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2017 (12) TMI 1856 - SC - Indian LawsValidity of Arbitral Award - Termination of contract - levy of penalty - HELD THAT:- The arbitrator has taken note of the peculiar features of the contract inter se the parties that while the work of excavation of the earth, its loading into the trucks, unloading and transportation to site of the work was awarded to the Appellant as contractor, the spreading of the earth brought to the site of the work by the contractor and its compaction was to be done by the Respondent Department itself. It is, thus, that the Appellant claimed that even though they had taken up the work with right earnest to complete it within the scheduled period, the breaches of the Respondent has caused the delay. The dispute in question had resulted in a reasoned award. It is not as if the arbitrator has not appreciated the evidence. The arbitrator has taken a plausible view that the very nature of job to be performed would imply that there has to be an area for unloading and that too in the vicinity of 5 kilometres as that is all that the Appellant was to be paid for. The route was also determined. In such a situation to say that the Respondent owed no obligation to make available the site cannot be accepted by any stretch of imagination. The unpreparedness of the Respondent is also apparent from the fact that even post termination it took couple of years for the work to be carried out, which was meant to be completed within 45 days. The ability of the Appellant to comply with its obligations were inter dependent on the Respondent meeting its obligations in time to facilitate appropriate areas for unloading of the earth and for its compacting. At least it is certainly a plausible view. It has been opined by this Court that when it comes to setting aside of an award under the public policy ground, it would mean that the award should shock the conscience of the court and would not include what the court thinks is unjust on the facts of the case seeking to substitute its view for that of the arbitrator to do what it considers to be "justice." The learned single Judge ought to have restrained himself from getting into the meanderings of evidence appreciation and acting like a second appellate court. In fact, even in second appeals, only questions of law are to be determined while the first appellate court is the final court on facts. In the present case the learned single Judge has, thus, acted in the first appeal against objections dismissed as if it was the first appellate court against a decree passed by the trial court. Appeal allowed.
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