Bombay High Court
M3Nergy Sdn. Bhd. (Formerly Known As ... vs Hindustan Petroleum Corporation Ltd ... on 3 November, 2025
2025:BHC-OS:19910
CARBP.548.2014.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 548 OF 2014
M3nergy SDN. BHD. ...Petitioner
Versus
Hindustan Petroleum Corporation Ltd.
Prize Petroleum Company Ltd. & Anr ...Respondents
WITH
COMMERCIAL ARBITRATION PETITION NO. 76 OF 2018
M3nergy SDN. BHD. ...Petitioner
(Formerly known as Trenergy/
M3nergy Berhad)
Versus
Hindustan Petroleum Corporation Ltd. & Anr ...Respondents
WITH
COMMERCIAL ARBITRATION PETITION NO. 1101 OF 2018
M3nergy SDN. BHD. ...Petitioner
(Formerly known as Trenergy/
M3nergy Berhad)
Versus
Hindustan Petroleum Corporation Ltd. & Anr ...Respondents
Dr. Rishab Gupta a/w Kanika Goenka,Shreya Jain, Swagata
Ghosh, Sanjana Kattoor, i/b Shardul Amarchand Mangaldas &
Co., for the Petitioner.
Digitally
signed by
ASHWINI
JANARDAN
Mr. Shashwat Singh, i/b Advani Law LLP, for Respondents.
ASHWINI
JANARDAN VALLAKATI
VALLAKATI Date:
2025.11.03
15:10:58
+0530
Page 1 of 73
November 3, 2025
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CARBP.548.2014.docx
CORAM: SOMASEKHAR SUNDARESAN, J.
RESERVED ON : February 5, 2025
FURTHER RESERVED ON: October 10, 2025
PRONOUNCED ON : November 3, 2025
JUDGEMENT:
Context and Factual Background:
1. This Petition is filed under Section 34 of the Arbitration and
Conciliation Act, 1996 ("the Act") challenging an arbitral award titled
'partial award' dated January 9, 2014 (" Impugned Award") passed
unanimously by a three-member arbitral tribunal, returning a
fundamental finding that a Joint Executing Agreement (" JEA") that had
been initialled by the parties (but not formally signed and executed) was
validly in existence.
2. The Petitioner, M3nergy Sdn. Bhd. ("M3") questions the very
existence of an arbitration agreement under Section 7 of the Act in the
absence of signatures on the JEA in which the arbitration clause is
contained. The JEA had been initialled as an agreed draft at a meeting
of an "Executing Committee" held between April 16, 2007 and April 18,
2007, attended by the representatives of M3; of Respondent No. 1,
Hindustan Petroleum Corporation Ltd. ("HPCL"); and of Respondent
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No. 2, Prize Petroleum Company Ltd. (" PPCL"). PPCL at all times
relevant to these proceedings, was itself a joint venture, with HPCL
having a 50% ownership interest.
3. The following factual matrix would be relevant for purposes
of adjudicating this Petition:
a) The Oil and Natural Gas Corporation ("ONGC")
invited tenders for development and exploitation of Offshore
Margin Fields Cluster 7 Project ("Project");
b) M3, HPCL and PPCL executed a Memorandum of
Understanding dated June 29, 2005 (" MOU") to form a
consortium ("Consortium") to bid for the Project. The bid
was filed and coordinated by PPCL;
c) Under the MOU, the parties agreed to define the
principles underlying a JEA that would be executed to
implement the service contract, if the Project were to be
awarded to the Consortium by ONGC. The MOU entailed
participating interest proportions of the parties - M3 at 30%,
HPCL at 60% and PPCL at 10%. M3 and PPCL were meant
to jointly act as "Executing Contractors" for the Project;
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d) On March 31, 2006, ONGC awarded the Project to
the Consortium. The letter of award is addressed to PPCL on
behalf of the Consortium;
e) A service contract dated September 27, 2006
("Service Contract") was executed between ONGC and the
Consortium. One of the terms of the Service Contract is that
the parties were to execute the JEA within 15 days - this
deadline would fall on October 12, 2006. Such executed JEA
was to be supplied to ONGC within 30 days i.e. by October
27, 2006;
f) Another integral feature of the Service Contract was
that ONGC would interact with only one party as the
Executing Contractor;
g) In the course of negotiating the JEA, M3 raised
concerns about deviations from the MOU in particular in the
matter of the joint Executing Contractors. PPCL countered
this on the premise that the Service Contract having been
executed among the same parties (along with ONGC), the
MOU stood superseded. According to M3, the Service
Contract did not close the issue and that the Service Contract
did not define the term "Executing Contractor";
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h) Later, M3 expressed its willingness to let PPCL be the
sole Executing Contractor provided the Project was jointly
managed by an Integrated Project Management Team
("IPMT") in terms of a pre-approved schedule and budget,
provided decisions on governance of the Consortium entailed
an affirmative voting percentage of 71%. In other words, if
the IPMT could not decide upon any issue, that issue would
need the positive vote of M3, without which no final decision
could be taken just by the other two parties;
i) The parties met between April 16, 2007 and April 18,
2007 and initialled a draft of the JEA (" 2007 JEA"), which
was a specific agenda item for this meeting. It is M3's case
that the 2007 JEA is not a concluded contract since matters
including accounting procedures and charging of costs of
Executing Committee meetings to the Consortium's account
were still open. At this meeting, the parties agreed to refer
this matter to the Management Committee for a decision.
Meanwhile, the members of the Consortium were advised to
have the initialled document approved at the appropriate
level within their respective organisations " so as to formally
execute the JEA ASAP...";
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j) On April 23, 2007, the Management Committee of
the Consortium met and the outstanding JEA items were
also discussed and agreed upon. The Manging Committee
resolved that costs of the Executing Committee meetings
would not be charged to the Consortium. It also agreed that
the review and approval matrix concluded by the
Management Committee would automatically get adopted
"upon signing of the JEA";
k) At a meeting of the Management Committee held on
November 22, 2007, it was decided in response to a query
from ONGC (which attended this meeting) that a signed JEA
would be submitted by the parties by January 10, 2008. The
next meeting of the Management Committee was scheduled
for January 28, 2008;
l) Meanwhile, in a meeting of the Executing Committee
held between December 4, 2007 and December 6, 2007, the
accounting procedures were agreed;
m) M3 appears to have continued to held out on the
issue of who the Executing Contractor is - on December 12,
2007, M3 wrote to ONGC asserting that M3 is the Executing
Contractor for the Project. M3 claimed that the JEA would
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be finalised to reflect this position and will be submitted to
ONGC after all the partners of the Consortium had signed off
on it;
n) On the very next day, HPCL wrote to M3 asserting
that PPCL had already been accepted as the sole Executing
Contractor and this had been agreed in the initialled JEA and
it would be counterproductive to reopen this issue;
o) On December 31, 2007, ONGC called upon the
Consortium to submit the duly executed JEA that would
clarify the issue of the Executing Contractor;
p) On January 10, 2008, the parties jointly wrote to
ONGC seeking extension of time until January 18, 2008 to
submit the executed JEA since certain details were to be
"fine-tuned";
q) PPCL wrote to ONGC on January 18, 2008 that the
parties had agreed on PPCL being the sole Executing
Contractor and had also initialled the JEA containing this
position in April 2007 but M3 had refrained from formally
signing the JEA. PPCL requested that the Management
Committee meet to address the JEA and resolve;
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r) On January 23, 2008, ONGC rejected this request
and stated that the Management Committee would meet only
after the executed JEA is submitted;
s) On March 4, 2008, M3 executed a different version
of the JEA (one that contained the provisions that it would
agree to) and sent it to the other parties to sign and send it
over to ONGC ("2008 JEA");
t) On April 3, 2008, HPCL wrote to M3 stating that the
roles and responsibilities in M3's 2008 JEA, was
significantly different from the agreed position of the parties;
u) The parties continued to have a stand-off and this
went on right until May 21, 2008, when the ONGC
threatened the parties with terminating the Service Contract
at a meeting of the Management Committee, setting an
ultimate deadline of May 31, 2008. This deadline was
missed;
v) On June 4, 2008, HPCL sought termination of the
Service Contract as against M3 on the ground that it had
failed to submit the executed JEA;
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w) Through June 2008, ONGC warned that the Service
Contract would get terminated for failure to submit an
executed JEA;
x) On August 1, 2008, M3 wrote to HPCL and PPCL
that it would sign the draft JEA "after discussions with its
management". Through August 2008, M3 held out and the
parties could not arrive at a consensus;
y) On September 4, 2008, ONGC terminated the
Service Contract with the Consortium members
("Termination Notice"); and
z) This led to arbitration proceedings. M3 raised a
jurisdictional objection under Section 16 of the Act on the
premise that there had been no concluded contract in the
form of the JEA, for the arbitration clause contained in it to
be a validly existing arbitration agreement. This led to the
Impugned Award, which is a partial award. Two subsequent
awards of damages and costs were also passed later, and
those are not subject matter of these proceedings.
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Impugned Award:
4. The Learned Arbitral Tribunal examined the evidence led by
the parties, the material on record and rendered the following findings:
a) The JEA is validly in existence and binds the parties.
By withholding signature despite agreeing on the content
and even initialling it, M3 has breached the agreed terms of
Article 22.5 of the JEA;
b) HPCL and PPCL had the responsibility of estimating
the oil and gas reserves under Article 5.5 and Article 5.5.1 of
the MOU while M3 was responsible for preparing the initial
development plan ("IDP") for submission to ONGC;
c) M3 kept expressing its unwillingness to agree with
the oil and gas reserves estimation by HPCL and PPCL and
thereby withheld finalising the IDP, which had undergone six
iterations without consensus;
d) The subjects covered by the MOU were superseded
by the Service Contract, which provides that all prior
agreements would be superseded;
e) Article 6.5 of the JEA (agreed and initialled)
stipulated that any difference of opinion among the three
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parties would be resolved by a 71% vote among the
participating interests - M3 having 30% participating
interest, any critical decision had to be unanimous. Yet, M3
held out on the issue of the Executing Contractor, and had
also withheld the IDP from submission to ONGC;
f) Neither the Service Contract nor the JEA specified
the responsibility for determining the oil and gas reserves.
Article 6.5 of the JEA would come into play;
g) M3 was responsible for preparing the IDP under
Clause 5.4.1.3 of the MOU, which was superseded by Article
36.1 of the Service Contract. Article 13 of the Service Contract
deals with measurement of the oil and gas reserves. The
procedure for metering was to be developed in consultation
with ONGC and approved by the Management Committee.
Therefore, Article 6.5 of the JEA would come into play;
h) Owing to M3 holding up approval for the IDP, it
could not be submitted. Therefore, the Management
Committee and ONGC agreed that M3 would be given an
opportunity to produce its own oil and gas reserve estimates
for the IDP, failing which ONGC would presented with the
estimates prepared by HPCL and PPCL;
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i) M3 neither prepared its own estimates nor allowed
HPCL and PPCL's estimates to proceed further. Instead, M3
asked ONGC for even more time, which came to be rejected,
with the Service Contract being terminated. Therefore, M3
was liable for the failure to act within stipulated deadlines;
j) The FEED sub-contract was validly granted by PPCL
to Trident (an Australian entity) and M3 did not have any
right to object;
k) PPCL had already been accepted by M3 as the sole
Executing Contractor and M3 had no right to contest this
right granted by the parties to PPCL; and
l) In the result, all the grounds on which ONGC
terminated the Service Contract were grounds attributable
solely to M3's default, which failed to do all things
reasonably necessary to maintain the Service Contract in full
force. Therefore, M3 is liable to compensate HPCL and
PPCL with damages and costs, which would be determined
later by separate awards.
5. A word about a couple of developments would be in order.
The Impugned Award was set aside by a Learned Single Judge on
January 10, 2019 under Section 34 of the Act. However, a Learned
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Division Bench was of the view that a wrong principle of law had been
applied by the Learned Single Judge and the matter was remanded to
the Section 34 Court by a judgement dated October 16, 2019. A special
leave petition by M3 challenging the decision of the Learned Division
Bench was dismissed as withdrawn.
Contentions of Parties:
6. With the consent of the parties, the captioned Petition was
taken up separately. It was agreed by the parties that if this Petition
were to be allowed there would be no need to hear the other two
Petitions, which challenge the award of damages and of costs. On the
other hand, if this Petition is rejected, the other two petitions could
always be considered thereafter. Therefore, by consent of parties, this
Petition was taken up for final hearing and disposal.
7. I have heard at length Mr. Rishab Gupta, Learned Advocate
on behalf of M3 and Mr. Navroz Seervai, Learned Senior Advocate on
behalf of HPCL and PPCL. I have had the benefit of detailed verbal
submissions and written notes on arguments filed by both sides. I have
had the benefit of these written submissions with references to the
record, in examination of the record, indeed bearing in mind the scope
of jurisdiction of this Court under Section 34 of the Act.
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8. Mr. Gupta would contend that while the Learned Division
Bench had set aside the earlier judgement of the Learned Single Judge
and a challenge in the Supreme Court had been withdrawn, the standard
to be applied would still be that this Court should satisfy itself " de novo"
about whether there had been a concluded contract, of course, also
bearing in mind the views expressed by the Learned Arbitral Tribunal.
He would emphasise that the findings of the Learned Arbitral Tribunal
that an agreement had come into being was perverse and patently
illegal.
9. On behalf of M3, Mr. Gupta has tendered and relied upon a
plethora of notes, tables and case law on multiple strands and sub-
strands of each issue he would present in the matter. These include:
a) A 31-page note on written submissions;
b) A List of Dates and Events on the facet of
jurisdiction;
c) A note on liability having been fastened on M3 in
the Impugned Award;
d) A table on conduct of the parties considered by the
Learned Arbitral Tribunal - the upshot of this
submission is that conduct of parties is no
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barometer for whether the 2007 JEA was a binding
contract;
e) A table indicating key documents, running into 27
items, with comments on whether they had been
considered or ignored by the Learned Arbitral
Tribunal and the Learned Single Judge in the earlier
round, with a compilation of such documents;
f) A Note on Judgements on when a contract can be
said to be concluded, along with a compilation of
such judgements;
g) A table indicating key dates in negotiation of the
JEA after the JEA was initialled on April 18, 2007 -
the upshot is that there are 23 instances of
negotiations thereby indicating that the JEA
initialled on April 18, 2007 was not a concluded
contract but was merely a draft that was still being
negotiated by all parties;
h) A table of comparison between the 2007 JEA and
the 2008 JEA, to show that there were issues in the
2007 JEA that were not acceptable to M3;
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i) A flow chart on the grounds under Section 34 of the
Act and the standard of review to be adopted. The
contention is that under Section 34(2)(a)(ii) of the
Act, the standard of review is a de novo review,
which is different from the review under Section
34(2)(b)(ii), which is deferential to the arbitral
award. Under the former provision, the contention
is that the Learned Arbitral Tribunal had no
jurisdiction to consider the matter on merits since
there was no valid or concluded contract. Under the
latter, the contention is that the Impugned Award is
patently illegal since it has been rendered on
assumed jurisdiction under an invalid un-concluded
contract. According to Mr. Gupta, while the findings
of the Learned Arbitral Tribunal must be examined
"carefully and with interest" as held by the Learned
Division Bench, the examination should still also be
a de novo review and not one that is solely
deferential to the Learned Arbitral Tribunal;
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j) An academic paper from the Journal of
International Arbitration on how to calibrate de
novo judicial review of arbitral jurisdiction;
k) A compilation of 13 judgements on conclusion of
contracts; contracts without authority; execution
being different from initialling; scope of perversity
and patent illegality; scope of Section 34 before the
2015 Amendments to the Act; and
l) Another compilation of case law on scope of review
in a jurisdictional challenge containing nine
judgements.
10. Mr. Seervai on behalf of HPCL and PPCL, would contend that
the Learned Division Bench has already set the standard to be applied in
the course of the review of the Impugned Award. Judicial discipline
would demand that such scope of review under Section 34 has to be
applied, with due deference to the eminently plausible views expressed
by the Learned Arbitral Tribunal.
11. That apart, Mr. Seervai would independently point to how the
JEA had actually been agreed upon by the parties including M3, which
was holding up the formality of signing, with disastrous consequences
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for the Consortium, for which, the Learned Arbitral Tribunal has rightly
directed that M3 should be brought to account. Formal signatures being
withheld could never undermine the existence of an otherwise
concluded contract that is evident from the record. There was nothing
"essential" in the terms whatever had remained open as of April 18,
2007 and even those were closed out later. Therefore, Mr. Seervai would
contend that the Learned Arbitral Tribunal had returned accurate and
plausible findings. Mr. Seervai too would refer to multiple judgements
on the points canvassed by him, and reduce them to writing in his
written submissions.
12. On October 10, 2025, given the efflux of time since I had first
reserved judgement, I listed the matter afresh to see if the parties had
any objections to judgement still being rendered, and to consider if the
parties were desirous of addressing the Court afresh or with further
submissions. The parties expressed their consent for the Court to
proceed without a further hearing, and indicated that extensive written
submissions recorded by them would obviate the need for making
further verbal submissions.
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ANALYSIS AND FINDINGS:
Scope of Review and the Earlier Round:
13. It is now trite law that the scope of review under Section 34 of
the Act is one of examining if the Learned Arbitral Tribunal has arrived
a plausible view and whether the view expressed by the Learned Arbitral
Tribunal is so perverse that it requires interference by the Section 34
Court. The Supreme Court has repeatedly iterated that Courts must not
lightly interfere with arbitral awards. The scope of review by the Section
34 Court is also well covered in multiple judgements of the Supreme
Court including Dyna Technologies1, Associate Builders2, Ssyangyong3,
Konkan Railway4 and OPG Power5. Even implied reasons that are
discernible, may be inferred by the Section 34 Court, to support the just
and fair outcome arrived at in arbitral awards. To avoid prolixity, I do
not think it necessary to burden this judgement with quotations from
these judgements. Suffice it to say (to extract from just one of the
foregoing), in Dyna Technologies, the Supreme Court held thus:
Dyna Technologies Private Limited v. Crompton Greaves Ltd - (2019) 20 SCC 1
Associate Builders vs. Delhi Development Authority - (2015) 3 SCC 49
Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of
India - (2019) 15 SCC 131
Konkan Railways v. Chenab Bridge Project Undertaking - 2023 INSC 742
OPG Power vs. Enoxio - (2025) 2 SCC 417
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"24. There is no dispute that Section 34 of the Arbitration Act limits a
challenge to an award only on the grounds provided therein or as in-
terpreted by various courts. We need to be cognizant of the fact that
arbitral awards should not be interfered with in a casual and cavalier
manner, unless the court comes to a conclusion that the perversity of
the award goes to the root of the matter without there being a possibil-
ity of alternative interpretation which may sustain the arbitral
award. Section 34 is different in its approach and cannot be equated
with a normal appellate jurisdiction. The mandate under Section 34 is
to respect the finality of the arbitral award and the party autonomy to
get their dispute adjudicated by an alternative forum as provided un-
der the law. If the courts were to interfere with the arbitral award in
the usual course on factual aspects, then the commercial wisdom be-
hind opting for alternate dispute resolution would stand frustrated.
25. Moreover, umpteen number of judgments of this Court have cat-
egorically held that the courts should not interfere with an award
merely because an alternative view on facts and interpretation of con-
tract exists. The courts need to be cautious and should defer to the
view taken by the Arbitral Tribunal even if the reasoning provided in
the award is implied unless such award portrays perversity unpardon-
able under Section 34 of the Arbitration Act."
[Emphasis Supplied]
14. In the judgement dated January 10, 2019, in the earlier
round, the Learned Single Judge took the view that the jurisdictional
fact to examine if an arbitration agreement is in existence must be
reviewed by the Section 34 Court independently through a prism not
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necessarily the same as the one used to examine arbitral findings on
merits. The Learned Single Judge indicated that the question of
challenge to a finding in favour of the Arbitral Tribunal having
jurisdiction stands on a footing different from the parameters of Section
34 of the Act. The following extracts are noteworthy: -
"In such challenge, it is for the court to scrutinize the objections to the
tribunal's jurisdiction. In that scrutiny, the jurisdictional facts, on the
basis of which the tribunal claims to act, are examined by the court for
their existence."
"The yardstick applied by the challenge court to the other assessments
of the arbitral tribunal, namely, on matters of merit, whether on
questions of fact or of law, is not apposite for considering this
jurisdictional challenge."
"By coming to an erroneous finding on jurisdictional facts, whether or
not its view on such matters be a possible view, it cannot confer upon
itself the jurisdiction which it did not possess. In other words, the
question of jurisdiction, in the ultimate analysis, is only for the court to
decide, though, as part of the principle of party autonomy, the question
is, and ought to be, decided in the first instance always by the arbitral
forum."
[Emphasis Supplied]
15. With this metric stated, the Court ruled on the purported
existence of an arbitration agreement. In a nutshell, the view taken was
that the arbitration agreement formed part of the JEA, but the JEA itself
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had not been concluded as an agreement. There had been moving parts
and the parties were negotiating further, even after the JEA was
initialled. Therefore, it was held, the arbitration agreement contained in
it cannot be said to have been agreed upon. The Learned Arbitral
Tribunal's ruling on how the JEA is in existence was not squarely
examined and dealt with. However, the Learned Single Judge
independently came to the view that the JEA not being in existence, the
arbitration agreement contained in it is not in existence.
16. In other words, the standard applied had been that the
plausible view that the JEA had come into existence, could not be visited
on the existence of the arbitration agreement. That the parties were
wrangling over the percentage threshold of affirmative voting; that there
had been no closure on Article 7.3 of the JEA when it was initialled; and
that the arbitration clause was meant to be recast too, all weighed with
the Learned Single Judge, to hold that the Learned Arbitral Tribunal
had no jurisdiction at all.
17. A Learned Division Bench of this Court, exercising
jurisdiction under Section 37 of the Act, found fault with the Section 34
Court re-appreciating evidence to form its own view on execution of the
JEA and substituting the findings of the Learned Arbitral Tribunal. In
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its judgement dated October 16, 2019, the Section 37 Court held that the
contours of Section 34 were as much applicable to the judicial review of
a decision taken under Section 16. The following extracts from the
Section 37 Court's judgement are noteworthy:-
"The Learned Single Judge has not dealt with the reasoning of the
arbitral tribunal on account of the view taken by the learned Single
Judge that law enjoined upon him to independently appraise the
evidence and not deal with the manner in which the arbitral tribunal
has dealt with the evidence."
"....the Court is bound to examine, both carefully and with interest,
the reasoning and conclusion of an arbitral tribunal."
[Emphasis Supplied]
18. The principle of law stated by the Learned Single Judge in his
review of the question of jurisdiction and this being the sole issue before
the Section 37 Court, the Learned Division Bench set aside the Learned
Single Judge's judgement and restored the Section 34 proceedings to
the roster of the Section 34 Court for consideration in accordance with
the declared principles governing the Section 34 jurisdiction.
19. With this perspective, it is vital to examine how the Learned
Arbitral Tribunal has considered the existence of the arbitration
agreement between the parties.
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Existence of Arbitration Agreement and the JEA:
20. Having examined the record and upon a review of the
Impugned Award, I have no doubt in my mind that the arbitration
agreement was in existence. To my mind, this is a rather straightforward
point notwithstanding the volume of documents and submissions
sought to be pressed into service.
21. Indeed, after the MOU was executed, ONGC awarded the
Project to the Consortium on the strength of the Consortium having
been formed in terms of the MOU. Matters progressed with ONGC even
further, and the Service Contract was executed. Privity of contract to
Service Contract involved the very same parties as the parties to the
MOU, with ONGC now being the counter-party to all of them as one
Consortium. In other words, when the parties spoke to ONGC, they
spoke in one voice. That unified voice represents the agreement
between them on the matters covered by the Service Contract. If such
matters were at a deviation from the provision of the same matters in
the MOU, it would stand to reason that the parties had agreed to move
on from the earlier position under the MOU.
22. I will analyse separately if the Service Contract superseded
the MOU, but at this point, suffice it to say that the parties were well
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invested in the Project and were taking multiple steps in furtherance of
the award of the Project. One of the requirements stipulated by the
ONGC was that the parties must execute and deliver a JEA and the
parties made significant progress towards executing the JEA as well.
23. I must state that in the formation of commercial contracts, it
can be quite the norm for commercial parties, depending primarily on
the commercial and corporate culture of each party on how to negotiate
for the best bargain, on how much to pursue a desired objective.
Commercial parties push for and extract the best package of give and
take to arrive at a concluded bargain. A bid to reopen negotiations to
agree afresh on elements of concluded contracts depending on a change
of heart, can also be quite the norm, and can form part of the way of life
for parties engaged in long-term contracts such as infrastructure
contracts and hydrocarbon exploration and exploitation.
24. This case appears no different. The parties negotiated hard
and came to an agreed position in the 2007 JEA. Thereafter, M3
continued to hold out on some facets (such as the Executing Contractor,
a point that had been closed out and agreed). The other parties too
reacted to push their respective counter-proposal on bargains already
concluded (such as the affirmative voting threshold already agreed at
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71% in the 2007 JEA). Each party also expressed openness to move
from its earlier positions, in a bid to commercially accommodate the
competing pulls and pushes from the counterparties. However, the key
issue in the matter at hand is to consider, upon distilling the noise
generated by such negotiations, whether there had been a concluded
bargain among the parties in the 2007 JEA or whether there had been
no bargain at all, with the actual JEA having remained elusive.
25. In my opinion, it is apparent that there was a concluded
bargain in the 2007 JEA. A couple of open issues that could reasonably
not be regarded as essential elements of the bargain too got closed after
the 2007 JEA. Attempts to open up closed topics were indeed made all
around. However, I have no doubt that there had been a concluded
bargain in the form of the 2007 JEA. Attempts to re-open the agreed
position led to retaliation in the form of expressing openness to re-open
but also imposing revisions to terms to effect such a re-opening. In any
event, it is clear to me that there always had been a clear and
unequivocal intent of the parties to refer their disputes to arbitration.
26. Before analysing the contract formation in more detail, it
would be useful to notice some elements of the MOU the parties agreed
upon. The MOU contemplated executing the JEA, which was defined as
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a framework of agreement governing the execution of the Project by the
'IPMT', which was meant to comprise personnel deputed by the parties
by mutual consent, for implementation of any specified work. The
scope of the MOU was to define principles for the JEA to implement the
Service Contract, if awarded by ONGC.
27. Clause 5 of the MOU provided for 'Performance of Work' and
contained the devolution of responsibility and roles to be played by the
parties. Under Clause 5.2, PPCL was to coordinate activities for
preparation and submission of the bid. PPCL was to engage with ONGC
and provide the well log interpretation and analysis. PPCL was to carry
out economic assessment of the Project from the perspective of the
Consortium. Under Clause 5.4, M3 was to provide various services, one
of which was to prepare the IDP. Clause 6 provided for the role of the
"Executing Contractor" and identified PPCL and M3 jointly as such.
Clause 10 also identified both PPCL and M3 as the Executing
Contractor.
28. Clause 8.2 of the MOU specifically provided that if ONGC
were to request the parties to revise the commercial terms, the parties
will endeavour to agree unanimously on the proposed revision within
the timeframe allowed in the circumstances. In the case of differences
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between the parties, the most competitive commercial terms were to be
offered by the parties within the available timeframe. Clause 8.3
provided for PPCL being the lead negotiator on behalf of the
Consortium in the acquisition of development rights in the Project from
ONGC. The parties agreed that none of them would withdraw after the
proposal is made to ONGC, and even if the parties agree upon
withdrawal, the withdrawing party would not be relieved of its
obligations incurred until the date of the withdrawal.
29. Under Clause 10, the parties agreed that they would execute
the Project in terms of the Service Contract to be signed with ONGC and
the JEA to be executed among the parties in accordance with the
principles set out in the MOU. The tenure of the MOU was two years
unless terminated earlier. In Clause 14, the parties agreed that the MOU
would terminate if the parties decide to supersede the MOU with any
other agreement between the parties.
30. The MOU contained an arbitration clause - "any dispute
relating to" the MOU would be subjected to arbitration as a means of
resolving the dispute. It provided for a three-member arbitral tribunal.
31. ONGC awarded the Project to the Consortium by a letter
dated March 31, 2006 addressed to PPCL as "leader of consortium
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consisting of" the parties. ONGC referred to the terms of the
development programme submitted by the parties and called for the
IDP along with estimated capital expenditure and operational
expenditure for the first three years. ONGC called upon the parties to
depute authorised persons to execute the Service Contract. This contract
was executed on September 9, 2006.
32. The Service Contract defined "Contractor" to mean all
companies where the award of the Service Contract is to more than one
company. Clause 7.3 of the Service Contract is unequivocal in its terms
- the functions of the "Contractor" are to be carried out by the
Executing Contractor "on behalf of all constituents of the Contractor "
without this requirement "relieving the constituent(s) of Contractor
from any of its obligations or liability under the Contract ". Clause 7
generally provided for the "Petroleum Operations" (defined to mean
exploration, development production or any combination thereof in a
wide and all-encompassing manner relating to the Project) t0 be carried
out by the Executing Contractor.
33. The JEA was to be executed within 15 days of the Service
Contract, consistent with the terms of the Service Contract. It
necessarily had to provide for the role and responsibilities of the
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Executing Contractor. A decision-making forum, namely the "Executing
Committee" was mandated by the Service Contract to be set out in the
JEA - a committee comprising an agreed number of representatives of
each Consortium member. The functions of the Executing Committee
consistent with discharge of obligations under the Service Contract were
to be set out in the JEA, which was also meant to record that the
Consortium members would be jointly and severally responsible for
discharging the obligations under the Service Contract. The duly
executed JEA was to be filed with ONGC within 30 days or such longer
date as permitted by ONGC. Accounting procedures for purposes of
recognition of income and offering income to tax were annexed to the
Service Contract.
34. Various other operational provisions including requirements
of statutory and regulatory compliances are set out in the Service
Contract and it is not really necessary to allude to them for purposes of
this judgement. The Service Contract too had an arbitration agreement,
but for resolving disputes and differences between the Consortium and
ONGC.
35. Through the MOU and the Service Contract, the parties
having signed on and contracted the entire package of rights and
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obligations obtaining under these instruments, it was now for them to
comply with the Service Contract by signing the JEA and delivering it to
ONGC. This singular act was subject matter of a breakdown in the
relationship between the parties, and ONGC issued the Termination
Notice. The parties had hit a wall in making their inter se relationship
work, and this led to arbitration.
36. The core question raised in this Petition is whether the
parties had an arbitration agreement.
37. As stated above, de hors the question of whether 2007 JEA is
a concluded contract, the parties already had an arbitration agreement
to resolve all disputes and differences "relating to the MOU".
38. The MOU contemplated PPCL as well as M3 being joint
executing contractors, but clearly ONGC required a sole point of
coordination with responsibility. The MOU had provided that if ONGC
desired anything to change in the commercial terms between the
parties, the parties would need change it within the circumstances. The
parties indeed executed the Service Contract, which clearly recorded
that there shall be a sole Executing Contractor. The Service Contract
contained inter se obligations between the Consortium and ONGC but
when each member of the Consortium who had executed the MOU also
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executed the Service Contract, it is completely reasonable and plausible
to note that when they executed a subsequent contract on the same
subject, they had moved on from the inter se positions contracted in the
MOU. In any case, it is well declared law that when commercial
transactions end up having to be spread across multiple contracts, there
has to be a harmonious construction across instruments in a manner
that reconciles any perceived conflict among them.
39. In Chattanatha Karayalar6, the Supreme Court declared as
follows: -
3. .......... "The principle is well established that if the transaction is
contained in more than one document between the same parties they
must be read and interpreted together and they have the same legal
effect for all purposes as if they are one
document. In Manks v. Whiteley 1912-1 Ch. 735 at p. 754, Moulton,
L.J. Stated:
"Where several deeds form part of one transaction and are
contemporaneously executed they have the same effect for all
purposes such as are relevant to this case as if they were one
deed. Each is executed on the faith of all the others being
executed also and is intended to speak only as part of the one
transaction, and if one is seeking to make equities apply to the
parties they must be equities arising out of the transaction as a
whole."
[Emphasis Supplied]
S. Chattanatha Karayalar vs. Central Bank of India - (1965) SCC OnLine SC 67
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40. Seen in this light and from the perspective of the sequence of
events, the movement from M3 and PPCL being joint Executing
Contractors to the need to have a sole Executing Contractor is writ large
in the record by this stage of executing the Service Contract. M3 too had
evidently agreed to the need to have a sole Executing Contractor. The
MOU obligated the parties to readjust the MOU to factor in what ONGC
desired. Therefore, by the time the Service Contract was executed by all
the parties including M3 with commitments being made to ONGC, in
the light of Clause 7.3 of the MOU having contemplated that the parties
would adjust commercial terms to suit ONGC's requirements, the sole
Executing Contractor provided for in the Service Contract and the other
evidence to show M3 agreed to PPCL being the sole Executing
Contractor with the check and balance being the decision-making
matrix agreed to by the parties, giving M3 the veto power, it is a
completely plausible finding that the issue of who should have been the
sole Executing Contractor was no longer in doubt.
Executing Committee Meeting of April 2007:
41. The next facet of the relationship between the parties is to
examine what transpired in the negotiation and conclusion of the JEA.
The parties engaged with one another, brought to bear the commercial
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pulls and pressures of negotiation, and after multiple drafts of the JEA,
the parties met between April 16, 2007 and April 18, 2007 with a view to
put the final JEA to bed. Whether they had concluded the JEA in that
round is the question that has arisen for consideration because of M3
contending that the JEA had never been finalised at all.
42. Mr. Gupta's table comprising key dates in the negotiation of
the JEA with a view to indicate that there had never arisen consensus ad
idem among the parties, comprises 24 dates, the first of which is the
date of negotiations held between April 16,2007 and April 18, 2007.
43. Prior to this meeting, there had been some back and forth
about a few facets of the JEA. M3 had deleted the provisions in the
draft JEA that provided for a Management Committee. M3 had insisted
about the Executing Contractor being joint between PPCL and M3. The
Management Committee was contemplated to be a higher forum with a
role in policy decisions and comprising higher placed officials. It was
expected to resolve outstanding issues on which the Executing
Committee could not build consensus, by escalating them to the
Management Committee. PPCL wrote to M3 on March 28, 2007
explaining why M3 should not delete the Management Committee and
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how PPCL alone would be the Executing Contractor after the Service
Contract was executed.
44. M3 replied on the same date i.e. on March 28, 2007
confirming that "M3 can accept that PPCL is nominated as the
Executing Contractor providing that the project is jointly executed via
an IPMT formed by members from all partners and that project is
managed to be approved schedule and budget ". M3 also welcomed the
role for the Management Committee. M3 proposed that the decision-
making process should entail a 71% affirmative vote i.e. partners
holding at least 71% vote would need to support a decision, which would
indicate that unanimity was vital - HPCL along with PPCL holding 70%,
they could not override M3's objections.
45. A plain reading of this letter would also indicate that M3 was
keen to get moving with the JEA. M3 highlighted that the earlier draft
had been circulated on January 7, 2007, and it was discussed on
February 7 and 8, 2007, with a draft turned around on February 12,
2007. PPCL had commented on that draft only on March 28, 2007. M3
complained that quality was being overrun by urgency created by lack of
proper planning.
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46. It is in this background, that the Executing Committee met
on an updated draft of the JEA in the sessions held between April 16,
2007 and April 18, 2007. Before that, all parties had met in Mumbai on
April 10, 2007. At the end of the sessions held in April 16-18, 2007 , the
parties initialled the JEA. Agenda Item (d) for this meeting of the
Executing Committee was titled "JEA Initialing".
47. At this meeting, each party nominated members to the
Executing Committee and to the Management Committee. After a
couple of operational points, the parties recorded that the JEA was
discussed and the "final draft as agreed to among the members was
initialed & taken on record." What was not closed was Article 7.3 of the
JEA relating to charging of costs of the Executing Committee meetings
to the account of the Consortium. The members decided to escalate the
matter to the Management Committee for a decision. The Executing
Contractor (obviously PPCL) advised that meanwhile " members may
have the initialed document approved at the appropriate level within
their organisation so as to formally execute the JEA ASAP upon
decision of the Management Committee on Article 7.3".
48. The minutes also recorded that the parties agreed on the
"Review & Approval Matrix" and "Level of Authorization" and
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incorporated it in the JEA. The Management Committee, the Executing
Committee, Chairman of Executing Committee, Project Manager and
Project Commercial Manager of the IPMT being authorised parties
based on the prescribed decision-making areas were also agreed on.
49. This meeting has been a significant milestone in the mind of
the Learned Arbitral Tribunal. The agreeing to the draft leaving the
formal execution to later is held by the Learned Arbitral Tribunal as an
agreement having been reached on the JEA. Now only the formal
affixation of signatures was left and M3 withholding that signature has
become the subject matter of the dispute.
50. The execution draft of the JEA initialled by the parties at the
end of this meeting is on record. I have examined the same. It is writ
large that the Executing Contractor nominated by the parties is PPCL
and the JEA was approved consistent with the Service Contract. Article
4 records so in explicit terms. Article 6 provided for the Management
Committee and all decisions were contemplated to be taken
unanimously. The affirmative vote of at least two parties holding
participating interest of at least 71% was agreed to in Article 6.5. This
was a significant protection to M3 to veto any decision since it held a
participating interest of 30% and without its consent, a decision could
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not be steamrolled by HPCL and PPCL. This would not confer positive
control in the hands of M3 - it could not have had its own view imposed
on HPCL and PPCL, but it gave M3 strong influence over the
Consortium - the others could never ride roughshod over M3 with a
proposal that M3 was unhappy about. It is against this backdrop that
M3's agreement to have PPCL as the sole Executing Contractor cannot
be wished away.
51. Article 7 dealt with the Executing Committee and its powers.
Indeed the parties initialled their agreement to this draft and even
meticulously inserted a handwritten note about Clause 7.3, stating that
it has two variants for consideration by the Management Committee,
which would approve one of the variants. This handwritten note too
was initialled by all parties. Every single page of this 91-page agreement
was initialled by all parties, leaving Clause 7.3 to the Management
Committee. The Arbitration Clause at Article 20 provided for a three-
member arbitral tribunal akin to the arbitration clause in the MOU, with
the only real difference being that the place of arbitration was agreed as
Mumbai instead of Delhi (as per the MOU).
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Management Committee Meeting of April 23, 2007:
52. The Management Committee met on April 23, 2007. Multiple
decisions were taken and recorded in the unanimously confirmed
minutes, which again would inexorably show that the parties moved
forward with the Project. The Management Committee's chair was
meant to rotate among the partners with HPCL nominee being the Chair
for the first year, M3's nominee as Chair in the second year and PPCL
being the Chair for the year after. Nominations to the Executing
Committee and Management Committee were also recorded by the
parties. In paragraph 6, it was recorded that the Management
Committee decided that each partner would bear its own costs for the
Executing Committee's meetings and not charge it to the Consortium's
account. This this, the only open clause i.e. Clause 7.3 of the JEA too
came to a close.
53. The Review and Approval Matrix was also confirmed by the
Management Committee. It was agreed that these would
"automatically get adopted upon signing of the JEA by the MC
members." At this meeting the issue of the Front-End Engineering
Design ("FEED") sub-contract came up. The parties authorised PPCL to
published an invitation of expressions of interest for the same.
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54. The finance professionals of the three partners met at Kuala
Lumpur between December 4, 2007 and December 6, 2007 (M3 is
based in Malaysia). Various decisions on accounting treatment and
approval matrix were taken. In a separate meeting at the same time,
cash calls were discussed and formats for making of cash calls were
agreed.
55. However, the actual appendage of signatures on the initialled
JEA remained pending with M3 postponing the affixation of signatures.
Management Committee Meeting of April 18, 2008:
56. A bare perusal of the Record Notes of the Management
Committee meeting held on April 18, 2008 and the minutes of that
meeting would indicate that HPCL set the context in the deliberations
by agreeing that the JEA not having been finalised until then was a
matter of concern, exposing the Service Contract with ONGC to
jeopardy. M3's lead representative Mr. Madzri Ab Rahman could not
attend until that date owing to flash floods in Kuala Lumpur but he had
been briefed by M3's CEO, the other representative, about the previous
days' deliberations. He indicated his readiness to stay over an extra day,
if required. M3 requested that the agenda items prior to the JEA
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finalisation be skipped so that the parties could get to clearing the JEA
straight away.
57. The 2007 JEA that had been initialled was tabled and
discussed. Each issue that each party desired to negotiate was
discussed. A careful perusal would show that the parties reached
agreement on almost all open issues - these included HPCL's nominee
being the permanent chairman of the Management Committee (instead
of rotation). HPCL had sought to change the voting percentage
threshold applicable as of then (at 71%) to be reduced to 60% (which
would make HPCL's vote bind all the parties). PPCL, a joint venture of
HPCL had no objection. M3 had objections, and this issue could not be
changed and closed. M3 indicated that it would revert by April 23,
2008.
58. HPCL proposed changes to nominating a Project Manager.
M3 indicated that this is linked to the issue of who is the Executing
Contractor. The two issues were discussed collectively. M3 recognised
the view that HPCL desired to have a more active role in the Project
than envisaged in the run up to the MOU. The parties agreed to discuss
this on the following day and circulate a " finalised matrix" by April 21,
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59. Specifically, the arbitration clause was discussed. HPCL
indicated that Article 20.2 would need some modification to bring it in
line with the Act. All partners recorded their agreement to this. The
parties had already agreed in the MOU that any dispute relating to the
MOU would be resolved by arbitration. The 2007 JEA, agreed and
initialled also had an arbitration agreement. The re-opening
discussions on the 2007 JEA also got confirmed by all parties as of April
18, 2008. Therefore, to my mind, there was no doubt about the parties
having agreed to resolve their disputes by arbitration. It is trite law that
the arbitration agreement in any agreement always has its own
independent existence. There is no manner of doubt that even if there
were disputes about existence of other contracted provisions, the parties
clearly had recorded their intent to refer disputes to arbitration right
from the time they executed the MOU. Every facet of the JEA is but a
matter relating to the MOU. This continued even when they worked on
the 2007 JEA.
60. Moreover, when ONGC took its eventual decision to issue the
Termination Notice dated September 4, 2008 to terminate the Service
Contract, after giving the Consortium a long rope to get its act together
to submit the executed JEA. At this stage, the Consortium did not
invoke the arbitration clause in the Service Contract to dispute ONGC's
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termination. The parties did not even dispute with each other about the
Termination Notice by ONGC being unwarranted.
61. On the other provisions of the 2007 JEA on which the parties
held discussions, each of HPCL and M3 had sought some changes - the
other party either agreed to the change requested, or the proposing
party even agreed that the request for change be dropped. Therefore, it
is clear from the record that the Executing Contractor issue was still
being held out by M3 even at this later stage after having consented to
PPCL being the sole Executing Contractor.
62. The parties agreed that after deliberations on the
responsibility matrix scheduled for the next day, with M3's responses
expected by April 23, 2008 with the final changes, the parties would
execute on April 25, 2008 and submit the JEA to ONGC by April 30,
2008.
Management Committee Meeting of May 31, 2008:
63. Despite the Management Committee meeting of April 18,
2008, appending the signatures on the JEA remained elusive although
the parties had confirmed that the initialled 2007 JEA was the final
agreed draft. Proposals to move provisions around were tabled but the
key question is whether these were essential elements of contract
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without which it could not be stated that an agreement had come into
being.
64. On May 21, 2008, the parties met and representatives of
ONGC met with the Consortium representatives. ONGC candidly asked
if they should part ways or progress further. All the Consortium
members resolved to move forward. It was agreed that the JEA would
be signed by May 31, 2008, failing which it would be presumed that the
Consortium is not interested.
Management Committee Meeting of August 1, 2008:
65. The first agenda item for this meeting held on August 1, 2008
was titled "Sign the JEA and submit to ONGC before they take steps of
Termination". It was squarely agreed by all parties at this meeting and
recorded in the minutes that "the JEA initialled in April 2007 will be the
final document to be executed and submitted to ONGC." M3 agreed to
sign the document on August 5, 2008 " after discussions with their
management".
Concluded JEA in Existence:
66. Having examined each of the aforesaid events and the
material on record, I am of the view that the interpretation by the
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Learned Arbitral Tribunal is at the least, an impeccably plausible view.
It is correct that the JEA was not formally signed, as contended by M3.
The contention itself contains the answer inasmuch as what was missing
was only the formality of appending the signature, which was evidently
being withheld by M3, even while otherwise acting in accordance with
the agreed and initialled 2007 JEA. Indeed the parties jostled for space
attempting to reopen and renegotiate the 2007 JEA but that would not
mean the 2007 JEA did not reflect an agreement among the parties.
The only open issues in the 2007 JEA was the treatment of costs of
holding the Executing Committee meetings. That issue too stood
resolved with the Management Committee deciding on April 23, 2007
that these expenses need not be charged to the Consortium's account.
Therefore, the only open issue of the 2007 JEA i.e. Article 7.3 also stood
resolved.
67. In any case, to my mind, the costs of conducting Executing
Committee meetings cannot be considered to be an essential feature
without which the JEA could have never been agreed upon. This was
evidently adjectival to the larger bargain even in the minds of the
parties, which is why they escalated it to the Management Committee
and the Management Committee also resolved this issue immediately
thereafter. Thereafter, the parties were conducting themselves in
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accordance with the bargain struck in the 2007 JEA, of course, adopting
stances of renegotiation and countering attempt at renegotiation by the
other parties.
68. As stated by me earlier, even in concluded contracts,
depending on the perceived operational bargaining power, parties to a
contract can hope to extract a renegotiated bargain and hope to get
some movement from the existing positions, but that would not pose an
existential threat undermining an agreed contract. Mr. Gupta's
submissions about "signing" not having taken place are not convincing
when the matter is seen in this light. Indeed, M3 was withholding its
formal signature and that is a plausible view that the Learned Arbitral
Tribunal has legitimately taken. I have carefully examined each of the
24 events listed in the table of dates relied upon by Mr. Gupta to
indicate that negotiations were still underway and that there had been
no contract. As stated elsewhere, to my mind these are only attempts at
re-opening and preventing the re-opening of a bargain that the parties
had already struck.
69. The references to PPCL too having asked for a change in
voting percentage thresholds do not carry M3's case any farther
inasmuch as these are contra bargains and commercial threats thrown
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at M3, which was attempting to re-open a matter closed by M3 itself
explicitly - the role of the Executing Contractor. In fact, on August 17,
2007, M3 has expressed indignation by indicating that PPCL's proposal
to change the affirmative vote threshold would reopen an agreed
position. Indeed, agreement had been reached among the parties, and
that agreement is found in the 2007 JEA.
70. The issue of Executing Contractor was clearly a closed and
agreed issue that M3 kept indicating was open. In fact, the veto power
that M3 had obtained in the 2007 JEA would indicate clearly that M3's
interests were well bargained for and contracted. Therefore, the
Learned Arbitral Tribunal's view that it was merely attempting to re-
open the issue of Executing Contractor is reasonable and plausible. I
would have taken the same view. In fact, the Service Contract makes it
abundantly clear that ONGC needed to have single point of contact in its
engagement with the Consortium. PPCL led the bid. PPCL coordinated
all the activity with ONGC. The award letter is addressed to PPCL. To
ensure PPCL does not act without consensus of the other parties, the
approval matrix with a 71% vote requirement gave M3 a strong influence
or even a shade of negative control over the policy decisions of the
Consortium. What the Executing Committee could not build consensus
on, would get escalated to the Management Committee, and at the
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Management Committee, the 2007 JEA entailed a 71% positive vote
requirement. Everything stood resolved.
71. Yet, M3 kept leveraging the perceived strength in withholding
affixing its signature on the document, to somehow get a bargain better
than what had been agreed to. This brinkmanship, eventually led to
ONGC terminating the Service Contract. The consequences for breach
of an agreed contract would then follow and that is what the Learned
Arbitral Tribunal has done.
72. In any case, as stated earlier, the arbitration agreement
among the parties was not at all an open issue. The parties had agreed
to Article 20 of the 2007 JEA and that is an arbitration agreement, with
an independent existence. It is an arbitration agreement that was also a
successor to the arbitration agreement in the MOU. It is merely a
further iteration of the undeniable intent to arbitrate already expressed
in the MOU. I see no merit in the contention that there was no
arbitration agreement.
Summary of Conclusions - Existence of JEA:
73. To summarize, on the existence of the arbitration agreement
and the JEA, I emphatically find that the Learned Arbitral Tribunal's
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view is not just a plausible view, it is an accurate view. It is completely
reasonable to hold that:
a) The parties including M3 always intended to
arbitrate about the disputes and differences between them.
They expressed this first under the MOU. There is no
element of M3's autonomy to arbitrate having been
undermined;
b) The parties moved on to winning the Project on the
strength of the MOU and engaged in finalising the JEA. The
differences between the parties stood resolved by consent
accorded by the parties to the 2007 JEA, which too had an
arbitration clause and indeed, in the 2007 JEA there was no
difference of opinion at all left over the arbitration
agreement. The only area left open was Article 7.3, which was
escalated to the Management Committee meeting scheduled
for a week later, on April 23, 2007, and that too was resolved
at that meeting;
c) It is noteworthy that the Management Committee as
a forum was itself a feature of the 2007 JEA. The MOU had
contemplated only the Executing Committee. M3 had
initially deleted the provision for the Management
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Committee from the draft JEA but saw PPCL's point and was
convinced to agree upon it. This forum forms an integral
essential feature of the agreed and initialled 2007 JEA and
indeed M3 even nominated its representatives to the
Management Committee, and it is this forum that held
multiple meetings to resolve issues among the parties. The
forum was a creature that came into existence only because
of the agreement contained in the 2007 JEA;
d) Despite agreeing and finalising a full bargain on all
substantive issues by April 18, 2007 (and at the latest by
April 23, 2007), leaving only formal execution for later, M3
withheld the formal affixation of signatures. In this phase,
each party did attempt to leverage and bargain further, but to
my mind they were only attempting to get at each other's
attempts to re-negotiate the agreement already reached in
the 2007 JEA. M3 itself rebuffed PPCL's attempt to dilute
the affirmative vote threshold from 71% by replying in
writing on August 17, 2007 that M3 would not renegotiate
the understanding already reached in the " already agreed
and initialled JEA";
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e) Each of the contents of Paragraph 48 of the
Impugned Award is a perfectly logical and reasoned
conclusion. The Section 34 Court cannot re-appreciate
evidence and search for an alternate and competing view that
is canvassed by M3 as also being plausible;
f) The standard for review by the Section 34 Court has
already been set by the Learned Division Bench acting as the
Section 37 Court. That is the standard I have applied. My
detailed examination and articulation of the record as above,
is not with a view to re-appreciate the evidence but is only an
examination to see if the Learned Arbitral Tribunal's reading
of the record presents any perversity or patent illegality;
g) It is not at all correct to say that the Learned Arbitral
Tribunal has ignored any material evidence or taken into
account any irrelevant evidence. The reading of the post-
April 2007 events would explain that those are evidently
attempts to re-negotiate a concluded contract that was even
being acted upon by the parties including M3. They were
attempts to counter an attempt or to even accommodate the
request to re-negotiate, in the wider interest of moving
forward commercially. Such efforts to resist or
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accommodate a re-negotiation of a concluded contract
cannot inexorably undermine a binding contract that had
already come into existence with the 2007 JEA;
h) M3 signing the 2008 JEA, its own version of a JEA
that was acceptable to it, could have been a bold and
aggressive attempt to arm-twist HPCL into agreeing to a new
JEA. However, that attempt evidently failed. It would not
follow that the 2007 JEA did not exist. Therefore, the
copious comparison of the terms between the 2007 JEA and
the 2008 JEA are of no avail to take M3's case any higher;
i) The Learned Arbitral Tribunal's reading of the
judgement of the Supreme Court in Trimax7 perfectly
answers the issue of essentiality. The application of Pagnan8
in Trimax and the discussion on it by the Learned Arbitral
Tribunal in the discussion that is responsive to the query
framed at Paragraph 30(a) of the Impugned Award is
impeccable and cannot be faulted at all;
j) The reasons I have already set out above are
responsive to my endorsement of the conclusions of the
Trimax International FZE LTd. Vs. Vedanta Aluminium Ltd. - (2010) 3 SCC 1 @ 30
Pagnan SPA v. Feed Products Ltd. - (1987) 2 Lloyd's Rep 601
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Learned Arbitral Tribunal in response to query it posed in
Paragraph 30(b) of the Impugned Award;
k) The issue raised by M3 that privity to the MOU was
different from the privity to the Service Contract, also does
not further M3's case. The subject matter of the MOU was to
bag the Service Contract. The terms on which the parties
executed the MOU indeed underwent a transformation when
they negotiated and agreed the Service Contract. The MOU
entailed both M3 and PPCL being Executing Contractors
while the Service Contract refers only to one Executing
Contractor. Towards this end, the MOU itself contains the
provision that if ONGC were to require changes the parties
would work towards such changes. When the parties
executed the Service Contract, it stands to reason that they
consciously engaged and arrived at the reference to a sole
Executing Contractor in the Service Contract. That coupled
with M3's own contemporaneous acceptance of PPCL as the
Executing Contractor and indeed the reference to the
presentations by the Executing Contractor in the minutes of
the Management Committee leaves no doubt that this was a
closed issue and re-opening it was a red herring from M3;
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l) Therefore, in my opinion, nothing perverse can be
found in the reasoning by the Learned Arbitral Tribunal that
the MOU was superseded by the Service Contract. On the
facet of the Executing Contractor, clearly the parties moved
on to a moulded bargain under the Service Contract and this
facet was truly superseded. M3 bargained and received the
safety feature of a pre-agreed budget and the Review and
Approval Matrix and the affirmative voting threshold of 71%
participating interest;
m) That apart, as a matter of evidence, the Learned
Arbitral Tribunal has rightly come to a plausible view that
M3 has confirmed in writing that this issue was accepted by
M3 and put to rest;
n) It is apparent to me that M3's conduct is not of one
who is of the belief that there has been no contract at all. M3
has been well aware that the JEA is an essential requirement
under the Service Contract and its actions are not at all in
conflict with furthering the essential bargain under the 2007
JEA. The disputes and open areas being pressed into service
are distractions holding to distract the line of reasoning and
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consideration to an impression as if the parties did not have
consensus ad idem; and
o) The Learned Arbitral Tribunal found that under
Indian contract law, a contract need not even be in writing.
It was ONGC's requirement that an executed JEA be
delivered to it. The parties indeed had a contract that was in
writing and even initialled, but to deliver to ONGC, it needed
a formal signature, and that was systematically withheld by
M3 despite having an agreement evidenced by initialling it
and minuting the draft as an agreed position. The aforesaid
reasoning is a sound one and does not call for any
interference as a matter of Indian law. There is nothing
illegal in the aforesaid proposition much less patently illegal.
Therefore, M3's efforts to put too fine a point about the
meaning of the term "execution" does not lend itself to
acceptance for interference under Section 34 of the Act. The
case law relating to development agreements governing
redevelopment of buildings of housing societies cited by Mr.
Gupta on the facet of concluded contracts are totally
distinguishable. A development agreement by law is required
to be registered to be enforceable, and consent to a
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development agreement involving a housing society
involving multiple constituents, they stand on a very
different footing.
74. Therefore, on the core contention presented in this Petition
under Section 34, namely, that there is no arbitration agreement in
existence, and which contention is based on the premise that the 2007
JEA was not a binding contract, I find nothing wrong with the findings
of the Learned Arbitral Tribunal in terms of Section 34(2)(a)(ii) of the
Act.
75. It would not be out of place to draw reference to the views of
the Supreme Court in Kollipara Sriramulu9 extracted below:
3. We proceed to consider the next question raised in these
appeals, namely, whether the oral agreement was ineffective because
the parties contemplated the execution of a formal document or
because the mode of payment of the purchase money was not actually
agreed upon. It was submitted on behalf of the appellant that there
was no contract because the sale was conditional upon a regular
agreement being executed and no such agreement was executed. We
do not accept this argument as correct. It is well established that a
mere reference to a future formal contract will not prevent a binding
bargain between the parties. The fact that the parties refer to the
preparation of an agreement by which the terms agreed upon are to be
put in a more formal shape does not prevent the existence of a binding
contract. There are, however, cases where the reference to a future
Kollipara Sriramulu v. T. Aswatha Narayana - 1968 SCC OnLine SC 87
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contract is made in such terms as to show that the parties did not
intend to be bound until a formal contract is signed. The question
depends upon the intention of the parties and the special
circumstances of each particular case. As observed by the Lord
Chancellor (Lord Cranworth) in Ridgway v. Wharton [6 HLC 238,
63] , the fact of a subsequent agreement being prepared may be
evidence that the previous negotiations did not amount to a concluded
agreement, but the mere fact that persons wish to have a formal
agreement drawn up does not establish the proposition that they
cannot be bound by a previous agreement. In Von Hatzfeldt-
Wildenburg v. Alexander [(1912) 1 CH 284, 288] it was stated by
Parker, J. as follows:
"It appears to be well settled by the authorities that if the
documents or letters relied on as constituting a contract
contemplate the execution of a further contract between the
parties, it is a question of construction whether the execution of
the further contact is a condition or term of the bargain or
whether it is a mere expression of the desire of the parties as to
the manner in which the transaction already agreed to will in
fact go through. In the former case there is no enforceable
contract either because the condition is unfulfilled or because
the law does not recognize a contract to enter into a contract.
In the latter case there is a binding contract and the reference
to the more formal document may be ignored."
4. In other words, there may be a case where the signing of a
further formal agreement is made a condition or term of the bargain,
and if the formal agreement is not approved and signed there is no
concluded contract. In Rossiter v. Miller [3 AC 1124] Lord Cairns
said:
"If you find not an unqualified acceptance subject to the
condition that an agreement is to be prepared and agreed upon
between the parties, and until that condition is fulfilled no
contract is to arise then you cannot find a concluded contract."
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In Currimbhoy and Company Ltd. v. Creet [60 IA 297] the Judicial
Committee expressed the view that the principle of the English law
which is summarised in the judgment of Parker, J. In Von Hatzfeldt-
Wildenburg v. Alexander [(1912) 1 CH 284, 288] was applicable in
India. The question in the present appeals is whether the execution of
a formal agreement was intended to be a condition of the bargain
dated July 6, 1952 or whether it was a mere expression of the desire of
the parties for a formal agreement which can be ignored. The evidence
adduced on behalf of Respondent 1 does not show that the drawing up
of a written agreement was a pre-requisite to the coming into effect of
the oral agreement. It is therefore not possible to accept the contention
of the appellant that the oral agreement was ineffective in law because
there is no execution of any formal written document. As regards the
other point, it is true that there is no specific agreement with regard to
the mode of payment but this does not necessarily make the agreement
ineffective. The mere omission to settle the mode of payment does not
affect the completeness of the contract because the vital terms of the
contract like the price and area of the land and the time for completion
of the sale were all fixed. We accordingly hold that Mr Gokhale is
unable to make good his argument on this aspect of the case.
[Emphasis Supplied]
76. Applying this to the facts of the case, it is not even a case of
an oral contract. There is a written instrument in place in the 2007
JEA, that reduced to writing the agreement among the parties, and
initialled by the designated representatives on April 18, 2007 to confirm
that it was an agreed draft. The only provision (Article 7.3 of the 2007
JEA) was also closed out in a week thereafter. The accounting
treatment was subject matter of the Service Contract and in any case
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loose ends were further tied up by December 2007. Nothing really was
left in the parties' understanding of what they had agreed on. Even the
issue of PPCL being the sole Executing Contractor was resolved with M3
agreeing in writing to it, with the safeguard of its affirmative voting
threshold. When PPCL sought to revisit the affirmative voting threshold
as a reaction to M3's conduct, it was M3 that resisted it stating that the
agreed position could not be revisited. For the aforesaid reasons, I do
find that 2007 JEA was indeed in existence.
77. That apart, the arbitration agreement was indeed in existence
and was truly valid. M3's exercise of its autonomy to arbitrate disputes
with the Consortium partners has been manifestly exercised right from
the execution of the MOU and reiterated under the 2007 JEA that was
agreed and initialled with formal appending of signatures being
withheld.
78. The Impugned Award cannot be set aside under Section
34(2)(a)(ii) either, as canvassed by Mr. Gupta on behalf of M3. I am not
inclined to endorse the standard of de novo review for the Section 34
Court canvassed by Mr. Gupta under Section 34(2)(a)(ii), primarily
because the standard to be applied has been explicitly set in terms of the
remand order of the Learned Division Bench. Yet, looking at the
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material on record, for the reasons that I have independently expressed,
my views align with the views expressed by the Learned Arbitral
Tribunal. M3 has failed to prove that the arbitration agreement is not in
existence or is not valid under the law to which the parties have
subjected it.
79. On this facet of the matter i.e. the alleged non-existence of
the arbitration agreement, for the very same reasons, even Section 34(2)
(b)(ii) of the Act would not be attracted. As stated above, the doctrine of
essentiality is well articulated in Pagnan and applied in Indian law. Mr.
Gupta would firmly contend that Pagnan itself would indicate that what
is "essential" is for the contracting parties to decide and not for the
Court to impose. He would contend that it is not for the Learned
Arbitral Tribunal or this Court to decide if Article 7.3 was not essential.
Therefore, I believe it is important to extract the following principle
from the summary set out in Pagnan:
(6) It is sometimes said that the parties must agree on the essential
terms and that it is only matters of detail which can be left over. This
may be misleading, since the word "essential" in that context is
ambiguous. If by "essential" one means a term without which the
contract cannot be enforced then the statement is true: the law cannot
enforce an incomplete contract. If by "essential" one means a term
which the parties have agreed to be essential for the formation of a
binding contract, then the statement is tautologous. If by "essential"
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one means only a term which the court regards as important as
opposed to a term which the court regards as less important or a
matter of detail, the statement is untrue. It is for the parties to decide
whether they wish to be bound and, if so, by what terms, whether
important or unimportant. It is the parties who are, in the memorable
phrase coined by the judge, "the masters of their contractual fate". Of
course the more important the term is the less likely it is that the
parties will have left it for future decision. But there is no legal
obstacle which stands in the way of the parties agreeing to be bound
now while deferring important matters to be agreed later. It happens
every day when parties enter into so-called "heads of agreement" . Mr
Rokison submits that that is a special case, but I do not think it is.
[Emphasis Supplied]
80. Indeed, it is not just for the Court to decide if some element is
inessential. What is clear in the facts of the case is that the parties not
only deferred their final view on Article 7.3, they also agreed on the
variants and only escalated the selection of the variant by the
Management Committee. The Management Committee, in concept, was
inherently also a creature of the 2007 JEA. More importantly, the
Management Committee indeed picked one of the variants and closed it
out. Therefore, what is writ large is that the parties themselves felt
Article 7.3 as being inessential, agreeing to leave it as a loose end only to
be tied by the Management Committee under the escalation mechanism,
which was also part of the very agreement they had arrived at. They
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worked on that very framework and closed this open issue. Therefore,
the reading of the aforesaid extract from Pagnan in the manner sought
to be canvassed on M3's behalf, does not appeal to me.
81. All that transpired thereafter has been a manifestation of
M3's bold attempts to reopen the agreement, based on its own
perception of its relative strength, which has not found favour with the
Learned Arbitral Tribunal, in its perfectly plausible and reasoned
Impugned Award.
82. For completeness, I must also state that the Learned Arbitral
Tribunal is assailed for not having considered certain documents - in
particular documents prior to April 16, 2007, and a few others
subsequently. I am afraid this too does not turn the needle in M3's
favour inasmuch as (as held in Associate Builders) the Learned Arbitral
Tribunal, as the master of the evidence is the best judge of the quality
and quantity of evidence necessary to draw plausible conclusions. There
is nothing in the documents listed in the table presented on behalf of
M3 as not having been considered by the Learned Arbitral Tribunal, that
would change the analysis set out in this judgement.
83. Likewise, I have also examined the Compilation of Factual
Documents, some of which have admittedly not been part of the record,
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and I find that the same analysis as above would apply to them too. I
find that most of these documents relied upon by Mr. Gupta to indicate
that the JEA is not yet "finalised" are assertions by M3 and that too well
after April 2007 (December 2007 onwards), by which time, evidently
with the benefit of hindsight, it is apparent that there has been a change
in approach by M3. Contemporaneous with events as they transpired in
2007, M3 itself rebuffed PPCL in August 2007 that there had been an
agreed position on the affirmative vote threshold, which ought not to be
reopened.
Liability Indicated in the Impugned Award:
84. This brings me to the other facet of the Impugned Award,
namely, whether the Learned Arbitral Tribunal's view that it is M3 that
was responsible for the issuance of the Termination Notice, and whether
M3 was liable for damages said to have been suffered by the HPCL and
PPCL, necessitating compensation.
85. Having considered the arbitration agreement to be existent, it
is necessary to examine M3's challenge to this portion of the Impugned
Award. Essentially, the Impugned Award notices that ONGC
terminated the Service Contract because: (i) the parties did not deliver
an executed JEA within the deadline extended from time to time and
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eventually by the final extended deadline of May 31, 2008; (ii) the
parties were not able to resolve their inter se contractual issues, in
particular on the FEED sub-contract; and (iii) the parties did not deliver
the IDP as required under the Service Contract.
86. The Learned Arbitral Tribunal has found M3 responsible for
each of the foregoing grounds in the Termination Notice. The first
ground has been dealt with in detail above. This segment of the
judgement deals with the Learned Arbitral Tribunal's handling of the
other grounds in ONGC's Termination Notice.
87. On these counts, Mr. Gupta would submit that the scope of
review under Section 34 of the Act ought to be considered through the
prism of the position obtaining prior to the amendments to the Act
effected in 2015. The grounds on which he would contend the
Impugned Award fails in relation to fastening the responsibility and
liability on M3 are said to be breach of natural justice with regard to the
FEED sub-contract; perversity by ignoring vital evidence; and patent
illegality in ignoring contractual provisions.
Non-Submission of IDP:
88. On the non-provision of the IDP, M3 would refer to
provisions in the Service Contract and the MOU to indicate that under
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the MOU the oil and gas estimation was to be made by HPCL and PPCL
while M3 was responsible for preparing the IDP. M3 claimed that the
submission of the IDP was delayed because HPCL and PPCL failed to
provide the oil and gas estimates necessary for preparing the IDP.
FEED Sub-Contract:
89. According to Mr. Gupta, HPCL and PPCL had conceded that
they had no contractual claim against M3 on the FEED sub-contract
since it did not form subject matter of the Service Contract. Therefore,
it is stated that M3 never had occasion to address the Learned Arbitral
Tribunal on this issue and yet there are findings recorded against M3.
Essentially, what the Learned Arbitral Tribunal has found is that PPCL
indeed had the right to appoint Trident, an Australian third party, as the
FEED sub-contractor and M3 did not have any right to challenge such
appointment.
90. Mr. Gupta would contend that there is an evident violation of
natural justice since the FEED sub-contract was not part of the claim by
HPCL and PPCL and M3 had no occasion to address the Learned
Arbitral Tribunal on this issue. That apart, M3 would hark back to the
MOU, which placed the responsibility for well design and well
engineering on M3 and this fell within the scope of M3's rights,
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indicating that PPCL had no right to grant a sub-contract on this
subject.
Summary of Conclusions - Liability and Responsibility:
91. Having considered the submission of M3 in this regard, it is
evident that the Learned Arbitral Tribunal examined the evidence on
record including the minutes of meeting of the Management Committee
held on January 10, 2008 at which the sixth version of the IDP was
signed for submission to ONGC. However, it was M3 that was unhappy
with the estimation of oil and gas, and at the meeting of the
Management Committee meeting held on May 21, 2008, M3 had agreed
to take appropriate action of estimating the oil and gas reserves within
four weeks i.e. by June 21, 2008. This was not done and M3, which
simply sought more time from ONGC on June 21, 2008, which was
rejected by ONGC on June 26, 2008.
92. Six versions of the IDP prepared based on oil and gas
estimations made by HPCL and PPCL were not acceptable to M3.
Thereafter, M3 took on itself undertaking this task, and it was agreed
that if M3 failed to do so, the estimations made by HPCL and PPCL
would be the basis for the IDP. When M3 did not perform, it was also
agreed that whatever was already in place would be submitted.
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93. The abiding theme in M3's submissions is that the
estimations made by HPCL and PPCL were "not acceptable" to M3.
ONGC was also examining the conduct of the parties as the party that
had granted the Service Contract to the Consortium. ONGC had, in
parallel, been witness to M3 holding up signatures on the agreed JEA.
94. If the Learned Arbitral Tribunal found that M3 was neither
willing to accept the estimates prepared by HPCL and PPCL nor was it
willing to get its own estimates despite being given a chance to do so, it
is a plausible view that the Learned Arbitral Tribunal is entitled to take
on the basis of the material on record. It appears to me that M3 was
scuttling the Service Contract through these multiple means.
95. It is trite law that the Learned Arbitral Tribunal is the best
judge of the quality and quantity of evidence and so long as its view is a
plausible view, merely because another view can be canvassed, the
Section 34 Court cannot accept a competing view presented as being
plausible. In my considered opinion, after M3 had taken on itself the
task of estimating the oil and gas, with HPCL and PPCL having given
M3 the opportunity to make its own estimates, it is not possible for this
Court to re-appreciate evidence prior to January 2008 and second-guess
the findings of the Learned Arbitral Tribunal.
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96. What is a plausible reading is that for reasons best known to
M3, it's actions on multiple fronts, whether concerted or not, led to the
scuttling of the Service Contract. Withholding the signature on the
agreed 2007 JEA, which was confirmed as agreed again in April 2008,
M3 was also holding up the IDP, which to be fair to the other parties,
went through six iterations with M3 remaining displeased. The seventh
version of IDP filed by HCPL and PPCL without waiting for M3 was also
rejected by ONGC for want of M3's consent.
97. Therefore, the view of the Learned Arbitral Tribunal that
M3's actions had scuttled the Service Contract and therefore it was M3
that was responsible for the termination by ONGC is a perfectly
plausible view that cannot be disturbed lightly.
98. The FEED sub-contract falls in the same bucket. The
Learned Arbitral Tribunal has come to a plausible view, not without any
reference to evidence. Whether HPCL and PPCL made a claim in this
regard and whether any damages are quantified in this regard would be
seen when considering the next arbitral award on damages, but the
Learned Arbitral Tribunal cannot be faulted in returning a plausible
finding that after conceding to PPCL being the Executing Contractor,
and that too in writing, for M3 to still raise objections to the grant of the
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FEED sub-contract was not acceptable, and therefore had
consequences.
99. The Impugned Award only returns a finding of who is
responsible. The quantification would come later. If HPCL and PPCL
are not pressing for damages on the FEED sub-contract that can be
examined when considering the arbitral award granting damages in the
matter. At this stage, in my opinion, no fault can be found with the
Learned Arbitral Tribunal for its considered, reasonable and plausible
opinion that it was M3 that was scuttling the Service Contract. The
objections to the grant of the FEED sub-contract was held to be
untenable while frustrating the presentation of the IDP was held to be
unreasonable. Since PPCL was agreed to be the sole Executing
Contractor and the FEED sub-contract had been granted by PPCL, this
too is something that Learned Arbitral Tribunal was entitled to plausibly
find.
100. That the governance structure had a need for unanimity
when any matter was escalated to the JEA is evident from the record.
Whether the evidence shows that M3 holding 30% participating interest
was responsible for holding up the unanimity is a matter of finding on
merits, which the Learned Arbitral Tribunal was entitled to find on the
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basis of the evidence. By examining the evidence, if the Learned
Arbitral Tribunal concluded that the withholding of consent by M3 was
unreasonable, it is a matter of appreciation of evidence that the Learned
Arbitral Tribunal is entitled to engage in, in order to return a plausible
view.
101. Therefore, I am not persuaded that the findings of the
Learned Arbitral Tribunal are perverse in any manner on the ground of
leaving out any material evidence nor is it patently illegal or against
public policy on the ground of taking into account any irrelevant
evidence.
102. It cannot be ignored that Article 22.5 of the 2007 JEA, which
is held to be a binding contract, also enjoins the parties to act
reasonably and do everything reasonably necessary to maintain the
Service Contract in full force. The Learned Arbitral Tribunal has
concluded that M3 failed this standard. All the submissions of Mr.
Gupta would be relevant only if one were to find that the JEA did not at
all exist, which is M3's foundational submission. That being rejected,
the submissions made to get past M3's unreasonable conduct in the
teeth of Article 22.5 of the 2007 JEA are not tenable.
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Final Conclusion:
103. I have already set out a summary of conclusions under each
of the two main heads - (i) existence of the JEA and of the arbitration
agreement contained therein, both independently and as an integral
element of the JEA; and (ii) liability on M3 for being responsible for
what led to ONGC issuing the Termination Notice.
104. The parties have no quarrel with ONGC for wrongful
termination. They appear to be well aware that the receipt of the
Termination Notice was deserved and the Termination Notice was in the
making for a while. The Service Contract too has an arbitration clause
and no proceedings are said to have been initiated against ONGC,
disputing the Termination Notice.
105. The real issue is the inter se disputes between the parties and
of who is responsible for what came to pass. For the reasons articulated
above under each of the two heads outlined in the earlier paragraph, I
am not persuaded to make any intervention into the Impugned Award,
which returns valid, plausible and reasonable findings rendered
unanimously by the three-member Learned Arbitral Tribunal. There is
no perversity at all in the Learned Arbitral Tribunal's conclusions, which
are not of a nature that no reasonable man could have arrived at.
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106. Therefore, for the aforesaid reasons, the Petition fails and is
hereby dismissed. Interim Applications, if any, would also stand finally
disposed of, accordingly.
Costs:
107. Considering that this is a commercial dispute, costs must
follow the event. However, considering that the matter has languished
for long for no fault of either party, I have restricted costs to a token
sum of Rs. 14 lakhs, which shall be paid by M3 to HPCL and PPCL in the
proportion of 60:10 (the ratio of their participating interests in the
Consortium - Rs. 12 lakhs to HPCL and Rs. 2 lakhs to PPCL) within a
period of one week after the expiry of four weeks from the upload of this
judgement on this Court's website.
An End-Note:
108. This judgement is regrettably long and has also taken
regrettably long in its making. In the interest or brevity and to avoid
prolix reproduction from the whole pile of case law sought to be
presented into service, I have restricted references to them to the bare
minimum, and not indulged in copious extraction from them, bearing in
mind the standard of review applicable under Section 34 of the Act. To
avoid further prolixity and lengthy extraction, I have not extracted from
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case law cited beyond what I felt is necessary to adjudicate what fell for
review to dispose of this Petition finally.
109. It is also appropriate to record my gratitude to both Mr.
Gupta and Mr. Seervai for having curtailed their verbal submissions
within the reasonable time limits they committed to. There must be a
special mention for Mr. Gupta's ability to compile and present in
writing, extremely well-referenced submissions, to enable the review of
the voluminous material on record, necessary for adjudicating a Petition
of this nature, without extremely time-consuming verbal submissions.
Copious and lengthy written submissions had already formed part of the
record before my predecessors, and Mr. Gupta has assisted me well by
culling out well-referenced written submissions to aid my review of the
record, and disposal of this Petition.
110. All actions required to be taken pursuant to this order shall
be taken upon receipt of a downloaded copy as available on this Court's
website.
[SOMASEKHAR SUNDARESAN, J.]
November 3, 2025
Ashwini Vallakati
