FAO(OS)14/2021

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$~16.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

Date of Decision: 12.04.2021

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FAO(OS) 14/2021

STEEL AUTHORITY OF INDIA LIMITED

..... Appellant

Through:

Mr. Harvinder Singh Phoolka, Sr.

Advocate

with

Mr.

Shaiwal

Srivastava, Advocate.

versus

M/S MOHAN STEEL LIMITED

..... Respondent

Through:

Mr. Sriharsha Peechara, Advocate for

R-1.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI

HON'BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J. (ORAL)

CM APPL. 13248/2021

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

FAO(OS) 14/2021 & CM APPL. 13246/2021,CM APPL. 13247/2021( to

seek condonation of delay of 360 days in filing the appeal)

1.

We have heard learned senior counsel for the appellant, and perused

the record. Learned counsel for the respondent is also present on advance

notice.

2.

Mr. Phoolka, at the outset, points out that the delay is not of 360 days

as stated in the application considering the fact that the order was passed on

04.03.2020, whereafter the lockdown was imposed due to the pandemic, and

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FAO(OS)14/2021

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the running of limitation was suspended by the orders of the Supreme Court.

3.

Be that as it may, since we have heard Mr. Phoolka on the merits of

the appeal, and we do not find merit in the present appeal, we are not

inclined to deal with the issue as to what is the quantum of delay, and what

is the justification therefor.

4.

The present appeal is directed against the order dated 04.03.2020,

passed by the learned single Judge allowing the respondents objection filed

under Section 34 of the Arbitration and Conciliation Act, 1996 seeking

setting aside of the award dated 29.06.2015, passed by the Sole Arbitrator,

and seeking a declaration that the recovery made by the appellant herein is

illegal and arbitrary.

5.

The brief facts relevant for the determination of the present appeal

have been noted in the impugned order, and we quote the same from the

impugned order itself.

3. On 05.02.2009, petitioner entered into a fresh agreement

with the respondent (hereinafter referred to as „Contract-II‟).

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Contract-II had a different clause with regard to the rates of

escalation and reads as under:

“ESCALATION OF RATES The conversion charges finalized

in the tender shall be kept firm for 1 year w.e.f the date

specified for commencement of work in the work order. At the

end of one year, the conversion charges will be revised based

on the following weightage and neutralization for each of the

components:-

4. Pursuant to Clause 8, as mentioned above, respondent after

completion of one year of the agreement vide letter dated

24.05.2010 approved the revised conversion charges w.e.f.

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05.02.2010 and consequently, the petitioner raised the invoices

and was paid at the revised rates. The charges were once

again revised w.e.f. 05.02.2011 by the respondent vide its letter

dated 08.11.2011 and the petitioner was paid at the revised

rates till the conclusion of Contract-II.

accordance with Clause 8, paid at the revised rates.”

(emphasis supplied)

6.

Since, the appellant sought to recover Rs.3,78,74,189/- from the

respondent herein on account of over-payment allegedly mistakenly made

under Contract – II, the respondent invoked the Arbitration agreement

between the parties, which resulted in making of the Award.

7.

The relevant extract of the impugned award may now be set out, and

the same reads as follows:

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“Issue no. 2

The Respondent submits that the Agreement dated 05.02.2009

is sacrosanct and is valid for three years from 05.02.2009 to

04.02.2012 and it is pertinent to mention as per their version

the escalation rates in dispute shall be applicable only once

after one year of date of work orde