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2012 DIGILAW 422 (BOM)

Union of India v. Rizvi Construction Co.

2012-02-27

ANOOP V.MOHTA

body2012
Judgment :- Heard finally. The Petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short the Arbitration Act, 1996). 2. None appeared for the Respondents, though served. By order dated 13 February 2012, it is specifically made clear that the matter will be heard finally. The Respondents were absent even before the Arbitral Tribunal. In spite of the private notice, as well as, public notice they never appeared before the Tribunal. However, the Arbitral Tribunal while rejecting the claim of the Petitioners, awarded the claim against the Petitioners though there is no specific counter claim raised by the Respondents. 3. Admittedly, all necessary steps were taken by the Petitioners to serve the Respondents. As dispute pertains to the contract so raised and referred to the Arbitral Tribunal as per the agreement between the parties, the Petitioners have raised various claims. The Respondents, as recorded, even by the Arbitrator in spite of repeated services, private as well as, public notice never appeared. 4. The learned Arbitrator, therefore, proceeded with the matter on the basis of the documents and material placed on record by the Petitioners. The Arbitrator held against the Petitioners on various aspect without their anything opposed and/or denial to the documents, as well as, the pleadings so raised by the Petitioners. 5. The aspect of delay is always a matter of evidence apart from the contract terms and the circumstances. The averments so made by the Petitioners if remained uncontroverted, therefore, still to give finding that there was delay committed by the Petitioners and thereby committed breach of contract is not correct. The Arbitrator in a given case, if the documents are admitted and/or there is no denial to the facts, then based upon that documents, to proceed on award but in a case factual material involved and when one party raises specific plea and even pointing out the delay and reason for their claim against the Respondents-Contractor, and if there is no denial to the same the award so passed in such situation is apparently illegal and impermissible. The Arbitrator has not only rejected the basic claim of the Petitioners but in fact without any counter claim and/or even the pleadings to the effect, awarded the amount in favour of the contractor and against the Petitioners. The Arbitrator has not only rejected the basic claim of the Petitioners but in fact without any counter claim and/or even the pleadings to the effect, awarded the amount in favour of the contractor and against the Petitioners. The assessment so made by the Arbitrator in absence of counter claim and by overlooking the opposite case of the Petitioners, is totally against the settled principle of law. The Arbitrator has also awarded the interest @ 18 % p.a. from the date of cancellation of the contract i.e. 5 February 2008 till the realization. 6. Therefore, taking over all view of the matter, in my view, the award is illegal and contrary to the law and therefore unsustainable in any point of view of the matter. The award, in my view, is perverse and contrary to the provisions of law, as well as, the record. 7. Resultantly, the award is quashed and set aside as regard claim Nos.1 and 4 and also to the extent of grant of award against the Petitioners. 8. However, the matter is remanded back. The Petitioners to appoint a fresh Arbitrator and to proceed in accordance with law. 9. The Petition is accordingly disposed of. There shall be no order as to costs.