, I do not think any term can be implied. 43. A parallel development in Australia arose out of a judgment of the Lords of the Judicial Committee of the Privy Council in the appeal preferred from the Full Court of the Supreme Court of Victoria in B.P. Refinery (Westernport) Proprietary Limited vs. The President Councillors and Ratepayers of the Shire of Hastings . On the implication of the terms of contraction five conditions were laid down and a reference was, once again, made to the The Moorcock (supra), Reigate vs. Union Manufacturing Co. (Ramsbottom) Ltd. (supra) and Shirlaw v. Southern Foundries (supra) in the following terms: 40. Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to suggest some express provision for it in their agreement, they would testily suppress him with a common, 'Oh, of course. (Emphasis supplied) 44. The next development, was in Investors Compensation Scheme Ltd. vs. West Bromwich Building Society . Lord Hoffmann, in his majority opinion, prefaced his explanation of reasons with some general remarks about the principles which contractual documents are nowadays construed common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of legal interpretation was observed to have been discarded, and the principles summarized as follows: (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) The background was famously referred to by LordWilberforce as the matrix of fact, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the contract in the context of the Articles of Association of a company. It has been observed as under: 16. Before discussing in greater detail the reasoning of the Court of Appeal, the Board will make some general observations about the process of implication. The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 , 912 913. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument. 17. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves. 20. More recently, in Equitable Life Assurance Society v Hyman[2002] 1 AC 408 , 459, Lord Steyn said: If a term is to be implied, it could only be a term implied from the language of [the instrument] read in its commercial setting. 21. It follows that in every case in which it is said that someprovision ought to be implied in an instrument, the question for the court is whether such a provision would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean. It will be noticed from Lord Pearson s speech that this question can be reformulated in various ways which a court may find helpful in providing an answer-the implied term must go without saying , it must be necessary to give business efficacy to the contract and so on-but these are not in the Board s opinion to be treated as different or additional tests. There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean? 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from the objectivity which informs the whole process of construction into speculation about what the actual parties to the contract or authors (or supposed authors) of the instrument would have thought about the proposed implication. The imaginary conversation with an officious bystander in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 , 227 is celebrated throughout the common law world. Like the phrase necessary to give business efficacy , it vividly emphasises the need for the court to be satisfied that the proposed implication spells out what the contact would reasonably be understood to mean. But it carries the danger of barren argument over how the actual parties would have reacted to the proposed amendment. That, in the Board s opinion, is irrelevant. Likewise, it is not necessary that the need for the implied term should be obvious in the sense of being immediately apparent, even upon a superficial consideration of the terms of the contract and the relevant background. The need for an implied term not infrequently arises when the draftsman of a complicated instrument has omitted to make express provision for some event because he has not fully thought through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lord Wright have become classic, and have been quoted with approval both by the Judicial Committee and the House of Lords ever since. The latest case of the House of Lords is Adamastos Shipping Co. Ltd. v. Anglo-Saxon Petroleum Co. Ltd. [(1959) AC 133] There, the clause was This bill of lading , whereas the document to which it referred was a charter-party. Viscount Simonds summarised at p. 158 all the rules applicable to construction of commercial documents, and laid down that effort should always be made to construe commercial agreements broadly and one must not be astute to find defects in them, or reject them as meaningless. 47. In The Union of India vs. M/s. D.N. Revri Co. and Ors. , P.N. Bhagwati, J. (as he then was), speaking for the Bench of two Judges said in para 7 as under: 7. It must be remembered that a contract is a commercial document between the parties and it must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. It would not be right while interpreting a contract, entered into between two lay parties, to apply strict rules of construction which are ordinarily applicable to a conveyance and other formal do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re noticed by this Court in para 51 of the Report. As the same may have application to the present case it would be useful to notice the said observations: (SCC p. 434) 51. Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander, were to suggest some express provision for it in their agreement, they would testily suppress him with a common Oh, of course! Shirlaw v. Southern Foundries (1926) Ltd. [(1939) 2 KB 206 : (1939) 2 All ER 113 (CA)] , KB p. 227.' * * * An expressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, although tacit, formed part of the contract which the parties made for themselves. Trollope and Colls Ltd. v. North West Metropolit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in Format-1 of Annexure 4 to be an all inclusive tariff and provided that no exclusion shall be allowed. This clause has already been extracted aforesaid. The bidder/appellant was, thus, required to take into account all costs, including capital and operational costs, statutory taxes, etc.. The same clause also provides that the availability of inputs necessary for generation of power should be ensured by the seller at the Project Site , which must be reflected in the quoted tariff. The significant aspect is that the working of the contract is on the basis of Project Site . It has to be, however, simultaneously kept in mind that the present project is in the nature of a Case-2 project which provides for a fuel specific procurement, having a pre-identified site. 51. The contract did not provide for a fixed energy charge, or a periodic revision of that charge, as the formula for energy charge was designed in such a manner that it would be influenced by the actual cost of coal. Thus, the basis is the actual cost incurred with regards to the coal. Of course, a major controversy has arisen as to whether the cost of coal has to be determined on the basis of the purchase price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be transporting to and unloading at . Any other construction will fail to make grammatical sense. Not only that, all the three, i.e., purchasing, transporting and unloading, have a reference to the Project. Thus, the definition of FCOALn is the weighted average actual cost incurred by the appellant of purchasing the coal and transporting it to the project site and thereafter unloading the coal at the project site. The fact that the property in coal passed on to the appellant vis- -vis SECL, on delivery being taken at the mine-end would not change the definition of coal pricing as is required for the purposes of calculation of the tariff. 55. Mr. Mukul Rohatgi, learned Senior Advocate, thus, rightly took support of the maxim for interpretation, Reddendo Singula Singulis This principle is set out as under: 387. Reddendo Singula Singulis principle Where a complex sentence has more than one subject, and more than one object, it may be the right construction to render each to each, by reading the provision distributively and applying each object to its appropriate subject. A similar principle applies to verbs and their subjects, and to other parts of speech. 56. In Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has correctly sought to point out that the manner in which the first respondent seeks to read the definition is different from the actual definition by giving the following illustration: Actual definition in the PPA: FCOALn is the weighted average actual cost to the Seller of purchasing, transporting and unloading the coal most recently supplied to and at the Project PSPCL s Interpretation: FCOALn is the weighted average actual cost to the Seller of purchasing unwashed coal, transporting washed and unloading the washed coal most recently supplied to and at the Project 61. The fact that the clarification made it clear that the appellant had to arrange the washing of coal, did not imply that the cost of washing the coal had to be borne by the appellant, as the energy charge formula alone would have to be referred to for the purposes of calculation of the coal price. The operating cost in clause 2.7.1.4(3) of the RFP would refer to the activities mentioned therein and the operation and maintenance of the power plant which would not alter the formula of the energy charges which contains the cost of coal. The principle of business efficacy would also require us to read t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a plea would be in defiance of the very object of the setting up of the power plant. 66. Now turning to the other aspect of the GCV of the coal. If the issue is one of SECL billing for higher Calorific Value while actually supplying a low Calorific Value of coal, that would be a matter between the appellant and the SECL and the first respondent cannot be blamed for the same. That does not take away from the application of the formula for energy charge which provides for PCVn as the weighted average Gross Calorific Value delivered to the project. This Calorific Value of coal would have to be, thus, on the same parameter determined at the project site. 67. On behalf of the first respondent an endeavour has been made to make a distinction between at the site and to the project in the definition of FCOALn and PCVn. However, this is not of much assistance to the first respondent, in our view, as delivery to the project could only mean at the site of the project . It cannot be at the mine site. In fact, this is a fundamental issue where the first respondent seems to be altering the basic concept of the formula by seeking to replace the wordings in the formula relatable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to arise as canvassed by the learned Senior Advocate for the first respondent on account of the Tribunal not finding favour with such claim in the remand proceedings by reason of no claim being laid towards the same. We are, thus, not inclined to grant this claim. 72. We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when the Penta-test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any implied term but from the collection of clauses, come to a conclusion as to what the contract says. The formula for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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