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TMI Blog2021 (7) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... itral Tribunal and the order passed by the District Judge dated 25th February 2016, rejecting the application filed by the Respondent No. 1 herein Under Section 34 of the Arbitration Act. 2. The facts necessary for adjudication of the present appeals are as under: The Respondent No. 1-The Board of Trustees of V.O. Chidambranar Port Trust, Tuticorin (hereinafter referred to as 'TPT') issued a global tender on 9th April 1997, inviting bids for development of the Seventh Berth at V.O. Chidambranar Port, Tuticorin as a Container Terminal and for operating and maintaining the same for 30 years on a Build, Operate and Transfer (hereinafter referred to as 'BOT') basis. In response to the tender, the Appellant-PSA Sical Terminals Pvt. Ltd. (hereinafter referred to as 'SICAL') submitted its bid on 24th October 1997. The financial offer was submitted by SICAL on 19th December 1997. Since SICAL's offer was the highest, the same was accepted and a Letter of Intent (hereinafter referred to as 'LoI') was issued to it on 29th January 1998 and the same was followed by a License Agreement dated 15th July 1998. 3. In the meantime, the Tariff Authority for Majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed only for the period up to which such likely loss would arise. It further provided that this would not be applicable if there is a provision in the concession agreement on treatment of royalty/revenue share. 6. On 17th August 2005, a Memorandum of Compromise (hereinafter referred to as the 'MoC') came to be filed before the Madras High Court between SICAL, GoI and TAMP who were parties to the Writ Petition Nos. 40637-40639 of 2002. As per the said MoC, SICAL was to submit a proposal to the Ministry of Shipping and Transport, GoI in the matter of permitting royalty to be allowed to be factored into cost while fixation of tariff for the period prior to 31st March 2005. It was also clarified that for the period thereafter, new guidelines provide the manner and mode in which this has to be done. The MoC provided that on receipt of the proposal, the Central Government would consider the same and pass appropriate orders consistent with the policy decision of the Government of India (hereinafter referred to as the 'GoI') in the matter of Chennai Container Terminal Limited (hereinafter referred to as the 'CCTL') dated 5th August 2003 and accordingly issue a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he TAMP order dated 23rd August 2006 and the GoI directive dated 17th April 2006. The said order was passed on the ground that SICAL was not given sufficient opportunity of being heard by TAMP and GoI and therefore, directed TAMP and GoI to pass fresh order after giving opportunity of hearing to the SICAL. 11. In pursuance of the order passed by the High Court, the GoI issued a directive on 20th February 2008, therein considering the contentions raised on behalf of SICAL. The said directive provided that TAMP, while fixing the tariff in case of SICAL, should take into consideration the benefit given in the case of CCTL. 12. TAMP vide notification dated 26th February 2008, notified the guidelines for upfront tariff fixation for Public Private Partnership projects at Major Ports. 13. In pursuance of the order passed by the High Court dated 21st August 2007, the Chairman, TPT passed an order on 25th April 2008, observing therein that any change in the bidding parameter is a matter of policy regarding which a decision can be taken only by the GoI and in effect, rejected the proposal of SICAL for amending the License Agreement, so as to incorporate the revenue sharing method. 14. SI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , TPT requesting for referring the dispute for arbitration Under Article 15.3 of the License Agreement. The said request came to be rejected by the Chairman, TPT vide communication dated 28th September 2011. 17. In the meanwhile, the proposals submitted by SICAL as well as TPT were being considered by the Expert Committee. On 30th April 2012, District Judge, Tuticorin passed an order thereby allowing the Section 9 petition filed by SICAL and made absolute the ad-interim injunction granted in its favour. Thereafter, there was exchange of certain communications between SICAL and TPT with regard to the submission of performance bank guarantee at an escalated rate. In the meantime, TPT challenged the order of injunction granted by the District Judge by filing an appeal being C.M.A.(MD) No. 1131 of 2012 and the same is pending consideration before the Madurai Bench of the Madras High Court. SICAL addressed a letter dated 19th November 2012, invoking arbitration Clause Under Article 15.3 of the License Agreement. In the meantime, on 8th August 2013, TAMP issued 2013 Guidelines for determination of tariff for projects at Major Ports. 18. On 5th April 2013, SICAL filed its Statement of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law in Article 14 is wide enough and includes any valid act, ordinance, rule, Regulation, notification, directive, orders, policy, bye-laws, administrative guidelines, ruling or instruction having the force of law, enacted or issued by Government Authority. The learned Senior Counsel submitted that Article 14.3 also provides that subject to the provisions of Article 15.3, the Licensee shall not be entitled to any compensation whatsoever from the Licensor as a result of change in law. He submitted that if Article 14.3 is read in the correct perspective, it will be clear that compensation is not provided to the Licensee on account of any change in law inasmuch as a relief could be provided to the Licensee by suitably amending the terms of the agreement when such a change substantially and adversely affects the rights of the Licensee. He submitted that the said Article is a unique one. 22. Dr. Singhvi submitted that the Nhava Sheva Container Terminal Limited (hereinafter referred to as the 'NSCT') was the first project which was built on BOT basis. The second one being the Seventh Berth of TPT. He submitted that these are the only projects wherein royalty method has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is permitted, SICAL would not be in a position to continue its operations. He submitted that SICAL has provided a minimum guarantee to lift a minimum of 4.5 lakh tons of cargo. He submitted that this has been rightly appreciated by the Arbitral Tribunal wherein it has observed that if such a position is permitted to continue, it will substantially and adversely affect SICAL. He submitted that a chart at Page No. 1132 shows that SICAL would incur a gross loss of Rs. 2250 crores. He further submitted that TAMP and the GoI have acted in a discriminatory manner. He submitted that when in case of NSCT, a complete pass through so far as royalty is concerned, is permitted, the same is denied in case of SICAL. 25. Dr. Singhvi further submitted that the High Court has grossly erred in referring to the writ petitions and the MoC filed in one of the writ petitions, while setting aside the award. He submitted that the writ petitions filed by SICAL were basically against TAMP and with regard to the fixation of tariff. However, the arbitration proceedings were about the change in law which changed the policy of permitting pass through of royalty to denial of pass through of royalty. Wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the parties. It is only when the intention cannot be established that the contract shall be interpreted according to the meaning that a reasonable person of the same kind as a party, would give it in the same circumstances. He submitted that from the perusal of Article 14 as well as the conduct of the parties, it is clear that the parties intended that if there was any change in law to the detriment of the Licensee, the Licensee was entitled to relief from the Licensor by amendment of the contract. He submitted that such intention is clarified from the fact that in such an event, the Licensee was not entitled to claim any compensation. The learned Senior Counsel in this respect relies on the judgments of the Delhi High Court in Sandvik Asia Private Limited v. Vardhman Promoters 2007 (94) DRJ 762 and Hansalaya Properties v. Dalmia Cement (Bharat) Limited 2008 (106) DRJ 820. 28. Dr. Singhvi further submitted that the agreement has to be read as a whole. In his submission, whereas Articles 10.8, 13.4.7 and 13.4.8 make the Licensor's decision binding, Article 14 does not provide it. He submitted that Article 14 is unique in the sense that it provides for restoration of equili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on one hand, SICAL is taking advantage of orders of the Court and on the other hand not complying with the obligations set out in the MoC, on the basis of which the High Court has disposed of writ petition. 32. Smt. Divan submitted that even the third tariff order passed in case of SICAL had been quashed by the Madras High Court, challenge to which is pending before the Division Bench. She further submitted that on account of an order passed in Section 9 proceedings, TPT is getting a very meagre amount from SICAL. 33. Smt. Divan further submitted that by the award, the Tribunal has provided for entire substitution of the terms of the contract between the parties. She submitted that when the agreement between the parties was based on royalty method, the Tribunal, by a substitution, has provided for revenue sharing method. She submitted that this is not permissible at all in law. A party cannot be thrusted with a new contract against its wishes. Smt. Divan further submitted that SICAL having elected/availed the remedies of filing of the writ petition, cannot for the same relief under the bogey of so-called change in law, invoke arbitration proceedings. She therefore submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 14 and therefore, the said cases would not be applicable to the facts of the present case. He further submitted that the argument with regard to doctrine of election is also without substance. 36. With the assistance of the learned Counsel for the parties, we have gone through the documents placed on record. Though various judgments of this Court as well as some of the High Courts have been cited by counsel of both the parties, we do not find it necessary to refer to all of them. In our view, a reference to few recent judgments of this Court will be sufficient. 37. A bench of this Court, of which one of us (R.F. Nariman, J.) was a party, has considered various judgments of this Court in the case of Associate Builders (supra). 38. Another bench of this Court, again to which one of us (R.F. Nariman, J.) was a party, has considered various judgments of this Court including the judgment in Associate Builders (supra) and the effect of the Arbitration and Conciliation (Amendment) Act, 2015 in the case of Ssangyong Engineering and Construction Co. Limited v. National Highways Authority of India (NHAI) (2019) 15 SCC 131, to which we will refer shortly. 39. Before that, it will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [McDermott International Inc. v. Burn Standard Co. Ltd. (2006) 11 SCC 181]) 13. It is relevant to note that after the 2015 Amendment to Section 34, the above position stands somewhat modified. Pursuant to the insertion of Explanation 1 to Section 34(2), the scope of contravention of Indian public policy has been modified to the extent that it now means fraud or corruption in the making of the award, violation of Section 75 or Section 81 of the Act, contravention of the fundamental policy of Indian law, and conflict with the most basic notions of justice or morality. Additionally, Sub-section (2-A) has been inserted in Section 34, which provides that in case of domestic arbitrations, violation of Indian public policy also includes patent illegality appearing on the face of the award. The proviso to the same states that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence. 14. As far as interference with an order made Under Section 34, as per Section 37, is concerned, it cannot be disputed that such interference Under Section 37 cannot travel beyond the restrictions laid down Under Section 34. In other wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground. 36. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paras 18 and 27 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], or secondly, that such award is against basic notions of justice or morality as understood in paras 36 to 39 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204]. Explanation 2 to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco [ONGC v. Western Geco International Ltd. (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12], as understood in Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], and paras 28 and 29 in particular, is now done away with. 37. Insofar as domestic awards made in India are concerned, an additional ground is now available Under Sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterised as perverse. 42. Given the fact that the amended Act will now apply, and that the "patent illegality" ground for setting aside arbitral awards in international commercial arbitrations will not apply, it is necessary to advert to the grounds contained in Sections 34(2)(a)(iii) and (iv) as applicable to the facts of the present case. 42. It will thus appear to be a more than settled legal position, that in an application Under Section 34, the court is not expected to act as an appellate court and reappreciate the evidence. The scope of interference would be limited to grounds provided Under Section 34 of the Arbitration Act. The interference would be so warranted when the award is in violation of "public policy of India", which has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law." In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L & S) 429], it was held: (SCC p. 14, para 10) "10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. 45. Keeping these principles in mind, we will have to examine the present case. 46. The facts in the present case are not in much dispute. It will be relevant to refer to Clause 5.6 of the bid document, which was published by TPT on 9th April, 1997, which reads thus: 5.6 TERMS OF THE FINANCIAL OFFER The license to develop the seventh berth as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not exceed the maximum rates as approved by the Government/Tariff Regulatory Authority. The proposed rates for handling are given in Annexure II. The LICENSEE shall bill the users of the container terminal for services including terminal charges, wharfage on cargo containerised, container box and cargo related charges to be collected by the LICENSEE. These revenues shall be collected from cargo interests and the owners or agents of the vessels and shall accrue to and be payable to the LICENSEE. Charges on account of Berth Hire, Port Dues, Pilotage etc. shall be raised and recovered directly by TPT from the users. 4.7.2 REGULATION & REVIEW Normally the tariff will be revised by the Government/Tariff Regulatory Authority once in 3 years. For any increase from prevailing scales, the LICENSEE may apply for revision of tariff to the Licensor. The Licensor may recommend it for approval of the Committee constituted by the Government/Tariff Regulatory Authority." It would thus be clear, that the bid document itself provides, that the prescribed rates and charges to be collected by the Licensee from users shall not exceed the maximum rates as approved by the Government/Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r services and duly notified by the GoI in official gazette or to be fixed by the Tariff Authority for Major Ports constituted Under Article (sic Section) 47A of the Major Port Trusts Act, 1963, as applicable, from time to time. For the purpose of fixing or revising existing Tariff, the GoI has set up an independent Tariff Authority for Major Ports constituted Under Article (sic Section) 47A of the Major Port Trusts Act, 1963. The Tariff to be fixed by such authority would be the maximum rate of tariff and the Licensee would be free to fix the tariff at a rate lower than that fixed by such authority. Regarding fixation of tariff and setting prices, the Licensee shall follow the Rules and Regulations stipulated by TAMP for fixing/review of tariff. These charges shall be collected from cargo interests and the owners or agents of the vessels and shall accrue to and be payable to the Licensee. The rates prevailing at the time of signing this Agreement are contained in Appendix 15 to this Agreement. Charges on account of Berth Hire, Port Dues and Pilotage shall be raised and recovered directly by the Licensor from the users. The Licensee shall be free to give discounts in tariff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignees or vessel owners/agents, rates and/or charges due and payable by them for use of Container Terminal services including terminal charges, wharfage on cargo containerized, container box and cargo related charges in respect of cargo and other services provided by the Licensee. However, it was provided, that the rates and/or charges to be collected by the Licensee shall not exceed the rates fixed by Licensor in respect of similar services and duly notified by the GoI in official gazette or to be fixed by TAMP constituted Under Section 47A of the Major Port Trusts Act, 1963. The Agreement itself clarifies, that the tariff to be fixed by TAMP should be the maximum rate of tariff and the Licensee would be free to fix the tariff at a rate lower than that fixed by such authority. It is also clear, that the Licensee was to follow the Rules and Regulations stipulated by TAMP regarding fixation of tariff. Appendix-15 to the Agreement also details out the rates prevailing at the time of signing of the Agreement. The Article specifies that the Licensee was free to give discounts on tariffs. However, such discount would be given only in respect of the charges payable to the Licensee and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Article 14.2, which deals with 'change in law', states, that 'change in law' would mean any amendment, alteration, modification or repeal of any existing law by Government Authority or through any interpretation thereof by a court of law or enactment of any new law coming into effect after the date of this Agreement, provision for which has not been made elsewhere in the said Agreement. Article 14.3 provides for relief under change in law. If, after the date of Agreement, there is a change in the law which substantially and adversely affects the rights of the Licensee under the Agreement so as to alter the commercial viability of the project, the Licensee may, by written notice, request amendments to the terms of the Agreement. It further provided, that subject to provisions of Article 14.3, the Licensee shall not be entitled to any compensation whatsoever from the Licensor as a result of change in law. 56. The questions therefore that we will have to answer are: (i) As to whether the Arbitral Tribunal was justified in finding a change in law, which entitled the Licensee to invoke Article 14.3 of the Agreement; and (ii) As to whether the Arbitral Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember, 1997. LoI was issued on 29th January, 1998. All this has happened prior to the guidelines issued by TAMP in February 1998. As such, it is beyond any doubt, that when the bid document was notified and when SICAL submitted its bid and LoI was issued to it, there were no guidelines in vogue. For the first time, the guidelines were adopted by TAMP in the workshop held in Chennai on 26th/27th February, 1998. 61. Let us examine what do these guidelines provide. The TAMP must adhere to established costing systems and pricing principals, its overall objective shall be to move towards competitive pricing. There are various approaches to tariff fixation. Until more information/knowledge becomes available. Attempts may be made to smoothen the system within the existing framework. During the Interregnum, port pricing may continue to be cost-based with an assured rate of return. Although the concept of an assured rate of return is not consonant with a completive system. It will be advisable to maintain it for the time being so as not to destabilize the system with abrupt changes. At the same time, to militate the full impact of its continuance, the reasonableness of the existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lines do not provide for factoring the royalty in cost while determining the tariff. 64. No doubt that when the first proposal for revision of tariff was submitted by SICAL, in its comments submitted to TAMP, TPT has supported the proposal submitted by SICAL. It is also undisputed, that TAMP vide order dated 08th December, 1999 (notified on 28th December, 1999) has approved the proposal with regard to fixation of tariff insofar as SICAL is concerned. It will be relevant to refer to sub-para (iv) of paragraph 7 of the TAMP order, which reads thus: (iv) It will be necessary at this point to refer to the royalty issue. Even though some considerations relating to royalty have tariff-implications, we have not so far chosen to interfere in this regard; the royalty issue has been left to be settled by the Port Trust and the Government. That being so, in the light of the TPT's conditional support to the request for dollar-denomination, it will be necessary for us to clarify that our approval of the tariffs cannot be interpreted to amount to any implicit approval of royalty-related issues. Specifically, in the context of the TPT's condition about dollar-denomination of royalty, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition, could enter into any commercial arrangement between themselves and pass on the consequential cost to customers. This Authority also observed that there had been no commitment from anywhere about consequential tariff adjustments and the CA also did not give any assurance to the Licensee about tariff adjustments corresponding to the royalty quoted. In view of the principle set out in the CCTL case, it is necessary to accord a similar treatment in the case of the PSA SICAL also. It is noteworthy that no extraordinary circumstances appear to emerge in this case warranting any exceptional consideration. That being so, royalty has not been considered as an admissible item of cost for this tariff exercise. [emphasis supplied] 67. Perusal of the aforesaid sub-para would clearly reveal that one of the main items of expenditure considered by SICAL was the royalty payment it has to make to TPT as per the Concession Agreement. It states that the existing tariffs were allowed to SICAL by accepting its proposal to adopt the then existing Chennai Port Trust (hereinafter referred to as "CHPT") rates. It clarifies that there was no detailed cost analysis carried out then. It further sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed on to shippers or the users which will not be so if royalty is allowed to be factored in the cost of private operators. (ii) If royalty is allowed as cost, the private bidder can offer any high percentage which he will recover from the shippers/users in the shape or royalty cost lectured in fixing of higher rates. It has also been decoded that the position in this regard may be clearly indicated in the bid documents itself while inviting bids for private sector participation at major ports. [emphasis supplied] 71. Perusal of the said notification would clearly show that the GoI has decided to clarify, as a matter of policy, that the revenue-sharing/royalty payment shall not be factored into/taken into account as cost for fixation/revision of tariff by TAMP. The said notification specifically provides that the benefit of higher efficiency on account of private participation in ports should also be passed on to shippers or the users which will not be so if royalty is allowed to be factored in the cost of private operators. It further provides that if royalty is allowed as cost, the private bidder can offer any high percentage which he will recover from the shippers/use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9th July, 2003, tariff computation will take into account royalty/revenue sharing as cost for tariff fixation in such a manner as to avoid likely loss to the operator on account of the royalty/revenue share not being taken into account. However, this was subjected only to a maximum of the amount quoted by the next lowest bidder. This was further subjected to be allowed for the period upto which such likely loss would arise. It further provided that this would not be applicable if there is provision in the concession agreement on treatment of royalty/revenue share. 76. A conjoint reading of all these documents would reveal that when the bid document was published in April 1997; SICAL tendered its bid in October, 1997 and submitted its financial offer in December, 1997; and the LoI was issued to SICAL on 29th January, 1998, there were no guidelines at all. Even the guidelines of February 1998 do not provide for royalty being factored as cost while fixation of tariff. On the contrary, the tariff order of 1999 specifically clarifies that it has left the royalty issue to be decided by TPT and the GoI. It has specifically clarified that the approval by TAMP should not be interpreted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hered from the documents on record. SICAL, for the first time, made representation to TPT on 6th October, 2006 thereby seeking a relief under the terms of Article 14.3 of the Agreement. On 14th October, 2006, TPT informed SICAL that the issues raised by it were under examination. However, vide order dated 27th October, 2006, TPT refused to consider SICAL's application for relief since, according to it, the issue raised by SICAL was pending before the Madras High Court. SICAL therefore filed writ petition being Writ Petition No. 4361 of 2006 before the Madras High Court. The Madras High Court allowed the said writ petition vide order dated 21st August, 2007 clarifying that the petition pending before the High Court had nothing to do with the representation Under Article 14 of the License Agreement and remanded the matter to TPT for consideration afresh. Vide a reasoned letter dated 25th April, 2008, TPT rejected the claim of SICAL. TPT has specifically observed that any change in the Agreement cannot be done without prior approval of the GoI. SICAL on 19th November, 2012 addressed a letter to TPT invoking arbitration Under Article 15.3 of the License Agreement. TPT strenuously c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 'revenue-sharing method'. TPT was always opposed to it. The intention of TPT is apparent from its various communications and its stand before the Arbitral Tribunal, that it was not agreeable for amendment of the Agreement from 'royalty payment method' to 'revenue-sharing method'. 81. However, ignoring the stand of TPT, by the impugned Award, the Arbitral Tribunal has thrust upon a new term in the Agreement between the parties against the wishes of TPT. The 'royalty payment method' has been totally substituted by the Arbitral Tribunal, with the 'revenue-sharing method'. It is thus clear, that the Award has created a new contract for the parties by unilateral intention of SICAL as against the intention of TPT. 82. After referring to various international treaties on arbitration and judgments of other jurisdictions, this Court in Ssangyong Engineering and Construction Co. Limited (supra), observed thus: 76. However, when it comes to the public policy of India, argument based upon "most basic notions of justice", it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm something for which it has not entered into a contract. In our view, re-writing a contract for the parties would be breach of fundamental principles of justice entitling a Court to interfere since such case would be one which shocks the conscience of the Court and as such, would fall in the exceptional category. 84. We may gainfully refer to the following observations of this Court in Bharat Coking Coal Ltd. v. Annapurna Construction (2003) 8 SCC 154. 22. There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record. 85. It has been held that the role of the Arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of 1999 tariff order (dated 8th December, 1999) passed by TAMP. 91. The last notification issued by TAMP with regard to price/tariff fixation dated 17th December, 2008, gazetted vide notification dated 30th December, 2008 was challenged by SICAL by way of Writ Petition No. 1350 of 2009. The last direction issued by the GoI dated 20th February, 2008 was also challenged by SICAL by way of Writ Petition No. 1351 of 2009. By an order dated 15th October, 2009, the High Court has allowed these writ petitions by setting aside the order of the GoI dated 20th February, 2008 and the notification dated 17th December, 2008 issued by TAMP and has directed the GoI as well as TAMP to consider the issue afresh. 92. It is informed at the Bar, that the said order has been carried in appeal before the Division Bench of the High Court both by SICAL as well as TAMP, which are still pending before the High Court. 93. We are of the considered view, that if we make any observation on merits of the issue with regard to aforesaid submissions made before us, it may prejudicially affect the rights of either of the parties. We therefore refrain from making any observation with regard to the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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