TaxTMI 
TaxTMI 
2022 (3) TMI 687
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. The learned arbitrator shall decide the terms and conditions after deliberating with the parties. Registry is directed to forward a copy of this order to the learned Arbitrator. The appeal is allowed on above terms. There shall be no order as to costs." 2. The sole Arbitrator gave the award dated 15.02.2021, after considering the claims and counter claims of the parties. The operative portion of the award as contained in paragraph 162 is reproduced below: " 162. In view of the aforesaid conclusions the following award is made: (a) The Respondent shall pay to the Claimant a sum of Rs. 24.7256 Crores as WDV. (b) The aforesaid amount shall be paid with interest @9% with effect from 06.10.2016 till payment of the amount. (c) The Claimant shall pay to the Respondent a sum of Rs. 18,66,86,521/ (d) The aforesaid amount shall be paid with interest @9% with effect from 06.10.2016 till payment of the amount. (e) All other Claims and CounterClaims are hereby dismissed. COSTS: In the peculiar facts and circumstances of this arbitration, both the parties shall bear their own costs. This Awar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....021. 7. On the other hand, learned counsel for the appellant 'India Power Corporation Limited' (hereinafter referred to as the "IPCL") vehemently opposed the application and made the following submissions: i) Paragraph 160 of the award may not be read in isolation. The background for the same should also be read as recorded in the preceding and succeeding paragraphs. Paragraphs 157 to 161 of the award may be read as a whole. The same will completely clarify the position. ii) In the part covering paragraphs 157 to 161, the learned Arbitrator was dealing with amendment of counter claim filed by the respondentapplicant i.e. ECL. After considering all aspects of the matter, the application for amendment was dismissed as it would not serve any useful purpose in determining the real question in controversy. Reference may be had to paragraph 161 of the award. iii) The contents of paragraph 160 of the award records the submission advanced by the counsel for the claimant i.e. the appellant IPCL. If paragraph 160 is examined carefully, the submissions advanced by the counsel for the respondent applicant may not have much substance. iv) Award da....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the award being relevant are reproduced hereunder: " 157. At this stage it may be noticed that the Respondent filed an application dated 20.11.2019 seeking permission of the Tribunal to amend the Counterclaim. Claimant was permitted to file reply to the same on or before 22.11.2019. Claimant has filed the reply on 20.11.2019. Thereafter arguments in Rejoinder were heard on 27.11.2019 and 02.12.2019. However, no oral submissions were made on the application by either party. I have considered the application on the basis of the pleadings. It has been noticed earlier that Respondent had issued a Notice inviting Tender on 16.01.2012 for "...(a) Replacement of Existing twenty (20 year old 3X10 MW stokerfired boilers by 3X10 MW Fluidised bed combustion (FBC) boilers, wherein the successful bidder will made his own investment for replacement of existing stoker fired boilers by FBC Boilers and associated other plant and machineries including the civil works and enter into Lease Agreement with ECL for running of the power plant....". Therefore, it appears that the run down condition of the existing stokerfires boilers had become irrelevant. The application for amendment of the cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ting dispute as regards computation of written down value in respect of the additions and alterations made by the writ petitioners in relation to the said generating station. It is for this reason the dispute still remains unresolved. The petitioners continue to remain in possession of the generating station and the respondent coal company has also not taken any legal step to recover possession of the station...". It is noticed by the Learned Single Judge that the main prayer in the Writ Petition is "to prevent the respondents from obtaining recovery of possession of the generating station without releasing the written down value of the added assets, as per computation of the petitioners." It is also noticed that in spite of orders passed by the Court on 12.10.2012 that "...steps ought to be taken by the committee to not only physically verify the plant and machinery but also other assets of the plant by ascertaining the book value thereof...". no steps were taken. This exercise was to be completed by 12.12.2012. Since, the exercise was not completed by that time, the time was extended till 08.01.2013. At the time of final disposal of the Writ Petition the Learned Single Judge obse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e order passed by the Calcutta High Court found that the counter claim sought to be raised by the said amendment regarding the plant being in a running condition was irrelevant in view of the dispute raised. 11. The MECON report and the M/s AKB Power Consultants Pvt. Ltd. report, both related to the expenses sought to be incurred in bringing back the plant into running condition. Parties had filed their objections to both the reports as there was substantial difference in the figures indicated in the two reports. But once the Arbitrator found that the amendment in the Counterclaim itself was not relevant for the adjudication, there was no question of proceeding any further in inviting evidence etc. with respect to the reports. The submission therefore, that there is requirement of the appointment of Arbitrator to carry out the exercise as per paragraph 160 of the award is therefore completely untenable. The submission is based upon the misreading and misrepresentation of the said paragraph, in isolation bereft of preceding and succeeding paragraphs. The same is accordingly rejected. 12. A bare perusal of the award, in particular paragraph 162, which is the operative portion, ....