TaxTMI 
TaxTMI 
2007 (2) TMI 692
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....randum of Understanding arrived at between them described in the proceedings as Minutes of the Meeting (M.O.M.). Seimens, therefore, contended that the claims made by N.T.P.C. before the Arbitral Tribunal by way of counter claim was not maintainable or did not survive the M.O.M. They had also raised a contention that N.T.P.C. not having acted in terms of the arbitration clause by first raising the claim before the Engineer, it could not straightaway raise the claim before the Arbitral Tribunal. That part of the objection was given up at the stage of arguments. Therefore, what survived for decision before the Arbitral Tribunal was the effect of the M.O.M. on the claims of N.T.P.C. in the counter claim filed by it. The Arbitral Tribunal thought it appropriate to dispose of certain preliminary questions including the question whether N.T.P.C. could pursue its counter claim in the light of the M.O.M. The Tribunal held that other than claims 1 and 7 in the counter- claim, the other claims had already been settled as evidenced by the M.O.M. and the said claims did not survive for adjudication by the Arbitral Tribunal. It held that claim No. 7 was not really a claim since what N.T.P.C. ha....
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....ved that: It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. In a particular sense, therefore, any declining to go into the merits of a claim could be said to be a case of refusal to exercise jurisdiction. 6. The expression 'jurisdiction' is a word of many hues. Its colour is to be discerned from the setting in which it is used. When we look at Section 16 of the Act, we find that the said provision is one, which deals with the competence of the Arbitral Tribunal to rule on its own jurisdiction. SBP & Co. v. Patel Engineering Ltd. and Anr. AIR2006SC450 in a sense confined the operation of Section 16 to cases where the Arbitral Tribunal was constituted at the instance of the parties to the contract, without reference to the Chief Justice under Section 11(6) of the Act. In a case where the parties h....
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....referred to and dealt with and a plea that the counter claim does not survive in view of the settlement of disputes between the parties earlier arrived at is accepted, it could not be held to be a case of refusal to exercise jurisdiction by the Arbitral Tribunal. Same is the position when an Arbitral Tribunal finds that a claim was dead and was not available to be made at the relevant time or that the claim was not maintainable for other valid reasons or that the claim was barred by limitation. They are all adjudications by the Tribunal on the merits of the claim and in such a case the aggrieved party can have recourse only to Section 34 of the Act and will have to succeed on establishing any of the grounds available under that provision. It would not be open to that party to take up the position that by refusing to go into the merits of his claim, the Arbitral Tribunal had upheld a plea that it does not have jurisdiction to entertain the claim and hence the award or order made by it, comes within the purview of Section 16(2) of the Act and consequently is appealable under Section 37(2)(a) of the Act. 8. In the case on hand, what the Tribunal has found is that in view of the M.O....
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....act that there was delay in arranging import licences and opening of Letter of Credit by the appellant-NTPC. In pursuance to the decision, the respondent-SAG supplied the critical components etc. but the appellant-NTPC did not favourably consider the claim of the respondent-SAG for damages on account of the aforesaid delay. Subsequently, the respondent-SAG made a reference to ICC Court of Arbitration, Paris for settlement of their disputes/claim to compensation on account of delay in terms of Clause 27 of the Contract. The ICC International Court of Arbitration registered the reference as Case No. 11728/ACS and on 5th May, 2002 issued terms of reference. The ICC International Court of Arbitration was comprised of three Arbitrators, namely Mr. Arthur Marriott QC, Chairman and Mr. Justice R.S. Pathak and Mr. Justice A.M. Ahmadi, two former Chief Justices of the Supreme Court of India. While the claim of the respondent-SAG related largely to compensation on account of delay on the part of the appellant- NTPC in procuring the import licences and belated opening of the Letter of Credit in favour of the respondent, the appellant-NTPC besides filing their defence to the said claims also f....
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....sions of Section 16(2) or Section 16(3) of the Act and in any case deciding the question of jurisdiction in the negative which will fall within the ambit of appelable orders within the meaning of Section 37(2)(a) of the Act. In the opinion of this Court, the impugned partial Award is nothing but an Award of interim Award deciding the counter claims of the NTPC finally on merits. This Court, therefore, must hold that the present appeal filed by the NTPC against such a Partial Award under the provisions of Section 37(2)(a) of the Act is misconceived and is not maintainable. Aggrieved against this order, the present appeal has been filed by the appellant-NTPC. 12. We have heard learned counsel for the parties and perused the records. The question before us in the present appeal is whether the view taken by learned Single Judge of the High Court that the appeal under Section 37 of the Act is maintainable against the interim award or not. Learned counsel for the appellant took us through all the details of the pleadings and tried to persuade us that the question of jurisdiction and limitation is involved, therefore, the appeal is maintainable under Section 37 of the Act. The first....
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....void shall not entail ipso jure the invalidity of the arbitration cause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34." 14. Sub-sections (2) & (3) of Section 16 deal with jurisdiction....
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.... the Engineer, who, within a period of thirty (30) days after being requested by either party to do so shall give written notice of his decision to the Owner and the Contractor. 27.2. Save as hereinafter provided, such decision in respect of every matter so referred shall be final and binding upon the parties until the completion of the works and shall forthwith be given effect to by the Contractor who shall proceed with the Works with all due diligence whether he or the Owner requires arbitration as hereinafter provided or not. 27.3. If after the Engineer has given written notice of his decision to the parties no claim to arbitration has been communicated to him by either party within thirty (30) days from the receipt of such notice, the said decision shall become final and binding on the parties. 27.4. In the event of the Engineer failing to notify his decision as aforesaid within thirty (30) days after being requested as aforesaid, or in the event of either the Owner or the Contractor being dissatisfied with any such decision, or within thirty (30) days, as the case may be, either party may require that the matters in dispute be referred to arbitration as hereinafter pr....
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....es of meeting dated 6th/7th April, 2000 and finally in paragraphs 4.60 & 4.61 it was observed as under: "4.60 As will be seen, the majority of the Counterclaims is said to be caught by the settlement agreement of the 6th/7th April, 2000 which was the subject of the exchange of correspondence on the 5th May 2000 and the 10th May 2000 to which reference has already been made above. On the fact of it the MOM taken in conjunction with the subsequent correspondence clearly show a binding agreement for good consideration whereby a number of claims were compromised. Thus, paragraphs 2,3 and 4 reflect a discussion about critical components and operational guarantee. Those matters were settled as appears from paragraph 5. "so as to avoid any arbitration on either side in order to ensure supply of critical components by SAG for the forthcoming overhauls. Accordingly, various issue (sic) were discussed and agreements were reached as per the following paragraphs as a package deal." 4.61. What then follows is a series of specific agreements clearly recorded as such and thereby setling the disputes which then existed. And by paragraph 15 there was express confirmation by both part....
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.... 6th/7th April, 2000 and it was recorded that no other issues to be resolved in 1st and 3rd contracts. Therefore, we fail to understand how the question of jurisdiction was involved in the matter. In fact it was in the context of the fact that the entire counterclaims have already been satisfied and settled in the meeting that it was concluded that no further issues remained to be settled. In this context, the counterclaims filed by the appellant was opposed. If any grievance was there, that should have been by the respondent and not by the appellant. It is only the finding of fact recorded by the Tribunal after considering the counterclaim vis-a-vis the minutes of the meeting dated 6th/7th April, 2000. Therefore, there was no question of jurisdiction involved in the matter so as to enable the appellant to approach the High Court directly. The High Court has also examined this matter and clearly observed in its order in paragraph 9 as follows: "Therefore, in the case in hand it is to be seen if the plea raised by the Siemens AG in regard to the counter-claims of NTPC was a plea pertaining to lack of jurisdiction of the Arbitral Tribunal or arbitrability of the said dispute withi....