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High CourtsDivision Bench(2011) 06 DEL CK 0093

Larsen and Toubro Limited vs National Highway Authority of India

Delhi High Court · Decided on 3 June 2011

HON’BLE JUDGES
Vikramajit Sen, J · Siddharth Mridul, J
CASE NUMBER
FAO (OS) No. 345 of 2010 and CM No''s. 9062, 21064 of 2010 and 7691 of 2011
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Judgment

3 paragraphs · 325 words

Vikramajit Sen, J.—The present Appeal arises from the Order of the learned Single Judge dated 9th September, 2009 dismissing the Objections against an Award dated 13th May, 2009. The pivotal question raised in the Objections to the Award by the Petitioner/Appellant was the interpretation of Clause 70 of the Conditions of Particular Application (COPN) interpreted by the learned Arbitrator in relation to the reimbursement of enhanced royalty charges.

2.

The Petitioner''s contention before the learned Single Judge was that Boulder and sand, which were not included in the 58 commodities, fluctuation in price whereof would determine the Whole Sale Price Index (WPI), should have been considered while calculating the enhancement in light of Clause 70.8, which stipulates fluctuation of WPI on account of Subsequent Legislation. Through Nhai v. ITD Cementation India Ltd. 2008 (100) DRJ 432 was cited before the Single Judge, same was not applied. However, in our view, the questions raised by the Appellant are similar to the ones raised in ITD Cementation. In FAO (OS) 140/2008 decided on 29.11.2010 and FAO (OS) 347/2010 decided on 9.2.2011. Two Division Benches have held that the questions raised in those Appeals were covered by ITD Cementation against which an SLP is said to be pending before the Hon''ble Supreme Court. However, instead of keeping the Appeals pending, awaiting the decision in the SLP, the Division Benches disposed of those Appeals in terms of ITD Cementation. Mr. Tripathi, learned ASG sought to argue that this course of action would amount to interference with the finding of the learned Arbitral Tribunal which is not warranted by the Arbitration & Conciliation Act, 1996. The Course of action which commends itself to us in the present Appeal is to allow the Appeal as well in the light of ITD Cementation. Any other course of action would amount to inconsistency in views of the Division Benches.

3.

In these circumstances, the Appeal is allowed. All pending Applications stand disposed of.