Price fixed initially was provisional and not fixed price - Price fixed subsequently was in conformity with Sections 9 and 10 of the Sale of Goods Act, 1930 - Impugned award rejecting the claim of the appellant with a finding that the provisional price conveyed by the respondent to the appellant initially was subject to the firm price to be declared subsequently was rightly not interfered by the learned Single Judge.

R.D. Dhanuka, J.

By consent of parties, all the aforesaid appeals were heard together finally and are being disposed of by a common judgment. Learned counsel appearing for the parties jointly state that the facts in Appeal No.263 of 2015 which is the lead matter are identical with the facts in the remaining appeals and thus the judgment of this court in Appeal No.263 of 2015 would apply to the other appeals. We would summarize the facts and submissions in Appeal No.263 of 2015. Learned counsel appearing for the appellant in Appeal No.256 of 2015 has adopted the submissions made by the learned counsel for the appellant in Appeal No.263 of 2015 and have made few additional submissions which would be dealt with in the later part of the judgment.

Some of the relevant facts for the purpose of deciding this appeal are as under :-

2. The appellant was the original claimant before the learned arbitrator and was the original petitioner before the learned Single Judge whereas the respondent herein was the original respondent before the learned arbitrator and also before the learned Single Judge. The learned arbitrator has rejected the claims made by the appellant. The said arbitral award has been upheld by the learned Single Judge by dismissing the arbitration petition filed by the appellant.

3. It is the case of the appellant that the appellant had established its factory with a sole object of manufacturing LPG Cylinders for three Government of India undertaking, i.e. the Hindustan Petroleum Corporation Limited, Indian Oil Corporation Limited and Bharat Petroleum Corporation Limited. It is the case of the appellant that during the period between 1980 and 1992, the tenders were used to be invited by the three petroleum corporations including the respondent for purchase of cylinders from manufacturers of cylinders.

4. Sometime in the year 1994, the oil companies including the respondent had proposed cost plus basis formula which was duly approved by the Ministry of Petroleum and Natural Gas which is known as "The New Pricing Formula" or "cost plus system" i.e. in short 'MOP & NG Formula'. It is the case of the appellant that even before introducing the same MOP & NG Formula, the respondent had communicated to the cylinders manufacturers the basis to determine the prices of cylinders with complete details as to price-mechanism, calculation formula along with illustrations of calculations for calculating various cost components in formula, including mechanism for calculating escalation/de-escalation in price etc. The said formula was duly incorporated in annual contract prospectively i.e. 1st April, 1994 onwards.

5. It is the case of the appellant that pursuant to the said cost plus system, the appellant and the respondent entered into separate yearly purchase agreements since the year 1994. The respondent entered into standard form of contract with the manufacturers/suppliers of the cylinders and except for change in figures, manufacturers/suppliers were always required to sign the contract provided in the prescribed format by the oil companies. By their purchase order dated 1st May, 1999, the respondent placed an order for supply of 27509 LPG cylinders of 14.2 kg at the provisional price of Rs.678.77/-.

6. It is the case of the appellant that in a meeting between the oil manufacturers companies and the MOP & NG on 6th April, 1999, at the request of the respondent herein, MOP & NG granted permission to go into the review of the existing pricing formula only on two variable factors i.e. the price of steel and the interest rate going down from 22.5% to 18%. It is the case of the appellant that there was no mention of a provisional price in relation to the proposed changes in the MOP & NG formula enshrined within the first purchase order dated 1st May, 1999. By an unilateral letter dated 28th June, 1999, the respondent planned revision and bought to the notice of the appellant. However, in the said letter dated 28th June, 1999 also there