Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 281 (CAL)

UNION OF INDIA v. ISCHROTECH

2017-03-14

SANJIB BANERJEE, SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : 1. In view of the good grounds shown by the appellants, the delay in preferring the appeal is condoned and the appeal is taken up for consideration, GA No. 499 of 2017 stands disposed of. 2. The appellants seek to question the order impugned dated November 10, 2016, both on merits and on the ground that this Court did not have the territorial jurisdiction to entertain the respondents petition under section 34 of the Arbitration and Conciliation Act, 1996. 3. It does not appear from the order impugned that the objection as to territorial jurisdiction was raised at all before the single Bench. In any event, no ground is taken in the memorandum of appeal that an objection as to jurisdiction was raised and the same was not considered or recorded in the order impugned. Indeed, the memorandum of appeal does not contain any ground as to territorial jurisdiction. It is elementary that an appeal has to be considered on the grounds indicated in the memorandum. Further, an objection regarding territorial jurisdiction may be given up by a party and the spirit of the rule embodied in section 21 of the Code of Civil Procedure, 1908 would apply and stop a party from raising an objection of such kind for the first time in the appeal. Since the objection as to territorial jurisdiction was not canvassed before the Single Bench nor any ground regarding territorial jurisdiction is taken in the memorandum of appeal, the submission in such regard is without basis and repelled. 4. On merits, the appellants seek to question the rationale in the order that a unilateral amendment was made to the metrix contract without reference to the respondent herein. The Single Bench found that the railways suggested an amendment and, upon the respondent declining to accept such amendment, the contract was cancelled and the risk purchase clause contained therein was invoked by inviting fresh bids for the work or the remainder of the work. The Single Bench found that such aspect of the matter was not considered at all by the arbitral tribunal in declining a substantial claim lodged by the respondent. It is elementary that a contract cannot be altered without the consent of the other parties thereto. The Single Bench found that such aspect of the matter was not considered at all by the arbitral tribunal in declining a substantial claim lodged by the respondent. It is elementary that a contract cannot be altered without the consent of the other parties thereto. The Single Bench considered the principal ground urged by the respondent as one covered under section 28 of the Act of 1996 read with section 34 thereof. In the light of the view taken, the order impugned by which the arbitral award has been set aside cannot be faulted. 5. However, it is evident that in addition to the award being set aside, a fresh reference has been directed to be taken up. In issuing directions for such reference, it appears that the Single Bench has overwritten the arbitration agreement between the parties. The order impugned does not reflect that the railways consented to a different arbitral tribunal than the one recognised in the general conditions governing railway contracts being constituted for the purpose of taking up the reference. Just as the railways could not unilaterally impose an additional clause in the contract without the consent of the respondent herein, the Court could not have overwritten the arbitration agreement or altered the composition or mechanism for the constitution of the arbitral tribunal without the consent of the parties to the arbitration agreement. 6. Accordingly, the order impugned, in its substance, is not interfered with in so far as it set aside the arbitral award. However, the direction given by the order impugned for a fresh reference to be commenced before Advocate named in the order is set aside and the respondent is left free to call upon the appointing authority to constitute a fresh arbitral tribunal in accordance with the arbitration clause governing the metrix contract. In the event such request is made, the appointing authority will take up and act in accordance with law as expeditiously as possible since the claim is of the year 2004. 7. Save the modification as above, the order impugned dated November 10, 2016 is left untouched. 8. APO No. 32 of 2017 and GA No. 528 of 2017 are disposed of on the above basis, but without any order as to costs.