ORDER :

1. Aggrieved over the Majority Award of the Arbitral Tribunal, the present Application has been filed.

1.a. Parties are arrayed as per their own rankings before the Tribunal.

2. The Government of India decided to involve private partnership in the operation of Chennai Container which was fully operating under the Chennai Port Trust invited International Parties on 20.11.1997 to submit their tenders for the project. One consortium formed by Ms. Jakari Express Pvt. Ltd., Mumbai and M/s.Meherji Cassinath Limited, Mauritius and Chettinad Logistics Pvt. Ltd., were success bidders. Thereafter, a special purpose vehicle the Respondent was duly incorporated by the said Consortium. An agreement was entered between the Claimant and Respondent on 09.08.2001. As per the agreement Clause 3.12 the Claimant/Licensor shall provide access to the utilities such as power, water and telecommunication subject to availability. Clause 3.12(e) stipulates that the Licensee shall pay actual cost worked out from time to time. The Claimant from the date of inception used to bill the Respondent for consumption of electricity under the following heads:

(1) Consumption in units

(2) Demand Charges

(3) Container Station excess KVA (if exceeds the Demand)

(4) Metter Rent

(5) 5% Electrical Tax

3. It is also stated by the Claimant that for the purpose of providing electricity the Claimant has to incur several expenses towards the construction, repair and maintenance of substations within the Port. TANGEDCO supplies power from Kalmandapam sub-Station to the Bharathi Dock, 33 KV sub station located within the premises of the Port. From there the electricity is routed through high tension cables and other infrastructure including substations, transformers etc., to the Respondent. For that purposes the Claimant has employed qualified staff and equipment to maintain the cable and other infrastructure for the continuous, uninterrupted power supply to the Respondents.

4. When the Claimant noticed that the expenditure of the Port in building and maintaining the infrastructure is not passed on to the Respondent and the Respondent is billed only for the consumption units along with demand charges. Therefore, the Claimant has worked out the actual cost of supplying electricity to the Respondent after adding the expenses towards maintaining the infrastructure and staff and arrived at a ratio of apportionment between the Port's electricity users. In this regard sanction was accorded by the Claimant's Chairman vide order dated 12.07.2012. Thereafter, several negotiations also took place between the parties. However, the Respondent having agreed one of the letter dated 19.05.2014 to pay the actual cost incurred by the Claimant. Thereafter, the Respondent refused to make payment. Hence, the Claim has been preferred by the Claimant for recovery of service charges to the tune of Rs.12,81,76,834/- together with interest at 24% pa.

5. Denying the contention of the Claimant the Respondent taken a defence that as the Agreement was entered in the year 2001 and the use of the expression “actual cost” of the License Agreement refers to the cost i.e., actually invoiced to the Respondent by the Claimant based on the meter reading done by the TNEB. From 2001 till 2012, only the actual cost of electricity consumed was invoiced to the Respondent and there was no additional 20% service charge ever claimed. It is the contention that use of expression “from time to time” including the License Agreement for 2 key reasons. One is when the Respondent entered in to the License Agreement in 2001, it did not have its own substation on the terminal and was getting power directly from the Claimant till 2003 for its QCs, Reefers, Containers Freight Station and administrative building. For this, the Claimant had set up 4 separate meters wherein the sub meter for the QCs, Reefers and CFS received high tension (HT) connection and the sub-meter or the administrative building received the Low Tension (LT) conn