NATIONAL THERMAL POWER CORPORATION LTD. versus SIEMENS ATKEINGESELLSCHAFT

Citation: [2007] 3 S.C.R. 399 · Decided: 28-02-2007 · Supreme Court of India · Bench: A.K. MATHUR · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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A 
NATIONAL THERMAL POWER CORPORATION LTD. 
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v. 
SIEMENS A TKEINGESELLSCHAFT 
FEBRUARY 28, 2007 
B 
[A.K. MA THUR AND P.K. BALASUBRAMANYAN, JJ.] 
Arbitration and Conciliation Act, I 996; 
Section 37(2)-appeal under- maintainable-Held ,only against orders c 
declining to exercise jurisdiction or declining to pass an award and dismissal 
of the arbitral proceedings or where the plea of absence of jurisdiction or 
a claim being in excess of jurisdiction is accepted by the Arbitral Tribunal 
and it refuses to go into the merits of the claim by declining jurisdiction. 
The respondent made a claim before the Arbitral Tribunal for D 
compensation for the delay on the part of the appellant for whom a works 
contract was executed. The appellant not only resisted the claim but also made 
'!' 
a counter claim. The counter claim was sought to be resisted by the 
respondent by contending that all outstanding claims between the parties other 
than the one it had put forward in the claim before the Arbitral Tribunal had E 
been settled between the parties as evidenced by a Memorandum of 
Understanding arrived at between them described in the proceedings as 
Minutes of the Meeting (M.O.M.). The respondent, therefore, contended that 
the claims made by the appellant before the Arbitral Tribunal by way of counter 
claim was not maintainable or did not survive the M.O.M. Therefore, what 
survived for decision before the Arbitral Tribunal was the effect of the M.O.M. F 
on the claims of the appellant in the counter claim filed by it. The Arbitral 
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Tribunal held that other than claims I and 7 in the counter-claim, the other 
claims had already been settled as evidenced by the M.O.M. and the said claims 
did not survive for adjudication by the Arbitral Tribunal. It held that claim 
No. 7 was not really a claim since what the appellant had done was to reserve G 
its right to make a claim on that score. As regards claim No. 1, the Tribunal 
held that it was barred by limitation. Thus, in what was called a partial award, 
the claim of the respondent was found to be in time and the counter claim 
made by the appellant was found to be unsustainable. Appeal against the partial 
399 
H 
I 
400 
SUPREME COURT REPORTS 
(2007] 3 S.C.R. 
A award of the Arbitral Tribunal by resort to Section 37(2)(a) of the Arbitration 
and Conciliation Act, 1996 (for short, 'the Act') by the appellant was answered 
in the negative by the High Court. 
It was contended on behalf of the appellant that that when the arbitrators 
refus1:d to go into the merits of its counter claim, they were really declining 
B jurisdiction in terms of sub-section (2) of Section 16 of the Act and in such 
a situation, an appeal was clearly maintainable under Section 37(2)(a) of the 
Act 
On the other hand , it was contended by the respondent that it was not 
C a cas1: of declining of jurisdiction by the Arbitral Tribunal to entertain the 
counter claim made by N.T.P.C., but it was really a case of the counter claim 
being found unsustainable for the reasons stated in the award. The partial 
award thus made by the Arbitral Tribunal was an award on the counter claim 
of the appellant and it was not a case which fell within either sub-section (2) 
or sub-section (3) of Section 16 of the Act attracting Section 37(2)(a) of the 
D Act 
Dismissing the appeal, the Court 
HELD : Per Mathur, J. 
E 
1.1. In view of the settlement of the issues in the minutes of the meeting 
F 
the finding of the tribunal that it was unnecessary to consider any additional 
defence to the counterclaim and as such not admissible and not capable of 
being included in the reference to arbitration, no question of jurisdiction was 
involved in the matter so as to enable the appellant to file a direct appeal under 
section 37 of the Act. (Para 7) (409-A-HJ 
1.2. The plea of jurisdiction was not taken by the appellant rather it 
was the respondent who raised it in order to meet their counterclaim, however, 
it was not in the context that the tribunal has no jurisdiction. (Para 8) 
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(410-D) 
G 
1.3. In an arbitration, partial award can be given which can be challenged 
under section 34 of the Act but no direct appeal under section 37 is 
maintainable unless the jurisdictional issues are involved. (Para 10( 
(411-D-E) 
2.1. An appeal under section 37(2) only lies if there is an order passed 
H under section 16(2) & 16(3) of the Act. (Para 8) [410-CI 
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NATIONAL TIIERMAL POWER CORPN. LTD v. SIEMENS ATKE

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