GAIL GAS LIMITED vs M/S SHYAM GLASS WORKS
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 09.09.2024
+ FAO(OS) (COMM) 205/2024
GAIL GAS LIMITED …..Appellant
Through: Mr Sandeep K. Mahapatra with Mr Tribhuvan, Advocates.
versus
M/S SHYAM GLASS WORKS …..Respondent
Through: None.
CORAM:
HON’BLE MR JUSTICE RAJIV SHAKDHER
HON’BLE MR JUSTICE AMIT BANSAL
[Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J.: (ORAL)
CM APPL. 52670/2024
1. Allowed, subject to just exceptions.
FAO(OS) (COMM) 205/2024, CM APPL. 52669/2024 [Application filed on behalf of the appellant seeking condonation of delay of 157 days in filing the appeal], CM APPL. 52671/2024 [Application filed on behalf of the appellant seeking interim relief] and CM APPL. 52672/2024 [Application filed on behalf of the appellant seeking condonation of delay of 156 days in re-filing the appeal]
2. This appeal has been preferred against the judgment and order dated 25.07.2023 passed by the learned Single Judge.
3. Via the impugned judgment and order, the appellants petition under Section 34 of the Arbitration and Conciliation Act, 1996 [hereafter referred to as the 1996 Act] was dismissed.
4. The appellant had sought to challenge before the learned Single Judge the award dated 28.10.2022, as rectified by the learned Arbitrator on 09.02.2023.
5. The record shows that the appellant had preferred a counter-claim amounting to Rs.1.62 crores.
6. The moot question which arose for consideration before the Arbitral Tribunal, as well as the learned Single Judge, was whether the metering seals and metering skids had been tampered with by the respondent. This aspect arose in the backdrop of the following broad facts.
7. The disputants had entered into a gas supply contract on 09.10.1996, followed by the supplementary agreement dated 12.04.2000 [hereafter referred to as the supplementary contract]. Inter alia, as per the terms of the supplementary contract, the appellant was required to supply 9000 Standard Cubic Meter Per Day [SCMPD] of gas to the respondent, who is in the business of manufacturing glass and glass items.
8. It appears that the case set up by the appellant, both by way of defence and counter-claim, was that the metering skid installed at the respondents premises for the purposes of transport of natural gas, had been tampered with.
9. We are informed that according to the appellant, it had encountered tampering on two dates, i.e., 11.11.2004 and 28.01.2005. Both incidents were the subject matter of reports of Rockwin Flow Meter India Pvt. Ltd [ hereafter referred to as Rockwin]
10. Concededly, the learned Arbitrator had returned a finding that this allegation was largely pivoted on the reports of Rockwin. The learned Arbitrator, after discussing the evidence placed before him, concluded that although there were anomalies in the seal of the turbine flow meter, there was no evidence placed on record which would show that the metering seals or metering skids had been tampered with, at least not by the respondent.
11. It is in this context that the learned Arbitrator concluded that the case of tampering with the metering seals and meter skids had not been proved, and therefore, the respondent could not be fastened with any liability, much less with the counter-claim raised by the appellant.
12. The arbitration award, as noticed above, was sustained by the learned Single Judge.
13. Interestingly, although the appellant claims that it was aggrieved by the award as well as the decision of the learned Single Judge, it has chosen to sleep over its rights.
14. The instant appeal has been filed, concededly, after a delay of 157 days. The only reason furnished in the application for condonation of delay is that though it was informed about the judgment rendered by the learned Single Judge soon after it was pronounced, since it is a public sector undertaking, consultations, deliberations and approval for instituting the appeal took considerable time.
14.1 According to us, the reason given is as vague and hackneyed. Notwithstanding that the reasons given for seeking condonation of delay do not spell out a sufficient cause, we are not persuaded to interfere with the impugned judgment and award as any interference would entail the Court to enter the domain that is preserved for the Arbitrator.
14.2 As indicated above, the Arbitrator has appreciated the evidence and returned a finding of fact that there was no tampering with the metering seals and the metering skids.
15. The appeal is, accordingly, dismissed. Pending applications shall stand closed.
RAJIV SHAKDHER, J
AMIT BANSAL, J
SEPTEMBER 9, 2024 / tr
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