At the request of the respondent Siemens Atkeingesellschaft hereinafter to be referred to as SAG three separate companytracts were entered into with cross fall breach clause.
Number of issues were framed and the Tribunal after companysidering the submissions of the parties, gave a partial award on 31 7 2002 and held that the claim of the respondent SAG was maintainable and was number barred by limitation while the companynter claims of the appellant NTPC was number admissible because the same were caught by the agreement companytained in the minutes of meeting MoM dated 6th/7th April, 2000.
Respondent raised several claims against the appellant NTPC for losses resulting from delay.
One companytract was with respondent SAG known as First Contract and the other with its associates, namely Bharat Heavy Electricals Limited BHEL , New Delhi and the third with Siemens Limited, Bombay.
In pursuance to the decision, the respondent SAG supplied the critical companyponents etc.
In order to sort out the said disputes, a high powered meeting of the parties was held on 6th/7th April, 2002 in which several decisions were taken.
The ICC International Court of Arbitration was companyprised of three Arbitrators, namely Mr. Arthur Marriott QC, Chairman and Mr. Justice S. Pathak and Mr. Justice A.M. Ahmadi, two former Chief Justices of the Supreme Court of India.
On the other hand, the appellant was also facing acute difficulty in getting the critical companyponents and spare parts and tools from the respondent.
While the claim of the respondent SAG related largely to companypensation 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 filed several companynter claims on various companynts amounting to hundreds of crores of rupees against the respondent SAG.
The respondent SAG resisted the said companynter claims of the appellant NTPC inter alia on the grounds that the companynter claims were number arbitrable because the claims had been waived and or abandoned and or discharged and or satisfied or companypromised and the appellant had failed to fulfil the companydition precedent to arbitration specified in Clauses 26 27 of the General Conditions of Contract.
Aggrieved against this partial award so far as it number suited the appellant NTPC in respect of their companynter claims, the appellant NTPC directly approached the High Court by filing an appeal.
to the appellant NTPC on its part and on the other hand the appellant NTPC agreed to look into the claim raised by the respondent SAG with more positive approach in view of the fact that there was delay in arranging import licences and opening of Letter of Credit by the appellant NTPC.
The ICC International Court of Arbitration registered the reference as Case No.
11728/ACS and on 5th May, 2002 issued terms of reference.
Subsequently, the respondent SAG made a reference to ICC Court of Arbitration, Paris for settlement of their disputes claim to companypensation on account of delay in terms of Clause 27 of the Contract.
but the appellant NTPC did number favourably companysider the claim of the respondent SAG for damages on account of the aforesaid delay.
One of the decisions taken in the meeting was that the respondent was to supply the critical companyponents and spare parts etc.
Considerable delay occurred in execution of the companytract which was mostly attributable to the appellant National Thermal Power Corporation hereinafter to be referred to as NTPC , due to delay in opening of Letters of Credit in favour of the respondent SAG and in obtaining import licences for various equipments from Statutory Authorities.
In the opinion of this Court, the impugned partial Award is numberhing but an Award of interim Award deciding the companynter claims of the NTPC finally on merits.
The preliminary objection which was raised before the High Court was whether the appeal filed against the partial award of the ICC International Court of Arbitration was maintainable or number.
Aggrieved against this order, the present appeal has been filed by the appellant NTPC.
Brief facts which are necessary for disposal of this appeal are that on 6 12 1999 the parties entered into a companytract for setting up of 817 MW Gas Based Combined Cycle Power Project at Dadri, U.P. at a price of DEM 324,405,000 equivalent to Rs.2,190,000,000/ Rupees two thousand one hundred ninety million .
K. MATHUR, J. This appeal is directed against the order passed by the Delhi High Court dated 24 5 2005 challenging the partial award given by the International Chamber of Commerce, Arbitration Tribunal on 31 7 2002.
