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2024 DIGILAW 2844 (MAD)

V. Ravichandran v. Pushpavalli Suresh Babu

2024-12-19

K.KUMARESH BABU

body2024
ORDER : K. KUMARESH BABU, J. Heard Mr.M.S.Krishnan learned Senior counsel Counsel appearing for the petitioner and Mr.Aravind Pandian, learned Senior counsel appearing for Mr.Hari Shankar Mani, learned counsel appearing for the respondent. 2. Mr.M.S.Krishnan, the learned Senior counsel appearing for the petitioner at the outset would submit that the award suffers from unreasonableness. He would submit that the Arbitrator had just copy-pasted the written submissions of the respondent/claimant by only modifying the first few words of the written submissions. He would submit that under the written submissions, the respondent had opened with the words “humbly submitted”, the same had been replaced by the Arbitrator by the words, which would indicated that “it is the findings, reasoning of the Arbitrator”. He would therefore submit that there has been no application of mind on the part of the Arbitrator. On the conduct of the Arbitrator, he had also alleged bias and would plead that if this Court was of the opinion to call for reasons from the Arbitrator in view of the biased, it may not be proper but would request this Court to set aside the award and appoint a new Arbitrator to hear the parties concern and pass an award based upon the proceedings that had culminated upto the filing of written submissions by respective parties. He had also relied upon the judgment of the Bombay High Court in the case of German Remedies Ltd., Mumbai vs. Pratibhas S. Tiwatane & Anr., reported in 2010 1 MhLJ 761 and contend that there should be a clear distinction between the submissions and the reasons. A submissions of the party in the form of written submission cannot be lifted bodily by the Judicial Officer incorporating them as his own reasons. Even if the Judge is to agree with the submissions of one party, the reasons and language must be in own reasons. In that context, he would submit that the Arbitrator had lifted bodily the written submissions of the respondent and he had not given any reasons as to why the written submission of the respondent is acceptable and the written submissions filed by the petitioners was not acceptable. In that context, he would submit that the Arbitrator had lifted bodily the written submissions of the respondent and he had not given any reasons as to why the written submission of the respondent is acceptable and the written submissions filed by the petitioners was not acceptable. He would also submit that the Arbitrator had not treated the parties equally and only for that reasons, he would submit that if this Court may come to the conclusion that the matter has to be remanded back, then it should be remanded back to the independent Arbitrator. 3. Countering his arguments, Mr.Aravid Pandian the learned Senior counsel on behalf of the respondents would submit that there is no error on the part of the Arbitrator to bodily lift the contentions in the written submission of the respondents to be the findings of the Arbitrator. According to him, the said conduct of the Arbitrator in accepting the submissions made by the respondent and rejecting the submissions made by the petitioner is fair and acceptable. In that context, he had also relied upon the judgment of the Hon'ble Apex Court in the cases of Associate Builders vs. Delhi Development Authority reported in (2015) 3 SCC 49 , National Insurance Company Ltd., vs. Boghara Polyfab Pvt., Ltd. reported in (2013) 4 SCC 688 and Union of India vs. Singh Builders Syndicate reported in (2015) 14 SCC 609 . By placing reliance on the judgments, he would submit that the verbatim reproduction of submissions does not necessarily indicate bias, it is shown that the Arbitrator had arrived at the just and reasonable conclusion based upon the submission and evidence presented by both parties. He would also submit that the judgment of the Bombay High Court relied upon by the learned Senior c ounsel appearing for the petitioner would not be directly applicable to an arbitral proceedings, as it dealt with only the Judicial process and therefore, he would pray this Court to dismiss the petition. 4. In reply, the learned Senior counsel appearing for the petitioner had placed reliance upon the three judgments in the cases of Ssangyong Engineering & Construction Co. 4. In reply, the learned Senior counsel appearing for the petitioner had placed reliance upon the three judgments in the cases of Ssangyong Engineering & Construction Co. Ltd., vs. NHAI reported in (2019) 15 SCC 131 , ONGC vs. Saw Pipes Ltd., reported in (2003) 5 SCC 705 would contend that when the award so unfair and unreasonable is challenged before the Court and that an award had been passed ignoring the vital evidence in arriving at a decision, the same would be perverse and is liable to be set aside. He would contend that no findings or reasoning have been attributed by the Arbitrator in passing the award and it is solely based on the verbatim repetition of the written submissions of the respondents. 5. Even though the arguments were made by the learned counsels appearing on either side with regard to the merits of the case, considering the fact that a primordial contention had been raised that the award itself is non est award as no reasons have been attributed by the Arbitrator except verbatim repetition of the written submissions of the respondent, I am inclined to deal with the said issue. 6. I had perused the award made by the learned Arbitrator and compared the same in juxtaposition with the written submissions submitted by the respondent. 7. The written submissions of the respondent had been divided into various “sub-headings” it had also included the claim in brief, counter statement and counter claim in brief, reply statement of the claimant in brief, the rejoinder filed in brief and thereafter, proceeded to answer each of the issues. Now coming to the award impugned herein, which had been thoroughly gone through by me, I could see that the award passed by the Arbitrator also proceeds based on the very same “headings” given by the respondent in the written submissions. The reasoning and findings of the Arbitrator is just replica of the written submissions of the respondent under the very same headings and thereafter the learned Arbitrator had passed the final award and had answered the issues framed all in favour of the respondent. I do not find any discussion with regard to the written arguments made by the petitioner vis-a-vis the written arguments submitted by the respondents and the same being considered by the Arbitrator to arrive at a decision. I do not find any discussion with regard to the written arguments made by the petitioner vis-a-vis the written arguments submitted by the respondents and the same being considered by the Arbitrator to arrive at a decision. In such view of the matter, I am of the considered view that the Arbitrator had not applied his mind and had verbatim replicated the written arguments of the respondent alone without even assigning any reasons as to how such claim in the written submissions are entertained. 8. Even though the learned counsel appearing for the respondent had contended that the judgment of the Bombay High Court arose only in a case relating to judicial process and not arbitral proceedings, it is to be noted that an Arbitrator is entering upon a reference to resolve the dispute between the parties by considering the claims made against each other and coming to a decision on such claims made. Even though, an Arbitrator is a creature of a contract and a Judge is a creature of constitution or statute, the functions of both the creature are that they should consider the rival submissions made by the parties and thereafter come to a conclusion based upon definite reasoning and findings. In the present case, I do not find any reasoning or findings that had been given by the Arbitrator by considering the submissions of both the petitioner and the respondent. Hence, the award suffers from the voice of non-application of mind, unreasonableness and perversity. 9. The learned counsel appearing for the respondent had relied upon the three judgments in his written submissions of which I was only able to trace one of them, viz., the judgment reported in (2015) 3 SCC 49 . The said judgment arises out of a foreign arbitration award does not deal with the issue as claimed by respondent. The other two judgments on the citation was not traceable, but based upon the cause title given, related to a different citation and the said judgment also did not relate to the point that the learned counsel appearing for the respondent sought to project. Further as rightly pointed out by the learned Senior counsel appearing for the petitioner that when the award is so unfair and perverse, the same could be set aside. 10. Further as rightly pointed out by the learned Senior counsel appearing for the petitioner that when the award is so unfair and perverse, the same could be set aside. 10. For the foregoing reasons, I am of the conclusive view that the award is so unfair which shocks conscience of the Court as being just a repetition of the arguments submitted by the respondent without analysing the arguments of the petitioner and also ignoring evidence that had led during the arbitral proceedings. Hence, I am not hesitated to set aside the award, but however, considering the fact that the respondent/claimant should not be left high and dry for the mistake committed by the Arbitrator and also taking into consideration the allegation of bias made by the learned Senior appearing for the petitioner, I am inclined to remit the matter back to the newly appointed Arbitrator by this Court to deal with the Arbitration proceedings from the stage on which the written submissions have been filed. The Arbitrator appointed will conduct proceedings on the basis of the evidence recorded by the earlier Arbitrator and the pleadings filed before the earlier Arbitrator and also evidence recorded. The Arbitrator shall proceed to hear the learned counsel appearing on either side and pass a reasoned award. For carrying on the said exercise, I am inclined to appoint Mr.E.Om Prakash, learned Senior counsel as an Arbitrator. Considering the fact that the parties have already parted with the fees to the Arbitrator as per the schedule, I am also inclined to fix the fees for the limited exercise that is to be performed by the Arbitrator by consolidating his fees for a sum of RS.2,00,000/-. It is further made clear that if the hearing at request of the either of the parties is sought to be postponed, the party who seeks adjournment shall pay an additional sum of Rs.1,00,000/- to the Arbitrator for each of such adjournment. 11. In fine, the impugned award passed by the Arbitrator is set aside and remitted back to the Arbitrator newly appointed by this Court on the terms indicated above. Accordingly the Arbitration Original Petition is allowed. However, there shall be no order as to costs. Consequently connected Applications are closed.