Civil Appeal No. 9048 of 2014 (Arising out of Special Leave Petition (Civil) No. 10849 of 2013). Case: Swan Gold Mining Ltd. Vs Hindustan Copper Ltd.. Supreme Court (India)

Case NumberCivil Appeal No. 9048 of 2014 (Arising out of Special Leave Petition (Civil) No. 10849 of 2013)
JudgesM. Yusuf Eqbal and Pinaki Chandra Ghose, JJ.
IssueArbitration and Conciliation Act, 1996 - Sections 34, 34(2); Arbitration Act, 1940 - Section 30; Contract Act - Section 23
Judgement DateSeptember 22, 2014
CourtSupreme Court (India)


M. Yusuf Eqbal, J.

  1. Leave granted.

  2. This appeal by special leave is directed against the judgment and order dated 19.9.2012 passed by the Division Bench of the Calcutta High Court whereby appeal preferred by the Appellant against the order of learned Single Judge of the High Court was dismissed. Learned Single Judge had dismissed the Appellant's petition Under Section 34 of the Arbitration and Conciliation Act (in short, 'the Act') challenging the award of the Arbitrator.

  3. The case of the Appellant is that a notice inviting tender (NIT) was issued by the Respondent-Hindustan Copper Ltd. inviting offers for operation of its Surda Mine and Mosabani Concentrator Plant. Respondent-company was having several mines rich with natural resources being metallic ores. The global tender floated by the Respondent provided that it shall be the responsibility of successful bidder for payment of all statutory duties. The Appellant-company submitted its technical and financial bids. It is contended on behalf of the Appellant that the NIT contained a techno commercial bid and a separate price bid. Price bid of the Appellant provided that any Excise Duty/Service taxes or any levy presently applicable or any variation or new levy in future to be reimbursed on actual basis.

  4. After negotiation and acceptance of the final price offer, on 3.3.2007 Respondent issued a Letter of Intent to the Appellant on the terms and conditions of the NIT and other terms agreed during subsequent discussions/negotiations. Finally, on 26.3.2007 a contract was executed between the parties for re-commissioning and operation of the Surda Mine and Mosabani Concentrator Plant. Thereafter, a work order was issued on 14.4.2007 and the Appellant raised its Invoices on 31.12.2007, by which reimbursement of basic excise duty and other duties payable by the Appellant to the Government was sought. On refusal by the Respondent to make payment in respect of excise duty and other taxes paid by the Appellant relating to the work executed, the arbitration clause was invoked and the dispute was referred to a sole Arbitrator, who after considering the pleadings and evidence led by the parties, held that the price bid of the Appellant was not exclusive of applicable taxes. Learned Arbitrator held that the clause relating to payment of taxes was deleted by the Appellant's representative Mr. Ahlawat on 19.1.2007 and since work order was acknowledged, it is binding on the Appellant.

  5. The Appellant challenged the award by way of filing petition Under Section 34 of the Arbitration and Conciliation Act before the Calcutta High Court on the grounds inter alia of perversity and contrary to law. Learned Single Judge of the High Court upholding the award and reasons assigned by the learned Arbitrator, dismissed Appellant's petition. Aggrieved by the decision of the learned Single Judge, Appellant preferred appeal before the Division Bench of the High Court, which although upheld the contention of the Appellant relating to the evidence on the issue of deviation in price bid on 19.1.2007, dismissed the Appeal on the ground of terms contained in NIT and Work Order being in consonance with each other. Hence, this appeal by special leave by the Australian company.

  6. Mr. Amarendra Sharan, learned senior Counsel appearing for the Appellant assailed the award and the impugned order passed by the High Court on various grounds. Learned Counsel contended that the Appellant is a reputed Australian Mining Company and...

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