Delhi High Court
Ntpc Vidyut Vyapar Nigam Limited vs Lexicon Vanijya Private Limited & ... on 2 August, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 02.08.2021
+ O.M.P. (COMM.) 163/2021 & IA No. 5826/2021
NTPC VIDYUT VYAPAR NIGAM LIMITED ..... Petitioner
versus
LEXICON VANIJYA PRIVATE LIMITED
& ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Rituraj Biswas and Mr Rituraj
Choudhary, Advocates.
For the Respondent : Ms Mamta Tiwari, Ms Swati Sinha, Ms
Taruna A. Prasad and Mr Aman Bhatnagar,
Advocates.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. NTPC Vidyut Vyapar Nigam Limited (hereinafter 'NVVNL')
has filed the present petition under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter the 'A&C Act') impugning an
arbitral award dated 20.11.2020 (hereinafter 'the impugned award')
rendered by an Arbitral Tribunal comprising of Justice (Retired) V.N.
Khare, former Chief Justice of India, Mr Ambarish Dave and Justice
(Retired) D.P. Wadhwa, former Judge of the Supreme Court of India
as the Presiding Arbitrator.
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2. The impugned award was rendered in the context of disputes
that had arisen between NVVNL and respondent no.1 (hereafter
'Lexicon') in connection with the Power Purchase Agreement
(hereinafter the 'PPA') entered into between NVVNL and Lexicon
3. Essentially, the dispute between NVVNL and Lexicon revolve
around the question whether NVVNL was entitled to recover
liquidated damages from Lexicon as contemplated under the PPA.
NVVNL claimed that it was entitled to recover ₹2,77,27,000/-
(Rupees Two Crores Seventy-Seven Lacs and Twenty-Seven
Thousand only) as liquidated damages being 10% of the Performance
Guarantee furnished by Lexicon, as according to NVVNL, Lexicon
had failed to commission the solar power plant for generating 10 MW
capacity on or before the scheduled commissioning date.
4. According to NVVNL, Lexicon had commissioned 5 MW
capacity on or before 26.02.2013 (the Scheduled Commissioning
Date) and had commissioned the balance 5 MW by 01.03.2013, that
is, after a delay of three days. NVVNL claimed that it was thus,
entitled to recover half of 20% of the Performance Bank Guarantee in
terms of Clause 4.6 of the PPA. Lexicon disputed the aforesaid claim
as according to Lexicon it had commissioned the solar power
generating project before the Scheduled Commissioning Date. It
claimed that it had completed and installed 10 MW of solar power
generating capacity on 21.02.2013.
5. The Arbitral Tribunal found in favour of Lexicon and accepted
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its contention that it had completed and installed the solar power plant
with 10 MW capacity on or before the Scheduled Commissioning
Date of 26.02.2013. Accordingly, the Tribunal held that NVVNL was
not entitled to recover any liquidated damages. The Arbitral Tribunal
further held that not was not established that NVVL had suffered any
loss on account of the three days delay in completion of a part of the
project. Therefore, in any event, NVVNL could not recover the said
damages without establishing that it had suffered any loss.
6. Accordingly, the Arbitral Tribunal directed that the
Performance Bank Guarantee furnished by Lexicon be discharged. It
also awarded costs of ₹1,08,66,000/- (Rupees One Crore Eight Lacs
and Sixty-Six Thousand only) in favour of Lexicon.
7. It is contended on behalf of NVVNL that the impugned award is
perverse and is contrary to the terms of the PPA. It is contended on
behalf of NVVNL that the impugned award disregards the minutes of
the Commissioning Committee of 25.02.2013- 26.02.2013 - which
recorded that Lexicon had electrically connected only 7.06 MW
capacity as on 25.02.2013 - and therefore, the impugned award is
patently illegal and is liable to be set aside.
Factual Background
8. The Government of India launched the Jawaharlal Nehru
National Solar Mission (hereinafter 'JNNSM') with the objective to
establish India as a global leader in solar energy. The Government of
India through the Ministry of New and Renewable Energy (hereinafter
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'MNRE') designated NVVNL as a Nodal Agency for Phase-I of
JNNSM.
9. NVVNL was required to purchase solar power from Solar
Power Developers (SPDs); bundle it with the power available from
coal based plants of NTPC; and sell the bundled power to various
Distribution Utilities.
10. On 24.08.2011, NVVNL invited proposals for setting up of
Grid Connected Solar PV Project under Phase-I Batch-II of JNNSM
for purchase of power. NVVNL issued a Request for Selection (RfS)
inviting bids for 350 MW of power. The bidders were to be selected
in decreasing order of the discount offered by them over the tariff
approved by the Central Electricity Regulatory Commission (CERC).
11. Lexicon submitted its response to the said RfS. Thereafter, it
was issued a Request for Proposal (RfP) form. Lexicon submitted the
same to NVVNL quoting a discount of 670 paisa per KWh over the
CERC applicable tariff.
12. Lexicon was selected as one of the successful bidders and
NVVNL issued a Letter of Intent (LOI) dated 28.12.2011 accepting
Lexicon's bid and further confirmed its intent to purchase the power
generated pursuant to its proposal.
13. In terms of the LOI, Lexicon was required to furnish Bank
Guarantee(s) in terms of Article 3.19 of the RfS before signing of the
PPA. The Bank Guarantees were required to be valid for a period of
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sixteen months from the effective date of the PPA. Lexicon complied
with the said condition and furnished Bank Guarantees aggregating a
total sum of ₹27,74,54,000/- (Rupees Twenty-Seven Crores Seventy-
Four Lacs and Fifty-Four Thousand only) for securing due
performance of its obligations.
14. Thereafter, NVVNL and Lexicon entered into the PPA on
27.01.2012. Under the PPA, the location of the power project was
initially at a village in Jaisalmer. The PPA was subsequently amended
to change the location of the power project to Village Manchitiya,
District Jodhpur, Rajasthan.
15. In terms of the PPA, Lexicon agreed to set up, install and
commission a 10 MW capacity grid connected Solar PV Power Project
using photo voltaic technology at Village Manchitiya in Jodhpur
District of Rajasthan. The power project was required to be designed,
constructed, erected and commissioned within a period of thirteen
months from the effected date, that is, on or before 26.02.2013 (the
Scheduled Commissioning Date).
16. It is relevant to note that in terms of the PPA, the 'Commercial
Operation Date' of the project was defined to mean the "actual
commissioning date of respective units of power project whereupon
SPD starts injecting power from the power projects to the delivery
point".
17. Lexicon claims that it installed, completed and initialized a
solar power plant of 10 MW capacity on 21.02.2013. It also claims
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that its solar power plant was connected to the grid and was
successfully generating electricity from 21.02.2013, that is, prior to
the Scheduled Commissioning Date.
18. The Commissioning Committee constituted by respondent no.2
inspected Lexicon's solar power plant on 25.02.2013. It verified that
Lexicon had set up modules of 10.004 MW capacity. However, it also
noted in the Minutes of the Meeting prepared on that date, that 30% of
the modules/strings had not been electrically connected. According to
the Commissioning Committee, over 7.06 MW capacity had been
electrically connected.
19. According to Lexicon, the observations made by the
Commissioning Committee were erroneous and it had installed a
power plant complete in all respects of the capacity of 10 MW.
Lexicon claimed that notwithstanding the above, it connected the
balance modules and on 26.02.2013 requested the Commissioning
Committee to inspect the same. Lexicon claimed that although the
members of the Commissioning Committee were present at site, they
declined to accede to its request of re-inspecting the plant. Thereafter,
Lexicon sent an email as well as a FAX to respondent no.2 and also
served a copy of the same to the members of the Commissioning
Committee requesting for an immediate re-inspection on the plant site
on 26.02.2013. Lexicon claims that notwithstanding that the
conclusion of the Committee was erroneous, it had addressed the
observations made by the Commissioning Committee.
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20. It is stated that the Commissioning Committee did not re-
inspect the plant site on 26.02.2013 but undertook the inspection on
02.03.2013, that is, after three days.
21. The Commissioning Committee found that Lexicon's Solar
Plant was complete in all respect and there is no controversy that as on
01.03.2013, Lexicon had completed its obligations of setting up a
solar power plant of 10 MW capacity. However, NVVNL prepared a
report dated 25.04.2013 to the effect that only 5 MW capacity had
been commissioned by Lexicon on 26.02.2013 and the remaining 5
MW capacity was commissioned on 01.03.2013. Thus, according to
NVVNL, Lexicon had defaulted in performance of its obligations
inasmuch as it had completed the establishment of 50% of the
contracted capacity (50% of 10 MW) after a delay of three days from
the Scheduled Commissioning Date.
22. According to NVVNL, it is entitled to claim liquidated damages
in terms of Article 4.6 of the PPA and it sought to recover the same by
invoking the Performance Bank Guarantees furnished by Lexicon.
23. In the aforesaid backdrop, Lexicon filed a petition under
Section 9 of the A&C Act (OMP No. 462/2013) seeking an injunction
against NVVNL for invoking the Bank Guarantees.
24. By an ad interim order dated 07.05.2013, this court restrained
NVVNL from invoking the Bank Guarantees and further directed that
status quo be maintained till the next date of hearing.
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25. Since NVVNL's case was that Lexicon had delayed completion
of the project to the extent of 5 MW, the liquidated damages payable
under Article 4.6.1 of the PPA would not exceed 10% of the total
Bank Guarantee amount (being in proportion of the capacity that was
delayed, that is, 50% of the 20% of the bank guarantee amount that
could be enforced for a delay of three days). Accordingly, this Court
by an order dated 24.05.2013 directed that the interim order passed
earlier (order dated 07.05.2013) interdicting NVVNL from invoking
the Bank Guarantee would continue subject to NVVNL keeping alive
the Bank Guarantee to the extent of 10% of the total Bank Guarantee
amount.
26. In terms of the aforesaid order, Lexicon amended the original
Bank Guarantees furnished by it by reducing the amount to
₹2,77,27,000/- (Rupees Two Crores Seventy-Seven Lacs and Twenty
Seven Thousand only). The said amended Performance Bank
Guarantee (Performance Bank Guarantee No. 05731LG014113 dated
27.05.2013 for a sum of ₹2,77,27,000/- issued by Punjab National
Bank, Park Street, Kolkata) was kept alive by Lexicon pending the
arbitral proceedings.
27. Lexicon's petition under Section 9 of the A&C Act (OMP
No.462/2013) was disposed of by this Court by an order dated
16.10.2014 directing NVVNL to give at least three days clear notice if
it chooses to invoke the Bank Guarantee.
28. NVVNL issued a letter dated 20.10.2014 seeking to invoke the
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Bank Guarantee. This led Lexicon to approach the Arbitral Tribunal
for seeking interim measures of protection under Section 17 of the
A&C Act. The Arbitral Tribunal passed an order dated 30.10.2014
restraining NVVNL from invoking the Bank Guarantee and the said
order was extended from time to time.
29. In the aforesaid context, Lexicon filed its Statement of Claims
before the Arbitral Tribunal, inter alia, praying for a declaration that
its solar power plant was commissioned on 26.02.2013 and seeking a
direction to respondent no.2 to issue a Commissioning Certificate
certifying 26.02.2013 as the date of commissioning of its plant (Claim
Nos. 1 and 2). Lexicon further prayed for a direction towards
NVVNL for release of its Bank Guarantee (Claim No. 3). Lexicon
also sought reimbursement of expenses incurred in keeping the
Performance Bank Guarantee alive for the period beyond 16.05.2014
quantified at ₹2,88,290/- (Claim No.4). In addition, Lexicon also
claimed ₹20,11,952/- as litigation expenses incurred by it in pursuing
OMP No. 462/2013 before this Court (Claim No.5) and costs of the
arbitral proceedings (Claim No.6). It also sought pendente lite and
future interest at the rate of 18% per annum on the amounts claimed.
30. The Arbitral Tribunal considered the rival contentions and
delivered the impugned award directing release of the Bank Guarantee
and further awarded costs quantified at ₹1,08,66,000/- in favour of
Lexicon. The Arbitral Tribunal also directed that NVVNL would pay
the awarded amount to Lexicon within a period of four weeks from the
receipt of the award failing which NVVNL would pay interest at the
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rate of 9% after the four weeks period till realization of the amount by
Lexicon.
Submissions
31. Mr Biswas, learned counsel appearing for NVVNL has assailed
the impugned award on, essentially, three fronts. First, he referred to
Clause 4.1.1 of the PPA and emphasized that Lexicon was obliged to
commence supply of power up to the contracted capacity to NVVNL
no later than the Schedule Commissioning Date. He referred to the
Minutes of the Meeting of the Commissioning Committee dated
25.02.2013 - 26.02.2013, whereby the Commissioning Committee had
observed that "Modules of only 7.06 mw capacity were electrically
connected ...". He submitted that in view of the said report, the
decision of the Arbitral Tribunal that Lexicon had performed its
obligation and completed a 10 MW plant on or before the Schedule
Commissioning Date of 26.02.2013 is patently illegal. He also
submitted that Lexicon's witness had admitted that "few of the strings
were not electronically connected on 25.02.2013" and therefore, the
observations made by the Commissioning Committee could not be
faulted.
32. Second, he submitted that the Arbitral Tribunal had also grossly
erred in holding that liquidated damages were not a matter of right and
NVVNL was required to prove that it had suffered a loss. He
submitted that electrical power was a public utility and therefore, it
was not necessary for NVVNL to prove quantum of damages suffered
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by it with any precision. He referred to the decision of the Supreme
Court in Construction and Design Services v. Delhi Development
Authority: (2015) 14 SCC 263 and the decisions of this Court in
NTPC Vidyut Vyapar Nigam Limited v. Saisudhir Energy Limited:
FAO (OS) 275 and 281 of 2016, decided on 18.01.2018 and NTPC
Vidyut Vyapar Nigam Ltd v. Precision Technik Pvt. Ltd.: 2018 SCC
OnLine Del 13102.
33. Third, he submitted that the award of cost of ₹1,08,66,000/- in
favour of Lexicon was without any basis or any material and therefore,
it is liable to be set aside.
34. Ms Mamta Tiwari, learned counsel appearing for Lexicon
countered the aforesaid submissions. She also referred to an affidavit
filed in this Court affirming that on 06.12.2019, Lexicon had
forwarded the details of payment made, to the Arbitral Tribunal. This
was in context of the costs of the arbitral proceedings claimed by
Lexicon. Thereafter, a hard copy of the Statement of Costs was also
handed over to the Arbitral Tribunal at the hearing on 21.12.2019.
Lexicon claimed that it had incurred costs of ₹1,08,66,600/- as on that
date it included arbitration fees of ₹77,50,000/-; travelling expenses of
₹4,91,425/- and legal and consultancy fees of ₹ 26,25,175/-. She states
that on that date, the Tribunal passed an order directing the parties to
make payments for further four hearings and Lexicon had incurred
further costs of ₹8,00,000/- as fees to be paid to the Arbitral Tribunal.
She submitted that the Arbitral Tribunal had awarded costs on the
basis of the statement handed over on 21.12.2019. She also pointed
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out that the total fees was twice the amount, but had been split
between two matters which were being pursued simultaneously.
Reasons and Conclusion
35. The Arbitral Tribunal had considered the pleadings and had
framed the following issues for consideration:
"l. Whether Rajasthan Renewable Energy Corporation
Limited (Respondent No.2) is party to the
Arbitration?
2.Whether the solar Power Project was fully completed
in all aspects on/before 26.02.2013?
3. Whether Respondent No.1 has rightly invoked the
bank guarantee or should he be directed to release
the same?
4. Whether any actual loss was suffered by Respondent
No.1?
5. Whether Article 4.6 of the PPA is penal or not?
6. Whether the claimant can be held liable for delay
caused due to acts of a third Party?
7. Whether the Claimant is entitled to receive any
amounts as mentioned in its claims?
8. Whether either Party is entitled to costs of the
present Arbitration?"
36. The dispute between the parties, essentially, revolves around
Issue No.2. Concededly, if Lexicon had completed the solar power
project in all respects on or before 26.02.2013 as claimed by it, the
question of NVVNL levying any liquidated damages would not arise.
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37. Whilst Lexicon asserted before the Arbitral Tribunal that it had,
in fact, commissioned the power project to the full capacity of over 10
MW by 21.02.2013 and therefore, had fully performed its obligation;
NVVNL disputed the same. NVVNL primarily relied upon the
Minutes of the Meeting of the Commissioning Committee prepared on
25.02.2013-26.02.2013.
38. Lexicon had countered the aforesaid contention and relied upon
the Connectivity Report dated 21.02.2013, which indicated that
Lexicon was generating electricity from 21.02.2013. NVVNL
contends that the Connectivity Report does not establish
commissioning of the project because as per the guidelines issued by
MNRE, Lexicon was also required to obtain all consents and
approvals. And, the solar plant could be set to be commissioned only
after verification by the Commissioning Committee
39. The Arbitral Tribunal had evaluated the material on record and
accepted Lexicon's contention that the solar plant established by it
was generating electricity and was connected to the grid by
21.02.2013. The Arbitral Tribunal held that the solar plant was
complete in all respects in terms of the PPA on 26.02.2013. The
relevant extract of the reasoning of the Tribunal is set out below:
"21. We have carefully considered submissions of
both the parties and decide as follows:
It is evident from the connectivity report dated
21.02.2013 that the Solar Plant was generating
electricity and was connected to the grid. Even if the
alleged incorrect observation by the Commission
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Committee that 30% of the modules are not
connected is deemed to be correct, in order to avoid
any confusion and to remove any and all doubts, the
modules were once again stringed and connected by
the Claimant on 26.02.2013. The delay in certifying
on the commissioning date is not attributable to the
Claimant but to the Commissioning Committee of
which the officers of Respondent No 1 were a part,
which refused to re-inspect the plant on 26.02.2013
despite being present on the site, as admitted by the
Respondent No. l. The decision of the Commission
Committee of not re-inspecting the Plant, even
though they were still at the plant, at the requests of
the Claimant was wrong and without any valid
ground.
22. Hence, we are deciding this issue in favour of
the Claimant and we are, therefore, holding that the
solar power plant was complete in all respects, in
terms of the PPA, on 26.03.2013 and hereby direct
Respondent No. 2 to issue the Commissioning
Certificate, certifying 26.02.13 as the date of
commissioning of the Solar Power Plant of the
Claimant."
40. It is apparent from the above that the decision of the Arbitral
Tribunal is based on appreciation of material evidence, which supports
such a decision. It is material to note that Mr Rituraj Biswas, learned
counsel appearing for NVVNL, did not dispute that in fact Lexicon
had requested for re-inspection on 26.02.2013 claiming that it had
addressed the observations made by the Commissioning Committee. It
is also not disputed that the members of the Commissioning
Committee were present at site when such a request was made. Thus,
the Commissioning Committee was in a position to immediately
verify whether all modules had been electrically collected. Such
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verification took place three days later on 02.03.2013 and the
Commissioning Committee had satisfied itself that Lexicon had met
all requirement regarding completion and initialization of the solar
plant. It is also material to note that even according to the
Commissioning Committee, it had duly verified that the solar plant
was completed and fully established. During the inspection conducted
on 25.02.2013 - 26.02.2013, the Commissioning Committee had
noted that certain modules were not electrically connected. According
to Lexicon, the said observation was erroneous and the plant was in a
condition to generate and push solar pump into the grid to the full
extent of its capacity. The Arbitral Tribunal had noted the above and
had accepted Lexicon's contention that its plant was fully installed and
functional as on 26.02.2013 (the Scheduled Commissioning Date).
41. This Court is unable to concur that the said conclusion is
patently illegal or falls foul of the fundamental policy of Indian law.
The question whether the solar power plant was complete in all
respects on 26.02.2013 is a question of fact. In Dyna Technologies
Private Limited v. Crompton Greaves Limited: (2019) 20 SCC 1, the
Supreme Court had held that the courts would not interfere "unless the
Court comes to a conclusion that the perversity of the award goes to
the root of the matter without there being a possibility of alternative
interpretation which may sustain the arbitral award".
42. In view of the aforesaid conclusion, it is not necessary to
examine the Arbitral Tribunal's conclusion on the issue whether
Article 4.6 of the PPA imposed a levy in the nature of penalty or it
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was a genuine pre-estimate of losses. However, this Court has also
considered NVVNL's contention in this regard.
43. It was Lexicon's case before the learned Arbitral Tribunal that
the liquidated damages were not a genuine pre-estimate of losses and
were in terrorem and in the nature of a penalty. It was also contended
on behalf of Lexicon that Rajasthan Rajya Vidyut Prasaran Nigam
Limited (the State Transmission Utility to whom the power was to be
supplied) was not ready to transmit 40 MW of power (which was
agreed to the transmitted by four SPDs including Lexicon). This was
so because, the second transformer which was necessary for
transmitting the said power was commissioned only on 13.03.2013.
NVVNL had not seriously contested Lexicon's claim that the State
Transmission Utility was not in a position to accept the solar power
contracted to be purchased from the SPDs to the full extent till
13.03.2013.
44. The decision in the case of Construction and Design Services
v. Delhi Development Authority (supra) is of little assistance to
NVVNL. In that case, the Hon'ble Supreme Court had held that the
appellant had failed to execute the work of construction of sewage
pumping station within the stipulated time. The Supreme Court
observed that the said pumping station was a public utility to maintain
and preserve clean environment, the absence of which could result in
environmental degradation by stagnation of water in low lying areas.
It further found that the delay had resulted in loss of interest on
blocked capital. It also concurred with the observations made by the
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High Court in its judgment impugned in that appeal that the delay had
also resulted in loss of interest on blocked capital. In the given
circumstances, the Supreme Court held that the loss could be assumed
even without proof and burden. However, the Supreme Court also
observed that in such circumstances, the burden to prove that no loss
was caused due to delay would be on the appellant. The relevant
extract of the said decision is set out below:-
"14. There is no dispute that the Appellant failed to
execute the work of construction of sewerage pumping
station within the stipulated or extended time. The said
pumping station certainly was of public utility to
maintain and preserve clean environment, absence of
which could result in environmental degradation by
stagnation of water in low lying areas. Delay also
resulted in loss of interest on blocked capital as rightly
observed in para 7 of the impugned judgment of the
High Court. In these circumstances, loss could be
assumed, even without proof and burden was on the
Appellant who committed breach to show that no loss
was caused by delay or that the amount stipulated as
damages for breach of contract was in the nature of
penalty. Even if technically the time was not of
essence, it could not be presumed that delay was of no
consequence.
15. Thus, even if there is no specific evidence of loss
suffered by the Respondent-Plaintiff, the observations
in the order of the Division Bench that the project
being a public utility project, the delay itself can be
taken to have resulted in loss in the form of
environmental degradation and loss of interest on the
capital are not without any basis.
16. Once it is held that even in absence of specific
evidence, the Respondent could be held to have
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suffered loss on account of breach of contract, and it is
entitled to compensation to the extent of loss suffered,
it is for the Appellant to show that stipulated damages
are by way of penalty. In a given case, when highest
limit is stipulated instead of a fixed sum, in absence of
evidence of loss, part of it can be held to be reasonable,
compensation and the remaining by way of penalty.
The party complaining of breach can certainly be
allowed reasonable compensation out of the said
amount if not the entire amount. If the entire amount
stipulated is genuine pre-estimate of loss, the actual
loss need not be proved. Burden to prove that no loss
was likely to be suffered is on party committing breach,
as already observed."
[emphasis provided]
45. It is clear from the above that in certain circumstances relating
to public utilities, it can be assumed that losses have been suffered on
account of breach of contract even though there is no specific
evidence to establish the exact quantum of loss suffered by the public
agency. In such cases, the burden to prove that no loss has been
incurred shifts on the party in breach of the Contract.
46. In this case, it was not disputed that the State Transmission
Utility was not in a position to distribute the power generation as the
transformer necessary for such transmission was commissioned on
13.03.2013. It is in this context that the Arbitral Tribunal held as
under:-
"......... It can be seen clearly that the only contention
that the Respondent No.1 has, to show that he suffered
an actual loss was that time was of the essence of the
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contract, but after looking at the contract and the
explanation given by the Claimant and the fact that it
has not been refuted by the Respondent , it can be
made out that since, Rajasthan Rajya Vidyut Prasaran
Nigam Limited which is State Transmission Utility
(STU) to whom the power had to be supplied from the
Claimant' power plant, was not ready to take the
40MW of power from all the four power plants in the
region even as late as 13.03.2013, therefore no actual
damages/losses were incurred by the Respondent no.1
resulting from the acts, or lack thereof, of the Claimant.
. ..."
47. This Court finds no fault in the aforesaid reasoning or the
conclusion that NVVNL was not entitled to liquidated damages.
48. Insofar as payment of costs is concerned, the contention that the
award of costs is without any basis, is unmerited. The Arbitral
Tribunal had accepted the costs, as submitted along with the written
submissions. NVVNL does not dispute that at a hearing held on
21.12.2019, a statement was furnished on behalf of the Claimants
including Lexicon that a sum of ₹ 1,55,00,000/- (Rupees One Crore
Fifty Lakhs) had been paid as arbitration fees, which was equally split
among the two claimants pursuing the respective matter, one of them
being Lexicon. Thus, Lexicon had incurred costs of ₹77,50,000/- as
arbitration fees. In addition, Lexicon also claimed ₹4,91,425/- as
travelling expenses and ₹26,25,175/- as a legal and consultancy fees
incurred by it. There is no material to indicate that NVVNL had at any
stage disputed the aforesaid costs. Since arbitration fees (which form
the bulk of the costs awarded to the Lexicon) is a matter of record, the
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same requires no further proof. In the circumstances, this Court does
not find that the costs awarded to NVVNL are either unreasonable or
warrant any interference by this Court.
49. The petition, is accordingly, dismissed. The pending application
is also disposed of.
VIBHU BAKHRU, J
AUGUST 02, 2021
RK
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