M/S Acc-Rac (Jv) vs State Of Punjab And Others
2022 Latest Caselaw 17332 P&H

FAO-CARB-41 of 2022 (O&M)                           1


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH
                                 FAO-CARB-41 of 2022 (O&M)
                                 Decided on 20.12.2022.

M/S ACC-RAC(JV)
                                                                   ...Appellant
                                   Versus


State of Punjab and others
                                                                ...... Respondents


CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
            HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Present:    Mr. Naresh Markanda, Sr. Advcoate with
            Mr. Rohan Markanda, Advocate
            fort the appellant.

            Mr. Arjun Sheoran, DAG, Punjab.

                  *****

AUGUSTINE GEORGE MASIH J.(ORAL) Notice of motion.

On the asking of the Court, Mr. Arjun Sheoran, DAG, Punjab, accepts

notice on behalf of respondents.

Challenge in this appeal is to order dated 09.11.2022, passed by the

Commercial Court, Kapurthala.

Learned Senior counsel for the appellant has asserted that the part of

the award which has been set aside by the Commercial Court, vide impugned

order is relating to the price variation and remand to the Arbitrator to decide the

point of price variation afresh expeditiously within a period of three months

specially with the findings and the observations made in the earlier part of the

order holding therein that there was no such clause for payment of price variation

which leaves the Arbitrator with no choice but to reject that claim. Learned Senior

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counsel has referred to the judgment of Hon'ble Supreme Court in the case of

Food Corporation of India Vs. A.M. Ahmed & Co. and another (2006) 13 SCC

779, to contend that in the absence of even escalation clause the said claim can be

granted if the finding is returned by the Arbitrator that there has been delay at the

end of a party. On this basis, counsel contends that there would be no quarrel in

case the matter is remanded to the Arbitrator for fresh decision on this aspect of

price variation provided the observation as made by the Commercial Court is not

taken into consideration, nor are they taken as binding upon the Arbitrator.

Counsel for the respondents has stated that liberty may be granted to

both the parties i.e. the appellant as well as the respondent to put-forth their

respective submissions before the Arbitrator who may proceed to decide the claim

on the price variation aspect without being influenced by any of the observations

made by the Commercial Court and based upon the facts and the evidence

produced before the Arbitrator as projected by the parties, in accordance with law.

The appeal stands disposed of binding the Arbitrator with the period

of three months, which may be taken from the date of appearance of the parties

before the Arbitrator, which is fixed as 09.01.2023.

(AUGUSTINE GEORGE MASIH) JUDGE

( VIKRAM AGGARWAL) JUDGE

20.12.2022 R.sharma

Whether speaking/reasoned : Yes/No.

                   Whether reportable                :      Yes/No.



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