TMI Blog2019 (10) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, the categorical findings arrived at by the Arbitral Tribunal are to the effect that the termination of the contract was illegal and without following due procedure of the provisions of the contract. The findings are on appreciation of evidence considering the relevant provisions and material on record as well as on interpretation of the relevant provisions of the contract, which are neither perverse nor contrary to the evidence in record - as such, the First Appellate Court and the High Court have rightly not interfered with such findings of fact recorded by the learned Arbitral Tribunal. Once the finding recorded by the learned Arbitral Tribunal that the termination of the contract was illegal is upheld and the claims made by the claimants have been allowed or allowed partly, in that case, the counterclaim submitted by the petitioners was liable to be rejected and the same is rightly rejected. SLP dismissed. - Special Leave To Appeal ( C ) No. 13117 of 2019 - - - Dated:- 18-10-2019 - Arun Mishra And M. R. Shah, JJ. JUDGMENT M. R. Shah, J. 1. Aggrieved by the impugned judgment and order dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and complied with the deficiencies. In reply to the aforesaid letters, the petitioners issued letters dated 23.12.2011 and 28.12.2011 asking the claimants to ensure compliance of the pending issues. That by letter/communication dated 09.02.2012, the petitioners served a notice upon the respondents terminating the contract with effect from 12.03.2012. The said termination notice was issued under Clause 2.9.1(a) and (d) of the GCC. The respondents-original claimants replied to the said termination notice by letters dated 16.02.2012 and 24.02.2012 and requested the petitioners to reconsider the matter. However, the dispute between the parties was not resolved. The respondents-original claimants served a legal notice dated 10.03.2012 and invoked the arbitration clause 2.9.1(a). Pursuant to the order passed by the High Court, the Arbitral Tribunal was constituted. 2.1 The Arbitral Tribunal comprised of nominees of the rival parties and a retired Judge of the Jharkhand High Court as the Presiding Arbitrator. The respondents-original claimants claimed a total sum of ₹ 5,17,88,418/under 13 different heads, excluding interest. The petitioners also filed a countercl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Claim 4 Claim towards Laboratory set up at site 4,41,000 Disallowed Claim 5 Demobilisation of staff 5,00,000 Disallowed Claim 6 Bank Guarantee charge for extended period 33,730 Disallowed Claim 7 Claim towards cost incurred to submit record to EE in person 1,28,500 Disallowed Claim 8 Loss of profit (for 24 months extension period) 1,18,54,639 19,75,733 Partly allowed Claim 9 Claim against Encashment of BG 14,08,765 13,90,000 Partly allowed Claim 10 Claim towards solicitor and advocates payments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that the arbitral award was passed contrary to the materials on record. 3.1 It is vehemently submitted by the learned counsel appearing on behalf of the petitioners that the High Court has materially erred in not properly considering that the suspension under the agreement was not the suspension of work per se, rather was suspension of all payments to the consultants and therefore there was no question of dilution/go bye of the suspension letter. It is further submitted by the learned counsel appearing on behalf of the petitioners that the High Court has not properly appreciated/considered the scheme of the contract. It is submitted that in case of non-performance of the contract satisfactorily, the first step was suspension of payment and if the failure in performance is not remedied, then the consequence which follows is the next step that being notice of termination by issuing 30 days notice. It is submitted that suspension is either operative or revoked by resuming the payments, for, suspension is suspension of payment and not suspension of work/contract. It is submitted that therefore the High Court has materially erred in confirming the findings recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the contract was illegal and without following due procedure as required under the relevant provisions of the contract. 6.1 In the case of Progressive-MVR (supra), after considering the catena of decisions of this Court on the scope and ambit of the proceedings under Section 34 of the Arbitration Act, this Court has observed and held that even when the view taken by the arbitrator is a plausible view, and/or when two views are possible, a particular view taken by the Arbitral Tribunal which is also reasonable should not be interfered with in a proceeding under Section 34 of the Arbitration Act. 6.2 In the case of Datar Switchgear Ltd. (supra), this Court has observed and held that the Arbitral Tribunal is the master of evidence and the findings of fact which are arrived at by the arbitrators on the basis of the evidence on record are not to be scrutinized as if the Court was sitting in appeal. In para 51 of the judgment, it is observed and held as under: 51 Categorical findings are arrived at by the Arbitral Tribunal to the effect that insofar as Respondent 2 is concerned, it was always ready and willing to perform its contractual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and/or contrary to the evidence and/or the same is against the public policy. (see Associate Builders v. DDA (2015) 3 SCC 49 etc.) 6.3 In the present case, the categorical findings arrived at by the Arbitral Tribunal are to the effect that the termination of the contract was illegal and without following due procedure of the provisions of the contract. The findings are on appreciation of evidence considering the relevant provisions and material on record as well as on interpretation of the relevant provisions of the contract, which are neither perverse nor contrary to the evidence in record. Therefore, as such, the First Appellate Court and the High Court have rightly not interfered with such findings of fact recorded by the learned Arbitral Tribunal. 6.4 Once it is held that the termination was illegal and thereafter when the learned Arbitral Tribunal has considered the claims on merits, which basically were with respect to the unpaid amount in respect of the work executed under the contract and loss of profit. Cogent reasons have been given by the learned Arbitral Tribunal while allowing/partly allowing the respective claims. It is required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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