Ssangyong Engineering & Construction Co. Ltd. v. National Highway Authority of India

Delhi High Court · 23 Jan 2023 · 2023:DHC:877

Chandra Dhari Singh

O.M.P. (COMM) 518/2018

2023:DHC:877

civil petition_dismissed Significant

AI Summary

The Delhi High Court upheld the arbitral award partially allowing the petitioner’s claim on Defect Liability Period extension and dismissed the challenge under Section 34 of the Arbitration Act for lack of patent illegality or conflict with public policy.

Full Text

NEUTRAL CITATION NO: 2023/DHC/000877

O.M.P. (COMM) 518/2018
HIGH COURT OF DELHI
Date of order: 23rd January 2023

O.M.P. (COMM) 518/2018 & I.A. 1297/2023
SSANGYONG ENGINEERING & CONSTRUCTION CO. LTD. ..... Petitioner
Through: Mr. Navin Kumar and Ms. Aarti Mahto, Advocates

VERSUS

NATIONAL HIGHWAY AUTHORITY OF INDIA ....Respondent
Through: Mr. Anukul Raj, Ms. Nikil Raj, Mr. Anubhav Deep Singh and Mr. Tushar Bhalla, Advocates

CORAM:

HON'BLE MR. JUSTICE CHANDRA DHARI SINGH O R D E R
CHANDRA DHARI SINGH, J (Oral)

JUDGMENT

1. The instant petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter “Arbitration Act”) has been filed on behalf of the petitioner seeking setting aside of the Arbitral Award dated 28th July 2018 (hereinafter “the Award”) passed by a three-member Arbitral Tribunal (hereinafter “learned Tribunal”).

FACTUAL MATRIX

2. A brief background of the dispute between the parties before this Court is delineated hereunder:a. The petitioner is a Multi-National Company registered as per the laws of Republic of Korea, represented by its Power of Attorney, Mr. S. J. Kim, working largely in the field of infrastructure development, including construction of roads, highways, dockyards and other such projects across the world. The respondent is the Government of India Undertaking responsible for maintenance, management and development of National Highways or stretch of the National Highways vested in or entrusted to it by the Central Government. b. The respondent awarded a contract for construction of a fourlane Highway at the Jhansi-Lakhanadon section between km 351 to km 405.77, National Highway-26 in the state of Madhya Pradesh to the petitioner vide Letter of Acceptance dated 30th December 2005. c. During the course of carrying out the work contracted between the parties certain disputes arose, pursuant to which the petitioner invoked the arbitration clause stipulated in their contract. Subsequently, the disputes were referred to the Arbitral Tribunal. d. Before the learned Tribunal, two major disputes arose amongst the parties, which was narrowed down as under:-

A. Refusal and Delay of the Engineer/Respondent for issuance of Defect Liability Certificate (DLC);

B. Refusal of the Engineer/Respondent for determination of new rates for additional / new works instructed the Engineer /Respondent and as per the variation Clause 51.1(c), (d), (e) and (f). e. Subsequently, upon completion and conclusion of arbitration proceedings, the Arbitral Award dated 28th July 2018 was passed and the following findings were made therein:- Regarding Claim A i. The Claimant Contractor, M/s. Ssangyong Engineering & Construction Co. Ltd., Gurgaon is partly entitled for Claim. No. 1 i.e. Refusal and Delay of the Engineer/ Respondent for issuance of Defect Liability Certificate (DLC). ii. The Respondent/Employer, the National Highway Authority of India New Delhi shall pay Rs.24,69,892/- to the Claimant Contractor, M/ s. Ssangyong Engineering & Construction Co. Ltd. Gurgaon as per the Tribunals findings as detailed out under sub para 9.3.0 to 9.6.[7] supra. iii. The Respondent, the National Highway Authority of India shall pay interest on delayed payments from 01.04.2015 to the date of award amounting to Rs.8,05,926/- to the Claimant as per AT's findings under Sub para 9.8.0 to 9.8.[3] supra. Regarding Claim B i. The Claimant Contractor, M/s. Ssangyong Engineering & Construction Co.Ltd., Gurgaon is not entitled for Claim No.2 (Or Claim B) i.e. Refusal of the Engineer/Respondent for determination of new rates for additional/new works instructed by the Engineer /Respondent and as per variation clause 51.[1] (c), (d), (e) & (f) ii. The Respondent/Employer, the National Highway Authority of India New Delhi shall pay nil amount to the Claimant Contractor, M/s. Ssangyong Engineering & Construction Co.Ltd. Gurgaon as per the Tribunals findings as detailed out under sub para 9.7.0 to 9.7.[7] supra. iii. In view of Arbitral Tribunals decision under sub para 10.[2] (i) & (ii) above, AT awards nil amount as interest. f. The petitioner is aggrieved by the findings of the learned Tribunal, and is, hence, before this Court challenging the same under Section 34 of the Arbitration Act.

SUBMISSIONS

3. Learned counsel appearing on behalf of the petitioner has challenged the impugned Award contending that the same is ex-facie bad in law and contrary to the provisions of Section 31(3) of the Arbitration Act and hence, is liable to set aside under Section 34(2)(b)(ii) of the Arbitration Act for the reason of being in conflict with the public policy of India.

4. Learned counsel submitted that the findings of the learned Tribunal in Para 9.6.[3] and 9.6.4, wherein it has observed that the respondent had extended the Defect Liability Period (hereinafter “DLP”), are inconsistent with the Award made. It is submitted that the impugned Award only allowed part of the claim of the petitioner with regard to the illegal and wrongful extension of the DLP in complete violation of the terms of the contract. It is also submitted that to this extent the impugned Award was unreasoned.

5. It is submitted that learned Tribunal failed to appreciate that since respondent was in breach of the terms of the contract, the petitioner was forced to keep its Bank Guarantees alive up to 26th June 2015. It is submitted that all costs incurred by the petitioner for extending the Bank Guarantees beyond its contractual obligation are required to be compensated by the respondent.

6. It is submitted that the learned Tribunal has also wrongly disallowed the claim of the petitioner regarding legal expenses as well as rectification of works along with salary of employees during the extended DLP without recording any cogent reasons. It is submitted that the finding of the learned Tribunal that the petitioner failed to show proof for the expenses incurred, whereas a complete statement showing the details of the expense and cost incurred was produced before the learned Tribunal.

7. It is further submitted that the letter dated 4th September 2014 was produced before the learned Tribunal, which showed that the disputes and claims regarding cost for rectification of works and over stay during extended DLP was raised before the Dispute Adjudication Board, however, the learned Tribunal failed to appreciate that the said claim was not pressed.

8. It is submitted that the impugned Award is unreasoned and the learned Tribunal has summarily rejected the claims of the petitioner in violation of Section 31(3) of the Arbitration Act. It is also submitted that the impugned Award is directly in conflict with the public policy of India and has illegalities apparent on the face of record, therefore, the same is liable to be set aside.

9. Per Contra, learned counsel appearing on behalf of the respondent vehemently opposed the instant petition and submitted that the same is not maintainable for the reason that there is no ground for challenge to the Award under the limited scope of Section 34 of the Arbitration Act. It is submitted that this Court may not enter into merits of the case while adjudicating upon the instant petition under Section 34 of the Arbitration Act in as much as the very objective of arbitration or alternate dispute resolution is to minimise judicial intervention.

10. It is further submitted that the primary ground of challenge to the Award by the petitioner is that there was delay in issuing the Defect Liability Certificate, due to which the four Bank Guarantees were extended. To this challenge, it is submitted that there were large number of defects in the work which required rectification and execution of balance work and any purported use despite such defects is not a usage contemplated under the contract. The DLP was extended since the work was incomplete. The entire stretch of road had defects and it was not possible to allow traffic on such roads.

11. It is submitted that the quantification of claims and a challenge to the observations qua Bank Guarantees is beyond the scope of Section 34 of the Arbitration Act.

12. Learned counsel for the respondents vehemently opposed the contention raised on behalf of the petitioner that the DLP was extended beyond the stipulated time in contravention of the terms of the contract. It is submitted that the petitioner was to complete the project without any defects, as per the defects list/ punch lists issued by the respondent and proved by the letters addressed to the contractor maintaining defects, by the stipulated date, i.e., 12th March 2013, which it failed to do.

31,462 characters total

13. It is submitted that the learned Tribunal rightly rejected the claim of the petitioner regarding legal expenses and rectification of works along with salary of the staff, since the petitioner failed to press and present the said claim. Moreover, no detailed vouchers or other documents etc. were produced before the learned Tribunal or otherwise placed on record by the petitioner to substantiate the claim raised.

14. It is, hence, submitted that the instant petition is liable to be dismissed, since, the same is devoid of merit and beyond the scope of Section 34 of the Arbitration Act.

15. Heard learned counsel for the parties and perused the record.

ANALYSIS AND FINDINGS

16. The petitioner has raised a challenge to certain findings and the Award thereto passed by the learned Arbitral Tribunal and has not assailed the validity of the entire Award. The petitioner has invoked Section 34 of the Arbitration Act, the relevant portion of which is reproduced hereunder:-

“34. Application for setting aside arbitral award.—

(1) Recourse to a Court against an arbitral award may be made

only by an application for setting aside such award in

accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if—

(a) the party making the application [establishes on the basis of the record of the arbitral tribunal that]—

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions

on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

[Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—

(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.]

17. The contents of the provision abundantly show that the intention of legislature while enacting the Arbitration and Conciliation Act, as well as while amending the same, was that there should be limited intervention of the Courts in arbitral proceedings, especially after the proceedings have been concluded and an Award thereto has been made by the concerned Arbitrator(s).

18. The words used in the provision are “An arbitral award may be set aside by the Court only if”, which signifies the intent of limiting the scope of interference by Courts in an Arbitral Award, passed after thorough procedure, involvement of parties, and appreciation of facts, evidence and law, „only‟ in the event of the circumstances delineated in the provision being met. The limited grounds which may invite the intervention and action thereupon by the Courts are explicitly laid down under the provision.

19. In the instant case, the petitioner has invoked Section 34 of the Arbitration Act contending that the Award in question is against the public policy, is in violation of the principles of law and is patently illegal. Upon a perusal of the pleadings and hearing the arguments on behalf of the parties, it is clear that the petitioner is aggrieved by the findings of the learned Arbitral Tribunal on the limited grounds, as under:-

A. That the DLP was illegally extended by the respondents yet no finding affirming the same was given by the learned Tribunal in the Award; and

B. That the petitioner incurred heavy costs for rectification of works including salary of staff etc., which went unaccounted for and were not compensated by the respondent and was also not properly appreciated by the learned Tribunal.

20. The petitioner has raised the ground of contravention of public policy of India to assail the impugned Award. The scope of the expression has been explained by the Hon‟ble Supreme Court in Ssangyong Engineering & Construction Co. Ltd. vs. NHAI, (2019) 15 SCC 131, as under:-

“23. What is clear, therefore, is that the expression ”public policy of India”, whether contained in Section 34 or in Section 48, would now mean the “fundamental policy of Indian law” as explained in paragraphs 18 and 27 of Associate Builders (supra), i.e., the fundamental policy of Indian law would be relegated to the “Renusagar” understanding of this expression. This would necessarily mean that the Western Geco (supra) expansion has been done away with. In short, Western Geco (supra), as explained in paragraphs 28 and 29 of Associate Builders (supra), would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court„s intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in paragraph 30 of Associate Builders (supra). xxxxxx 25. 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 paragraphs 18 and 27 of Associate Builders (supra), or secondly, that such award is against basic notions of justice or morality as understood in paragraphs 36 to 39 of Associate Builders (supra). 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 (supra), as

understood in Associate Builders (supra), and paragraphs 28 and 29 in particular, is now done away with.

26. Insofar as domestic awards made in India are concerned, an additional ground is now available under subsection (2A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within “the fundamental policy of Indian law”, namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality.

27. Secondly, it is also made clear that re-appreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award.

28. To elucidate, paragraph 42.[1] of Associate Builders (supra), namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Paragraph 42.[2] of Associate Builders (supra), however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award. xxxxxx

30. What is important to note is that a decision which is perverse, as understood in paragraphs 31 and 32 of Associate Builders (supra), while no longer being a ground for challenge under “public policy of India”, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based 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.”

21. The petitioner has also raised the ground of patent illegality or illegalities apparent on the face of the record while challenging the Award. The Hon‟ble Supreme Court in Associate Builders vs. DDA, (2015) 3 SCC 49, while interpreting the same has observed as under:-

“42. In the 1996 Act, this principle is substituted by the “patent

illegality” principle which, in turn, contains three subheads

42.1 (a) A contravention of the substantive law of India would

result in the death knell of an arbitral award. This must be

understood in the sense that such illegality must go to the root

of the matter and cannot be of a trivial nature. This again is a

really a contravention of Section 28(1)(a) of the Act, which

reads as under:

“28. Rules applicable to substance of dispute.—

(1) Where the place of arbitration is situated in India,—

(a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;” 42.2 (b) a contravention of the Arbitration Act itself would be regarded as a patent illegality- for example if an arbitrator gives no reasons for an award in contravention of section 31(3) of the Act, such award will be liable to be set aside. 42.3 (c) Equally, the third sub-head of patent illegality is really a contravention of Section 28 (3) of the Arbitration Act, which reads as under: “28. Rules applicable to substance of dispute.— (3) In all

cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.” This last contravention must be understood with a caveat. An arbitral tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do.”

22. Therefore, it is evident that the phrases are not to be construed in their plain meaning and have to be given due caution and consideration while being invoked to assail any Arbitral Award. Therefore, to successfully challenge an Arbitral Award, the petitioner ought to satisfy this Court on the said grounds.

23. In the facts and circumstances of the present case, regarding Ground A, it has been submitted on behalf of the petitioner that the respondent acted in contravention to the terms of the contract and in its utter violation extended the DLP. On the other hand, it has been argued on behalf of the respondent that the roads in question were so defective that they could not have been allowed to be used and hence, it was upon the petitioner to rectify the errors and carry out the necessary construction works, in terms of the contract.

24. The observation of the learned Tribunal on this aspect, while referring to the relevant clauses of the General Conditions of Contract (hereinafter “GCC”) and Conditions of Particular Application (hereinafter “COPA”), was as follows:- “9.3.[2] Thus the AT finds that the conjoint and harmonious construction and analysis of all the clauses as stated above would lead to the following conclusions:xxxxxxxx

(iii) The Contract shall be considered as completed only after DLC is issued by the Engineer and delivered to the Respondent with a copy to the Claimant. The DLC shall be issued by the Engineer with in 28 days after the expiration of DLP, or, if different DLPs shall become applicable, the expiration of the latest such period or as soon thereafter as any works instructed, pursuant to clauses 49 & 50 have been completed to the satisfaction of the Engineer. xxxxxxxx (vii) “Defect liability Period” (DLP) shall mean the DLP named in the appendix to tender which is 365 days calculated from the date of completion of the works certified by the Engineer in accordance with clause 48 or in the event of more than one TOC having been issued by the Engineer under clause 48, the respective dates so certified.

(viii) As per the Contract, Claimant is required to execute & complete all such outstanding works and work of amendment, reconstruction and remedying defects, shrinkages or other faults as the Engineer as a result of an inspection during the DLP or with in 14 days after the expiration of DLP may instruct the Claimant to execute.

(ix) All outstanding work and/ or remedying of defects as pointed/instructed by the Engineer shall be executed by the Claimant at his own cost if as per opinion of the Engineer it is due to use of materials, plant or workmanship, not as per provision of the Contract or/ and due to any fault in design where the Contractor is responsible for the design of the Permanent Works.

(x) If the Claimant defaults in carrying out such outstanding works, remedying of defects with in a reasonable time, the Respondent/ Employer is empowered as per the Contract to employ and pay other persons to carryout the same. If as per opinion of the Engineer, the Claimant was liable to do at his own cost as per the Contract. In such a situation all costs after due consultation with the Respondent and the Claimant, be determined by the Engineer and shall be recoverable from the Claimant by the Respondent and may be deducted from any amount due or become due to the Claimant.

(xi) Contract provides for extension of DLP with some riders. The DLP can be extended by a period equal to the period during which the Works cannot be used by reasons of defect or damage. If any part of the Works is affected, the DLP shall be extended only for that part. Further in neither case DLP can be extended beyond 365 days after issuing of TOC for that part.”

25. A perusal of the clauses, as interpreted and narrowed down by the learned Tribunal, shows that the issuance of DLC was not unconditional and neither was the DLP fixed. Both were subject to certain conditions and riders, which were to be adhered to by both the parties. One of such conditions was that the works could not be used if there were defects or damages in the same.

26. The learned Tribunal qua this question, noted as under:- “AT observes that as per TOC, the time limit to remove defects & complete outstanding works was fixed as three months of issuance of TOC & failure on part of same by the Claimant, the Respondent/ Engineer should have started further action as prescribed under sub-clause 49.[4] of the GCC ·of the Contract to get the work executed from third party at the risk & cost of the Claimant. The plea of the Respondent that to apply clause 49.[4] to get the balance works and defects, if any, completed through other agency at the risk & cost of the Claimant was not resorted as it is tedious and time consuming to arrange an agency for execution of balance work & defects. The Respondent's this plea is not acceptable as the Respondent being drafter of the Contract cannot now deny that he is not capable to perform as per the Contract. Further the clause 49.[5] of COPA provides that if only part of the Works cannot be used, DLP shall be extended for that part only. AT have carefully gone through the contemporary records/ letters issued for the defects and punch list of outstanding works; which mainly concerned turfing, painting of road side furniture etc or work of some junction where land issue was not settled by the Respondent. There is no non-use of any part of the Permanent Work due to defect or damage, pointed out by the Engineer. AT finds that DLP can be extended for a period during which the Work cannot be used by reasons of any defect or damage. AT finds that the Claimant submitted that this was not the case for the present Contract as ·the entire stretch of highway was being used even before the DLP expired i.e. 31.03.2014. The Claimant further submitted that the Respondent had handed over the entire stretch of 'Works' to the OMT Contractor and toll collection started from 01.04.2014. The Respondent had not denied the above submissions of the Claimant but states that if toll is being levied and collected by the Respondent that does not mean that there are no balance works or defects. AT observes that the issue under consideration is not defects or balance works but to identify and prove that the stretches of road were not in use due to defects or damage. Further clause 49.[5] of COPA provides to identify part of Works' not in use and DLP shall be extended for that part only. The defects & punch list are required to be tackled through subclause 49.[2] to 49.[4] of GCC. As such, AT finds and decides that extension of DLP was not as per the Contract and this action of the Engineer/Respondent is not agreed by AT.”

27. The learned Tribunal considered the aforementioned clauses and then made the observations thereto. Upon considering the laches on the part of the respondent, the learned Tribunal partly allowed the claim of the petitioner and also awarded an amount of Rs.24,69,892/- to them. An observation regarding the issue in favour of the petitioner and against the respondent was also followed by an award in favour of the petitioner and against the respondent. It is not the case that the learned Tribunal had passed an award and made a finding completely contrary to the observations given.

28. The learned counsel for the petitioner has also argued that due to the actions taken by the respondent in contravention of the agreement, the petitioner had to retain the Bank Guarantees beyond the stipulated time. To settle this dispute, the learned Tribunal noted as under:- “The Claimant has claimed Rs. 55,86,709.38 under this sub claim as detailed out on page 44 of SOC added as Appendix-I. AT has deliberated and decided under sub-para 9.6.[6] supra that Performance Bank Guarantees charges paid by the claimant from 12.05.2014 to 31.03.2015 are required to be reimbursed to the Claimant. Similarly Retention Money Bank Guarantees Extension Charges paid by the claimant from 01.04.2014 to 31.03.2015 are required to be reimbursed to the claimant. AT, on the basis of Debit advice/ invoices produced by the Claimant, in his SOC and various letters brought on record of Arbitral Tribunal, decide that the Claimant is entitled for an amount of Rs.24,69,892/- as detailed out under Annexure-I attached as refund for PBG's & RMBG's extension charges.”

29. A perusal of the finding shows that the learned Tribunal directed the respondent to reimburse the petitioner, which shows that the issue was partly decided in favour of the petitioner. Therefore, this Court does not find that the award passed was inconsistent with the observation made by the learned Tribunal.

30. The second aspect to the claim raised by the petitioner, that is in Ground B, relates to the costs allegedly incurred by the petitioner to carry out the rectification works. To this aspect, the following observations were made by the learned Tribunal:- “(iii) Claim for legal expenses AT finds that the Claimant has claimed a sum of Rs. 36,20,750/as litigation charges as per details provided at page 53 of SOC. Claimant has submitted that due to illegal threats of the Respondent to encash the Bank guarantees, the Claimant was constrained to approach the Hon’ble court for interim protection. Had the Respondent not acted arbitrarily the present litigation could have been avoided. However AT observes that the Claimant has not produced or added proof of such litigation expenses and due to this reason this part of claim lacks proof and not agreed by the AT.

(iv) Claim for cost incurred on rectification of works during extended DLP and salary of staff during illegally extended period.” This part of claim was also not pressed or presented during the period when alleged DLP period was extended and no detailed vouchers or proof is produced before AT & as such claim is not proved and not agreed and rejected.”

31. The aforesaid observation by the learned Tribunal found that to claim compensation for the costs incurred by the petitioner, there were no relevant material documents to substantiate the same. The learned Tribunal after appreciating the entire pleadings before it, the material placed before it and the oral submissions made by and on behalf of the parties made the aforesaid findings. Therefore, this Court does not agree with the challenge raised by the petitioner to this observation of the learned Tribunal.

CONCLUSION

32. As discussed in the foregoing paragraphs, the scope of interference and intervention by a Court in an Arbitral Award is limited in view of the legislative intent behind the enactment of the Arbitration Act, and even if raised, a challenge to an Arbitral Award must satisfy the test laid down in the Arbitration Act as well as that interpreted by the Hon‟ble Supreme Court.

33. The petitioner, in the instant case, has failed to show that there was any patent illegality or error apparent on the face of record and also failed to show that the findings were in contravention to the public policy of India. The learned Tribunal has appreciated the entire material produced as well as the oral proceedings conducted before it, and thereafter, passed the Award, wherein the findings have been made even in the favour of the petitioner, directing the respondent to make necessary payment and reimbursement to the petitioner.

34. Therefore, upon consideration of facts and circumstances, submissions made on behalf of the parties and observations and findings in the Award, this Court finds that there is no merit in the instant petition and the challenge therein to the impugned Award dated 28th July 2018.

35. Accordingly, the instant petition is dismissed for being devoid of merit.

36. Pending applications, if any, also stand dismissed.

37. The order be uploaded on the website forthwith.

Ssangyong Engineering & Construction Co. Ltd. v. National Highway Authority of India

AI Summary

Full Text

JUDGMENT

Contact Us for a Free Consultation