BIHAR SPONGE IRON LTD. (BSIL) v. RAIL INDIA TECHNICAL AND ECONOMIC Services LTD. (RITES)
2006-08-18
HIMA KOHLI, MUKUNDAKAM SHARMA
body2006
DigiLaw.ai
MUKUNDAKAM SHARMA, J. ( 1 ) - The appellant herein awarded a contract for the consultancy regarding construction of a private railway siding at Maniqui railway Station on South East Railway. In terms of the aforesaid contract the respondent was to provide professional services to the appellant comprising engineering, design, supervision and quality control on the work of the contractor and measuring the work done and arranging payment to the contractor. ( 2 ) DURING the execution of the aforesaid contract certain disputes and difference arose between the parties regarding payments and liabilities thereto. The said disputes were referred to arbitration in terms of Clause 11 of the agreement between the parties. In terms of the said arbitration Clause, two arbitrators were appointed, one by each of the parties. After hearing the parties and on perusal of the pleadings and the statements of claims on behalf of the parties and also the documentary and oral evidence produced by them, the arbitrators passed an award which was published on 3rd April, 1996. ( 3 ) THE respondents filed a petition under Section 17 of the Arbitration Act, 1940 to make the said award, as given by the learned arbitrators, a rule of the Court whereas the appellant herein filed an objection to the award under Sections 30 and 33 of the Arbitration Act praying for setting aside the impugned award dated 3rd april, 1996. ( 4 ) THE learned Single Judge heard the objection as also the petition praying, inter alia, for making the award a rule of the Court and after hearing the parties, dismissed the objection filed by the appellant herein. The learned Single Judge also passed an order making the award a rule of the Court. Being aggrieved by the said order, the present appeal has been preferred by the appellant herein, on which we have heard the learned Counsel for the parties. Our attention was also drawn by the Counsel appearing for the parties to the various documents placed on record including the award passed by the arbitrators. ( 5 ) ON perusal of the impugned judgment and order we find that primarily two contentions were advanced before the learned Single Judge, which is clear on a bare reading of para 2 of the impugned judgment and order.
( 5 ) ON perusal of the impugned judgment and order we find that primarily two contentions were advanced before the learned Single Judge, which is clear on a bare reading of para 2 of the impugned judgment and order. The first contention that was urged was that the award passed by the arbitrators was beyond the statutory period and since no extension was granted to the arbitrators, they became functus officio when they published the award. The second contention that was raised was in respect of the rate of interest which was awarded in favour of the respondent, which was fixed by the arbitrators at 18% p. a. effective from the date of the impugned award. ( 6 ) THE learned Single Judge considered both the aforesaid submissions made before them. It was held that time for publishing the award could also be extended even after the award is passed. Consequently, it was held that time for publishing the award stood extended, as is available to the arbitrators, till the time when the award was published. So far the second contention is concerned, it was held that it is settled law that grant of interest is within the discretion of the arbitrators and, therefore, the arbitrators had power and jurisdiction to award interest at 12% p. a for some of the claims and for the period mentioned therein, whereas for the other claims and for the period mentioned at 18% p. a. While coming to the aforesaid conclusions, support was also drawn from the provisions of Clauses 4. 7 and 5. 1. 3 of the agreement between the parties, which provided for grant of interest on delayed payments. ( 7 ) COUNSEL appearing for the appellant, however, submitted before us that so far the first contention before the learned Single Judge was concerned, the same was not being pressed before us. We accept the aforesaid submission of the Counsel for the appellant. Therefore, the findings recorded by the learned Single Judge holding that the award, which was published by the learned arbitrators, within the time extended, are held to be legal and valid and the same suffer from no infirmity.
We accept the aforesaid submission of the Counsel for the appellant. Therefore, the findings recorded by the learned Single Judge holding that the award, which was published by the learned arbitrators, within the time extended, are held to be legal and valid and the same suffer from no infirmity. It was also submitted before us that interest could not have been awarded by the arbitrators for the post-award period at the rate of 18% p. a. The contention that was raised before us was that the arbitrators were bound by the terms of the contract while granting interest for the post-award period and that they were required to exercise their discretion in a judicious manner but in the instant case the arbitrators acted illegally in awarding interest at the contractual rate even for the post-award period. It was submitted that the said action on the part of the arbitrators is also without jurisdiction as the appellant company was before the B. I. F. R. and was declared a sick company. The next submission of the Counsel for the appellant was that the RITES did not make any payment to the contractor out of its own resources and, therefore, they were not entitled to payment of any interest. ( 8 ) WE have given our in-depth consideration to the aforesaid submissions of the Counsel appearing for the appellant. In order to appreciate the aforesaid contentions, we have not only perused the order passed by the learned Single Judge but also the award passed by the learned arbitrators. A bare perusal of the aforesaid award passed by the two arbitrators would indicate that the aforesaid award is a non-speaking award. The arbitrators while dealing with the four claims have allowed three of the four claims whereas the fourth claim was rejected. So far the first claim, which was Claim No. 1, is concerned, it was held that the appellant shall pay to the respondent a sum of Rs. 36,11,144. 92. So far the second claim was concerned, the appellant was directed to pay to the respondent a sum of Rs. 2,19,042. 84 and so far as the third claim is concerned, an amount of Rs. 41,257. 00 was ordered to be paid by the appellant to the respondent.
36,11,144. 92. So far the second claim was concerned, the appellant was directed to pay to the respondent a sum of Rs. 2,19,042. 84 and so far as the third claim is concerned, an amount of Rs. 41,257. 00 was ordered to be paid by the appellant to the respondent. So far Claim No. 5 is concerned, the same was a claim with regard to payment of interest, for which interest at the rate of 18% p. a. was directed to be paid by the arbitrators in respect of certain claims only and that too for a certain period whereas the arbitrators have allowed payment of interest at the rate of 12% p. a. for the other claims for the period mentioned therein. No reason has been given at all in the award passed by the arbitrators for arriving at the aforesaid conclusions and directing for payment of the amount. ( 9 ) LAW relating to non-speaking award is well settled by the various decisions of the Supreme Court and also this Court. In this connection, we may refer to a decision of the Supreme Court in State of Orissa and Others v. Lall Brothers, reported in AIR 1988 SC 2018 . It was held therein that the fact that there is an unreasoned award is no ground to set aside an award, for a lump sum award is not bad per se as such. It was further held that it is not open to the Court to speculate, where no reasons are given by the arbitrator as to what impelled him to arrive at his conclusions. Besides, the fact that a lump sum award has been given is no ground to declare the award bad. It is also conclusively held by the Supreme Court that court cannot sit in appeal in order to re-assess and re-examine the materials. In this connection, reference may be made to the decision of the Supreme Court in Food corporation of India v. Joginderpal Mohinderpal and Another, reported in AIR 1989 SC 1263 . We may also refer to the decision of the Supreme Court in Paradip port Trust and Others v. Unique Builders, reported in I (2001) SLT 758= 2001 (2)SCC 680 . In the said case also the Supreme Court had dealt with an unreasoned award.
We may also refer to the decision of the Supreme Court in Paradip port Trust and Others v. Unique Builders, reported in I (2001) SLT 758= 2001 (2)SCC 680 . In the said case also the Supreme Court had dealt with an unreasoned award. While dealing with the same, it was held by the Supreme Court that in the case of non-speaking award, the same cannot be set aside unless the arbitrator has acted arbitrarily, irrationally, capriciously or independently of the contract. ( 10 ) WHILE passing the award, in the present case, the arbitrators considered the statement of facts and counter statement of facts filed by the parties and the amount which was awarded to the respondent, is in full and final settlement of all the disputes and claims referred to the arbitrators. The aforesaid expression also makes it clear that the arbitrators have considered all the claims placed before them and also considered all the aspects while giving the aforesaid award. This Court cannot re-appreciate and re-examine the merit of the award to examine the correctness of the said award. The contents of the award indicate that the arbitrators considered the facts on record and thereby came to the conclusion that the petitioner is entitled to the amount as awarded by the arbitrators, as full and final settlement of the claims and disputes referred to them. ( 11 ) THE mental process of the arbitrator in making an award cannot be reappreciated or re-examined by the Court. In the case of Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. , Reported in III (2005) SLT 599= air 2005 SC 2071 , the supreme Court dealt with the power to grant interest. In the said case, the Supreme court held that grant of interest at 18% p. a. for pre-reference, pendente lite and post award period is valid and that it was within the power of the arbitrator to award interest for all three stages at the rate of 18% p. a. The Supreme Court held that award passed by the arbitrator fixing the rate of interest at 18% p. a. deserved no interference and that the High Court was not right in reducing the rate of interest to 6%. In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case.
In our considered opinion, the ratio of the aforesaid decision is squarely applicable to the facts of the present case. In the present case, the arbitrators have awarded interest at the rate of 18% p. a. for a particular period for certain claims whereas interest at the rate of 12% p. a. is awarded for the balance claims. It cannot be said that the aforesaid discretion, which is vested on the arbitrators, was so exercised by them arbitrarily or capriciously. Contention raised that the said interest was the contractual rate of interest and that no such interest should have been awarded as the petitioner company was sick, is also irrelevant and immaterial, for no reason is given by the arbitrators for awarding the interest at the aforesaid rate. From a reading of the award it cannot be said that the arbitrators decided to award the interest at the said rate because the same was contractual. It is also established from the records that the appellant company is no longer a sick company and it has been rehabilitated and that the company was out of the purview of the Section 22 of SICA. Even otherwise, there was no bar on the arbitrators to grant interest at the aforesaid rate and, therefore, the order passed by the learned single Judge does not suffer from any infirmity on that count. ( 12 ) SO far the last contention is concerned, the same also is without any merit. The clauses in the agreement provided for grant of interest on the delayed payments. It is also well settled law that the arbitrator has the power to grant interest for all the three periods as stated in the aforesaid decision of the Supreme Court in bhagwati Oxygen Ltd. (supra ). Consequently, we find no merit in this appeal, which is dismissed but we leave the parties to bear their own costs. Appeal dismissed.