( 1 ) THIS is a petition under Section 34 of the Arbitration and Conciliation Act, 1996, ( in short the "act) praying for setting aside the Award dated 28. 11. 2002. In fact, what is sought to be set aside is an undated majority Award rendered by the two Arbitrators namely Justice D. R. Khanna (Retd.) and Justice M. H. Kania (Retd.) because the petitioner herein actually supports the Award rendered by Mr. Justice R. C. Srivastava (Retd.) on 28. 11. 2000.

( 2 ) THIS petition presents a rare and somewhat piquant situation arising out of the arbitral proceedings and the Award, therefore, it is necessary to recapitulate them in some greater details than which is generally noted while disposing of an application/objections under Section 34 of the Act in normal cases. The undisputed facts are that in the month of May, 1993, the petitioner-Mahanagar Telephone nigam Ltd. (MTNL) floated a Tender, bearing Tender Enquiry No. MTNL/20-95 (5), 93-MM, dated 25. 5. 1993 for supply of 105 Nos. of 565 Mbps and 155 Nos. of 140 mbps Optical Fibre Systems and 1672 Kms of 12 Fibre Optical Cable with jointing material and accessories. The equipments to be supplied were inter alia against the tec Specifications for various equipments. In response to the aforesaid tender enquiry, various tenders were received from different parties including the respondent-Siemens Public Communication Network Ltd. Some of the tenderers sought clarification with regard to the tender enquiry. The petitioner issued a vendor clarification on 20. 7. 1993. The technical bids of the parties were open on 3. 8. 1993 and financial bills were open on 14. 2. 1994. After evaluation of the respective bids, the petitioner issued its counter offer by issuing a Letter of Intent (hereinafter Loi) to the respondent on 29. 4. 1994 for supply of various equipments forming 565 Mbps optical Fibre system in (1+0) configuration including equipments at both the ends as per the detailed material list. The prices of the same were offered on provisional basis. The respondent accepted the said Loi in totality by their letter dated 16. 5. 1994 and thereafter, the petitioner issued a Purchased order No. MTNL/20-95 (5)/94- mm/siemens/94-95/119 on 24. 10. 1994. The said purchase order reiterated the terms and conditions of Loi as also the technical specifications set out in the tender enquiry. The supplies were, however, not made in time and on request of the respondent, the petitioner extended the delivery period upto 28. 6. 1995 for completion of supplies.

( 3 ) THE respondent-company had part supplied the materials against which the petitioner made a payment of Rs. 5,49,58,989/- calculated on the basis of the prices fixed under the purchase order. The case of the petitioner is that out of 14 systems to be supplied by the respondent, only 13 systems were supplied and that too beyond the stipulated delivery period entitling the petitioner to claim and recover the liquidated damages in terms of Clause 16. 1 and 16. 2 of the General Conditions of the contract and also for compensation for non-supply of one system. The disputes/differences arose between the parties which were referred to arbitration in terms of the Arbitration Agreement to the Indian Council of Arbitration, New Delhi, and the Indian Council of Arbitration referred the disputes to an Arbitral Tribunal comprising three learned Arbitrators namely Mr. Justice M. H. Kania a former Chief justice of the Supreme Court, Mr. Justice D. R. Khanna (Retd.) and Mr. Justice R. C. Srivastava (Retd. ). The Arbitrators appointed Justice D. R. Khanna as the presiding arbitrator. Before the arbitrators, the respondent filed its statement of claim inter alia claiming Rs. 5,55,23,464/- representing the balance price in terms of the purchase order along with interest @ 24% per annum w. e. f. 27. 6. 1995 i. e. the date of issuance of invoice. The respondent also claimed for the refund of Rs. 68,73,817/- which had been deducted by the petitioner