BHARAT SANCHAR NIGAM LIMITED v. STAR BATTERY LIMITED
2017-10-25
SABYASACHI BHATTACHARYYA, SANJIB BANERJEE
body2017
DigiLaw.ai
JUDGMENT : 1. The appeal arises out of the rejection of a petition under Section 34 of the Arbitration and Conciliation Act, 1996. 2. The appellant issued a purchase order on October 21, 2008 to the respondent for supply of 542 battery units at a composite rate of Rs.1,91,924.63, including cenvatable duties and taxes, per unit. The total value of the purchase order was in excess of Rs.10.40 crore. The delivery in terms of the purchase order was to be completed by or about February, 2009. It is not in dispute that the supplier could not complete the delivery within the period stipulated in the purchase order. An initial extension was granted. The supplier could not complete the delivery within such initial period of extension, but by or about January, 2010, the supplier had completed delivery of a total of 388 units. The contractor then sought a formal extension of the delivery period by a letter dated July 7, 2010 so as to enable the contractor to obtain the price of the goods sold and delivered. By a letter dated August 19, 2010, the appellant granted ex post facto extension but claimed that the unit price of the batteries stood reduced to Rs.1,55,227.51/- for the period between September 1, 2009 and October 13, 2009; to Rs.1,11,851.02 for the period October 14, 2009 to December, 2009; and, to Rs.1,01,013.68 for the period December 18, 2009 to the end of January, 2010. The main ground for the reduction for price was the fall in the rate of cenvatable duties and taxes levied on the product. 3. The basis for the reduction of price as indicated in the appellant’s letter of August 19, 2010 appears to be Clause 24 of Section III of the contract between the parties. In essence, such clause provided that if the delivery was not completed within the scheduled period, the appellant herein would be entitled to reduce the price for the supplies effected during any extended period on the basis of the quotations received in respect of other tenders pertaining to similar goods. Of course, location, geographical and other factors had to be taken into account to indicate to what extent the price per unit would stand reduced. 4. It is such aspect of the matter which is emphasised on by the appellant.
Of course, location, geographical and other factors had to be taken into account to indicate to what extent the price per unit would stand reduced. 4. It is such aspect of the matter which is emphasised on by the appellant. The appellant claims that upon the respondent failing to complete the supply within the period stipulated in the purchase order, the respondent was liable to effect further supplies at the rate determined in course of other tenders pertaining to the same goods. The appellant contends that the arbitrator misconducted the proceedings in failing to apply the principle embodied in Clause 24 of Section III of the contract and in erroneously concluding that since the reduction of the price was not intimated to the respondent prior to the respondent effecting the delivery, the reduced prices could not be made applicable. 5. It also appears from the order impugned dated August 31, 2017 that the Court of the first instance perceived that the arbitrator had rendered a plausible interpretation of Clause 24 of Section III of the contract between the parties and the challenge to the award on such ground could not be accepted. 6. A challenge to an arbitral award cannot be treated as an appeal. Classically, errors within the jurisdiction of the arbitrator are not amenable to correction; and only errors of jurisdiction are set right by the Court. The most elementary reason for this approach of the Court is that since the parties found it convenient to go outside the official system to find a forum of adjudication, the Court will not take up the burden of adjudication upon one of the parties complaining of the quality of the adjudication. However, the Court’s reluctance in the matter is subject to the statutory conditions: if there is error apparent on the face of the award or there is grave miscarriage of justice or the view that is expressed is found to be utterly outlandish, the Court may correct the same. 7. In the present scenario, it is evident that the relevant clause permitted the appellant herein to extend the period of delivery and indicate a lesser price for the goods on the basis of subsequent tenders or other material as referred to in the clause.
7. In the present scenario, it is evident that the relevant clause permitted the appellant herein to extend the period of delivery and indicate a lesser price for the goods on the basis of subsequent tenders or other material as referred to in the clause. As far as the supply in January, 2010 was concerned, the appellant did not have an opportunity to either extend the period of supply or intimate the rates since it appears that the goods were suddenly delivered to the appellant without any prior intimation. Even in such a scenario, it was open to the appellant to immediately reject the supply of the goods or to insist on the goods being retained subject to the supplier agreeing to a reduced price there for. The appellant could not have retained the supply effected, albeit belatedly, in late 2009 or in January, 2010 and intimate the supplier only in August, 2010 that the supplier would be entitled to a much lesser price than bargained for and recognised in the purchase order. 8. Clause 24 of Section III of the contract between the parties has to be seen from the perspective of both the appellant and the supplier. As much as the appellant had a right thereunder to reduce the price, subject to the conditions stipulated, and such reduced price would be binding on the supplier; the supplier, equally, had the option to either effect supply at the reduced price indicated or abandon the further supply. In the present case, even if it is accepted that the final supply in January, 2010 was suddenly effected and without prior intimation, it was open to the appellant herein to either reject the supply immediately or within reasonable time or intimate the supplier that unless the supplier agreed to receive a reduced price there for, the goods would be rejected. The appellant did nothing of such kind. The appellant only sought to intimate the respondent of the reduced price, not only of the supplies effected in January, 2010, but also of the supplies effected earlier in 2009, that the appellant would be paying at a reduced rate there for. 9.
The appellant did nothing of such kind. The appellant only sought to intimate the respondent of the reduced price, not only of the supplies effected in January, 2010, but also of the supplies effected earlier in 2009, that the appellant would be paying at a reduced rate there for. 9. Notwithstanding the appellant’s status as an authority within the meaning of Article 12 of the Constitution, it was not open to the appellant to take the imperious stand of ex post facto indicating to the supplier that it would pay at a reduced price without taking steps to furnish such information prior to the supplies being effected or at the time thereof or even within reasonable time thereafter. 10. For the reasons aforesaid, it was open to the arbitrator to take a view that in the light of the appellant’s conduct, the appellant had waived the right to impose a reduced price as provided for in Clause 24 of Section III of the agreement between the parties. There does not appear to be any error on the part of the arbitrator, far less any error of jurisdiction that was amenable for correction in proceedings under Section 34 of the Act of 1996. APO No.465 of 2017 and GA No.3229 of 2017 are dismissed. There will, however, be no order as to costs.