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2000 DIGILAW 76 (JK)

ESSAR GUJARAT LTD v. OIL & NATURAL GAS COMMISSION

2000-04-22

ARUN KUMAR GOEL

body2000
JUDGMENT ARUN KUMAR GOEL, J. - Parties had entered into a contract agreement No. BOP/SP/SCON/C35/82 of 21st September, 1986 for the purpose of execution of exploratory wells drilled in Gujarat, Himachal Pradesh and Jammu and Kashmir and to carry out auxiliary operations for the purpose of producing mineral oil and/or gas. Since disputes arose between the parties in relation to work that was to be carried out by the petitioner at sites in Himachal Pradesh namely, Nurpur and Jawalamukhi in relation to the amounts payable to them, therefore as per Article 32 of the contract, those were referred for adjudication by the Arbitrator. Non-objector appointed Sh. R. T. Atre as Arbitrator and respondent-objector appointed Mr. Justice H. R. Khanna (Retd.) as Arbitrator nominated by it. 2. Arbitrators at the first hearing nominated Sh. Justice P. K. Goswami former Judge of the Supreme Court of India as umpire who died during the pendency of the proceedings. Thereafter, Arbitrators appointed Mr. Justice A. N. Grover, another former Judge of the Supreme Court of India as Umpire. Record of the case shows that time was extended with the consent of parties for making award till 30-4-1993, thereafter joint award has been made by both the Arbitrators on 29-3-1993. This was received in the Registry and was registered as A.A. No. 67/93. Notice was ordered to be issued regarding filing of the award on 28-4-1993. Against this award objections under Sections 30 and 33 of the J&K Arbitration Act for setting aside this award has been filed by respondent-objector. According to appellant counter claim had not been at all considered by the Arbitrators while passing the impugned award and it also does not give the amounts itemwise, therefore, award was liable to be set aside according to learned counsel for objector which is otherwise disproportionately high. These pleas have been controverted by Mr. Kohli learned senior counsel appearing for non-objector. According to him this is a case of non-speaking award therefore, error/misconduct if any has to be found on examination of the award/record of proceedings. 3. After the parties had filed their respective pleadings, issues were framed in this case on 25-4-1994 which are as under : "(1) Whether the Arbitrators have misconducted themselves or the proceedings, and if no, to what effect ? OP petitioners. 3. After the parties had filed their respective pleadings, issues were framed in this case on 25-4-1994 which are as under : "(1) Whether the Arbitrators have misconducted themselves or the proceedings, and if no, to what effect ? OP petitioners. (2) Is there any error of law or fact apparent on the face of award of the record, and if so, to what effect ? OP petitioners. (3) Is the award otherwise liable to be set-aside ? OP petitioners. (4) Relief." Onus of these issues was upon respondent-objector who has been described as petitioner in the onus. Both the parties have led evidence on affidavits in support of aforesaid issues. Objector-respondent have filed affidavit of Mr. A. P. S. Minocha, Deputy Legal Advisor, whereas non-objector has filed affidavit of Mr. J. Tharakesware, General Manager. Before proceeding further in the matter two paragraphs i.e., paras No. 5 and 6 of award in question which are material for adjudication objections under Sections 30 and 31 need to be extracted which are as under : "(5) The respondents in their reply contested the claims of the claimants and put forth a number of pleas. The claimants thereafter filed rejoinder to the reply. A number of documents in the possession or power of the parties were also filed by both the parties. Statement was made on December 1, 1992 on behalf of both the parties that they had not to adduce any oral evidence or to produce any additional document. The matter was thereafter argued on behalf of both the parties in Delhi in the course of arguments we were taken through the record including the documents filed by the parties. (6) We have given our consideration to the averments of the parties, the documents placed on recorded and the oral submissions made on their behalf and are of the view that M/s. Essar Gujarat Ltd. the claimants are entitled to recover an amount of Rs. 26,85,182/- (Rupees Twenty Six Lacs Eighty Five Thousand One Hundred Eighty Two only) from Oil and Natural Gas Commission - the respondents. The claim for award of interest is disallowed. 26,85,182/- (Rupees Twenty Six Lacs Eighty Five Thousand One Hundred Eighty Two only) from Oil and Natural Gas Commission - the respondents. The claim for award of interest is disallowed. Looking to the circumstances of the case, we leave the parties to bear their own costs of the arbitration proceedings." When a reference is made to the pleadings of the parties what is made out is that no counter claim as such, was filed by objector during the course of arbitration proceedings. Infact while filing reply to the claim of non-objector it had contested the claim of latter, and had put forth a number of pleas. It is on examination of averments of the parties as well as documents placed on record besides considering oral submissions made on behalf of the parties that a lumpsum award has been passed in the present case. As such, the contention that counter claim had not been considered urged on behalf of objector-respondent does not hold-good. Arbitrators shall be persumed to have gone into all aspects of the claims as well as of set-off and thereafter having passed lump sum award. 4. It is not the case of parties that either in terms of the agreement or at the time of the making reference Arbitrators were required to make a reasoned award. That being so, no fault can be found with the award in question. Even when the award is examined along with the records of the proceedings, no case for interference with it is made out as was persisted by Sh. Thakur. For taking this view reference can be made in Raipur Development & Authority etc. etc. v. M/s. Chokhamal Contractors etc. etc. (AIR 1990 SC 1426 = 1989(1) Arb. LR 84), and M. K. Shah Engineers & Contractors v. State of M.P. ((1999) 2 SCC 594 = 1999(1) Arb. LR 646 (SC)). 5. It may further be noted that how the award was bad because under it lumpsum has been awarded, Mr. Thakur was not in a position to make out how it is bad calling for interference in these proceedings. Simply because this Court would take a different view by itself is no ground to interfere with it. LR 646 (SC)). 5. It may further be noted that how the award was bad because under it lumpsum has been awarded, Mr. Thakur was not in a position to make out how it is bad calling for interference in these proceedings. Simply because this Court would take a different view by itself is no ground to interfere with it. Arbitrators are the complete masters of law and facts as also sole Judge of both quality as well as quantity of evidence therefore, simply because this Court would take another view is no ground to set aside the award unless some fault can be found with it as pointed out hereinabove. In addition to this when a reference is made to the award it cannot be termed to be either perverse or erroneous so as to call for interference with it. As already observed it is not for this Court to reassess the materials which were before the Arbitrators to come to the conclusion whether he has committed any error or not. 6. Scope of interference in objections under Sections 30 and 33 of the J&K Arbitration Act is very limited. Thus, reliance placed by Sh. Thakur in Budhi Singh v. State of H.P. and others (AIR 1991 HP 27), is ill-founded, rather it supports the case of non-objector. 7. Similarly, decision of Supreme Court K. V. George v. The Secretary to Govt. Water and Power Deptt., Trivandrum and another (AIR 1990 SC 53), also does not improve the case of objector-respondent in any manner. As already discussed there was no counter claim as such. Set-off as claimed during the course of proceedings before Arbitrators, appears to have been taken note by the Arbitrators and then lumpsum award is passed. As already observed this Court is not exercising appellate jurisdiction while examining the award passed by the Arbitrators as such, it cannot re-appraise or re-appreciate the evidence. See State of U.P. v. Harish Chandra and Co. ((1999) 1 SCC 63 = 1998(2) Arb. LR 716 (SC)), Puri Construction (P) Ltd. v. Union of India (AIR 1989 SC 777 = 1989(1) Arb. LR 306 (SC)), and Sudarsan Trading Co. v. Government of Kerala and another (AIR 1989 SC 890 = 1989(2) Arb. See State of U.P. v. Harish Chandra and Co. ((1999) 1 SCC 63 = 1998(2) Arb. LR 716 (SC)), Puri Construction (P) Ltd. v. Union of India (AIR 1989 SC 777 = 1989(1) Arb. LR 306 (SC)), and Sudarsan Trading Co. v. Government of Kerala and another (AIR 1989 SC 890 = 1989(2) Arb. LR 6 (SC)), on the plea of interference with the non-speaking award as in the present case and same having been passed on consideration of claims made by the parties before them as such, arbitrators had not omitted any claim made by any of the parties. Therefore, it calls for no interference. See Kundale & Associates v. Konkan Hotels (P) Ltd. ((1999) 3 SCC 533 = 1999(2) Arb. LR 119 (SC)), and Hindustan Vidyut Products Ltd. v. State of Rajasthan and others ((1999) 3 SCC 536 = 1999(2) Arb. LR 6 (SC)). 8. It may also be noted that court would ordinarily examine the award with a view to support it, reason is obvious, because it is given by the Judge appointed by both the parties. In the instant case both the parties had nominated their respective Arbitrators who in turn had appointed umpire. By a common award passed by both the Arbitrator lumpsum amount has been awarded in favour of non-objector and against the objector. That being so, in the circumstances of this case there are no grounds made out for interference with the impugned award. 9. No other point is urged. 10. For the aforesaid reasons, there is no misconduct established against the Arbitrators or proceedings undertaken by them nor the award suffers from error of law or facts apparent on the face of it as also there is no ground for setting aside the same. Consequently issues 1 to 3 are decided against the objector-respondent and as a further consequence of it objections filed under Sections 30 and 33 of the J&K Arbitration Act are dismissed and award dated 29-4-1993 is ordered to be made rule of the Court. 11. Decree sheet be drawn accordingly. No costs. Award made rule of the court.