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2020 DIGILAW 333 (CAL)

State Of West Bengal v. Pam Development Private Limited

2020-03-03

MOUSHUMI BHATTACHARYA

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JUDGMENT Moushumi Bhattacharya, J. - The impugned Award under challenge in this application under Section 34 of The Arbitration and Conciliation Act, 1996 (the Act) is of a learned Sole Arbitrator and is dated 21st January, 2010. 2. The disputes and differences between the parties arose out of a contract relating to a "Special Repair Programme 2000-2001" for different stretches of the National Highway-II under the Hooghly Highway Division No. II, for which the petitioner published a tender and the respondent was selected as the successful bidder. A formal work order was issued by the petitioner in favour of the respondent on 26th March, 2001 and the work was to be completed within a period of six months under the contract. Due to disagreements arising between the parties, the respondent invoked the arbitration clause in the contract by its letter dated 20th June, 2003 and the learned Sole Arbitrator was appointed thereafter in an application under Section 11 of the 1996 Act. 3. The respondent herein was the claimant before the learned Arbitrator. The respondent made several claims including for hire charges of land for installation of machinery, camp office, etc., idle charges for plant and machinery for the failure of the concerned department of the respondent to ensure cash flow, idle labour and equipment charges, refund of security deposit, amount for price escalation of all materials and dues pending with the department against the work executed and a claim for interest, etc. 4. By the impugned Award, claim no.1 of the respondent for Rs.1,30,000/- for hire charges of land arranged by the respondent/claimant for installation of machinery etc beyond the initial contracted period was rejected by reason of the claim being contrary to the special conditions of contract and for the respondent not being able to prove the said claim. Claim nos.2 to 8(b) which were for idle charges of plant and machinery, idle labour charges, dues pending with the respondent against work executed, refund of security deposit, loss of profit, price escalation, interest at the rate of 8% per annum on the delayed payment of the executed work and on the matured security deposit were allowed by the learned Arbitrator. The learned Arbitrator further held that the claims shall carry simple interest at the rate of 18% per annum from the date of the Award until payment. The learned Arbitrator further held that the claims shall carry simple interest at the rate of 18% per annum from the date of the Award until payment. Costs claimed by the respondent in its letter dated 14th July, 2009 for Rs.6,40,900/- were also allowed. 5. Mr. Jishnu Chowdhury and Mr. Ratul Das, learned counsel appearing for the petitioner, assails the Award on the ground of absence of reasons. Counsel submits that the learned Arbitrator has not referred to any of the documents placed before him and in any event the reasons given are insufficient. Counsel relies on Dyna Technologies Pvt. Ltd. Vs. Crompton Greaves Limited,2019 SCCOnlineSC 1656 for the proposition that reasons must be sufficient, adequate and intelligible. Counsel also relies on Som Datt Builders Limited Vs. State of Kerala, 2009 10 SCC 259 and on State of West Bengal Vs. Bharat Vanijya Eastern Private Limited,2019 SCCOnlineCal 3605 to urge that an Award is liable to be set aside for lack of reasons. It is submitted that the balance claims were allowed without any finding on the question of quantification and the Award does not record the reasons for the Arbitrator being satisfied as to why the claims contained in the letter dated 26th May, 2003 of the respondent should be allowed. 6. Mr. Aniruddha Mitra, learned counsel appearing for the respondent/claimant submits that ten years have passed since the impugned Award and that the work had been completed by the respondent contractor to the full satisfaction of the State. Counsel contends that there are adequate reasons for sustaining the Award and that the Arbitrator has referred to several documents including a letter dated 8th May, 2003 of the respondent with hand written endorsements, a certificate dated 19th May, 2003 issued by the Executive Engineer of the petitioner and a letter dated 24th June, 2003, including enclosures containing the claim of the respondent of 26th May, 2003. Counsel submits that the time for completion of the work was six months as stipulated in the work order but the period was extended thereafter and the work was duly completed on 28th February, 2002 within the extended period of time which would be evident from the endorsement by the concerned authorities/engineers in the letter dated 8th May, 2003. Counsel submits that the time for completion of the work was six months as stipulated in the work order but the period was extended thereafter and the work was duly completed on 28th February, 2002 within the extended period of time which would be evident from the endorsement by the concerned authorities/engineers in the letter dated 8th May, 2003. The endorsements also certify that the work had been completed to the entire satisfaction of the State Authorities and no penalties were imposed on the respondent contractor. A certificate was issued by the Executive Engineer, Hooghly Highway Division on 19th May, 2003 recording that the petitioner had only been paid Rs.83,00,000/- against the total value of the work done of Rs.1,04,58,875/- "up to the 2nd R.A. Bill, which is yet to be paid due to paucity of fund(s)". According to counsel, this is a clear admission of liability on the part of the petitioner. Counsel also refers to a letter of the Executive Engineer dated 24th June, 2003 enclosing the claim letter of the respondent (dated 26th May, 2003) stating "(the) inability for meeting up the existing liabilities......unless the adequate fund against the said head of accounts is obtained from the competent authority". Counsel submits that this is a clear admission of liability on the part of the petitioner State. It is further submitted that there is no contemporaneous letter from the petitioner disputing the claim of the respondent contractor contained in the letter dated 26th May, 2003. Counsel submits that the petitioner had also produced a witness being the Sub-Assistant Engineer who was present in the concerned division at the time of execution of the work as well as the relevant R.A. Bills. Counsel takes the additional point that despite an order dated 10th November, 2016 passed by this court directing the parties to produce all the documents before the learned Arbitrator, the petitioner has failed to produce the third and final R.A. Bill as well as the Measurement Book pursuant to such direction. Counsel submits that the admission of the petitioner with regard to the work done by the respondent contractor would be evident from these two documents. The petitioner has also not produced these documents before this Court in the present proceeding despite letters written by the respondent to the petitioner in this respect. Counsel submits that the admission of the petitioner with regard to the work done by the respondent contractor would be evident from these two documents. The petitioner has also not produced these documents before this Court in the present proceeding despite letters written by the respondent to the petitioner in this respect. Counsel submits that the certificate dated 19th May, 2003 and the letter dated 24th June, 2003, both issued by the Executive Engineer are instances of a clear admission of liability on the part of the petitioner. The third and final R.A. Bill and the Measurement Book would reinforce such admission of liability and that the petitioner State has no defence to the claims of the respondent contractor. Counsel relies on Dyna Technologies Private Limited Vs. Crompton Greaves Ltd.,2019 SCCOnlineSC 1656 where the Supreme Court has advised deference to the views of the Arbitral Tribunal where the reasoning provided in the Award is implied unless the Award is held to be perverse under Section 34 of the Act. 7. Counsel relies on several facts subsequent to the Award to show the bona fides of the respondent/contractor's claim. The petitioner State filed an application for stay of the Award which was allowed by this court without requiring the petitioner State to furnish security under Order XXVII Rule 8- A of The Code of Civil Procedure, 1908. The respondent/Award holder preferred a Special Leave Petition against this order which was allowed by the Supreme Court (on 12th July, 2019) and the order dated 13th December, 2018 granting unconditional stay of the Award was quashed. The Supreme Court further granted liberty to the respondent award holder to pray for release of the amount of Rs.2.75 crores which had been attached by the State in the execution proceedings by an order dated 3rd October, 2018. On 26th August, 2019, the Supreme Court further clarified the directions given in its earlier order directing the State (petitioner) to release the attached amount within eight weeks. In view of the non-payment of the attached money, the respondent initiated contempt proceedings against the petitioner and a modification application was filed by the petitioner State seeking modification of the orders passed by the Supreme Court on 12th July, 2019 and 26th August, 2019. The said modification application was dismissed by the Supreme Court by an order dated 6th December, 2019. The said modification application was dismissed by the Supreme Court by an order dated 6th December, 2019. Liberty was also granted to the respondent to pray for release of the balance amount before the Executing Court. Counsel submits that the attached amount of Rs.2.75 crores has since been paid to the respondent. 8. Upon considering the submissions of learned counsel appearing for the parties and the Award impugned, this court is not inclined to annul the Award on the ground of insufficient or no reasons being discernible from the Award. Long-winded reasoning and a detailed reference to the evidence is not the sole benchmark of an Award passing muster under Section 31(3) of the 1996 Act which requires the Arbitrator to state the reasons upon which the Award is based unless the parties decide otherwise. Reference to documents together with the reasons as to why such documents are relevant for either granting or negating the claims of a party is sufficient for assessing whether the Tribunal has applied its mind to the case before it. With regard to claim no.1 (for hire charges of land for installation of machinery, etc. beyond the contracted period), the learned Arbitrator has rejected the said claim on account of the claim being contrary to the special conditions of contract and the failure of the respondent to prove the claim. In respect of claim nos. 2 to 8(b) (for idle charges of plant, machinery and labour, dues against executed work, refund of security deposit, loss of profit for the balance work beyond the original stipulated contractual period, amount for price escalation, interest rate of 8% on the delayed payment of the executed work and for the matured security deposit) have been allowed with reference to the letter issued by the respondent contractor dated 26th May, 2003 by which the respondent had claimed compensation under different heads and for funds to clear the dues according to the details provided in the said letter within a period of 15 days. The Arbitrator has also referred to the respondent's letter of 8th May, 2003, which was taken into account by the Executive Engineer of the petitioner in his letter dated 19th May, 2003. The Arbitrator found that in the letter of the Executive Engineer, there has been an explanation for the petitioner's failure to pay the respondent contractor on the ground of "paucity of fund(s)" of the department. The Arbitrator found that in the letter of the Executive Engineer, there has been an explanation for the petitioner's failure to pay the respondent contractor on the ground of "paucity of fund(s)" of the department. The Arbitrator accordingly found that none of the claims have been disputed by the petitioner in the letter dated 19th May, 2003 and also that the petitioner did not come forward to explain the letter which included the Superintendent Engineer who was the recipient of the letter dated 8th May, 2003. The Arbitrator allowed Claim No.2 to 8(b) of the respondent on that basis was of the view and that the said claims should carry interest of 18% per annum from the date of the Award until payment. 9. In Dyna Technologies, the Supreme Court held that Arbitral Awards should be left untouched unless the court comes to a conclusion that the perversity of the Award goes to the root of the matter. It was further held that unintelligible reasons are no reasons at all. Som Datt Builders considered an Award on the mandate of Section 31(3) of the Act and that it was obligatory for the Arbitral Tribunal to state the reasons in the Award. In Bharat Vanijya, a Division Bench of this court reinforced the primacy of reasons for indicating the application of mind of the Arbitrator to the matter in issue and reasons being the lifeblood of any adjudication. The court also held that it is the quality and not the quantity of the reasons which would matter in a Section 34 application. In Bharat Vanijya, the court found that the Arbitrator had not allowed the defence of the State in connection with the deduction from the running account bills submitted by the contractor. The court found that the Arbitrator failed to refer to a single ground of objection raised by the state and referred to the Arbitrator's admission of the issue of deduction being beyond his understanding. The decision in Bharat Vanijya was on the peculiar nature of the Award where the entire discussion was found to be a reproduction of the notes of arguments submitted by the parties and also on the basis of the amounts awarded not being indicated in the Award. 10. Som Datt Builders, Bharat Vanijya and Dyna were all concerned with Awards where no reasons had been assigned at all. 10. Som Datt Builders, Bharat Vanijya and Dyna were all concerned with Awards where no reasons had been assigned at all. The Awards were hence found to be against the mandate of 1996 Act and section 31(3) in particular. Dyna also dwelt on unintelligible Awards and made a distinction between inadequacy of reasons and unintelligible Awards. Kinnari Mullick Vs. Ghanshyam Das Damani, 2018 11 SCC 328 has also been relied upon on the point of absence of reasons disclosed in the Award. In the aforesaid case as well as in Som Datt Builders, the Supreme Court remitted the Awards to the Arbitral Tribunal for curing the grounds taken for challenging the Awards. 11. The present case cannot be equated with the decisions relied on by the petitioner save to the extent of the note of caution sounded in paragraph 27 of Dyna Technologies, "27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act." Reasons may be "implied" when the application of mind by the arbitrator can be gleaned from a reference to specific documents on which the finding is based. There is a difference between cases which disclose a muddled allusion to facts resulting in an intelligible award which confounds the parties or the Court reading it and that where the reasons fall short of elaboration but disclose a tenable link between the fact/document and the conclusion. The present case falls in the second category. 12. The Award refers to the specific correspondence between the parties leading to the inescapable conclusion that the petitioner was unable to make payment of the respondent's dues due to a fund-crunch. The fact that the learned Arbitrator did not gloss over the facts to do rough and ready justice would also be evident from his rejecting claim no.1 of the respondent/claimant since the respondent was unable to prove the said claim. The fact that the learned Arbitrator did not gloss over the facts to do rough and ready justice would also be evident from his rejecting claim no.1 of the respondent/claimant since the respondent was unable to prove the said claim. Moreover, the fact that the Executive Engineer of the petitioner State who had written the letter of 19th May, 2003 admitting that the claims of the respondent remained outstanding did not proffer any explanation for the same or the other recipient of the respondent's letter failing to do the same is an acceptable reason for the Arbitrator concluding that the claims have not been disputed by the petitioner and should, therefore, be allowed. With regard to the costs claimed by the respondent by its letter dated 14th July, 2009, this court was able to find a Minutes dated 14.07.2009 of the 82nd Arbitral Sitting which refers to a statement dated 14th July, 2009 submitted by counsel for the respondent. A copy of the statement contained in a letter dated 14.07.2009 of the respondent was handed over during the course of submission and refers to an itemised statement of expenses incurred by the respondent for the arbitration proceedings. The items of expenses incurred consist of specific sums of money in connection with the actual cost for the arbitration. This statement has not been disputed by the petitioner. 13. On the issue of admission of liability, as found by the learned Arbitrator, the petitioner did not disclose the third and the final R.A. Bills which were produced before the Tribunal. Although, the fact of the petitioner not disclosing the third and final R.A. Bills which were produced before the Tribunal but not in this court cannot be gone into for supplementing the reasons given by the Arbitrator in coming to the conclusion, such failure has to be seen against the orders passed at the stage of stay of operation of the Award and the orders of the Supreme Court allowing the respondent Award holder to pray for release of the amount attached in the execution proceeding. The amount of Rs.2.75 crores has already come into the kitty of the respondent and would naturally be subject to the present application. The other relevant fact is that the Award is of 21st January, 2010. The amount of Rs.2.75 crores has already come into the kitty of the respondent and would naturally be subject to the present application. The other relevant fact is that the Award is of 21st January, 2010. More than a decade has passed thereafter and the parties are still fighting as to whether the claims of the respondent should be paid by the petitioner for the work done in 2003. In Dyna, the Supreme Court had, in fact, taken note of this very issue, namely of a protracted litigation and had considered it appropriate to direct the parties to settle their claims once and for all. Since the Award has been upheld by this judgment, the amount of Rs.2.75 crores will remain with the respondent pending further proceedings by the parties herein in relation to the Award. 14. A.P. No. 212 of 2010 is disposed of in terms of the direction as stated above. Urgent Photostat certified copy of this Judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.