LPG cylinder suppliers challenged downward finalisation of provisional prices and recovery of excess payments. The court upheld the agreed pricing mechanism, found Ministry approval unnecessary, and declined interference with non-perverse arbitral findings. All eleven appeals were dismissed without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 263 OF 2015 IN
ARBITRATION PETITION NO. 729 OF 2012
M/s.Balaji Pressure Vessels Limited ) 4th Floor, Hotel Sreenidhi Nivas, ) No.8-2-229/230, Red Cell Road, ) Secunderabad – 500 003 ) ...Appellant Ori.Petitioner
….Versus....
Bharat Petroleum Company Limited ) a Government of India Undertaking, ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, ) Ballard Estate, Mumbai – 400 001. ) ...Respondent ...Ori.Respdt.
WITH APPEAL NO.256 OF 2016 IN
ARBITRATION PETITION NO.817 OF 2011
NCC Limited, Formerly known as ) Nagarjuna Construction Company Ltd. ) Having its registered office at ) Sy.No.64, NCC House, Madhapur, ) Hyderabad – 500 081. )
...Appellant
….Versus....
1). Bharat Petroleum Company Limited ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard ) Estate, Mumbai – 400 001. )
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2). Vinod Giri, ) The Learned Sole Arbitrator, ) having his office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard ) Estate, Mumbai – 400 001. ) ...Respondents
WITH APPEAL NO.446 OF 2015
IN ARBITRATION PETITION NO.815 OF 2011
North India Wires Limited ) A Company incorporated under the ) Companies Act, 1956, having its ) registered office at 12, Government Place ) East, Kolkatta – 700 069. ) ...Appellant Ori.Petitioner
….Versus.... 1). Bharat Petroleum Company Limited ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard ) Estate, Mumbai – 400 001. ) 2). Vinod Giri of Mumbai, ) India Inhabitant having his office at ) Bharat Bhuvan, 4 & 6, Currimbhoy ) Road, Ballard Estate, ) Mumbai400 001 ) ...Respondents Ori.Respdts.
WITH APPEAL NO.284 OF 2015
IN
ARBITRATION PETITION NO.737 OF 2010
M/s.Super Industries ) A Proprietorship concern, having its )
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registered office at 82/3, Badrikeshwar ) Building, First Floor, “E” Road, Marine ) Lines, Marine Drive, Mumbai – 400 002. )
...Appellant Ori.Petitioner
….Versus....
Bharat Petroleum Company Limited ) a Government of India Undertaking, ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard Estate,) Mumbai – 400 001. ) ...Respondent ...Ori.Respdt.
WITH
APPEAL NO.283 OF 2015 IN ARBITRATION PETITION NO.736 OF 2010
Expo Gas Containers Limited ) A Company incorporated under the ) Companies Act, 1956, having its registered ) office at Expo House, 150, Sheriff Devji ) Street, Mumbai – 400 003. ) ...Appellant Ori.Petitioner
….Versus....
Bharat Petroleum Company Limited ) a Government of India Undertaking, ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard Estate,) Mumbai – 400 001. )
...Respondent ...Ori.Respdt.
WITH
APPEAL NO.265 OF 2015 IN
ARBITRATION PETITION NO.730 OF 2012 Karnataka Pressure Vessels Limited ) having registered office at 264, )
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1st Main Road,Chamarajeet, ) Bangalore – 560 018. ) ...Appellant Ori.Petitioner
….Versus....
Bharat Petroleum Company Limited ) a Government of India Undertaking, ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard Estate,) Mumbai – 400 001. ) ...Respondent ...Ori.Respdt.
WITH APPEAL NO.444 OF 2015 IN ARBITRATION PETITION NO.809 OF 2011
Haldia Precision Engineering Pvt. Ltd. ) A Company incorporated under the ) Companies Act, 1956, having its ) registered office at 3B, Ronaldshay Road,) Kolkatta – 700 027. ) ...Appellant Ori.Petitioner
….Versus....
1). Bharat Petroleum Company Limited ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard ) Estate, Mumbai – 400 001. ) 2). Vinod Giri of Mumbai, ) India Inhabitant having his office at ) Bharat Bhuvan, 4 & 6, Currimbhoy ) Road, Ballard Estate, ) Mumbai400 001 ) ...Respondents
Ori.Respdts.
WITH APPEAL NO.445 OF 2015
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IN ARBITRATION PETITION NO.762 OF 2011
J.R. Fabricators Limited ) A company incorporated under the ) Companies Act, 1956, having its ) registered office at 3/F Shree Building, ) Ranade Road, Dadar, Mumbai – 400 028.) ...Appellant Ori.Petitioner
….Versus....
Bharat Petroleum Company Limited ) a Government of India Undertaking, ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard Estate,) Mumbai – 400 001. ) ...Respondent ...Ori.Respdt.
WITH APPEAL NO.295 OF 2016 IN ARBITRATION PETITION NO.335 OF 2012
M/s.Allampally Brothers Limited ) Having its registered office at ) P.B. No.63, Puthen Veedu Palace Road ) Aluva – 683 101, Kerala ) ...Appellant Ori.Petitioner
….Versus....
2). Shri P.S. Bhargava, Sole Arbitrator ) having his office at Bharat Bhuvan, )
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4 & 6, Currimbhoy Road, Ballard ) Estate, Mumbai – 400 001. ) ...Respondents ...Ori.Respdt.
WITH
APPEAL NO.297 OF 2016 IN
ARBITRATION PETITION NO.905 OF 2011
Metalfab Hightech Private Limited ) A Company registered under the ) Companies Act, 1956, having its ) registered office at E21-25 & 33B/2 ) MIDC Industrial Area, Hingna Road, ) Nagpur – 440 028 duly amalgamated ) with the Transferor Company ) Metalfab Hightech Private Limited ) ...Appellant Ori.Petitioner
….Versus....
1). Bharat Petroleum Company Limited ) a Government of India Undertaking, ) having its office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard ) Estate, Mumbai – 400 001. ) 2). Mr.Vinod Giri ) of Mumbai, Indian Inhabitant ) having his office at Bharat Bhuvan, ) 4 & 6, Currimbhoy Road, Ballard ) Estate, Mumbai – 400 001. ) ...Respondents ...Ori.Respdts.
WITH
APPEAL NO.299 OF 2016 IN
ARBITRATION PETITION NO.821 OF 2011
Sahuwala Cylinders Private Limited ) A Company incorporated under the )
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Companies Act, 156, having its registered) office at 242-D Block, Autonagar, ) Vishakhapatnam – 530 012. ) ...Appellant Ori.Petitioner
….Versus....
| 1). Bharat Petroleum Company Limited a Government of India Undertaking, having its office at Bharat Bhuvan, 4 & 6, Currimbhoy Road, Ballard Estate, Mumbai – 400 001. |
) ) ) ) ) |
|
|---|---|---|
| 2). Mr.Vinod Giri | ) | |
| of Mumbai, Indian Inhabitant | ) | |
| having his office at Bharat Bhuvan, | ) | |
| 4 & 6, Currimbhoy Road, Ballard | ) | |
| Estate, Mumbai – 400 001. |
) |
...Respondents ...Ori.Respdts. |
Mr.Zain Mookhi with Mr.N.C. Parekh, Mr.N.J. Marjadi and Ms.Janhavi D. Doshi I/b Mansukhlal Hiralal & Company for the Appellant in Appeal Nos.263 of 2015, 265 of 2015, 283 of 2015, 284 of 2015, 444 of 2015, 445 of 2010, 446 of 2015, 295 of 2016, 297 of 2016 and 299 of 2016.
Mr.Kedar Wagle with Mr.Sagar Wagle for the Appellant in Appeal No.256 of 2016.
Mr.Pankaj Sawant, Senior Counsel with Mr.Ali Abbad Delhiwalla and Mr.S.A. Bhalwal I/b Vyas & Bhalwal for the Respondent.
CORAM : R.D. DHANUKA & A.K. MENON , JJ. RESERVED ON : 1st NOVEMBER, 2018 PRONOUNCED ON : 15TH MARCH, 2019
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JUDGMENT (PER R.D.DHANUKA, J.) :
By consent of parties, all the aforesaid appeals were heard
together finally and are being disposed of by a common judgment. Learned counsel appearing for the parties jointly state that the facts in Appeal No.263 of 2015 which is the lead matter are identical with the facts in the remaining appeals and thus the judgment of this court in Appeal No.263 of 2015 would apply to the other appeals. We would summarize the facts and submissions in Appeal No.263 of 2015. Learned counsel appearing for the appellant in Appeal No.256 of 2015 has adopted the submissions made by the learned counsel for the appellant in Appeal No.263 of 2015 and have made few additional submissions which would be dealt with in the later part of the judgment.
Some of the relevant facts for the purpose of deciding this appeal are as under :-
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The learned arbitrator has rejected the claims made by the appellant. The said arbitral award has been upheld by the learned Single Judge by dismissing the arbitration petition filed by the appellant.
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communicated to the cylinders manufacturers the basis to determine the prices of cylinders with complete details as to price-mechanism, calculation formula along with illustrations of calculations for calculating various cost components in formula, including mechanism for calculating escalation/de-escalation in price etc. The said formula was duly incorporated in annual contract prospectively i.e. 1st April, 1994 onwards.
of the cylinders and except for change in figures, manufacturers/suppliers were always required to sign the contract provided in the prescribed format by the oil companies. By their purchase order dated 1st May, 1999, the respondent placed an order for supply of 27509 LPG cylinders of 14.2 kg at the provisional price of Rs.678.77.
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oil manufacturers companies and the MOP & NG on 6th April, 1999, at the request of the respondent herein, MOP & NG granted permission to go into the review of the existing pricing formula only on two variable factors i.e. the price of steel and the interest rate going down from 22.5% to 18%. It is the case of the appellant that there was no mention of a provisional price in relation to the proposed changes in the MOP & NG formula enshrined within the first purchase order dated 1st May, 1999. By an unilateral letter dated 28th June, 1999, the respondent planned revision and bought to the notice of the appellant. However, in the said letter dated 28th June, 1999 also there was no mention of such a change to be effected enshrined within the second purchase order dated 29th March,2000.
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cylinder was fixed at Rs.645/- per cylinder whereas the price of 19 kg cylinder was fixed at Rs.765/- per cylinder. By communication dated 31st January,2001, the respondent communicated this final price to all the suppliers. The respondent started effecting recoveries from the suppliers including the appellant on the basis of the respective prices fixed for LPG cylinders at Rs.645/- per cylinder for 14.2 kg and Rs.765/- per cylinder for 19 kg cylinder.
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cylinder applicable was to be advised after the completion of the review by the industry Task Force. Accordingly the recoveries were made for the differential amount between the uniform price of Rs.645/- per cylinder vis-a-vis actual paid on provisional basis. The oil company accordingly requested for approval of the MOP & NG for implementation by the oil industries.
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dated 20th February, 2001 from the oil company stating that the approval of the MOP & NG was not required at that stage when the oil industry had already started making recovery on the basis of the report stated in the letter dated 15th March, 2001.
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August,2002. The Hindustan Petroleum Corporation Limited declared a firm price on 16th October,2002 whereas Indian Oil Corporation Limited declared a firm price on 13th November,2002. On 22nd March, 2003 the appellant invoked the arbitration agreement by addressing a letter to the Director (Marketing) of the respondent. Pursuant to the said notice, the respondent appointed an arbitrator. The appellant herein filed a statement of claim before the learned arbitrator inter alia praying for refund of Rs.8,029,840/- towards the amount deducted/withheld on account of M/s.Price Waterhouse Coopers report with interest thereon and various other claims. The statement of claim filed by the appellant was resisted by the respondent on various grounds.
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deducted/withheld/adjusted by the respondent by applying PWC report from various bills for the supply made by the appellant and for various reliefs.
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favour of the appellant. By an order dated 15th November,2014 passed by the learned Single Judge of this court, a learned Single Judge of this court rejected the said Arbitration Petition No.729 of 2012 along with other 10 arbitration petitions filed by various suppliers impugning the similar awards.
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system for the period 1st July 1999 to 31st March 2001.
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suppliers who were parties before the arbitral tribunal to be decided.
clear that the amount already deducted by the Indian Oil Corporation Limited from the bills of the appellants/suppliers would be subject to the outcome of fixation of price by the Indian Oil Corporation Limited and subject to the final orders as may be passed in appropriate proceedings. This court accordingly was pleased to set aside all the arbitral awards which were subject matter of those appeals/crossobjections.
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annexures to the appeal including the correspondence exchanged between the parties, the arbitral award rendered by the learned arbitrator, the averments made in the arbitration petition, affidavit in reply filed by the respondent in the arbitration petition, the pleadings filed by the parties and the order passed by the learned Single Judge.
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agreements already entered into between the parties could not have been altered by an unilateral writing dated 31st October,2000 and circular dated 28th June, 1999 issued by the respondent. The so called report prepared by M/s.Price Waterhouse Coopers unilaterally obtained by the respondent without consent of the petitioner was not binding upon the petitioner. The entire recovery thus made by the respondent from the invoices of the appellant based on such report unilaterally obtained by the respondent was totally contrary to the agreement entered into between the parties. The reliance thus placed by the learned arbitrator on the report of M/s.Price Waterhouse Coopers while accepting the submissions made by the respondent was ex-facie perverse. The learned Single Judge thus ought to have interferred with the impugned award rendered by the learned arbitrator.
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on the ground that inspite of the demand made by the respondent from the appellant, the appellant continued supply of cylinders to the respondent. The impugned award showed total perversity.
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could not be further revised as the said price was already a fixed price subject to escalation.
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the order dated 1st August, 2018 has already directed the Ministry of Petroleum and Natural Gas to determine the formula for determination of the price of LPG cylinder in the matters of suppliers to the Indian Oil Corporation Limited. It is submitted that without prejudice to the rights and contentions raised in these appeals, similar order be passed by this Court also in respect of the supply of cylinders effected by the appellants to the respondent herein.
of the price for supply of cylinders. He submits that the report of the
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said consultant even otherwise could not have been considered by this Court since the said consultant was allegedly involved in the fraud committed by Satyam Consumer Limited. He submits that insofar as the facts in Appeal No.256 of 2015 are concerned, the same are identical to the facts in Appeal No.263 of 2015.
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furtherance of the letter of intent dated 29th March, 2000, the revised “provisional price” was applicable, effective from 1st April, 2000 at Rs.684.41 ps. Irrespective of source of steel being SAIL / TISCO / ESSAR / LLOYD / ISPAT / SALEM. It was further conveyed in the said letter that pricing review of the LPG cylinder was under progress and final price would be advised on completion of review.
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invited our attention to the grounds (p) and (q) in the appeal memo and would submit that even those grounds would not indicate that the price of the cylinders conveyed to the appellant was a fixed price and was not subject to any review.
arguments filed by the appellant and more particularly paragraph 29 thereof and would submit that even in the written arguments the appellant admitted that the respondent had declared the firm price only on 1st August, 2002.
reliance could be placed by the appellant on the orders passed by the
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learned arbitrator, learned single Judge and the order passed by the Division Bench of this Court in the matters arising out of the agreements entered into between the suppliers of various LPG cylinders and the Indian Oil Corporation Limited. He submits that the provisions of these agreements are different from the provisions of the agreement in case of the suppliers of cylinders to the Indian Oil Corporation Ltd. He submits that insofar as the agreements between the suppliers and the Indian Oil Corporation Limited are concerned, it was specifically provided in the said agreement that the suppliers could charge a provisional price of Rs.684 for 14.2 k.g. cylinder. The price formula was under review by the Government and the price applicable after 1st July, 1999 would be only as per the approval of MOP and NG.
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by the learned senior counsel that the respondent had thus never informed the cylinder manufacturers that the final price will be only as per the approval of MOP and NG.
Limited & Anr., this Court by a judgment dated 10th March, 2011 in Arbitration Petition No.365 of 2008 in an identical matter has dismissed the arbitration petition filed by the said party. The said party has accepted the said judgment rendered by the learned single Judge
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upholding an arbitral award. The said judgment of this Court has attained finality.
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and in particular para 28, judgment in case of Kurapati Venkata Mallayya & Anr. vs. Thondepu Ramaswami & Co. & Anr. AIR 1964 SC 818 (paragraph 14), the judgment of this Court in case of JCL International Limited (supra) and the judgment of the Madras High Court in case of OPG Energy Pvt. Ltd. vs. GAIL (India) Limited, 2014(1) CTC 225 .
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the learned arbitrator and by the learned single Judge under section 34 of the Arbitration Act.
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Industry Task Forum. Learned senior counsel invited our attention to the findings of the learned single Judge on both these contentions raised by the appellant. He submits that insofar as first contention raised is concerned, it was rejected by the learned single Judge. No ground is raised by the appellant in the appeal memo. He submits that in any event, the said ground was rightly rejected by the learned single Judge. The said ground had been given up. In grounds (p) and (q), the appellant specifically has admitted that the firm price was communicated to the appellant by the respondent only in the year 2002 and thus cannot be allowed to urge across the bar that the price communicated to the appellant in the year 1999 was a firm price and could not subject to any review.
the learned single Judge by the appellant is concerned, learned senior counsel submits that the learned single Judge after considering the documents on record and more particularly the circular / letters dated 28th June, 1999, 28th February, 2001, 7th March, 2001 and 15th March, 2001 has specially held that the approval of the Ministry was not required to the agreements between suppliers and the Bharat Petroleum
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Corporation Limited. He submits that the said finding of fact rendered by the learned single Judge cannot be termed to be perverse. No specific ground has been raised by the appellant to show as to how and in what manner the said findings can be termed as perverse.
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course of execution of the contract subsequently.
of the firm price or revision of price already communicated in a letter of intent subject to the opinion of Price Waterhouse Coopers or that the said condition could not have been decided unilaterally by the respondent is concerned, it is submitted that this argument was neither urged before the learned arbitrator nor before the learned single Judge by the appellant and thus cannot be allowed to be raised for the first time across the bar in these proceedings. It is submitted by the learned senior counsel that since the interpretation of the agreement by the learned arbitrator in any event even if possible interpretation, this Court cannot substitute such possible interpretation of the learned arbitrator by another possible interpretation.
a). Sanyukt Nirmala vs. Union of India, 2002 SCC Online Del 214 : ILR (2002) 1 Del 479 page 485,
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b). MTNL vs. Fujitshu India P. Ltd., 2015(2)
Arb.L.R. 332,
c). ADTV Communication vs. Vibha Goel, 2018 SCC Online Del 8843 (paragraphs 29 to 35),
d). Shree Vinayak Cement Clearing Agency vs. Cement Corporation of India, 2007 SCC OnLine Del 1012 : ILR (2008) 1 Del 347 at page 349,
e). Union of India vs. Col. L.S.N. Murthy, 2006 SCC OnLine AP 414 : (2006) 2 AP LJ 170 : (2006) 4 ALD 368 : (2006) 4 ALT 256 : (2006) 3 Arb LR 552 at page 175.
cannot be allowed to urge a new point for the first time in an appeal under section 37 of the Arbitration Act which point was not raised before the learned arbitrator or before the learned single Judge, learned senior counsel placed reliance on the judgment of the Calcutta High Court in case of Premchand Manickchand vs. Fort Gloster Jute Manufacturing Co., AIR 1969 Cal. 620.
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rejoinder submits that the facts before this Court in case of Lite Containers Private Limited (supra) were different than the facts before this Court and thus the said judgment is clearly distinguishable in the facts of this case. Similarly he also made an attempt to distinguish the judgment of this Court in case of M/s.JCL International Ltd. AIR 2013 Bombay 23 on the ground that though same documents were considered by the court in the said judgment, the arguments advanced by the manufacturers in the said judgment were totally different. He submits that there was a patent illegality in the impugned award and thus the learned single Judge ought to have interfered with the impugned award. This Court while hearing this appeal under section 37 of the Arbitration Act has thus ample powers to interfere with the impugned award as well as with the impugned order passed by the learned single Judge.
REASONS AND CONCLUSIONS :-
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requisite quantities of LPG cylinders of 14.2 kg at the provisional price of Rs.678.77 and also at the provisional price of Rs.699.29 for different periods.
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received by the oil companies recommending the final price of the cylinder.
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only to pay an amount of Rs.14,08,422/- towards balance price payable at the rate of 17.20 per cylinder for 81885 cylinders supplied by the appellant between 1st April 2000 and 31st March 2001 with interest at the rate of 12% per annum on the said amount from the date of respective invoice till the date of payment and rejected all other claims made by the appellant.
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were informed by the respondent about the final price for supply of cylinders determined on the basis of newly revised pricing formula. Learned arbitrator also recorded a finding that according to the said revised formula, the final price for the cylinders supplied between 1st July 1999 to 31st March 2000 was Rs.645/- per cylinder and for the cylinders supplied for financial year April 2000 to March 2001 was Rs.662.20 per cylinder.
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supplies to the respondent and had also started billing @ Rs.645/- per cylinder for the cylinder supplied w.e.f. 1st November 2000.
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assisting the Oil Industry Task Force.
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No.259 of 2005 filed by Suburban Industries Ltd. Vs.Hindustan Petroleum Corpn. Ltd. and also in the matter of Arbitration Petition No.365 of 2008 filed by M/s.Lite Containers Pvt. Ltd. Vs. Bharat Petroleum Corporation Ltd. & Anr. holding that the petitioners could not have raised any objection to down pricing of the contract because as per the terms of the contract, the same was a provisional price subject to the determination of the final price after the price was to be fixed by the committee. In the said judgment, this Court confirmed the findings of the learned arbitrator which were recorded after taking into consideration the final price of the steel and held that the said findings were in consonance with the terms of the contract.
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Judge held that there was nothing on record to show that the learned arbitrator did not take into account any material document or that his conclusion was perverse in any manner having regard to the pleadings and documents referred in the said order.
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Ministry of MOP & NG in response to the request made by the respondent for seeking approval from the Ministry of MOP & NG stating that no approval was required and that the fixation of price was a matter between the suppliers and purchasers alone.
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MOP & NG before final price was fixed and communicated to the cylinder manufacturers.
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concerned, the petitioner in that arbitration petition had raised an issue of economic duress across the bar before the learned Single Judge. This Court after considering various judgments referred to and relied upon by the parties rendered a finding that there was absolutely nothing to show that any illegitimate pressure was brought on the petitioners by the respondent so as to coerce the former's will or that the petitioners were pressurized into entering the contract against its Will. It is held by the learned Single Judge that once this stipulation is accepted, the petitioners had no choice left in the matter as to any particular fixation of price. The petitioners had already agreed to such price, as may be fixed by the respondent after review by the Oil Industry Task Force. Learned Single Judge held that this being a commercial contract accepted by the petitioners, a plea of unequal bargaining power is hardly open to the petitioners. Learned Single Judge rightly placed reliance on the judgment of the Supreme Court in the case of S.K. Jain Vs. State of Haryana, (2009) 4 SCC 357.
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judgment rendered by the learned Single Judge warrants any interference. Learned counsel also could not point out any provision in the agreement entered into between the parties to show that the provisional price communicated by the respondent to the appellant in the purchase orders could not have been subjected to any change in future or that the fixation of final price after obtaining report from Oil Industry Task Force was contrary to the terms of the contract or without authority. On the contrary, a perusal of the record clearly indicates that the learned arbitrator as well as the learned Single Judge after considering the documents on record have rendered a finding that the appellant had accepted the fact that the respondent was entitled to revise provisional price after obtaining report from Oil Industry Task Force assisted by M/s.Price Waterhouse Coopers. The appellant had not only accepted the final price communicated by the respondent but had supplied the cylinders at the revised price and had also issued invoices from time to time.
any provision in the agreement, in so far as the contracts with the respondent herein is concerned, providing that the approval of
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Ministry of Petroleum and Natural Gas was to be obtained by the respondent before fixing the final price for supply of cylinders. In our view, learned Single Judge thus rightly rejected the said contention raised by the appellant. The provision for obtaining prior approval from the Ministry of Petroleum and Natural Gas before fixation of final price provided in the agreement entered into between the suppliers and Indian Oil Corporation Limited cannot be extended to the contract between the appellant and the respondent Bharat Petroleum Corporation Limited. We are thus not inclined to accept the submission of the learned counsel for the appellant that in these matters also, this Court shall revert the matter back to the Ministry of Petroleum and Natural Gas for reconciliation of price of supply of cylinders as directed by this Court in those group of matters.
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possible interpretation cannot be substituted by another possible interpretation of the agreement entered into between the parties by this Court. The learned Single Judge rightly placed reliance on the judgments of this Court in the above referred three arbitration petitions which matters were identical to the facts in the arbitration petitions which are subject matters of these appeals.
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Bharat Petroleum Corporation Limited in Arbitration Petition No.365 of 2008, this Court has dismissed the said arbitration petition which judgment has not been impugned by the supplier who is one of the appellant in these group of matters. The judgment of this Court in the case of M/s.JCL International Ltd. (supra) which is also based on the identical facts rejecting the petition filed by the supplier and upholding the arbitral award rendered by the learned arbitrator is rightly followed by the learned Single Judge.
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initially was subject to the firm price to be declared subsequently was rightly not interferred by the learned Single Judge. Since the price of cylinders conveyed to the appellant was clearly a provisional price from the date of commencement of supply of cylinders, fixation of firm price later on for the entire period could not be faulted with.
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rejected by this Court. Insofar as the additional submissions made by Mr.Wagle that the respondent could not have obtained opinion of M/s.Price Waterhouse Coopers for the purpose of fixation of price for supply of cylinders is concerned, in our view, there is no merit in this submission of the learned counsel. Each of the appellants had accepted the price recommended by Oil Industry Task Force assisted by M/s.Price Waterhouse Coopers and thus cannot challenge the said report.
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learned arbitrator and the learned Single Judge and the conclusions drawn do not warrant any interference by this Court.
(i) Appeal Nos.263 of 2015, 256 of 2016, 265 of
2015, 283 of 2015, 284 of 2015, 444 of 2015, 445 of 2015, 446 of 2015, 295 of 2016, 297 of 2016 and 299 of 2016 are dismissed.
(ii) There shall be no order as to costs.
(A.K.MENON, J.) (R.D. DHANUKA, J.)
3 issues framed by the court
Could provisional LPG cylinder prices be finalised downward for the entire supply period under the agreed pricing mechanism?
Was Ministry approval contractually required before finalising cylinder prices?
Could the Section 37 appeals disturb non-perverse arbitral findings or introduce pleas not urged before the arbitrator or Single Judge?
Colour shows how this judgement treated each authority
Lite Containers Private Limited Vs. Bharat Petroleum Corporation LimitedApplied¶409
Lite Containers Private Limited Vs. Bharat Petroleum Corporation Limited (supra)
M/s.JCL International Ltd. vs. Bharat Petroleum Corporation LimitedFollowed¶399
M/s.JCL International Ltd. vs. Bharat Petroleum Corporation Limited, AIR 2013, Bombay 23 · Who else cites this
M.S. Madhusoodhan vs. Kerala KaumudiReferred¶256
M.S. Madhusoodhan vs. Kerala Kaumudi, AIR 2004 SC 909 · Who else cites this
Kurapati Venkata Mallayya & Anr. vs. Thondepu Ramaswami & Co. & Anr.Referred¶260
Kurapati Venkata Mallayya & Anr. vs. Thondepu Ramaswami & Co. & Anr. AIR 1964 SC 818 · Who else cites this
OPG Energy Pvt. Ltd. vs. GAIL (India) LimitedReferred¶260
OPG Energy Pvt. Ltd. vs. GAIL (India) Limited, 2014(1) CTC 225
Sanyukt Nirmala vs. Union of IndiaApplied¶409
Sanyukt Nirmala vs. Union of India, 2002 SCC Online Del 214 : ILR (2002) 1 Del 479 page 485, · Who else cites this
MTNL vs. Fujitshu India P. Ltd.Applied¶409
MTNL vs. Fujitshu India P. Ltd.
ADTV Communication vs. Vibha GoelApplied¶409
ADTV Communication vs. Vibha Goel, 2018 SCC Online Del 8843 (paragraphs 29 to 35), · Who else cites this
Shree Vinayak Cement Clearing Agency vs. Cement Corporation of IndiaApplied¶409
Shree Vinayak Cement Clearing Agency vs. Cement Corporation of India, 2007 SCC OnLine Del 1012 : ILR (2008) 1 Del 347 · Who else cites this
Union of India vs. Col. L.S.N. MurthyApplied¶409
Union of India vs. Col. L.S.N. Murthy, 2006 SCC OnLine AP 414 : (2006) 2 AP LJ 170 : (2006) 4 ALD 368 : (2006) 4 ALT 256 : (2006) 3 Arb LR 552
Premchand Manickchand vs. Fort Gloster Jute Manufacturing Co.Referred¶297
Premchand Manickchand vs. Fort Gloster Jute Manufacturing Co., AIR 1969 Cal. 620. · Who else cites this
Manganese Ore (India) Ltd. vs. Ram Bahadur Thakur Ltd.Referred¶301
Manganese Ore (India) Ltd. vs. Ram Bahadur Thakur Ltd., 2006 SCC OnLine Bom. 507, · Who else cites this
State of Orissa vs. Kirtan Charan MohantyReferred¶301
State of Orissa vs. Kirtan Charan Mohanty, 1982, SCC OnLine Ori.67 : AIR 1983 Ori.170 · Who else cites this
Union of India vs. Susaka (P) Ltd.Referred¶302
Union of India vs. Susaka (P) Ltd., (2018) 2 SCC 182 : 2017 SCC OnLine SC 1436 – · Who else cites this
M/s. Suburban Industries Ltd. Vs.Hindustan Petroleum Corpn. Ltd.Relied on¶389
M/s. Suburban Industries Ltd. Vs.Hindustan Petroleum Corpn. Ltd.
S.K. Jain Vs. State of HaryanaRelied on¶373
S.K. Jain Vs. State of Haryana, (2009) 4 SCC 357. · Who else cites this
3 provisions across 2 enactments
M/s.Balaji Pressure Vessels Limited
Bharat Petroleum Company Limited
NCC Limited
Vinod Giri
North India Wires Limited
P.S. Bhargava
R.D. DHANUKA
A.K. MENON
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
