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Jharkhand High Court · body

2009 DIGILAW 1281 (JHR)

Bharat Coking Coal Ltd. v. Luxmi Construction Co.

2009-09-11

R.K.MERATHIA

body2009
JUDGMENT : Heard the parties at length finally. This appeal has been filed against the judgment and decree dated 12.2.1999, passed by learned Subordinate Judge, 1st, Dhanbad in Title (Arb) Suit No. 87 of 1989, whereby and whereunder the Award has been made Rule of the Court. 2. Shri N.K. Jha (the then General Manager, Civil Construction Engineering Department, BCCL, Dhanbad, whose named was suggested by the appellant) was appointed as sole Arbitrator with the consent of the parties by the Hon'ble Supreme Court of India by order dated 16.1.1995. Accordingly, by order dated 15.3.1995, the entire disputes arising out of the agreement dated 25.3.1983 were referred to the said arbitrator. 3. The respondent (claimant) filed its claim under 17 heads, amounting to Rs.18,99,173.71p along with interest @ 18% per annum. The appellant preferred counter claim under 5 heads amounting to Rs.30,91,257.20p. The parties adduced their oral and documentary evidences. After considering the materials on record and hearing the parties, the arbitrator pronounced the reasoned Award in question, allowing claim of the respondent in part/full to the tune of Rs.6,33,124.40p against the claim nos. 1,2,3,4,6,12,14 and 16 along with interest @ 14% per annum from 1.11.1985 till the actual payment. The counter claims were rejected. The respondent prayed for making the Award rule of the Court. The appellant filed objection under Sections 30 and 33 of the Arbitration Act, 1940. After considering the respective cases of the parties and hearing them, the Award was made Rule of the Court. Against the said order, this appeal has been filed. 4. By order dated 17.1.2001, this appeal was disposed of by passing the following order: " Heard the parties and with their consent this appeal is disposed of under Order 41 rule 11 of the Code of Civil Procedure. Award dated 30.9.1997 was filed in Court to be made Rule of Court. Appellant filed objection thereto, under sections 30 and 33 of the Arbitration Act, 1940, inter alia, on the ground that contractor's claim was hopelessly barred by limitation, as it pertained to the year 1984, but the Arbitrator decided it wrongly. The Court below did not consider question of limitation and made award Rule of Court, by judgment dated 12.2.1999. Appellant filed objection thereto, under sections 30 and 33 of the Arbitration Act, 1940, inter alia, on the ground that contractor's claim was hopelessly barred by limitation, as it pertained to the year 1984, but the Arbitrator decided it wrongly. The Court below did not consider question of limitation and made award Rule of Court, by judgment dated 12.2.1999. I, therefore, set aside the impugned judgment and remand Title (Arbitration) Suit No. 87 of 1989 to re-consider the matter and after hearing the parties to decide objections to the award, including limitation and dispose of the suit in accordance with law. This appeal is, accordingly, disposed of with aforesaid direction". 5. The respondent moved Hon'ble Supreme Court. By order dated 28.8.2008, the aforesaid order was set aside and the matter was remanded to this Court for hearing the appeal afresh. Paragraphs 5 and 6 of the said order dated 28.8.2008 reads as follows: "5 We are of the view that the High Court erred in remanding the matter to the trial court to decide the issue of limitation. The trial court was not sitting in appeal over the award of the learned Arbitrator. Learned Arbitrator had considered the objection relating to limitation and recorded a finding that the claims were not barred by limitation. Thereafter, learned Arbitrator had also recorded his decisions on various disputes between the parties. The respondent had challenged the decision on several disputes and also had raised the issue of limitation before the trial court. The trial court was of the view that it could not examine any of the issues (which included the challenge to the finding on limitation), having regard to the limited scope of interference under sections 30 and 33 of the Act. Therefore, it cannot be said that the trial court did not consider the issue relating to limitation. 6 The High Court ought to have heard and disposed of the appeal by examining all the grounds urged". 6. Mr. Sen, appearing for the appellant, submitted that the claim was barred by limitation. He further submitted that the court below did not consider the objection with regard to Limitation. It will appear that the Arbitrator while considering the objection of the appellant with regard to limitation rightly held as follows: (i) LIMITATION. 6. Mr. Sen, appearing for the appellant, submitted that the claim was barred by limitation. He further submitted that the court below did not consider the objection with regard to Limitation. It will appear that the Arbitrator while considering the objection of the appellant with regard to limitation rightly held as follows: (i) LIMITATION. In this case the contract is still continuing as final bill is not paid and no claim certificate has been given as such. The contract is still alive. The respondent also did not mention from which date the limitation will run. He further stated the revised estimate signed by E (c) on 25.12.1985 and the claimant vide letter dated 3.10.88 and 23.11.88 demanded certificate as per clause 17 of the contract dated 25.3.83. The claimant invoked the Arbitration clause vide notice dated 18.4.89 and raised the claim. The revised estimate of the work sanctioned vide letter no. MND/Civil/GM/Sanc/32/89-90/18476-80 dated 13/12.11.89. As such, the claims are not barred by the law of limitation. Keeping above in view, the contention of the opposite party that the claims are barred by limitation is not tenable. So, I hold that the claims of the claimant are not barred by limitation". 7. The learned court below considered all the objections of the appellant including the objection regarding limitation. It held that "the Arbitrator has considered all specific issues raised by the parties and findings were given by him on cogent grounds and as such it cannot be said that the Arbitrator has mis-conducted himself or in the proceeding in the matter of giving award". Moreover, in view of the aforesaid order of Supreme Court, in which it was observed that "it cannot be said that the trial court did not consider the issue relating to limitation," it is not open to the appellant to contend that the trial court did not consider the issue of limitation. 8. Mr. Sen further submitted that the Arbitrator committed misconduct by traveling beyond the agreement. He referred to certain claims and the findings of the Arbitrator thereon. Mr. Sen could not show that the claims allowed were barred under the agreement. It is not possible to contemplate the nature of disputes in the agreement, that may arise out of the contract. Mr. Sen further submitted that the Arbitrator committed misconduct by traveling beyond the agreement. He referred to certain claims and the findings of the Arbitrator thereon. Mr. Sen could not show that the claims allowed were barred under the agreement. It is not possible to contemplate the nature of disputes in the agreement, that may arise out of the contract. The Arbitrator was not obliged to pass a reasoned Award but he has considered each and every claim of the claimant and counter claims of the appellant carefully with reference to the materials on record and has assigned cogent reasons for allowing/disallowing them. He has not taken into consideration any matter outside the scope of reference. The disputes and differences covered by the written agreement were referred for arbitration. The appellant failed to demonstrate that the findings made by the Arbitrator were without any basis whatsoever and were not referable to documents relied upon or that the findings were perverse. The scope of interference under sections 30 and 33 of the Arbitration Act is limited. 9. After carefully going through the records, I am fully satisfied that the Arbitrator has not traveled beyond the contract and there has been no misconduct on his part in passing the Award in question. The learned court below also considered the objections raised by the appellant to the Award and held that the Arbitrator has not mis-conducted himself and accordingly the Award was rightly made Rule of the Court. 10. In the case reported in (2003) 7 SCC 396 - State of U.P. Vs. Allied Constructions, the Supreme Court observed as follows:- The award is a speaking one. The arbitrator has assigned sufficient and cogent reasons in support thereof. Interpretation of a contract, it is trite, is a matter for the arbitrator to determine. Section 30 of the Arbitration Act, 1940 providing for setting aside an award is restrictive in its operation. Unless one or the other condition contained in Section 30 is satisfied, an award cannot be set aside. The arbitrator is a Judge chosen by the parties and his decision is final. The court is precluded from reappraising the evidence. Even in a case where the award contains reasons, the interference therewith would still be not available within the jurisdiction of the court unless, of course, the reasons are totally perverse or the judgment is based on a wrong proposition of law. The court is precluded from reappraising the evidence. Even in a case where the award contains reasons, the interference therewith would still be not available within the jurisdiction of the court unless, of course, the reasons are totally perverse or the judgment is based on a wrong proposition of law. An error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record. Once it is found that the view of the arbitrator is a plausible one, the court will refrain itself from interfering. 11. In the case, reported in AIR 1989 SC 890 -M/s Sudarsan Trading Co. Vs. the Govt. of Kerala, the Supreme Court observed as follows:- Once there is no dispute as to the contract, what is the interpretation of that contract, is a matter for the arbitrator and on which court cannot substitute its own decision. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded, is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Therefore the high court had no jurisdiction to examine the different items awarded clause by clause by the arbitrator and to hold that under the contract these were not sustainable in the facts found by the arbitrator. In the instant case the court had examined the different claims not to find out whether these claims were within the disputes referable to the arbitrator, but to find out whether in arriving at the decision, the arbitrator had acted correctly or incorrectly. This, the court had no jurisdiction to do, namely, substitution of its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid or damages liable to be sustained, was a decision within the competency of the arbitrator. By purporting to construe the contract the court could not take upon itself the burden of saying that this was contrary to the contract and, as such, beyond jurisdiction. The judgment reported in (1994) 6 SCC 485 -State of Rajasthan Vs. Puri Construction Co. Ltd. may also be seen regarding the scope of interference with the Award. By purporting to construe the contract the court could not take upon itself the burden of saying that this was contrary to the contract and, as such, beyond jurisdiction. The judgment reported in (1994) 6 SCC 485 -State of Rajasthan Vs. Puri Construction Co. Ltd. may also be seen regarding the scope of interference with the Award. After considering the entire matter in detail, I find no merit in this appeal, which is accordingly dismissed. However, no costs.