Sr. Adv. Nidhesh Gupta Flags Error in ₹120 Crore Gas Dispute #courtproceedings

Added: 2026-05-30

[00:00:00]Malays, with as an officer of this court I can tell you lordship this is grossly illegal, patently illegal on four counts. Number one, and I'll state it orally and make it good from the documents.

[00:00:12]The award proceeds on a premise that para 41 of a CCI order is a finding. At six places it records that from page 1311 to 1315, six places, this is the core of the reasoning. The section 34 court affirms that. The high court in the 37 court on a clear the CCI order is so clear, records and accepts no that is not a finding, that is only a submission. So [clears throat] the whole basis of the award goes as point number one. Point number two, the award proceeds on a premise that the the damages are to be paid for flare up from 2011 till 2034.

[00:00:52]So the the case the award accepts is yes, they will be burning in future also. We produce evidence that they have demand, they have orders by their returns of 10 times of what I had to take and they are not able to meet it.

[00:01:07]There is no question of a burn up. The award accepts that the 34 says no, you have the 34 and award says no, we will give them damages till 2034. The high court in 37 says you are right, but they have been awarded only till 2018. I will show from their claim statement and from the award, the award is for damages till 2034 on a projection that they will lose till 34. The high court says no, the same amount, 58 crores, is only till 2018. Ex fish I don't know mallets. I'll show that page if your lordship will, mallets, straight away. Page 131 this is the point the point number two. Point number three, the high court then says this doesn't matter, I will give you damages on the basis of section 74. 74 is mallets where the contract quantifies damages. 73 is where you have to prove damages. High court says in 37 that yes, they have they have not proved, but it need not be proved because even if they made profits, then also they'll get damages. Unheard of. Fourth point, the award says that we will not see your evidence of their profits because you have not pleaded it. My specific plea in my statement of defense at three places where I pleaded it and they say we will not see it. Now, I will make good all these I'm sorry. So, one by one page by page.

[00:02:24]>> now please come to page 1311, the first point, milords. Page 1311, the first point.

[00:02:31]Para 41, I'll make good all four months.

[00:02:33]13 1311 is the award, milords.

[00:02:36]1311 And at the bottom of It starts at 1308.

[00:02:40]The 1309 is the reasoning. Claimant's relief. That discussion [clears throat] starts at 1309 and 1311, milords, are the findings now. Now, please take para 211. I'm sorry.

[00:02:54]>> [clears throat] >> 1311 >> 1311 is the reasoning now.

[00:03:00][clears throat] Page 211 para 211 at 1311.

[00:03:06]>> [clears throat] >> In paragraph I'm sorry. I'm so sorry, milord. I My apologies, milords. My apologies.

[00:03:18]At the foot of 1311, para 211.

[00:03:21]>> [laughter] >> In para 41 of the said judgment of CCI, it has been held [clears throat] further GE, that's the respondent, has had to flare up 28.48% of the gas produced in 15-16 as it had no market for the same in the face of competing products. The page over. These findings of fact were affirmed also by the High Court as noted above. Learned counsel for the respondent has not questioned such findings of fact and argued on the basis of the said findings are binding on this tribunal. In fact, the learned counsel for respondent has no choice other than accepting the finding fact of CCI is binding in view of section 61 of the competition commission. Now let's turn the page over 1313.

[00:04:00]1313 para 215.

[00:04:03]Following the aforesaid legal position, this tribunal has to decide the claim of the claimant on the base of pleadings between parties. The respondent in the course of arguments sought on the basis of written note that the claimant had suffered had not suffered any loss by way of flaring up and they have referred to the returns filed by the claimant with the directorate of so and so. The respondent has neither referred to not disclosed the material in the SOD. But it is well settled facts on which there is no pleading, no evidence can be this point number three that I made. Even then it is it shows from the chart so and so that there is flaring up.

[00:04:32]Tribunal is unable to accept the reason to accept the respondent's claim to contradict finding of CCI that GECCL had to flare up 28.48 of the gas produced in 15-16. Now the next page 1314 at the top.

[00:04:47]Such a contention is clearly contradicted by the actual finding of CCI that GECCL had to flare up so and so. So this is the core reasoning point number one I'll show the high court in a moment. At the top of 1314.

[00:04:59]But such a contention is clearly contradicted by the factual finding of CCI that GECCL had to flare up 28.48 of the gas produced so and so. It had no market therefore. So this is at four places now before I come to the high court. Now please come to 218 at the bottom of the same page on quantum of damages.

[00:05:16]Para 218 that the amount pleaded in para 53 of the SOC for the MGO quantity for its invoices. Please mark from January 15 till the tenure of the agreement April 30 2034 amount comes to 396 crores. Then the page over.

[00:05:34]Page 1315.

[00:05:36]In para 219 minutes on this amount they give 15% the middle of the page following the same principle in both the judgments 15% of the amount claimed as damages so and so this tribunal has allowed 15% of 390, which comes to 58 crores. So, this is minutes This is what they do, and then they give interest at 1316.

[00:05:56]At 1316, the trib- the award gives interest at 7% on 58 crores, which is money I have I have to pay in 2034.

[00:06:06]So, money I have to pay in 2020-21, and I'm not to pay today. Gives interest on that also, minutes, till 2034. I have to pay interest today I'm paying 20 years in advance I have to pay. Now, please come to the award, minutes, at 1453.

[00:06:20]At the the section 34 at 1453, where these findings are again affirmed.

[00:06:26]1453, minutes, para 42.

[00:06:35]Page 1453, minutes, this is section 34's reasoning.

[00:06:40]Para 42.

[00:06:50]Listen. The tribunal relied on the factual finding of CCI dated February 11, 2017, which was affirmed by Delhi High Court by its order dated 10th of October 2019, to the effect that the claimant had to flare up 28.4 It's all the same thing. Then, minutes, the next page This is, minutes, a High Court order where the CCI was affirmed. But, this was a contention CCI is in my favor.

[00:07:13]I'll show that. Now, minutes, the next page, page 1454, para 44, where, minutes, this again same para 41 is again reproduced is again mentioned same CCI order same para 41.

[00:07:24]And then the next page, minutes, page 1455, para 48.

[00:07:30]Para 48 at 1455. Hence, the finding of the tribunal on the quantum of damages That's, minutes, till 2034.

[00:07:37]Appreciation so and so, and decision of CCI, minutes. So, this is again same reasoning, minutes. Now, please see High Court, minutes. Page 33, 33, minutes.

[00:07:44]All right, minutes. Page three of what?

[00:07:46]Page three of what? All right, now please come, minutes. Now, please come to volume one to page [clears throat] 34, minutes.

[00:07:54]I need just 10 minutes.

[00:07:55]Page 34, volume one.

[00:08:00]>> [clears throat] >> Which one?

[00:08:05]Para 33, page 34, para 33.

[00:08:11]We agree with the appellant.

[00:08:14]We agree with That's me. On such score that the Competition Commission has recorded the submission of the respondent at para 41 of its order dated so and so and has not returned any finding as regards flaring up, but we still hold the award would not be vitiated by acceptance of such a finding.

[00:08:30]And then, minutes, your lordship will see this hardly matters. And then, they go on, minutes, on the next page, page 35, they go on and they reproduce a judgment which is referring to section 74 of the Contract Act, minutes.

[00:08:43]And that judgment has been explained by your lordships in subsequent judgments.

[00:08:46]I'll show, minutes, your lordship may just notice they refer to, minutes, ONGC versus Saw Pipes. They refer at page 35, minutes, to para three of the judgment of section 74. And then, please see, minutes, page 35, the last five lines.

[00:09:01]The last five lines, minutes, after referring to judgments, would not apply to the instant case in as Then, only award is only till the 11th of 2018. He's taken his material away.

[00:09:13]The whole award is turned on its head and they say conclusion because para 74, minutes, say section section 74. Now, please see the further reasoning, minutes, para 30 page 35 at the bottom.

[00:09:22]Page 35 the at the bottom, minutes.

[00:09:25]Please accept the notice, sir. No, Mr. Rohatgi is leading me, minutes. Minutes, I appear for the respondent. Now, I have to tell you three things, minutes.

[00:09:32]There is nothing in this that he brought, minutes.

[00:09:34]Minutes, both the courts, 34 and 37, have affirmed the award.

[00:09:39]Minutes, have a form the award.

[00:09:43]We'll see after the counter.

[00:09:45]No, these are findings of fact that this man will not after 3 years of the agreement used to be not take gas. I had to be not pay the gas.

[00:09:55]Well, this is something that is required to be looked into. That you accept notice file counter.

[00:10:00]All right, you know I have it after 8 weeks we'll do.

[00:10:03]We'll make file counter within within 6 weeks.

[00:10:09]I'm directed to pay the further amount of rupees 20 crore within a period of 6 weeks from today.

[00:10:14]I think before before the register this court.

[00:10:17]Still this court. Everything registry.

[00:10:19]Is it this court the execution of the court sending ministry?

[00:10:23]Okay.