The BGs were given by Jindal ITF during subsistence of a contract for transportation of coal to the state-run company’s Farakka thermal power plant in West Bengal
A Bench led by Justice AS Oka refused to interfere with the Wednesday’s order of the division bench of the Delhi High Court that too had refused restrain NTPC from invoking the BGs and had posted the matter for final hearing on April 17.
The division bench also refused to stay its single-judge’s order that set aside a 2019 arbitral award asking NTPC Ltd to pay Rs 1,891 crore to Jindal ITF for alleged wrongful termination of an agreement for transportation of coal to the Farakka thermal power plant. Challenging this, Jindal ITF had moved the apex court.
Justice Dinesh Sharma’s January’s judgment held that the arbitration award suffered from “patent illegality and is violative of public policy and shocks the conscience of the court. Since the award is so perverse, it has to go in totality.”
JITF was selected as the preferred bidder and operator for the transportation of coal for the Farakka plant and a tripartite agreement was entered into between NTPC, JITF and Inland Waterways Authority of India for moving coal through National Waterways-I. The agreement also included the construction of the unloading infrastructure and the material handling system by JITF. As per the coal transportation agreement, NTPC was to procure the coal from imported coal suppliers and transport the same through the waterways to JITF, which in turn was to unload and transport it to NTPC’s plant at not less than 12,000 tonnes per dayHowever, a dispute arose between the parties, and it was referred to arbitration in 2017.The arbitral tribunal in January 2019 awarded total damages of Rs 1,891 crore plus taxes to JITF. The award was challenged by NTPC before the single judge bench on various grounds, including gross violation of the Contract Act and citing that a liability of Rs 417 crore was fastened despite the existence of a ‘no damages clause’.
While claiming damages from NTPC for alleged wrongful termination of the tripartite agreement, JITF said the PSU was responsible for the delay of construction of phases I and II of the material handling system, and accordingly, it was entitled to claim damages for loss of revenue. The tribunal had rejected its counterclaims, virtually re-written the terms of the contract and awarded damages to JITF from the wrong date, NTPC argued.
