TMI Blog2015 (1) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... misuse of jurisdiction which could shock the conscience of the Court. What the appellant really wants from this Court exercising jurisdiction under Section 37 of the 1996 Act is to enter into re-appreciation of evidence. We also find that reasons were given by the Arbitral Tribunal for rejecting the counterclaim by the learned Arbitrator. Appeal disposed off. - Comm. Appeal No. 01 of 2018 - - - Dated:- 30-1-2015 - HON'BLE THE CHIEF JUSTICE AND HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant : Mr. Atanu Banerjee, G. A For the Respondent : Mr. Anil Kumar, Sr. Advocate, Ms. Chandana Kumari, Advocate ORDER Aniruddha Bose, CJ The appeal arises out of acontractual dispute between the State and the opposite parties in relation to a consultancy agreement over construction of six-lane Divided Carriage-way of certain parts of Ranchi Ring Road. The respondent nos. 1 and 2 acted as a consortium for providing such consultancy and supervisory services. The contract, a copy of which has been produced before us by Mr. Banerjee, learned counsel for the appellants-State, appears to be a standard form contract for Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The Arbitral Tribunal comprised of nominees of the rival parties and a retired Judge of this Court as the Presiding Arbitrator. There was claim for ₹ 5, 17, 88, 418/-under 13 heads excluding interest. TheState referred to in the contract as the client had also made counterclaimfor ₹ 6, 00, 78, 736. 00/-under five heads. The claim primarilyinvolved unpaid amount in respect of work executed under the contract, loss of profit and overhead chargesapart from other consequential claims arising out of termination. The claimant contendedthat such termination was illegal, not being in accordance with the terms of the contract. The nature of counterclaims, on the other hand was for reimbursement on account of unsatisfactory performance by the claimant. That formedmajor part of the counter claim. So far as this appeal is concerned, we do not consider it necessary to reproduce each and every head of claim. 4. In theaward, the Tribunal was unanimous in its finding that termination of the contractwas illegal and invalid. Question of legality of the termination wasdealt with by the Arbitral Tribunal in the following manner:- 17. Now the question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e occurrence of any of the events specified in paragraphs (a) through (g) of this Clause GC2. 9. 1, terminate this contract. (a) If the Consultants fail to remedy a failure in the performance of their obligations hereunder, as specified in a notice of suspension pursuant to Clause CG 2. 8 above, within thirty (30) days of receipt of such notice of suspension or within such further period as the Client may have subsequently approved in writing. . . . . . . . . . . . (d) If the Consultants submit to the Client a statement which has a material effect on the rights, obligations or interests of the Client and which the Consultants know to be false. 25. As already noticed above, the suspension letter dated 12. 12. 2011 was given a go bye/dilutedby the Respondents themselves and therefore Cl. 2. 9. 1(a) was not attracted, on the basis of which the contract was terminated. 26. However the Claimant replied to the said termination notice by letters dated 16. 02. 2012 and 24. 02. 2012 and requested the Respondents to reconsider the matter. The Claimant is justified in arguing that this letter was for amicable settlement in terms of Cl. 8 of G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for appointment of a sole arbitrator by filing an application being Arbitration Application No. 8 of 2012. The Respondents filed counter affidavit. The said application was disposed off on 17. 05. 2013, constituting this arbitral tribunal. 33. During the pendency of the said Arbitration Application, the Respondents encashed the Bank guarantee of the Claimant on 22. 11. 2012. 34. During the hearing when asked by us, the Respondents could not show how Cl. 2. 9. 1(d) was attracted. Then they accepted that Cl. (d) was written in the notice by mistake. This also shows non application of mind on the part of the Respondents. 35. In the facts and circumstances noticed above, it has to be held that the termination of the contract was illegal and invalid. Firstly, whenever the Respondents raised issuesand/or alleged deficiencies, the Claimant replied/complied to the issues/allegations. But there was no final word from the Respondents, specifying the deficiencies, which theClaimant failed to remedy. Secondly the Respondents themselves gave a go bye and diluted the suspension notice, by asking the Claimant to ensure compliance of the pending issues. Thirdly, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows that the learned Arbitrators have duly dealt with the matter and thereafter the detailed well-reasoned Award has been passed. They have dealt with each and every aspect of the matter. The findings arrived at by the learned Arbitrators are supported by cogent reasons and detailed proceedings. After considering the record and testimonies of witnesses etc. the impugned Award has been passed. 22. In these circumstances, this court is of the view that the impugned Award passed by learned Arbitrators is well reasoned award. This Court is not required to appreciate, re-evaluate the findings before the learned Arbitrators. The learned Arbitrators have duly explained for arriving at its decision. 23. Therefore, in view of the above said discussion and after considering the contentions of learned counsel for parties and in view of the various authoritative pronouncements discussed above and as this court is not sitting in appeal against the impugned Award passed by three arbitrators and the court is not required to re-appreciateor re-evaluate the evidence lead before the learned Arbitrator, the objector has failed to show how the passing of the impugned award is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercisingits jurisdiction under Section 34 of the 1996Actcannot undertake the exercise of re-appreciation of evidence except on very limited ground specified in the case of OIL Natural Gas Corporation Ltd. versus Saw Pipes Ltd, reported in (2003) 5SCC 705and further elaborated by asubsequent authority, Associate Builders Versus Delhi Development Authority, reported in (2015) 3 SCC 49. To examine the contentions raised by Mr. Banerjee, we would have to engage ourselves in reappreciation of evidence, which is impermissible at this stage. We have already opined our inability to do so earlier in this judgment. 10. We do not find involvement of any grave violation of public policy by the Arbitral Tribunal in passing the award. The facts narrated in the award do not project any gross misuse of jurisdiction which could shock the conscience of the Court. What the appellant really wants from this Court exercising jurisdictionunder Section 37 of the 1996Actis to enter into re-appreciation of evidence. We also find that reasons were given by the Arbitral Tribunal for rejecting the counterclaim by the learned Arbitrator. Our findings, so far as reasons given by the learned Arbitrat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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