Steel Authority of India Limited v. Messrs Gupta Brothers Steel Tube Limited
2001-05-15
R.L.ANAND
body2001
DigiLaw.ai
JUDGMENT R.L. Anand, J. (Oral) - This is a revision petition filed by the Steel Authority of India Limited (here-in-after called the Authority) against Messrs Gupta Brothers Steel Tubes Limited (here-in-after called the respondent) and it has been directed against the judgment dated 1.9.1999 passed by the Court of learned District Judge, Chandigarh, who dismissed the appeal of the Authority by affirming the order dated 9.5.1994 passed by the Court of Sub Judge 1st Class, Chandigarh, who dismissed the objections of the Authority under Sections 30/33 of the Indian Arbitration Act, 1940 and made the award dated 7.9.1993 given by the sole Arbitrator Shri K.P. Bhamik as rule of the Court. 2. The brief facts of the case are that on 18.4.1988, the Authority formulated a scheme called "Full Requirement Supply Scheme". This scheme was tailored for meeting the full requirement of the customers for HR Coils/Skolps. The customers who wanted to avail the said material have been required to register their requirement(s) with the Authority. Those who wanted material over and above what was likely to be available from indigenous sources and were willing to accept imported H.R. Coils, were required to register their requirement separately. The scheme was in operation in respect of two separate quarters, i.e. July to September, 1988 and October to December, 1988. In pursuance of the terms of the application, respondent submitted application for 1500 metric tonnes of imported material for the period July to September 1988 and also furnished the financial cover in terms of the said scheme. However, as early as on 15.9.1988 the Authority regretted its inability to arrange for the import against the indent for reasons beyond its control. Thereafter, the respondent indented for the supply of 1500 metric tonnes of imported material for the quarter October to December 1988. The indent was accepted by the Authority. The respondent furnished securities in the shape of bank guarantee in lieu of the contractually required irrevocable letter of credit. The respondent-firm also took physical delivery of the goods on 7.3.1989 and made payment for the same on 15.2.1989. The Bank guarantee was returned but the customs duty, port charges etc. were reimbursed to the respondent. It appears that some dispute/differences arose between the parties. Thereafter, on 3.11.1989 the respondent submitted a claim petition to the appointing authority who appointed the sole Arbitrator by the name of Shri K. Janardhana.
The Bank guarantee was returned but the customs duty, port charges etc. were reimbursed to the respondent. It appears that some dispute/differences arose between the parties. Thereafter, on 3.11.1989 the respondent submitted a claim petition to the appointing authority who appointed the sole Arbitrator by the name of Shri K. Janardhana. For some reasons, Shri K. Janardhana resigned in the month of October 1990 and in his place Mr. K.P. Bhamik was appointed as Arbitrator. After many sittings, the Arbitrator gave an award on 7.9.1993 and filed the same in the Court on 18.9.1993. The Arbitrator, under different heads, awarded the amount. 3. Notice of filing of the award was served upon the Authority. The Authority filed objections and inter alia, pleaded that the award was liable to be set aside on the ground that after the conclusion of the arbitration proceedings on 7.9.1993, the Arbitrator had not indicated the venue at which Court the award would be filed. According to the Authority, the Calcutta High Court was the closest to the Arbitrators place, so it was expected that the award would be filed there. But to the utter surprise of the appellant/objector, it received a notice from the civil Court at Chandigarh informing that the award had already been filed; that the arbitrator agreed to accept the costs and journey to and fro from Durgapur to Chandigarh and had spent 3 to 4 days at Chandigarh enjoying the hospitality of the respondent behind the back of the objector. So his conduct had led it to believe that the arbitrator must at all material times have been partial and favourably disposed towards the respondent. It was also pleaded that even if the arbitrator had wanted to file an award at Chandigarh, he should have filed it through post for being filed in the civil Court at Chandigarh. It was also pleaded that the Arbitrator showed his bias towards the respondent by holding in para 9(A).5 of the award that the Authority, for obscure reasons, by conduct caused delay in the proceedings on one pretext or the other. These observations were un-founded and that on the other hand, the delay has been caused by the respondent-firm.
It was also pleaded that the Arbitrator showed his bias towards the respondent by holding in para 9(A).5 of the award that the Authority, for obscure reasons, by conduct caused delay in the proceedings on one pretext or the other. These observations were un-founded and that on the other hand, the delay has been caused by the respondent-firm. It was also asserted that Arbitrator had exceeded the scope of reference by considering the claim relating to the contract for the period July to September 1988, although it was only the contract for the period October to December 1988 which had been referred to the Arbitrator. The petitioner also pleaded that the Arbitrator entertained claims where there was no pre-existing dispute. The question of entertaining any claim for the period July to September 1988 did not arise because there was no pre-existing dispute between the parties which could form the subject-matter of the arbitration. There was no assertion or denial of the claim which was a pre-condition for arbitration of the dispute. It was stated that in respect of the period October to December 1988, except the claim for refund of interest to the tune of Rs. 97,032/-, there was no pre-existing dispute which should form the subject- matter of reference. The respondent had not raised even a whisper of the claim in respect of Claims A, AA, AAA, B, C and D prior to the arbitration. So, it was asserted by the Authority that the Arbitrator had committed serious jurisdictional error in entertaining the claim and awarding huge amount to the respondent. It was also asserted by the petitioner that the arbitrator had entertained claim in respect of the dispute not existing at the time of the reference; that under claim AA the respondent claimed loss of profit in respect of the period 1989-90, 1990-91 and 1991-92 etc. The arbitrator had awarded an amount of Rs. 51,13,800/- by way of loss of profit for the years 1988-89, 1989-90, 1991-92 and 1992-93, although the agreement did not provide for dispute arising subsequent to the date of reference. Next, the petitioner stated that the arbitrator went into the constitutional question of discrimination and violation of Article 14 of the Constitution of India although under the Arbitration law, he was only permitted to look at the terms of the contract for arriving at a correct decision.
Next, the petitioner stated that the arbitrator went into the constitutional question of discrimination and violation of Article 14 of the Constitution of India although under the Arbitration law, he was only permitted to look at the terms of the contract for arriving at a correct decision. The case of the petitioner before the trial Court was that the Arbitrator had mis-conducted himself and committed jurisdictional error by ignoring the express terms of the contract. Under Clause 7.2 of the agreement, the applicable compensation was restricted to 3 per cent of the value of the material not supplied, which formulated upper limit of the compensation payable, but the arbitrator ignored the said provision and proceeded to award huge sum exceeding Rs. 42,00,000/- whereas under Clause 7.2 the compensation would come to nearly Rs. 3.66 lacks. In any case, for the period from October to December 1988, the delay in delivery was to the extent or maximum three days and under clause 7.2 applicable compensation would have been the extent of Rs. 30,000/- but the arbitrator had awarded a fantastic sum of Rs. 44 lacs under various heads such as liquidated damage, price difference and penalty etc. The objector also raised other issues relating to the mis-conduct and it was pleaded that by ignoring the contractually stipulated limits of compensation, the arbitrator had not only acted contrary to the contractual clause but had also violated the provisions of Section 73 of the Contract Act by awarding remote and impermissible damages on the basis of notional loss of profit and that the arbitrator had failed to call for the material documents. The amount awarded by him was unconscionably high and the award was perverse and was based on no evidence. 4. The respondent filed the reply to the objections and denied all the material allegations pleaded by the petitioner, and raised the plea of limitation and stated that the objection petition under Sections 30/33 of the Indian Arbitration Act was not properly verified; that the objections were not maintainable in the present form; that the objections were vague, misconceived and tainted with mala fides. It was asserted that the application filed by the Arbitrator was well reasoned. He evaluated the evidence and the conclusion arrived by him would not be gone into or substituted by the evaluation of the Court.
It was asserted that the application filed by the Arbitrator was well reasoned. He evaluated the evidence and the conclusion arrived by him would not be gone into or substituted by the evaluation of the Court. It was controverted that fresh claim in respect of the fist contract relating to the period July to September 1988 were brought in for the first time through the application dated 12.9.1991. It was averred that the application dated 12.9.1991 was necessitated on account of computation or calculation errors, non-availability of certain documents and that the application was decided by the Arbitrator after hearing both the parties. It was pleaded that only the Chandigarh Courts had jurisdiction because the dealings between the parties were held at Chandigarh, booking of the goods were made at Chandigarh; the financial arrangements were made at Chandigarh; the goods were to be supplied at Chandigarh; the bank guarantees were payable at Chandigarh and, therefore, there was no question of award being filed at Calcutta. It was also pleaded that under the provisions of Section 14 of the Arbitration Act, 1940 either party can make a request to the arbitrator to file an award having jurisdiction and that if the respondent had made prayer to the Arbitrator to file an award at Chandigarh Court which had jurisdiction, and had also undertaken to pay all the expenses of the arbitrator, no illegality had been committed nor any misconduct on the part of the arbitrator could be spelt out. It was also averred that under the law, the arbitrator was not obliged to inform the petitioner about the venue where he intended to file an award. Besides this, the filing of the award in the Court was an act and conduct of the arbitrator after the passing of the award and so, on the basis of such act, it cannot be concluded that the arbitrator was biased or mis-conducted himself during the arbitration proceedings. It was stated that no illegality or partiality was disclosed by the arbitrator in accepting the costs of journey and other expenses from the respondent. It was pleaded that no bias or lack of objectivity could be spelt out. The observations of the Arbitrator given in paragraph 9-A.5 of the award and the record conclusively established that it was the petitioner who delayed the proceedings deliberately.
It was pleaded that no bias or lack of objectivity could be spelt out. The observations of the Arbitrator given in paragraph 9-A.5 of the award and the record conclusively established that it was the petitioner who delayed the proceedings deliberately. The respondent further denied that the claim petition dated 3.11.1989 related to the quarter October to December 1988 only and only that part of the dispute was referred to the arbitrator. It was pleaded that the claim petition referred to the claim in respect of the dispute for both these quarters and that vide application dated 12.9.1991, respondent had merely quantified the claim and no fresh claim had been added. It was denied that there was no pre-existing dispute between the parties with regard to July to September 1988 quarter. 5. On the contrary, it was pleaded that even a perusal of the petition indicated that disputes were existing/pending between the parties at the material time. It was also denied that there was no pre-existing dispute in respect of the period October to December 1988, except for the claim of refund of interest. The respondent pleaded that it was wrong to say that the arbitrator had entertained the claim in respect of future dispute. It was also asserted that there was no occasion or need for the arbitrator to refer the matter to the High Court. It was further pleaded that the arbitrator had not ignored the provisions of Section 73 of the Contract Act. Since he has failed to call for material documents and that the amount of award is unconscionably high, therefore, the award was perverse and having been based on no evidence, was liable to be dismissed as the civil court cannot sit as a court of appeal. 6. The petitioner filed a rejoinder to the written reply of the respondent in which it reiterated the averments of the objection petition by denying those of the written reply and from the above pleadings of the parties, the learned trial Court framed the following issues : 1. Whether the award dated 7.9.1993 is liable to be set aside ? OPO 2. Whether the objections are not maintainable ? OPC 3. Whether the objection petition is time barred ? OPC 4. Whether the objection petition has not been verified properly ? OPC 5. Relief. The parties led voluminous evidence before the trial Court.
Whether the award dated 7.9.1993 is liable to be set aside ? OPO 2. Whether the objections are not maintainable ? OPC 3. Whether the objection petition is time barred ? OPC 4. Whether the objection petition has not been verified properly ? OPC 5. Relief. The parties led voluminous evidence before the trial Court. Issue No. 1 was decided against the objector-petitioner and the award was made rule of the Court. Issue Nos. 2, 3 and 4 were decided against the respondent. Resultantly, on the strength of the finding on issue No. 1, the award dated 7.9.1993 was ordered to be made the rule of the Court and the trial Court also awarded interest at the rate of 12 per cent per annum from the date of the decree dated 9.5.1994 till realisation. 7. The Authority not satisfied with the decision of the trial Court and filed the first appeal before the learned District Judge Chandigarh, who vide impugned and lengthy order dated 1st September, 1999 affirmed the order of the trial Court and dismissed the appeal with costs. The Authority is still not satisfied with the decision of the two courts and has come in the present revision petition. 8. I have heard Shri Rajiv Bhalla on behalf of the petitioner and Shri Ashok Aggarwal, Senior Advocate assisted by Shri J.S. Sidhu, on behalf of the respondent and with their assistance, have gone through the records of this case. 9. Section 30 of the Indian Arbitration Act, 1940 lays down that an award shall not be set aside except or one or more of the following grounds, namely :- (a) that an arbitrator on umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; and (c) that an award has been improperly procured or is otherwise invalid. 10. For my purpose, I have to see whether the arbitrator had mis-conducted himself or the proceedings or that the award had been procured by the respondent or was otherwise invalid. A reading of the above clause would show that it starts with a negative note when it says that the award shall not be set aside, except on one or more grounds as mentioned in Section 30 itself.
A reading of the above clause would show that it starts with a negative note when it says that the award shall not be set aside, except on one or more grounds as mentioned in Section 30 itself. The purpose behind the negative clause is that the Legislature wanted to give respect to the arbitration agreement and to the mode adopted by the parties to the arbitration contract which they had selected for the determination of their controversy, but at the same time the Legislature was of the clear opinion that when the arbitrator has mis-conducted himself or the proceedings or when the award has been arbitrarily procured or is otherwise invalid, such award should not sustain in the eyes of law. What is misconduct is a question of fact because the term mis-conduct has not defined in the Act. Mis-conduct, as I understand, should be legal misconduct and similarly if the arbitrator has mis-conducted with regard to the proceedings or the award is otherwise invalid, such a award should not sustain in the eyes of law. We all know that the arbitrator is a master of law and facts, rather he is a master-in-chief. It is a settled principle of law that jurisdiction of a civil Court is not to sit as a court of appeal over the decisions and opinions formulated by the arbitrator. It can only interfere if the arbitrator had committed a patent error with regard to his jurisdiction. Even if this Court formulated a different opinion than the one formulated by the Arbitrator, it is not open to the civil Court to interfere with the award until and unless there is clear- cut allegation to the effect that the arbitrator had exceeded his jurisdiction or that he had gone beyond the scope of the arbitration clause because the arbitrator gets its authority under the agreement. If he infringes the very clause itself, it will amount to misconduct on his part. So, in these circumstances what is the misconduct on the part of the arbitrator would always be a question of fact and the matter would depend upon case to case and has to be ascertained from the facts of entire proceedings and no exhaustive definition can be given as to what amounts to misconduct.
So, in these circumstances what is the misconduct on the part of the arbitrator would always be a question of fact and the matter would depend upon case to case and has to be ascertained from the facts of entire proceedings and no exhaustive definition can be given as to what amounts to misconduct. Mis-conduct, as I understand, is an ambiguous word and includes any mis-handling of the arbitration proceedings or any neglect of duty on the part of the arbitrator which is likely to lead to substantial miscarriage of justice. 11. Learned counsel Shri Rajiv Bhalla appearing on behalf of the Authority has assailed the judgment of the courts below, rendering award on the arbitration on two points : (1) that the arbitrator had committed error of jurisdiction when he entertained a time barred claim and awarded amount to the respondent on a time barred claim. In support of his contention, learned counsel relied upon a letter dated 15.7.1988 written by the Authority to the respondent. This letter is at page 71 of the award. Mr. Bhalla submitted that there was a final refusal on the part of the petitioner and it was categorically brought to the notice of the respondent that the petitioner- Authority would not be able to supply the contracted goods. In these circumstances, the cause of action arose to the respondent on 15.7.1988. The arbitrator entertained the amended claim on 12.9.1991 after the expiry of three years and also awarded huge amount under category AA. Mr. Bhalla further submitted that once a cause of action had started running to the respondent on 15.7.1988 it could not be stopped by any act of the respondent. In support of his contention, the learned counsel relied upon different judgments reported as Steel Authority of India Limited v. J.C. Budharaja, Government and Mining Contractor, 1999(8) Supreme Court Cases 122; State of Orissa and another v. Damodare Das, 1996(2) Supreme Court Cases 216; Panchu Gopal Bose v. Board of Trustees for Port of Calcutta, 1993(4) Supreme Court Cases 338; Fateh Chand v. Balkishan Dass, AIR 1963 Supreme Court 1405; Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another, AIR 1987 S.C. 2316. 12. On the contrary, it was argued by the learned Senior Advocate Shri Ashok Aggarwal that the final refusal on the part of the petitioner was on 18.9.1988.
12. On the contrary, it was argued by the learned Senior Advocate Shri Ashok Aggarwal that the final refusal on the part of the petitioner was on 18.9.1988. Against the letter dated 15.7.1988, respondent-firm wrote a letter to the petitioner to supply goods of a different quantity otherwise the firm would suffer heavy losses like labour wages, interest, electricity charges etc. There was exchange or correspondence between the parties and the petitioner finally told the respondent that for some reasons beyond its control it was not in a position to supply the contracted goods. The cause of action arose to the respondent on 18.9.1988 and this aspect of the case was taken note of by the Arbitrator. The amended claim has been filed on 18.9.1991, within three years of the limitation. Once the arbitrator had acted within the domain of his arbitration, it was not open to the civil Court, much less to the High Court while exercising revisional jurisdiction, to interfere with interpretation of the arbitrator who admittedly is a master of law and facts and even if the arbitrator had given wrong interpretation on a question of law, the High Court would be slow in making out a different interpretation for the advantage of the petitioner. 13. I have considered the rival contentions of the parties and am of the considered opinion that the first argument raised by the counsel for the petitioner must fail. The correspondence between the parties shows that final refusal was made by the petitioner on 18.9.1989 and the amended claim was filed on 12.9.1991, which was within limitation. I may mention here that the contract between the parties was in two lots i.e. for the supply of the goods for the period July to September 1988 and for the period October 1988 to December 1988. It is a case of non-supply of the first lot of the goods to be sold by the petitioner and it is a case of delayed delivery of the goods on account of the second part of the lots of goods which was again yet to be supplied by the petitioner to the respondent. The goods yet to be supplied from July to September were never supplied to respondent No. 1 and for the second tenure the goods were supplied late.
The goods yet to be supplied from July to September were never supplied to respondent No. 1 and for the second tenure the goods were supplied late. The cause of action in this case arose to the respondent on 18.9.1989 when the petitioner finally gave no to the respondent. This aspect of the case has been noticed by the arbitrator and the Courts below. The interpretation given by the Arbitrator and the Courts below cannot be held to be erroneous or without jurisdiction, as stated above that this Court can only set aside the award if there is a jurisdictional error. The learned counsel for the respondent has invited by attention to a recent decision of the Honble Supreme Court given on 17th April, 2001 in the case of Messrs Sutlej Construction Pvt. Limited v. State of Punjab and others, (Civil Appeal No. 2985 of 2001 arising out of SLP (Civil) No. 12019 of 2000) wherein it was observed by the Honble Supreme Court that the civil Courts and the High Court could only interfere if the award goes beyond the realm of jurisdiction. By setting aside the judgment of this Court, the Honble Supreme Court held as follows : Having considered the relevant submissions and on examining the impugned judgment of the High Court, we have no manner of doubt that the High Court exceeded its revisional jurisdiction in interfering with the appellate order in an arbitration proceeding by reappreciating the material on record. Obviously, it does not touch the realm of jurisdiction. 14. I had already tried to say above that the cause of action did not start to the respondent w.e.f. 15th July, 1988 as alleged by the petitioner, rather it started on 18th September, 1989. The arbitrator had rightly entertained the claim of the respondent. This aspect of the case has been appreciated by the Arbitrator. Even there is a legal interpretation on the part of the Arbitrator with regard to the cause of action, the revisional Court will not try to substitute its own judgment over the decision of the arbitrator. 15. The second argument raised by the learned counsel for the petitioner was that the Arbitrator could not go beyond the contract. According to Mr. Bhalla, the Arbitrator had awarded damages to the respondent under category A, AA and C by exercising his power beyond Clause 7.2 of the agreement. Mr.
15. The second argument raised by the learned counsel for the petitioner was that the Arbitrator could not go beyond the contract. According to Mr. Bhalla, the Arbitrator had awarded damages to the respondent under category A, AA and C by exercising his power beyond Clause 7.2 of the agreement. Mr. Bhalla submitted that Arbitrator is a master of law and facts. He derives his powers under a contract and if he violates the very provision of the contract, it will tantamount to misconduct on his part. 16. On the contrary, learned counsel for respondent No. 1 submitted that the arbitrator did not exceed his jurisdiction. He has awarded compensation rightly under different heads. Clause 7.2 contemplates only one type of exigency but it was open to the respondent to claim damages as permissible to it under the common law or general law and if the arbitrator had rightly entertained the claim to the respondent which had suffered huge losses on account of non-supply and delayed delivery, there is no illegality on the part of the Arbitrator in awarding that compensation. Mr. Aggarwal submitted that respondent-firm is a manufacturing Unit. After procuring the goods from the Authority, it was to re-cast the iron. Thereafter, the respondent-firm was to supply those manufactured goods catering to its different customers. By virtue of non-supply of the goods, respondent-firm had suffered incidental losses which had to be compensated by the petitioner either in the shape of compensation or damages and if for that reason the respondent had submitted its claim before the Arbitrator, who had entertained it in a valid manner, there is no mis-conduct or error of jurisdiction on the part of the Arbitrator. Mr. Aggarwal also submitted that if Clause 7.2 admits provision of interpretation and does not debar the Arbitrator to entertain different claims of the respondent under the common law, the High Court while exercising its revisional jurisdiction, will not sit as a Court of appeal. High Court will be slow to interfere with the well reasoned order of the courts below while exercising the powers in revision. 17.
High Court will be slow to interfere with the well reasoned order of the courts below while exercising the powers in revision. 17. I have also considered the submissions raised by the learned counsel for the respondent and, in my opinion, the Arbitrator has not misconducted himself or the proceedings when he awarded the compensation/damages to the respondent-firm under different heads, as in my opinion, each head had a different sphere and scope and Clause 7.2 which has been relied upon by Mr. Bhalla, does not admit only one interpretation that the Arbitrator could only award compensation not exceeding 3% of the total price of the goods to the supplied by the petitioner to the respondent. First of all, I would like to refer to Clause 7.2 itself which lays down as follows : "7.2 SAIL shall supply materials as described in the offer/work order(s)/delivery order(s) issued by SAIL from time to time. SAIL, however, shall have a period of one month after expiry of the indicated quarter/quarters as grace period for the purpose of supply or supplies. In the event of SAILs failure/failures to deliver the indicated quantity even after the expiry of the grace period, SAIL shall pay to the customer/customers compensation at the rate of 0.25% (quarter percent) per month or part thereof on the value of the materials of the supplies delayed beyond the quarter/quarters plus the grace period(s) subject to a maximum of 3% of the value of the delayed supplies. The value for this purpose shall be worked out on the same basis as mentioned in Note (iii) of Para 3.1 regarding calculation of initial financial cover. The aforesaid compensation shall be paid within three months from the date of completion of order. In case, an order is not executed within 12 months from the expiry date of the grace period, the order would be treated as closed, after payment of applicable compensation, if and as due. Delay/delays caused in effecting supplies on account of failure/non- observance of the required formalities by the customer(s) shall be accepted. The SAIL shall not bear any liability for such period(s)." Thus, a reading of the above clause which has been relied upon by the learned counsel for the petitioner, makes it abundantly clear that this clause has only covered one exigency regarding the delivery or non-delivery or late delivery of the goods.
The SAIL shall not bear any liability for such period(s)." Thus, a reading of the above clause which has been relied upon by the learned counsel for the petitioner, makes it abundantly clear that this clause has only covered one exigency regarding the delivery or non-delivery or late delivery of the goods. This clause gives power to the Arbitrator to award compensation starting from 0.25% to the upper limit of 2.01%. This clause never debars the Arbitrator from entertaining the contract and consequential losses which had been suffered by the respondent on account of non-delivery or late delivery of the goods. If on account of the act of the petitioner, the respondent-firm had suffered huge losses to itself for the benefit of its customers, certainly it has a right to recover the same. Be that as it may, I am not to look at the merits of the case but I have to examine whether the Arbitrator had exceeded beyond the realm of arbitration clause or clauses of the contract. If he had not, the civil Court not impose its impression/judgment or opinion over the opinion of the Arbitrator, but I had already held that the Arbitrator is the master of facts as well as of law. Even his erroneous interpretation of the contract so long as he acts within the contract, is not supposed to be interfered by the civil Court much less by the High Court, in the exercise of its revisional jurisdiction. 18. It was then submitted on behalf of the petitioner that vide letter dated 27.5.1989 of the respondent, it had only confined its claim of interest amounting to Rs. 97,032.75 that was the controversy which existed between the parties before the reference, but the Arbitrator had awarded huge amount running into more than one crore to the respondent. This submission of the learned counsel for the petitioner is again not acceptable to me. A reading of the letter would show that the respondent-firm agitated with regard to the charging of interest by the petitioner. It was highlighted by the respondent to the petitioner that since they had already made full arrangement of payment by way of bank guarantee of the whole amount of the stock, but now the petitioner had deducted Rs. 97,032/- on account of interest on the full amount against the bank guarantee, therefore, this amount may be remitted to it.
It was highlighted by the respondent to the petitioner that since they had already made full arrangement of payment by way of bank guarantee of the whole amount of the stock, but now the petitioner had deducted Rs. 97,032/- on account of interest on the full amount against the bank guarantee, therefore, this amount may be remitted to it. This does not mean that respondent-firm had abandoned its claim with regard to the contract or consequential losses which they were likely to suffer on account of the delayed delivery or non-delivery of the goods. Now let us see whether the mode of assessment of compensation or awarding of damages by the Arbitrator can be held to be illegal so as to fall within the realm of jurisdiction or that he had acted beyond jurisdiction. The respondent-firm claimed Rs. 18,78,366.01 under the head "price difference." The Arbitrator found that respondent-firm is entitled to Rs. 18,25,772.54 besides interest starting from 15.2.1989 to 7.9.1993. This is the date up to which the payment was inforce for the supply of the goods. Similarly, the firm claimed Rs. 16,19,532 on account of loss of interest and other charges and expenses incurred by GBST on account of furnishing bank guarantee. Against this, it was awarded Rs. 61,130.00 besides interest at the rate of 12% per annum starting from 16.2.1989 to 7.9.1993. Under the head "loss of business in the shape of liquidated damaged" against the claim of Rs. 23,25,000.00, the Arbitrator awarded full amount; under the head "Penalties for breach of contract" against the claimed amount of Rs. 5,00,000.00, again the Arbitrator had awarded hundred percent, but no interest was awarded either under the heading of Loss of Business or under the heading of Penalties for breach of contract. 19. I may also mention here that the learned counsel for the petitioner has not given any challenge to the awarded amount of Rs. 5 lacs. Be that as it may, Mr.
19. I may also mention here that the learned counsel for the petitioner has not given any challenge to the awarded amount of Rs. 5 lacs. Be that as it may, Mr. Bhalla was critical with regard to the award of compensation under the heading "AA" i.e. Loss of profits for non-supply and loss of interest and other charges, but in my opinion, the damages/compensation claimed by the respondent under head "Loss of interest and other charges", loss of Business in the shape of liquidated damages, loss of profits for non-supply of goods, are totally independent heads and not covered by Clause 7.2 relied upon by the counsel for the petitioner. This argument itself establishes and hold that awarding of compensation by the Arbitrator was within the realm of its jurisdiction. The High Court or the Courts below would not be justified in interfering with the said award. 20. Now, I refer to the case law which has been relied upon by the learned counsel for the parties. Some of the references I had already made above. 21. The counsel for the petitioner placed reliance upon Panchu Gopal Bose v. Board of Trustees for Port of Calcutta, 1993(4) Supreme Court Cases 338 and submitted that Section 3 of the Limitation Act applies by analogy to the arbitration proceedings and once the period of limitation for commencement of arbitration runs from the date on which cause of arbitration arose, it cannot be stopped by any intervening circumstances. I do not dispute the proposition of law propounded by the Honble Supreme Court, but I have already held that the cause of action did not arise to the respondent on 15.7.1988 but the cause of action survived up to September 18, 1991 and thus, the claim of the respondent-firm was within time. Reliance was also placed on Grid Corporation of Orissa Ltd. v. Balasore Technical School, 2000(9) Supreme Court Cases 552 in which it was observed that where the award, even a non-speaking one, is plainly contrary to the terms of the contract and is not the result of misinterpretation, the interference can be made on the ground that there is an error apparent on the face of the award.
In my opinion, this judgment supports the case of the respondent where it was clarified by the Supreme Court that where the dispute is within the scope of the arbitration clause, the Court must not enter into the merits of the dispute. As I said above, I have to examine whether the Arbitrator had committed any illegality by exercising his jurisdiction beyond the powers conferred upon him under the contract and, if not, then the award cannot be set aside. Reliance was also placed upon Steel Authority of India Limited v. J.C. Budharaja, Government and Mining Contractor, (1999) 8 SCC 122, in which it was held that the Arbitrator cannot exceed his jurisdiction or go beyond the terms of the agreement. Again there is no quarrel with the proposition of law. In this very judgment, it was clarified by the Supreme Court that where the Arbitrator committed any jurisdictional error it would be examined by the Court itself. In that case, the award passed by the Arbitrator was arbitrary, capricious and without jurisdiction. The learned counsel of the petitioner also placed reliance upon Inder Singh v. Delhi Development Authority, AIR 1988 S.C. 1007, in which it was held that the period of limitation is to be computed from the date claim is asserted and payment is denied. In the present case, there was no finality to the letter dated 15.7.1988. Against this letter, the respondent-firm had been asking the petitioner to supply all the goods. The final refusal came from the side of the petitioner only in September and within three years, the respondent-firm filed amended claim before the Arbitrator. Opposite party was given chance to rebut. Arbitrator came to a conclusion that he was acting within the scope of the arbitration clause, therefore, no interference was called for in the present revision. State of Orissa and another v. Damodar Das, (1996) 2 Supreme Court Cases 216 cannot be followed for the reasons I had already explained above. Yet reliance was placed on V.G. George v. Indian Rare Earths Limited and another, AIR 1999 Supreme Court 1409. As I had already said while interpreting clause 7.2 that this clause is not a panacea for all the legitimate claims open to the respondent under the general law, it only covers one aspect of the case.
Yet reliance was placed on V.G. George v. Indian Rare Earths Limited and another, AIR 1999 Supreme Court 1409. As I had already said while interpreting clause 7.2 that this clause is not a panacea for all the legitimate claims open to the respondent under the general law, it only covers one aspect of the case. It never debars the respondent from asserting its rights which are open to the respondent on account of the breach of the contract. Reliance was also placed on Jivarajbhai Ujamshi Seth and others v. Chintamanrao Balaji and others, AIR 1965 Supreme Court 214 and Associated Engineering Co. v. Government of Andhra Pradesh and another, AIR 1992 Supreme Court 232 in which it was observed that Arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract. Before I apply this ratio, I have to formulate an opinion if the Arbitrator had committed error of jurisdiction in the interpretation of the contract and that error was within his jurisdiction or beyond his jurisdiction. Every case is to be governed by its own facts. 22. As against this, learned counsel for the respondent relied upon PuriConstruction Pvt. Ltd. v. Union of India, AIR 1989 Supreme Court 777, in which it was held that when a Court is called upon to decide the objections raised by a party against an arbitration award, the jurisdiction of the Court is limited, as expressly indicated in the Act and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits. I had already stated in the earlier part of this judgment that the civil Court cannot sit as a Court of appeal. It cannot substitute its own decision over the opinion of the Arbitrator who had been selected by the parties. They had adopted a particular forum which must be respected. Similar was the view expressed by the Honble Supreme Court in B.V. Radha Krishna v. Sponge Iron India Limited, (1997) 4 Supreme Court Cases 693.
It cannot substitute its own decision over the opinion of the Arbitrator who had been selected by the parties. They had adopted a particular forum which must be respected. Similar was the view expressed by the Honble Supreme Court in B.V. Radha Krishna v. Sponge Iron India Limited, (1997) 4 Supreme Court Cases 693. In The Punjab State Through Executive Engineer, Kharar Construction Division, SYL Canal Project, SAS Nagar (Mohali) v. Messrs Amar Nath Aggarwal, Constructions (P) Limited, Panchkula and another, (1993)(3) P.L.R. 1, the following proposition of law was propounded after taking note of the different pronouncements of the Honble Supreme Court : (1) That the arbitrator is the final Judge of all questions, both of law and of fact. The only exceptions to this rule are cases of corruption or fraud or where the basis of the award is a proposition of law which is erroneous; (2) The arbitrator is the sole judge of quality as well as quantity of evidence. It is not open to the Court to reappraise the evidence considered by the arbitrator to hold that the conclusion reached by the arbitrator is wrong; (3) The Court cannot sit in appeal over the view of the arbitrator by re- examining and re-appraising the materials; (4) Where two views are possible, the Court is not justified in interfering with the award by adopting its own interpretation. (5) An award is not invalid if by a process of reasoning it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion; (6) Though it is not possible to give an exhaustive definition as to what may amount to misconduct, it is not a misconduct on the part of the arbitrator to come to an erroneous decision, whether his error is one of fact or law and whether or not his findings of fact are supported by evidence; (7) Assuming that there is an error of construction of the agreement by the arbitrator, it is not amenable to correction even in a reasoned award; (8) Reasonableness of an award is not a matter for the Court to consider unless the award is preposterous or absurd. The amount awarded being quite high does not per se vitiate the award. 23. In Messrs Hindustan Tea Co.
The amount awarded being quite high does not per se vitiate the award. 23. In Messrs Hindustan Tea Co. v. M/s K. Sashikant and Company and another, AIR 1987 Supreme Court 81, it was observed that under the law, the arbitrator is made the final arbiter of the dispute between the parties. The award is not open to challenge on the ground that the arbitrator has reached a wrong conclusion or has failed to appreciate facts. Even the award which is well reasoned cannot be challenged on the ground that the arbitrator had acted contrary to the provisions of Section 70 of the Contract Act, as it was argued by Mr. Rajiv Bhalla while placing reliance on Fateh Chand v. Balkishan Dass, AIR 1963 Supreme Court 1405. 24. At the cost of repetition, it can be stated that sanctity is attached to the arbitration clause and to the arbitration proceedings. The sanctity is that when the party had selected the forum, award became a solemn document, the parties have reposed confidence in the arbitrator for the effective and early adjudication of the matter. Until the case of the objector falls within the four corners of Section 30, such an award of the arbitrator should not be set aside. I have already observed while quoting the observations of the Honble Supreme Court that while sitting in revisional jurisdiction, I cannot go into the question of merit or otherwise. There is no error of jurisdiction on the part of arbitrator who had given the award after appreciating the evidence of the parties led before him. Resultantly, this Court is of the considered opinion that his revision deserves to the dismissed. Ordered accordingly. No order as to costs in the present revision. Revision dismissed.