Union Of India Through Ministry Of ... vs Kalimata Ispat India (P) Ltd.
2014 Latest Caselaw 2605 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO 179/2012
%                                                         21st May, 2014

UNION OF INDIA THROUGH MINISTRY OF RAILWAY ......Appellant
                  Through: Mr. Jagjit Singh and Ms. Sampa
                           Sengupta Ray, Advocates.


                           VERSUS

KALIMATA ISPAT INDIA (P) LTD.                             ...... Respondent
                  Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

Review Application No. 255/2014 & C.M.No. 8930/2014 (condonation of
delay)
1.             On 20.5.2014, the following order was passed:-
         1.         Counsel for the review petitioner is not well.
         At request, adjourned to 21st May, 2014 making it clear
         that no adjournment shall be granted on the next date.
         2.         I may prima facie state that the review
         application is not maintainable because in one application,
         there cannot be two reliefs which are contradictory to each
         other i.e for treating the judgment as an exparte judgment
         and for setting aside the same on the ground that it is an
         exparte judgment and the second relief that the judgment
         should be taken as final but review should be granted on
         merits.

FAO 179/2012                                                                  Page 1 of 4
 2.             Counsel for the review petitioner/appellant states that the

petition be treated as a review petition and be decided accordingly. Taking

the statement on record, the application/petition is treated as a review

petition. Counsel for the review petitioner/appellant is heard.


3.             This review petition is filed against the judgment passed by this

Court on 3.2.2014. By the judgment dated 3.2.2014, the appeal filed by the

appellant against the impugned judgment of the court below dated

17.12.2011 dismissing the objections under Section 34 of the Arbitration and

Conciliation Act, 1996 was dismissed.


4.             No doubt, the impugned judgment may not be illuminating,

however, it is for that reason while passing the judgment on 3.2.2014 this

Court reproduced the relevant paras of the Award.


5.             The disputes in the present case pertained to the claim made by

the respondent against the appellant of a sum of Rs.2.74/- for each ERC

Mark-III which was supplied to the appellant.          Indubitably, as per the

contractual clause 7.3, a fixed amount of Rs.2.74/- for each ERC Mark-III

supplied to the appellant, the respondent/claimant and only if there was a

variation then the higher differential amount would be paid to the appellant.

The claim petition filed by the respondent was only for a sum of Rs.2.74 and
FAO 179/2012                                                                 Page 2 of 4
 there was no counter-claim by the appellant that even if the

claimant/respondent has received a higher amount than Rs.2.74 on account

of MODVAT and which amount was therefore sought as a counter-claim by

the appellant.    Therefore, before the arbitrator the only issue was of

enforcement of Clause 7.3 as per which the respondent/claimant had to get

an amount of Rs.2.74 for each ERC Mark-III supplied to the appellant and

which was a fixed amount in favour of the respondent/claimant.


6.             As already stated above, there is no counter-claim of the

appellant herein in the arbitration proceedings and therefore, the only claim

which is decided by the arbitrator was for a sum of Rs.2.74 for each ERC

Mark-III received by the appellant, and which was payable to the respondent

herein in terms of Clause 7.3.


7.             There is no error apparent on the face of the record and

therefore, this review petition is dismissed. I may state that in fact the entire

appeal was argued on merits on behalf of the appellant although the

appellant did not appear when the appeal was disposed of on 3.2.2012. I

have allowed the appellant to re-argue the appeal on merits only to ensure




FAO 179/2012                                                                  Page 3 of 4
 that there is no error in the impugned judgment, though really the review

petition was ex facie not maintainable.


8.             Dismissed.




MAY 21, 2014                              VALMIKI J. MEHTA, J.

ib