M/S Kandla Port Trust v. M/S Pec Ltd

SANGITA DHINGRA SEHGAL, J SEPTEMBER 19, 2016 pk

(Common Orders) * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 19.09.2016 + LPA 21/2016 M/S KANDLA PORT TRUST ..... Appellant versus M/S PEC LTD ..... Respondent + LPA 22/2016 M/S KANDLA PORT TRUST ..... Appellant versus M/S STC LTD ..... Respondent Counsel for the appellant: Mr.Tushar Mehta, ASG with Mr.Sumit Goel and Ms.Nandita Bajpai, Advs. Counsel for the respondent: Mr.Jayant Bhushan, Sr.Adv. with Ms.Rajdipa Behura, Ms.Garima Singh Yadav, Advocates CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL MS. G. ROHINI, CHIEF JUSTICE (ORAL) CM No.1124/2016 in LPA No.21/2016 CM No.1127/2016 in LPA No.22/2016 1. These two applications are filed under Section 5 of the Limitation Act, 1963 with a prayer to condone the delay of 365 and 367 days respectively in filing LPA Nos. 21/2016 and 22/2016. 2. We have heard the learned counsel for both the parties and perused the material available on record. 3. The main appeals were preferred against the common order passed by the learned Single Judge dated 28.10.2014 dismissing W.P.(C) Nos. 7887/2011 and 7898/2011 with costs of Rs.50,000/- for each petition. The said writ petitions were filed by the Appellant herein, which is an authority constituted under the Major Port Trust Act, 1963 against two Central Public Sector Enterprises with a prayer to declare the Permanent Machinery of Arbitration (PMA) established vide Office Memorandum dated 22.01.2004 of the Department of Public Enterprises, Government of India as null and void and further to set aside the awards passed by the sole arbitrator as well as the appellate authority allowing remission to the tune of 80% of the principal demurrage charges to the Respondents. Having taken note of the fact that the writ petitioner/appellant herein had never raised any objection as to the jurisdiction of PMA either before the arbitrator or before the appellate authority and that the Committee on Dispute (CoD) was constituted pursuant to the directions of the Supreme Court in Oil & Natural Gas Commission & Anr. vs. Collector of Central Excise, 1995 Supp. (4) SCC 541 and more particularly that the writ petitioner had voluntarily entered into arbitration agreement for resolution of its disputes with the respondents, the learned Single Judge held that all the grounds of challenge in the writ petitions are devoid of merit and accordingly dismissed the writ petitions with costs observing: "39. It was strongly urged by the learned counsel for KPT that the arbitration agreement for reference of disputes to the PMA was without KPT's consent and KPT was coerced into giving its consent; As pointed out earlier this contention was not supported by any pleadings and, obviously, was evolved subsequently, as a matter of convenience. Even the written submissions filed by the learned counsel for KPT did not mention that KPT was coerced in any manner. 40. In addition, considerable time was spent by the learned counsel for KPT to urge that the matter not be heard by this Court and be referred to a larger Bench. As discussed above, these contentions were also bereft of any basis. It appears that the only reason why such contentions were pressed at length was to somehow avoid the conclusion of the present matter. 41. Lastly, it cannot be ignored that the disputes involved are amongst a statutory body controlled by the government of India and Government Corporations. The Supreme Court in several decisions including the ONGC Cases had expressed that such disputes should be resolved without litigation. The orders passed in ONGC Cases were recalled in Electronics Corporation of India (supra), not because the intention of avoiding litigation through CoD was not laudatory but because the mechanism of CoD had not worked effectively. Viewed in this perspective, KPT's stand to avoid the PMA by contending that it was without its consent or that it was coerced clearly indicates KPT's propensity for litigating unfairly, which must be discouraged. 4