Jindal India Thermal Power Ltd vs Quartz Infra And Engineering Pvt
2022 Latest Caselaw 5735 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 ARBA No.4 Of 2021
                               (Through hybrid mode)

            Jindal India Thermal Power Ltd.      ....           Appellant

                                  Mr. C. Mukhopadhya, Senior Advocate
                                        Mr. S.P.Mishra, Senior Advocate
                                         Mr. Satyajit Mohanty, Advocate
                                          Mr. Prashant Mehta, Advocate
                                         Mr. Asit Kumar Dash, Advocate
                                              Ms. Divita Vyas, Advocate
                                     -versus-

            Quartz Infra and Engineering Pvt.    ....         Respondent
            Ltd.
                                      Mr. Vegesna Subba Raju, in person

                     CORAM: JUSTICE ARINDAM SINHA
                                    ORDER

19.10.2022 Order No.

21. 1. Mr. Mukhopadhya, learned senior advocate appears on behalf

of appellant and resumes his argument. In fairness he submits, there

was view taken by a learned Single Judge of Bombay High Court in

National Highways Authority of India v. Additional Commissioner

available at 2022 SCC OnLine Bom 1688. He submits, paragraphs 16

to 18, 22 and 23 in the judgment would show that though judgment of

the Supreme Court in NHAI v. M. Hakeem reported in (2021) 9 SCC

1 was considered but the view was rendered on reliance of a Full

Bench judgment of that Court in R.S. Jiwani v. Ircon International

// 2 //

Ltd. reported in (2010) 1 Mah LJ 547. He then relies on judgment of

the Supreme Court in National Highways Authority of India v. P.

Nagaraju available at 2022 SCC OnLine SC 864 paragraphs 29 and

43 to submit, said Court reiterated that there could not be modification

of the award and in the case held, appropriate course to be adopted

was to set aside the award and remit the matter to the Tribunal.

2. Drawing attention to paragraph-943 in the award he

demonstrates the tabulation to be under three heads of total awarded

amount, pendent lite interest and arbitration costs. He submits, in

event Court finds substance in his submissions regarding, inter alia,

termination of contract and erroneous rejection of the application

under section 27, Arbitration and Conciliation Act, 1996, it would

cause reduction in the total awarded amount, with consequent effect

on pendent lite interest as well as arbitration costs, provided for under

sections 31(8) and 31-A. Same would require modification of the

award, impermissible in law.

3. He then draws attention to paragraphs 905, 921 to 925

regarding his client's counter claim no.2 and paragraphs 926 to 930 on

counter claim no.3. On query from Court he submits, wrongful

termination of contract was not given as reason for rejecting either of

the counter claims. In paragraph-930 the Tribunal said it had arrived at

// 3 //

finding of fact that respondent (claimant) had not abandoned the

contract. He submits further, while rejecting counter claim no.2 the

Tribunal also said there is nothing to show that the subsequent contract

with Sinhotia Metal Works Ltd. was identical in nature, whereas in

paragraph-826, said subsequent contract was considered for

adjudication of respondent's claim for loss of profit on termination.

4. He then draws attention to print of electronic mail dated 2nd

February, 2013. He submits, this was construed by the Tribunal to be

the termination. Respondent thereafter attended meeting between

itself, subsequent contractor and his client. He demonstrates from

minutes dated 6th February, 2013, serial nos.1 and 2 that respondent

expressed unwillingness to complete works in other areas as work on

raw water reservoir and ash dyke had been offloaded. There was

agreement under serial no.7 for joint measurement.

5. On query from Court he refers to letter dated 19th February,

2013 of respondent, as its response with reference to his client's said

electronic mail dated 2nd February, 2013. In this regard Court requires

assistance by a list of dates, giving dates of the contracts, their original

periods for completion and the disputed termination with relevant

correspondence, upto notice for commencement of arbitral proceeding.

// 4 //

6. On further query from Court Mr. Mukhopadhya submits, there

was no other termination in respect of contracts for works other than

construction of raw water reservoir and ash dyke. Loss of profit was

awarded on calculation of aggregate value of all contracts.

7. List on 26th October, 2022 marked at 2.00 p.m.

(Arindam Sinha) Judge Sks