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Himachal Pradesh High Court · body

2019 DIGILAW 1155 (HP)

Himachal Pradesh State Electricity Board Ltd. v. HCL Infotech Limited

2019-08-13

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The Board/petitioner herein, is aggrieved, by the impugned award, rendered by the sole Arbitrator on 11.5.2018, wherethrough, the dispute engaging, the, parties at contest, vis-a-vis, the insistences made by the Contractor/respondent herein, upon, the petitioner herein, for, issuance of C-Forms or differential tax, to, the tune of Rs.1.56 crore, with, apposite interest levied thereon, was/were answered, vis-a-vis, the contractor, hence by the learned sole arbitrator. Necessarily hence, the respondent-Board, in, the apposite arbitration case, being aggrieved therefrom, has, hence through, the, instant application, cast under the provision of Section 34 of the Arbitration and Conciliation Act, strived for, begetting reversal thereof. 2. The crux of the dispute, whereon, the legal contestants are embroiled, is, encapsulated in the interpretation, to be afforded, to the phrase "the purchaser will provide Central Sales Tax Form-C, whenever applicable". Clause 6(c) of the award letter, and, clause 15.3 of General Conditions of Contract, for, enabling the making, of, an appropriate interpretation thereof, is/are, extracted hereinafter. "Clause 6(c) and clause 15.3: For goods supplied from within the Purchaser's country, the supplier shall be entirely responsible for all taxes, duties, entry tax, license fees, other levies etc, incurred until delivery of the Goods and Related service to the Purchaser. The Purchaser will prove Central sales tax Form C, whenever applicable." 3. Before making an adjudication, vis-a-vis, the afore requisite clause(s), and, also, prior, to, making an adjudication, vis-a-vis, the rival contention(s) reared, by the learned counsel(s), for, the contesting litigants, it, is imperative, to, grasp qua the gravamen of the afore dispute, as, appertains, to, the necessity, of, the afore insistence(s), being made, by the contractor/respondent herein, upon, the Board/petitioner herein, hence standing engendered from (a) upon issuance of C-Forms, in, respect, of all requisite supplies, and, appertaining to the works awarded, vis-a-vis the contractor, thereupon, the liability of indirect sale/sale tax or the compliment, of, sale tax, being borne by the purchaser board, and, concomitantly, for, absence of issuance of C-Forms, the liability of tax, appertaining to penalty, and, qua interest, borne in a sum of Rs. 1,53,64,649/-, rather standing borne, by the respondent/contractor, (b) liabilities whereof reiteratedly, upon, issuance of requisite C-Forms, rather being both avoidable or baulkable. 1,53,64,649/-, rather standing borne, by the respondent/contractor, (b) liabilities whereof reiteratedly, upon, issuance of requisite C-Forms, rather being both avoidable or baulkable. Significantly, hence the board/petitioner herein, has strived to escape, the afore liability, and, has maintained a firm espousal qua there being no necessity, for, issuance of C-forms, by it, vis-a-vis, the contractor/respondent herein. 4. Be that as it may, the afore extracted clauses, carried in the apposite contract, and, whereto, an, interpretation, is to be afforded, obviously are enjoined to be read alongwith, the mandate borne in Section 2(19) of the Electricity Act, 2003 (for short the Electricity Act), (i) wherein the afore relevant phrase "distribution system" stands defined, and, provision(s) whereof, stands extracted hereinafter, (a) given only upon, a, pointed interpretation, being made, of, the afores', rather would constrain this Court, to, conclude qua there being merit in the petition or it being unmeritworthy. "Section 2(19) of the Electricity Act, 2003 distribution system" means the system of wires and associated facilities between the delivery points on the transmission lines or the generating station connection and the point of connection to the installation of the consumers." 5. Any affording of, an, interpretation, vis-a-vis, all the afore requisite, canons, and, qua the, hereinbefore extracted requisite provisions, also enjoins, an understanding, of, the innate signification, of, the phrase "distribution system", defined in the Electricity Act, (i) wherein all the afore enumerated system(s) hence carry the statutory parlance, of "distribution system", and, all the afore whereof appertain(s), vis-a-vis, "the system of wires, and, associated facilities between the delivery points on the transmission lines or the generating station connection and the point of connection to the installation of the consumers". 6. Be that as it may, it is also imperative, to, allude, vis-a-vis, the scope and domain, of the relevant contract, domain whereof, finds reference, in, clause 6 (c), of, the apposite contract, clause whereof stands extracted hereinbefore, (i) nowat, for, gauging whether the afore supplies, of various power related equipments, under, the RAPDRP' (Restructured-Accelerated Power Development Power Development Reform Program), as, made by the respondent/contractor, vis-a-vis, the board/petitioner herein, hence fall within the afore statutory signification, meted to, the, phrase, "distribution system", as, defined in the Electricity Act, and, for hence an appropriate interpretation, being meted thereto, also enjoins an allusion being made, vis-a-vis, the, evidence adduced, before the learned Arbitrator. Significantly RW-1( Shri Sanjeev Maria) in his affidavit, comprised in Ex.RW-1/A, though, has not rendered, a, further testification, vis-a-vis, the afore supplies, of, various power related equipments, under, the R-APDRP, by the respondent, vis-a-vis, the petitioner, stricto sensu, falling, within, the, ambit of the phrase "distribution system", embodied in the Act, (a) yet, when both CW-1(Shri Manas Kumar Dass), and, CW-2 (Shri Virender Kumar Pasricha), in their respective affidavits, embodied in Ex. CW-1/A, and, in Ex. CW-2/A, make clear echoings, qua the services rendered, by the claimant/respondent herein, under, the apposite contract comprising, supplies of various power related equipments, under, the R-APDRP Project plan, (b) and, when the latter, is, the prime project of R-APDRP project, and, when the afore echoings, borne in Ex. CW-1/A, and, in Ex. CW-2/A respectively, authored by CW-1, and, by CW-2, remained uncontested, during, the course of theirs' being cross-examined by the learned counsel, for the authorized representative, of the board, thereupon, it generates an inevitable sequel, qua, the afore echoings, borne in the afore affidavits, embodied respectively, in Ex. CW-1/A, and, in Ex. CW-2/A hence, carrying, the apt, tenacity, and, apposite vigor. 7. Further thereonwards, even if RW-1, in his affidavit comprised in Ex. RW-1/A, has omitted, to, therein making any echoings, rather bearing absolute concurrence, with, the statutory connotation, meted to the phrase "distribution system", as occurs in the Electricity Act, (i) even rather the afore omission is of no aid to the petitioner/Board, to contend therefrom, that the afore requisite ingredients remaining unsatiated. Conspicuously, reiteratedly, when CW1 and CW-2, in their respectively tendered affidavit(s), comprised in CW-1/A, and, in CW-2/A, (i) make therein explicit echoing, qua, hence all the ingredients appertaining, to, the phrase "distribution system", as, defined in the apt provision, of, the Electricity Act, being hence meted satiation, (ii) and, when the afore echoings, acquire clout, for, want of theirs, being thereon, hence cross-examined, also, (iii) thereupon, the, Board, is to be concluded, to, acquiesce, vis-a-vis, the afore, requisite ingredients borne, in the apposite provisions, of, the Electricity Act, rather being satiated by CW-1, and, CW-2, through their respectively tendered affidavits, borne in Ex. CW-1/A, and, in CW-2/A. 8. CW-1/A, and, in CW-2/A. 8. Moreover, even the petitioner/Board, has through, Annexure A, placed on record, before the learned Arbitrator, and, Annexure whereof, was appended by the claimant, in his rejoinder, to the reply of the Board, hence made echoings qua issuance, of C-Forms, vis-a-vis, the contractor, and, though the vigor, of, the afore admission, as strived to be stripped, of, its tenacity, by the Board/petitioner herein, contending qua its being erroneously issued, (i) yet, when no material exists on record, qua, disciplinary action being initiated, against, the Officer, who issued Annexure A, (ii) and, when from the afore discussion, this Court, draws a firm conclusion, vis-a-vis, the petitioner/board, acquiescing, vis-a-vis, the apposite echoings, borne in Ex. CW-1/A and in Ex. CW-2/A, (iii) cumulatively hence with Annexure A also carrying the afore requisite, acquiescences of the petitioner/board, does fortify, the afore inference, made by this Court, inference whereof, for, the afore reasons, are anvilled, upon, the uneroded echoings rendered, by, CW-1, and, by CW-2 in their respectively tendered affidavits, comprised, in Ex. CW-1/A, and, in Ex. CW-2/A. 9. Lastly the learned counsel for the aggrieved petitioner, has contented with much vigor, before this Court, that, with the commissioner concerned, (i) in the apposite affidavit borne in Ex. RW-1/A, opining, that the distribution system(s)/gadgets, supplied by the claimant/respondent herein, to the board/petitioner herein, rather not falling within the domain, of, the, statutory definition of "distribution system", occurring in the afore Act, (ii) thereupon, vigor if any, of the afore inference being blunted, and, maimed. However, when the apposite echoings borne in Ex.RW-1/A stood rendered, dehors, the Commissioner concerned meteing compliance, vis-a-vis, the principle(s) of natural justice, (iii) thereupon, it looses its sanctity, and, also when the Commissioner concerned, is not an expert, to render an opinion, vis-a-vis, the afore apposite therewith res controversia, rather when for the aforestated reasons, the petitioner had an opportunity to rebut the echoings, made in Ex. CW-1/A, and, in Ex.CW-2/A, wherethrough the ingredients borne, in the Electricity Act, beget satiation, (iv) whereas theirs neither cross-examining the afore, vis-a-vis the afore facet, (v) nor, thereafter best expert evidence, being adduced, (vi) thereupon for non-availment of the afore requisite steps, by the board/petitioner herein, rather constrains a conclusion, qua, the petitioner being estopped, to, merely on anvil of Annexure R-1/A, contend that the supply(s) of afore gadgets/equipments/system, under, the R-APDRP, made by the contractor, vis-a-vis, the board/petitioner herein, not falling within the domain, of, the definition, of, "distribution system" as finds, occurrence in the apt provisions of the Electricity Act. 10. Even otherwise the view taken by the learned sole arbitrator, is, a reasonable view, and, when it is not ex-facie evident from the perusal of the records, vis-a-vis, the award being arbitrary, rather when the award is preceded, by the Arbitrator meteing compliance, vis-a-vis, the principle(s) of natural justice, thereupon when the requisite interfere-able vices, as, encapsulated in a judgment of the Hon'ble Apex Court, reported, in, titled as Associate Builders versus Delhi Development Authority, (2015) 3 SCC 49 rather are not borne, in, the impugned award, thereupon, the impugned award before this Court, is, validated. 11. In view of the above, the instant petition is dismissed, alongwith all pending applications. The impugned award is maintained and affirmed. No costs.