TaxTMI 
TaxTMI 
2019 (3) TMI 1981
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....hat it is, inter alia, barred by res judicata. 1.2 It is the plaintiff's stand that the controversy with respect to the reliefs which were claimed or could have been claimed was set at rest between the parties herein, which included its parent company, that is, NCC Limited (in short 'NCC') by virtue of an earlier award dated 24.1.2018. 2. For the sake of convenience, hereafter, I would be referring to the parties in the following manner: 2.1 Plaintiff No. 1, that is, Himachal Sorang Power Private Limited would be referred to as 'HSPL'; Plaintiff No. 2, that is, TAQA India Power Ventures Pvt. Ltd. would be referred to as 'TAQA'; and the Defendant, that is, NCC Infrastructure Holdings Limited would be referred to as 'NCCL'. 2.2 Furthermore, unless the context requires me to state otherwise, the two plaintiffs and the defendant will be, collectively, referred to as parties. 3. Before I proceed further, it may be necessary to delve into the background in which the present proceeding has been instituted. 4. NCCL along with NCC, and an entity by the name: IL&FS Energy Development Company Limited (in short 'IL&FS') incorporated HSPL as a S....
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.... of the Power Project was capped at INR 890 Crores. (iii) Clause 1.1 of the SPA provided that any cost overrun beyond INR 756 Crores would be borne by NCCL and NCC. Importantly, the figure of INR 756 Crores was arrived at after making adjustments qua the following: (a) INR 40 Crores which had been paid by NCCL, NCC and IL&FS as Sellers' Subordinate Loan (SSL) to HSPL. (b) INR 81.67 Crores which was paid by TAQA towards cost of achieving WCD by subscribing to FCDs at the time of initial acquisition of shares. (c) INR 12.33 Crores which IL&FS was required to contribute towards achieving WCD. 9.1 It appears, even though IL&FS did not contribute the aforementioned amount, TAQA agreed to factor in the said amount in order to enable determination of project cost and cost overrun amounts as provided in the SPA. 9.2 Pertinently, if one were to take into account the aforementioned adjustments and add them up with INR 756 Crores, it would result in arriving at a cumulative figure of INR 890 Crores, which was the sum at which, as indicated above, the project cost was capped. 9.3 Importantly, under the SPA, any sum expended in excess of the capped project cost of INR 890 Crores ....
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....he application, which resulted in the first amendment being brought about by NCCL in its Statement of Counterclaims. Thus, the first amended Statement of Counterclaims was lodged on 3.6.2016. 17.1 The record also shows that NCCL moved yet another application dated 18.7.2016 for amending its counterclaims. Via this application, leave was sought for incorporation of counterclaims referred to as (g), (h) and (i). 17.2 This application was also allowed by the 1st Arbitral Tribunal vide its order dated 2.9.2016. Resultantly, NCCL filed its second amended Statement of Counterclaims dated 7.9.2016. 17.3 HSPL, in turn, was given liberty to file its SOD to the amended counterclaims. Consequently, the SOD to the counterclaims dated 15.9.2015 followed by an additional SOD to the amended counterclaims dated 7.9.2016 was filed by TAQA and HSPL. 18. In the interregnum, while the arbitration proceedings were in progress before the 1st Arbitral Tribunal, TAQA successfully tested and commissioned Unit-1 of the Power Project. 19. The record reveals that the last date on which oral submissions were heard by the 1st Arbitral Tribunal was 26.1.2017. Thereafter, it appears, the 1st Arbitral Tribuna....
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..... On that date, I had issued notice both in the suit as well as in the captioned interlocutory application. Furthermore, I had indicated that any steps taken henceforth in the arbitration proceedings initiated by NCCL would be subject to further orders of this Court in the present proceedings. In addition thereto, I had also laid emphasis on the fact that if any response was issued by HSPL and TAQA to SIAC in the context of their having received a communication that the arbitration proceedings qua them had commenced, the same would be without prejudice to their rights in the instant proceedings. The notice was made returnable on 18.1.2019. 30.1 On 18.1.2019, Mr. Nakul Dewan, Advocate, instructed by Dr. Amit George, Mr. Jai Sahai Endlaw, Ms. Neelu Mohan, Mr. Rishabh Dheer and Mr. Shivansh Soni, Advocates, entered appearance on behalf of NCCL. 30.2 Given the urgency in the matter, NCCL was given time to file its reply by 21.1.2019 vis-a-vis the captioned application. On the other hand, HSPL and TAQA were given time to file their rejoinder(s) by 23.1.2019. The matter was fixed for hearing on that very date, that is, 23.1.2019. 30.3 Since NCCL had filed its reply only on 22.1.2019, ....
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....ribunal that if it were to find that NCCL was in breach of its obligations in achieving the WCD and thus, was required to indemnify HSPL and TAQA in respect of Cost Overrun payments, its liability qua them was capped under the SPA and in ascertaining the cap amount, the following had to be taken into account: (a) SSL; (b) Incentive Payments; (c) CER payment; and (d) Security Bond (I). (v) (b) These adjustments had been quantified by NCCL at 30% of the purchase consideration. In this context, it was submitted that out of the four areas of adjustments referred to above, NCCL had, in fact, raised a counterclaim vis-a-vis only two aspects, that is, SSL and refund of encashed Security Bond (I). (v) (c) The argument, thus, was that since the counterclaim was made for SSL and refund of encashed Security Bond (I), NCCL could have made a counterclaim for incentive payments as well, which, as the record would show, it failed to put forth in the 1st arbitration proceedings. As a matter of fact, it was contended that NCCL, instead of making a counterclaim, proceeded to treat incentive payments as a cap on its liability. (vi) The relief sought for by NCCL for the payment of SSL in the s....
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....hermore, the fresh claim made for incentive payments is also barred by limitation if regard is had to the following milestones. (x) Under the SPA, the WCD was required to be achieved by 31.3.2013; TAQA stepped in to take over the project on 5.3.2014. NCCL issued its notice to lay claim to incentive payments only on 28.12.2018. (xi) On merits as well HSPL and TAQA have a good case inasmuch as under Clauses 8 and 9 of the SPA, entitlement to incentive payments would arise only upon commissioning of the Power Project; an event which never occurred. Under the SPA, NCCL is to bear the burden of Cost Overrun payments, qua which the 1st Arbitral Tribunal awarded a sum in excess of INR 90 Crores in favour of HSPL. (xii) Given the aforesaid facts and circumstances, the Arbitration Agreement obtaining between the parties, which is incorporated in Clause 14 of the SPA has been rendered inoperative and/or incapable of being performed. 32.1 In support of his contention, learned counsel has relied upon the following judgments: i) McDonald's India Pvt. Ltd. v. Vikram Bakshi & Ors., 2016 (4) ArbLR 250 (Delhi); ii) Ramasamy Athappan v. The Secretariat of the Court, ICC, 2008 SCC OnLi....
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....sue a Cost Overrun payments notice, then, NCCL was required to make payments within a period of 14 days of the receipt of the said notice. In case NCCL failed to make the payments towards Cost Overrun, HSPL was required to adjust SSL to the extent of the Cost Overrun. If Cost Overrun exceeded the SSL, HSPL had the option to, inter alia, reduce and/or adjust the incentive payment. (v) In this case, though, Cost Overrun payments exceeded the SSL, HSPL neither adjusted the incentive payments from the SSL, nor did it make adjustments to that extent from the cost overrun payments. This omission on the part of HSPL conferred a positive right on NCCL to receive an incentive payments after the Final Completion Date. (vi) The award dated 24.1.2018 partially allowed the claims of HSPL and TAQA in terms of Clause 9.10 of the SPA. The 1st Arbitral Tribunal via the said award dated 24.1.2018, inter alia, held that the WCD could have been achieved latest by 30.6.2014. Notably, the 1st Arbitral Tribunal held that there was, in fact, no breach of the SPA by NCCL even though the WCD had not been reached by 31.3.2013. Thus, on account of failure of HSPL and/or TAQA in making incentive payments, ....
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....to be put forth was that a mere reference to incentive payments claim in a schedule attached to NCCL's letter dated 2.8.2014 would not constitute an abandonment in law. Abandonment requires a more resolute stand than a mere reference in respect in a pre-arbitration notice. Abandonment cannot occur when a claim has not legitimately arisen. (xiv) The argument advanced on behalf of HSPL and TAQA that the claim for incentive payments had been waived in view of what was stated in communication dated 30.5.2017 was unsustainable for the following reasons: (i) First, TAQA was neither addressed nor mentioned even though it was jointly and/or severally liable in these proceedings. (ii) Second, the contents of communication dated 30.5.2017 cannot be construed as waiver in respect of a claim vis-a-vis which cause of action had not been arisen at that point in time. (xv) Likewise, in respect of argument advanced that the claim for incentive payments was barred by limitation, it was submitted that the cause for such a claim had not arisen, as suggested, on 5.3.2014, when TAQA stepped in to take over the Power Project. In this context, it was submitted that the step-in right available to ....
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.... have been put forth. 34.2 It was also contended that the arbitration agreement, which subsisted between the parties, (based on which the 1st arbitration proceedings was commenced, which concluded in an Award), had become inoperative and/or incapable of being performed. 35. This stand taken on behalf of HSPL and TAQA is sought to be supported on facts by adverting to various circumstances, which preceded the commencement of the 1st arbitration proceedings as also on the defences raised in the 1st arbitration proceedings, which were considered and dealt with by the 1st Arbitral Tribunal while rendering its Award. 36. Insofar as the events which preceded the commencement of 1st arbitration proceedings are concerned, reference was made to the reply dated 02.08.2014 concerning the pre-arbitration notice dated 04.07.2014, served by HSPL and TAQA on NCCL and NCC. In the reply dated 2.8.2014, concededly, in Appendix B at serial No. 6, a claim on account of loss of incentive payments to the extent of INR 28,34,10,000 was made by NCCL. 36.1 The other communication, on which reliance was placed by HSPL and TAQA was the communication dated 30.05.2017. This communication was addressed by N....
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....roceedings. 39. The record also shows that the WCD, which was to be achieved by 31.03.2013, could not be achieved. As a matter of fact, there is no dispute that the Power Project did not get completed. What is also not disputed by NCCL is that it was liable to bear the burden of Cost Overrun payments beyond the threshold amount pegged at INR 890 crores, albeit, after adjustments being made in consonance with the provisions of the SPA. 40. Variance in the respective stands taken by parties, thus, falls in a narrow compass, which is that, according to NCCL, incentive payments were deferred consideration, which were dependent on Deemed Generation of electricity by the Power Project after the Final Completion Date had been achieved. In this behalf, NCCL places reliance on Clauses 9.0, 9.7 and 9.8.1 of the SPA. NCCL buttresses this stand by contending that since Costs Overrun payments exceeded the threshold amount, HSPL and/or TAQA was required to either return the amount or make the requisite adjustments. Since adjustments had not been made, a positive right had accrued in favour of NCCL to receive incentive payments after the Final Completion Date. 40.1 In this regard, it was furth....
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....udicata should be a decision of a Court of competent jurisdiction. It would, however, matter little if it is a Court of limited jurisdiction, that is, it is not competent to try the subsequent action or the action in which the issue has been raised subsequently. [See explanation VIII to Section 11 of the Code of Civil Procedure, 1908 (in short "CPC")-principles analogous thereto should apply in arbitration proceedings]. 41.5 Since, clearly, as indicated above, there was no decision on incentive payments, the bar, if any, which HSPL and TAQA can, if at all, claim is that NCCL could have or ought to have raised the issue of incentive payments. To my mind, what, in effect, HSPL and TAQA appear to contend is that NCCL should be estopped from raising the issue of incentive payments in the 2nd arbitration proceeding. The plea appears to be in the nature of an "estoppel by accord". [See Bhanu Kumar Jain vs. Archana Kumar & Anr., (2005) 1 SCC 787, at page 798/paras 29 to 32]. 41.6 It is precisely in this context that Mr. Sethi also contended that the arbitration agreement between the parties had become inoperative or in the alternative is incapable of being performed. 41.7 It was Mr. Se....
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....e emerged with regard to water flow data would a cause of action have arisen for lodging a claim for incentive payments. In support of this plea, NCCL has relied upon the following documents: (i) term sheet dated 27.12.2011, executed by TAQA, NCCL and IL&FS; (ii) draft technical due diligence report dated March, 2012, prepared by SNC Lavalin; (iii) technical due diligence report dated August, 2012, prepared by SNC Lavalin; (iv) detailed project report dated April, 2005-Chapter 5; (v) email dated 12.4.2012 addressed by NCCL to TAQA; (vi) e-mail dated 27.03.2012 issued by TAQA to JSL and (vii) e-mail dated 24.01.2012 from IL&FS to, one, Ms. Padma C. Rao. 46. The moot question, which arises, is that, would I, therefore, prevent commencement of the 2nd arbitration proceeding, if a trial is required as to whether or not NCCL could have awaited the decision of the 1st Arbitral Tribunal and, then, lodged a claim for incentive payments. 46.1 The instant Power Project is undisputedly a hydroelectric power project. The generation of electricity would necessarily depend upon Hydrology. Significantly, NCCL, inter alia, relies upon the Technical Due Diligence report to demonstrate that Sorang....
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....A for consequential losses caused under Clause 11.5 of the SPA. This aspect is also borne out upon reading the findings returned by the 1st Arbitral Tribunal in paragraph 3102 read with its summary of the result against claim (d)3 recorded in paragraph 390 of the Award dated 24.01.2018. 48. Therefore, NCCL appears to have pitched its case for a 2nd arbitration proceedings on its interpretation of Clauses 8 and 9 of the SPA read with observations made in paragraph 254(3) and 255 of the 1st Arbitral Tribunal's Award dated 24.01.2018. 48.1 Briefly put, NCCL's case appears to be that since the Final Completion Date could not be achieved, the incentive payments could be worked out on the basis of the Annual Deemed Generation, which in turn, is ascertainable solely on the basis of water discharge as set out in Schedule 3 of the SPA. 48.2 According to NCCL, in terms of Clause 3.1 of Schedule 3, TAQA was required to measure the water level data w.e.f. 28.02.2013. It is NCCL's case that TAQA proceeded on the basis that annual generation of electricity would be approximately 400 million kWh and therefore went on to reduce the purchase price from INR 480 crores to INR 360 crore....
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....of 2nd arbitration proceedings. My approach with regard to the contents of letter dated 30.05.2017 would, thus, be the same. 50.1 The reason that I take this line is on account of the provisions made in Rules 28.2 and 29.1 of the SIAC Rules. Briefly, Rule 28.2 enables an Arbitral Tribunal to rule, inter alia, not only on its own jurisdiction but also with regard to existence, validity or scope of the arbitration agreement. 50.2 Likewise, under Rule 29.1, a party can apply to an Arbitral Tribunal for early dismissal of a claim on the ground that it is manifest that the claim is without merit and/or is outside the jurisdiction of the Arbitral Tribunal. If, as is contended before me on behalf of HSPL and TAQA that the 1st Arbitral Tribunal, while adjudicating upon the claim and counterclaims raised has gone over the very same set of facts and grounds which are now sought to be trotted out by NCCL in support of the claim for incentive payments, it could seek a decision in terms of Rule 28.2 and/or Rule 29 of the SIAC Rules. 50.3 It would be, in my view, for the 2nd Arbitral Tribunal to fix the kind of hearing it wishes to have based on its sense of the nature and scope of the contro....
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....CIA'). Second, to rule upon a counter-application filed by the defendant/MTSF to stay Nomihold's application. Nomihold's case for injunction was pivoted on the fact that there had been a prior arbitration, which had resulted in an Award, and, therefore, the new arbitration triggered by the defendant/MTSF was barred by res judicata or at least on that basis the defendant/MTSF was precluded from raising a fresh claim on the ground of issue estoppel. 53.2 In that light, the learned Judge also considered the argument of the claimant--Nomihold, which was also, incidentally, an argument advanced by Mr. Sethi, that the second arbitration was initiated to avoid enforcement of the Award. On the other hand, the defendant/MTSF's stand before the Court was that it had complaints with regard to money laundering which required adjudication in the second or new Arbitration. 53.3 The following observations, being opposite, are extracted hereafter: "39. Mr. Flynn contended that in this case the "matter" is to be characterised by the fact that Nomihold's essential complaints in its application are the re-arbitration complaints, and submitted that the parties agreed in the arb....
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....t trample upon such questions. However, in these circumstances I shall say something about the principle of Henderson v. Henderson in the context of arbitral proceedings. 42. The issue between the parties is whether MTSF can raise in the New Arbitrations matters that, as Nomihold asserts, it could and should have raised in the First Option Agreement Arbitration if it wished to raise them at all. The rule that a party will not be permitted to raise an issue that he could and should have raised in an earlier reference is well established and indeed ante-dates Henderson v. Henderson: see Smith v. Johnson, (1812) 15 East 213. However, where the previous dispute was determined in arbitration, the principle of Henderson v. Henderson has a narrower application than where it was determined in court proceedings: Mustill & Boyd, Commercial Arbitration (1989) 2nd Ed. p. 412. The consensual nature of arbitration means that a tribunal determines disputes referred to it by the parties. It is because of this, as Mance LJ explained in Sun Life Assurance Co. of Canada v. Lincoln National Life Insurance Co, [2004] EWCA Civ 1660, that the principle of Henderson v. Henderson applies in relation to p....
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....t they are collateral attacks on the Award (such as described by Toulson LJ). It submits that, if this is so, the challenge to the New Arbitrations falls within the purview of the court's supervisory jurisdiction to protect the Award and to support its enforcement. I agree with that submission, and so, in my judgment, to the extent that the adjudication of Nomihold's application involves determining the re-arbitration complaints, the court is not precluded by the arbitration agreements from determining them for that purpose. They are not matters "to be referred to arbitration", notwithstanding they in themselves are matters properly to be determined in a reference when raised in another context. xxxxxxxx In what circumstances will the court make an anti-arbitration injunction? 55. Mr. Flynn acknowledged that there are circumstances in which the court will make an anti-arbitration injunction, but he submitted that the court will not restrain a party from having a matter arbitrated before a tribunal if there is no dispute that the parties are subject to a valid and binding arbitration agreement that a tribunal should determine a matter of that kind. He analysed the autho....
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....alid and binding arbitration agreement that the tribunal should determine such matters. In view of the decisions of Aikens J, Gloster J and Jackson J, a fortiori I should so assume. However, the authorities emphasise the caution with which the court should intervene to restrain arbitral proceedings, and this is also emphasised by section 1 of the 1996 Act: see above. 59. Reference was made before me to the doctrine of Kompetenz-Kompetenz, the general principle that every court is entitled to examine its own jurisdiction (West Tankers Inc v. Allianz Spa (Case C-185/07) [2009], ECR 1-663, [2009] AC 1138 at para 57), and the similar principle recognised with regard to the powers of arbitral tribunals (Dallah Co. v. Ministry of Religious Affairs of Pakistan, [2010] UKSC 46 at paras 84-85). It does not necessarily mean that tribunals have exclusive power or jurisdiction to do so, but, given the consensual nature of arbitration, its application is necessarily subject to the parties' agreement. Under the 1996 Act, the tribunal's jurisdiction to rule upon its own substantive jurisdiction is enshrined in section 30 and the court's power to determine it circumscribed by section....
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....justify the exceptional order sought. I do not consider that it would be just or convenient to make it, and I would decline to exercise my discretion to do so." (emphasis is mine) 53.4 [Also see another judgment of High Court of Justice Queen's Bench Division Commercial Court in the matter of Amtrust Europe Limited V. Trust Risk Group SpA, [2015] EWHC 1927 (Comm.)].. 54. This brings me to the judgments cited on behalf of HSPL and TAQA. The judgment in McDonald's case and the judgment of Single Judge in Ramasamy's case were cited to demonstrate that injunction could be granted where the doctrine of res judicata applied or arbitration agreement had become incapable of being performed. I must indicate herein that the Division Bench of this Court in McDonald's case, while adverting to this aspect of the matter, does state in so many words that the principles governing anti-suit injunction may not necessarily apply to anti-arbitration injunction (See paragraphs 37 and 48 of the judgment). Furthermore, the Division Bench while adverting to the decision rendered in Excalibur Venture LLC V. Texas Keystone Inc., 2011 EWHC 1624 (Comm.) made the following observations; whic....
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....r words, the Award, according to these judgments, had no legal effect till a decree was passed in terms of the Award. Thus, according to the Full benches of the Patna High Court and the Punjab and Haryana High Court, the Award simpliciter would not require registration as it fell within the ambit of the exception mentioned in Section 17(2)(vi) of the Registration Act. 54.5 The Supreme Court, however, based on its own judgment in the matter of Uttam Singh Dugal & Co. Vs. Union of India (where it held that the Award, once drawn up, has some legal force and was not a mere waste paper and if that be so, if it purports to or affects property within the meaning of Section 17(1)(b) of the Registration Act), held that an Award even before it morphed into a decree required to be registered. 54.6 It is in this context that the Court observed that, once, an Award is passed, the rights and liabilities of the parties in respect of the claims raised, can be determined only on the basis of the Award. To my mind, this judgment can have no application to the facts obtaining in the instant case for the reasons given hereinabove. 54.7 The judgment in the case of National Insurance Company would al....
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....mbit of doctrine of res judicata, their re-agitation would amount to abuse of the process of the Court. 56.1 The question raised is whether at this juncture it is just and convenient to injunct the 2nd Arbitration proceeding by labeling it as an abuse of process, which clearly is a mixed question of law and fact and would require trial. 56.2 Since I have come to the conclusion that under the relevant SIAC Rules, the 2nd Arbitral Tribunal could adjudicate upon this aspect, it cannot be said at this stage, especially, in the context of arbitration proceedings that triggering of 2nd arbitration proceedings is an abuse of process. 57. The jurisdiction, to my mind, as alluded to above, with regard to constructive res judicata and other legal pleas could justly and conveniently be adjudicated upon by the 2nd Arbitral Tribunal. Therefore, in my opinion, no case is made out for injunction by this Court. Parameters for grant of anti-arbitration injunctions 58. Thus, if I were to attempt an encapsulation of the broad parameters governing anti-arbitration injunctions, they would be the following: i) The principles governing anti-suit injunction are not identical to those that govern an....