The court upheld the Award dated 16th February, 2005, dismissing the petitions filed under Section 34 of the Arbitration and Conciliation Act, 1996, and allowed most of the claims of the Respondent NALCO against the Petitioner PEAK.

Introduction

1.1 Both these petitions are filed under Section 34 of the Arbitration and Conciliation Act, 1996 (‘Act’) against the Award dated 16th February, 2005 of the learned Sole Arbitrator. By the said Award most of the claims of the Respondent National Aluminum Co. Ltd. (‘NALCO’), a Government of India undertaking engaged inter alia in the mining of bauxite and the manufacture and sale of alumina and aluminium, against the Petitioner Peak Chemical Corporation (‘PEAK’), a company incorporated under the laws of Illinois, U.S.A were allowed and the counter-claims of PEAK were rejected. The dispute between the parties concerned the supplies of caustic soda lye by PEAK to NALCO.

1.2 While PEAK has filed O.M.P. No. 160 of 2005 challenging the impugned Award, NALCO has filed O.M.P. No. 454 of 2005 to the extent that the learned Arbitrator has in answering Issue No.7 held that NALCO was obliged to invite PEAK to participate in the risk purchase to mitigate the damage allegedly suffered by NALCO. NALCO’s petition time barred

2. PEAK’s O.M.P. No. 160 of 2005 was filed on 9th May 2005, whereas NALCO’s O.M.P. No. 454 of 2005 was filed on 16th May 2005. On the first date of hearing of O.M.P. No. 160 of 2005 NALCO was represented when notice was issued. NALCO’s petition was, however, returned by the Registry for curing of defects. NALCO cured the objections and re-filed the petition on 28th May, 2005 but some more objections were pointed out by the Registry. In the application filed (I.A. No. 10075 of 2005) seeking condonation of delay in re-filing the petition, it is stated by NALCO that “due to some inadvertent reason, the applicant herein was able to cure the said objections and file the corrected petition in the Registry of this Hon’ble Court only on 9th December, 2005”. In the reply to the said application, it is pointed out by PEAK that O.M.P. No. 454 of 2005 was nominally filed on 16th May 2005 but did not meet the requirements of the rules. NALCO had been granted seven days’ time to remove the objections, i.e., on or before 24th May 2005. NALCO, however, re-filed the petition on 28th May 2005 without complying with the requirements as per the rules. NALCO was then asked to remove the defects and re-file the petition within seven days after curing the further defects. However, NALCO filed O.M.P. No. 454 of 2005 ultimately after 195 days. It is pointed out that the delay of more than six months in re-filing of the petition has not been explained by NALCO. In its rejoinder NALCO offers a weak explanation that the delay in re-filing was “due to some inadvertent reason, primarily as a result of long administrative procedure”.

3. The above explanation by NALCO for the delay in re-filing its petition is casual and unsatisfactory. A litigant ought not to take for granted that any delay in re-filing of the petition after curing the defects may be condoned. There is a necessity for the litigant to properly explain the delay in re-filing the petition. In the instant case, the delay is more than 190 days for which the explanation offered is wholly insufficient and unconvincing. The Court is, therefore, not inclined to condone the delay in NALCO refilling its petition. Accordingly, I.A. No. 10075 of 2005 is dismissed. As a result, O.M.P. No. 454 of 2005 filed by NALCO is also dismissed without any order as to costs. Background facts of PEAK’s petition

4. The facts leading to the filing of O.M.P. No. 160 of 2005 by PEAK is that PEAK is engaged in the supply of various chemicals including caustic soda lye to various companies around the world. On 19th November 1993, NALCO floated a global tender for supply of 50,000 Dry Metric Tons (‘DMT’) of caustic soda lye on 100% NaOH basis for its M&R complex at Damanjodi, Orissa. NALCO reserved its right to procure the part/full quantity either from indigenous or overseas source. The specifications of caustic soda lye to be supplied were set out. Inter alia it was indicated that the total req