Back
2023 Supreme(Online)(JHK) 9781
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Commercial Appellate Jurisdiction) Commercial Appeal No. 23 of 2019 M/s APCO INFRATECH Ltd., a company registered under Companies Act, having its head office at APCO House, 8-9, Vibhuti Khand, Gomati Nagar, PO and PS Gomti Nagar, District-Lucknow-226010 (Uttar Pradesh) Represented through its Deputy General Manager (Contracts) Mr. Mohan Kumar Koli, aged about 40 years, S/o Subba Rao, having its Corporate Office at Fourth Floor, Universal Trade Tower, Sector 49, Sonha Road, Gurgaon, PO &PS Sadar, District Haryana. ...... Appellant Versus M/s MECON LTD., a Public Sector Undertaking within the meaning of Companies Act, 1956 having its registered office at Doranda, PO and PS Doranda, Ranchi, Jharkhand represented through its Managing Director, Name Shri Atul Bhatt, son of not known to the appellant, working for gain at M/s MECON LTD, having its office at Doranda, PO and PS Doranda, District Ranchi, Jharkhand
..... Respondent ---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Nitin Kumar Pasari, Advocate Ms. Sidhi Jalan, Advocate
For the Respondent : Mr. Manish Mishra, Advocate ---------------
J U D G M E N T
CAV on 21 st July 2023 Pronounced on 5 th September 2023 Per, Shree Chandrashekhar, J. M/s APCO INFRATECH Ltd. 1 has filed this Commercial Appeal under section 13(1-A) of the Commercial Courts Act, 2015 against the judgment dated 30 th May 2019 passed by the Presiding Officer of the Commercial Court at Ranchi in Commercial (REVOC) Case No. 117 of
2015. The Commercial Court has set aside the arbitral Award dated 15 th May 2015 on the ground that the composition of the arbitral Tribunal was not as per the agreement of the parties and, therefore, the arbitral Award was liable to be set aside under section 34 (2) (a) (v) of the Arbitration and Conciliation Act, 1996 2 .
2. Briefly stated, the Indian Oil Corporation Limited 3 awarded the (in short, APCO) (in short, AC Act) (in short, IOCL)
work for “Civil Works for Pipeline Tank Terminal at Amousi near Lucknow” 4 in the State of Uttar Pradesh to M/s MECON Limited 5 and, in turn, the MECON invited bids in two parts for executing the Project captioned as Civil Works (Package-I) and Civil Works (Package-II) and both works were awarded to the APCO vide LOIs dated 15 th March 2001 and 11 th June 2001. The total value of the subject works was Rs. 3,55,87,269/- for Package-I and Rs. 4,55,37,886/- for Package-II and the Project was to be completed within 8 months. The Work Order dated 15 th March 2001 enclosed the schedule of rates and various other taxes described in Attachment-2 wherein it was provided that (i) the schedule of rates and the total contract price shall remain firm throughout the contract period, (ii) no variation in the schedule of rates on any account is permissible, and (iii) the unit rates are inclusive of Income Tax, Sales Tax, Octroi duty, if applicable, and all applicable taxes, duties and levies. The schedule of rates provided that the contract price shall include and cover the cost of materials, labor, tools and tackles, construction equipment, templates, scaffoldings, transportation, power and water, and shall also include the cost of insurance covering 3 rd party liability, loss of human life and risk of damages on other material/equipment. The agreed terms of payment were provided in Attachment-3 which contained a condition that
“the payment shall be released only on receipt of the corresponding payment from IOCL” which is the Principal employer for the Project.
3. The Work Order dated 15 th March 2001 which contained the aforesaid conditions for payment under clause 4.0 is extracted below: EksdkWu fyfeVsM ( Hkkjr ljdkj dk LkaLFkku ) MECON LIMITED (A Government of India Enterprise) Date : 15.03.2001 WORK ORDER M/S APCO Constructions (P) Ltd. 3/14, Viswas Khand, Gomati Nagar, Lucknow – 226 010 Uttar Pradesh Fax No. 0522 – 308153 Works Order No. Date of LOI/
Order
Date of Completion Contractor's Code MEC/2323/43/WO/001
15.01.2001 /
14.09.2001 (in short, the Project) (in short, MECON)
15.03.2001 Dear Sirs, Sub: Works Order for Civil Works (Package-I) required for Pipeline Tank Terminal at Amousi near Lucknow, in the State of Uttar Pradesh.
Ref:1.Our Works Tender Enquiry No.MEC/S/2323/11/11/WC/001 dated19.12.2000
2.Your Offer No. APCO/2001/MECON/1388 dated 30.12.2000
3.List of enclosed documents and correspondence- Attachment-I
4.Our LOI/FAX Order No. 43/33/2323/02/1515 dated 15.01.2001
With reference to above, we MECON LIMITED,
