J U D G M E N T

NEENA BANSAL KRISHNA, J O.M.P. (T) (COMM.) 7/2019

1. The petitioner has filed the petition under Section 14 read with Section 15 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “A & C Act, 1996”) seeking termination of mandate of the learned Sole Arbitrator.

2. The petitioner has also filed O.M.P. (COMM.) 236/2019 to challenge the Arbitral Award dated 6th May, 2019 which has already been pronounced, wherein the appointment and jurisdiction of the Arbitrator forms one of the ground of challenge to the Award. The controversy in regard to the appointment of Arbitrator and alleged wrongful assumption of jurisdiction shall be considered in the petition under Section 34 of the A & C Act, 1996.

3. The petition is accordingly disposed of.

I.A.5087/2019 (for stay of proceedings) in O.M.P. (T) (COMM.) 7/2019 4. The application was filed seeking stay of the arbitration proceedings pending before the sole arbitrator. The learned Arbitrator has already concluded the arbitral proceedings and the Award dated 6th May, 2019 has been pronounced, making the present application infructuous.

5. The application is hereby dismissed.

O.M.P. (COMM.) 236/2019

6. The petition under Section 34 of the A & C Act, 1996 has been filed on behalf of the petitioner to quash or set aside the Arbitral Award dated 6th May, 2019.

7. The facts in brief are that the petitioner is a Public Limited Company engaged in the business of manufacturing Material Handling Equipment (MHE), including Industrial Gears and Reducers, Mining Equipment, Casting Processes, etc. and supplying of the same to the fertilizer, cement, coal, power generating, mining, chemical, steel, port-mechanization, minerals and metal processing sectors.

8. The respondent is also a Private Limited Company, engaged in the business of supply of Ash Handling Systems and Engineering, Procurement and Commissioning services for Solar Plants and Material Handling Systems, etc.

9. The respondent approached the petitioner to submit its offer for Supply, Transportation & Erection & Commissioning of Reversible Stacker-cum-Reclaimer with Tools and Tackles, Mandatory Spares & Commissioning Spares for 2x525 MW Monnet Thermal Power Project, Angul, Orrissa. After being fully satisfied, the offer was accepted by the respondent. A Letter of Intent (LOI) dated 06th February, 2012 was issued and the petitioner was appointed as the Contractor for the Design, Engineering, Manufacturing, Testing/Inspection, Supply, Loading, Packing & Forwarding, Transportation, Storage at Site, Erection and Commissioning and PG Test of 1 No Reversible Stacker-cum-Reclaimer with Tools and Tackles, Mandatory Spares and Commissioning Spares as per agreed specifications. The total Contract price agreed upon was Rs. 12,95,07,000/- on F.O.R. Site basis, inclusive of transportation but exclusive of transit insurance, taxes and duties.

10. The relevant provisions of the Contract providing for payment terms and completion time are reproduced as under:

“3. Payment Terms:

A. For Supply a) 10% Payment as advance against submission of Advance Bank Guarantee of Equivalent Amount & CPSG of 10% which shall be converted into PBG valid up to Guarantee/Warrantee Period.

b) 87% Payment with 100% taxes & duties shall be released through 45 days L/C on usance basis (All interest Charges will be in Elecon‘s scope).

c) Balance 3% Payment shall be released after Erection and Commissioning of Stacker Cum Reclaimer (If Commissioning is delayed due to reasons not attributable to Elecon, this payment shall be released within 3 months from the date of last supply against submission of equal amount of Bank Guarantee).

B. For Erection and Commissioning a) 10% Payment as advance against submission of Advance Bank Guarantee of Equivalent Amount & CPSG of 10% which shall be converted into PBG valid up to Guarantee/Warrantee Period.

b) 80% Payment with 100% taxes shall be released on pro-rata basis within 15-20 days on completion of work on mutually agre