TIL Submissions Points

Para 3- It is pertinent to mention here that out of the above mentioned three agreements, the
erection or commissioning agreement did not have an arbitration clause.

Para 4- It is submitted that the said engineering, supply and erection agreements are three
different and distinct agreements having their own individual scope. It is submitted that if the
claimants so wished, the EPC contract could have very conveniently be drafted in the form of
one single agreement.
That the contents of the instant paragraph are admitted to the effect that engineering and
supply agreement dated 12.08.2009 provide for arbitration agreement at clause 11 and 13.

Para 5, 6 & 7- It is submitted that the issues relating to the validity of the erection agreement
being apart of the arbitration proceedings were adjudicated upon by the Ld. Arbitrator on
13.12.2017 and Order dated 09.06.2019, the same was never challenged by the claimant.
Therefore, there cannot be any dispute that none of the parties can be entitled to any relief
pertaining to or arising out of Erection Agreement.

Para 8- Claimant, in its supplementary claim, had failed to furnish a break up in any manner
whatsoever.

Para 9- The entire claim is now non-arbitrable as it is admitted case of the Claimant that that
out of the 3 contracts executed, one contract did not have an arbitration clause and 3 contracts
were executed for the sake of convenience and that they are part of the same transaction.
[While in above Para 4- TIL contrary stated that it is submitted that the said engineering,
supply and erection agreements are three different and distinct agreements having their own
individual scope]

Para 10- CW-1, Q.8 answers that I agree that all the three agreements were interlinked and
there was only one contract

Para 11- CW-2, Q.7- Claimant had taken payments made for erection agreement and Q.8-
Amounts of engineering & erection clubbed under one head [Since it is admitted that
Claimant that the contract for engineering services and for erection and commissioning
subsequently merged in para 25 there is an admission with regard to the contract being
novated - Rs. 60.14 Cr for supply and Rs.47.86 for engineering, erection and installation.
After the merger no arbitration clause was provided for the said two contracts taken together.
Any claim which has a relation either the engineering or the erection and installation of the
plant cannot be a subject matter of arbitration.

Para 13- Claim is made on the basis of the progress reports. Claimant does not give any
breakup of the outstanding dues and on what account and/or under which agreement the
amounts mentioned therein are being claimed; there is no segregation.

Para 14- Claimant has not filed its statement of account to show under what head the
invoices have been raised. It is further submitted that the invoices never see the light of the
day. [For Balance Contract claim, invoices were never raised due to accrual of income in
books and corresponding income tax and service tax/VAT liability arises in books]

Para 15- The Claimant cannot in any way be said to loose control over the suppliers and
secondly, said loss of control can only occur in case the Claimant wanted to resort to arm
twisting tactics.
Para 16- It is further submitted that sanction of loans for Respondent was in 2011 and 2012
[Implicit Admission by TIL that upto 2012, there were no financial arrangements with their
bank to clear the payments expeditiously in terms of the agreements] and because of that the
entire basis of Letter dt. 24.02.10 (alleging that it was done at the instance of banks falls as
the banks were not in the picture in 2010 even as per claimant).

Para 17- It is admitted case that the payments for the supply of the goods was being made
directly by the respondent, it is evident that no material has been supplied by the claimant.
Thus, the entire claim for the supply of the goods is without any merit whatsoever.

Para 18- In the engineering, erection and installation agreement there is no provision for
supply and purchase of equipment thus their claim for expenses incurred for erection is also
dubious and doubtful.

Para 20- No primary evidence in the nature of any invoices for the purchase and/or proof of
delivery/supply of the goods has been placed on record by the claimant. The claimant is
basing its entire case on the progress reports, which is only in the nature of a self-serving and
unaudited statement of account. [PECL have invoices for supply of material for initial years
only for which PO placed and advance paid to vendors]

Para 21- No Challan for payment of any value added tax (VAT) has been placed on record
by the claimant.
[PECL has claim of Service Tax, not VAT, so question of showing VAT challans doesn’t
arise].
Further, there is no material to show that the service tax payments challans filed by the
claimant are in relation to the contract(s) in question.
[PECL Submission Para 9- Mail 16.06.2012 (Ex. CW 1/18 (Colly) Claimant Doc Page 85]

Para 22- No proof of supplies has been filed, much less proved and only progress reports are
being relied upon, which at best are a self-created statement or tabulation without primary
evidence. Nothing can be awarded on its basis as per Section 34 of the Evidence Act, 1872.
Claimant has also not filed any evidence that it had made any advance payments, final
payments or any payment for that matter to any vendors. There is also no evidence to show
that orders had already been placed by the Claimant.
[PECL initially had placed PO & made advance payment to various vendors and thereafter
TIL started dealing directly with them]

Para 23- There are no details whatsoever forthcoming as to the exact, specific goods which
have been supplied by the claimant and for which payment has not been made by the
Respondent.

Para 24- The claimant has also failed to place on record any measurement books, inspection
reports, joint inspection reports. There is no evidence of work having been undertaken and
Claimant having spent its own resources or funds for the same at any point of time.

Para 25- It is the admitted case that the supply contract is worth Rs. 60 Crores. The Claimant
admits that Rs.59 crores have been paid to it. [Where PECL admits this 59 Cr??] [As per
Supplementary Claim, 59.54 Cr is total direct payments that PECL accepted & 31.94 Cr on
account payment]. TIL stating that if Rs. 59 Crores is paid then the entire payment is made to
the Claimant is towards supply and the outstanding can only be on account of erection
contract.
Para 26- No responses to Claimant’s emails- It is settled law that the claimant has to prove
his own case and cannot rely on the failure of the defence.

Para 27- The Claimant’s plea regarding evacuation of electricity is completely false as such
plants can be started and shut at will. Respondent had the requisite arrangement for
evacuation of power with the State grid.

Para 28- The roads was already there as the Claimant admits that a running plant was set up
by it.

Para 29- There was no direction to deploy the material and men for O&M.

Para 30- On the one hand the Claimant says nothing could be done as there was no money
and on the other hand, the Claimant also says that it worked by investing its own funds.

Para 31- TIL Letter 30.01.2013- if the work had to be done by Thermax and commissioning
by them, then why would claimant undertake repair work, The minutes of meeting being
Annexure R-11 at page 52 of Respondent’s documents have been admitted in admission
denial by the Claimant. If all this was the job of Thermax and not the Claimant, then why
would the Claimant do it and not protest.

Para 32- The performance guarantee had to be given at the end of the contract and since it
was abandoned, the claimant ran away without furnishing one as equipment was
malfunctioning and it could not have sustained and/or repaired.

Para 33- Claimant’s claim for the overrun cost cannot be allowed as the claimant has not
proved any actual loss suffered. The Claimant has also relied upon judgment in case of KNA
and as such must adhere to the law laid down therein.

Para 34- The Claimant’s has claimed amounts for allegedly being burdened with salary and
other expenditure of maintaining the establishment but has failed to give any details or proof
thereof.

Para 35- Lack of evidence in support of claim for O&M charges of 22 lakhs.

Para 36- Lack of evidence in support of Pending Taxes.

Para 37- For Cost 2 Cr, no cost certificate has been furnished. The Claimant has failed to
show its net profit percentage and/or cost of any alleged finance taken.