Delhi District Court
Ncc Ltd vs M/S Indo Alusys Industries Ltd on 14 December, 2021
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
ARBTN No. 5737/2018
NCC Ltd.
(formerly Known as Nagarjuna Construction Company Limited)
NCC House, Madhapur,
Hyderabad-500081 ...Petitioner
Versus
M/s INDO ALUSYS INDUSTRIES LTD.
606 Tolstoy House,
15 Tolstoy Marg,
New Delhi-110001 ...Respondent
Date of Institution : 08/10/2018
Arguments concluded on : 10/11/2021
Decided on : 14/12/2021
Appearances : Ms. Priya Kumar and Sh. Tejas Chhabra,
Ld. Counsel for petitioner.
Sh. Rajesh Banati and Sh. Ashish Sareen,
Ld Counsel for respondent.
JUDGMENT
1. Petitioner had filed the present petition under Section 34 of The Arbitration and Conciliation Act, 1996 (herein after referred as The Act) seeking setting aside of the impugned arbitral award dated 10/07/2018 passed by Ld. Sole Arbitrator Sh. Amiet Andlay, Advocate, in Case Ref. No. DAC/393/05-13 titled Indo Alusys Industries Ltd. vs NCC Ltd. Ld. Sole Arbitrator awarded Rs. 21,16,851/- with interest @ 6% per annum from 11/05/2011 till 10/07/2018 and future interest @ 9% per annum from 10/07/2018 till realization in favour of respondent/claimant ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 1 of 28 payable by petitioner.
2. I have heard Ms. Priya Kumar, Sh. Tejas Chhabra, Ld. Counsel for petitioner; Sh. Rajesh Banati and Sh. Ashish Sareen, Ld. Counsel for respondent and perused the record of the case, the arbitral proceedings record as well as reply of respondent to petition, relied upon precedents, filed brief written arguments of parties and given my thoughtful consideration to the rival contentions put forth.
3. Adumbrated in brief the facts of the case of the petitioner are as follows. Petitioner awarded the Work Order dated 06/09/2006 for supply, fabrication, erection of structural glazing/curtain wall glazing work and aluminium windows and fittings as per BOQ and specification of DMRCL for Metro Bhawan, DMRCL Project at New Delhi. Respondent/ claimant was to execute above said works in terms of the Work Order dated 06/09/2006 as also the technical specifications of the principal employer. As per petitioner, due to the delay on the part of respondent/claimant to complete the work within the stipulated time and further as per specifications of DMRCL, petitioner was constrained to get the contract works completed at the risk and cost of respondent/claimant. As per Work Order, the work was to be completed on or before 31/12/2016. As per Clause 16 of the Work Order, petitioner was entitled to withdraw in part or in full the work from respondent and get it executed by any other agency at the risk and cost of respondent/claimant. Retention money to the extent of 5% was to be deducted from every bill of respondent/claimant and was to be retained till the ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 2 of 28 end of defect liability period, i.e., 12 months after taking over of possession of site by DMRCL. This amount was to be utilized for rectification of defective works/risk and cost works in the event respondent/claimant failed to rectify the defects pointed out by DMRCL, if any. Allegedly, respondent/claimant failed to abide by the terms of contract as the work done was defective and as per petitioner, it was specifically pointed out by DMRCL to respondent/claimant in its communications. The dispute arose between the parties. Ld. Sole Arbitrator was appointed by Delhi International Arbitration Centre (in short DAC) on reference of the matter for arbitration by Delhi High Court on application of petitioner under section 8 of the Act in suit for recovery filed by respondent/claimant. Arbitral proceedings culminated into the impugned arbitral award.
4. Petitioner through Ld. Counsel has impugned the award mainly on the following grounds, which were so argued. Ld. Sole Arbitrator has exercised jurisdiction over a dispute not raised before him. The case of claimant/respondent as set up before Ld. Sole Arbitrator was based upon an admission of petitioner, as alleged by way of two documents filed with the Statement of Claim i.e., Memorandum of Payment (C-24) and Payment Advice Note (C-25). There was neither a challenge raised to these two documents nor contents were disputed in the pleadings filed by claimant/respondent. Without any basis in the pleadings and on the mere statement of witness, without any evidence, Ld. Sole Arbitrator has allowed the claim of respondent/claimant based on certain debit entries in these two documents which were never disputed by it. Infact, Ld. Sole Arbitrator has adjudicated ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 3 of 28 on the debit entries when neither a challenge was raised nor a relief was sought by respondent/claimant. It was contrary to fundamental policy of Indian Law and also contrary to law as laid in the case of Union of India vs Ibrahim Uddin & Ors., MANU/SC/0561/2012 and Manohar Lal (D) by LRs vs Ugrasen (D) by LRs & Ors., MANU/SC/0415/2010. Findings given by Ld. Sole Arbitrator in the award are patently illegal and amount to an error apparent on the face of the award. Ld. Sole Arbitrator had selectively referred to the two documents C-24 and C-25 on the basis of oral submissions of respondent/claimant, whereas during cross examination the witness of respondent had stated that the deductions marked as 'B' in document C-25 were not acceptable to it. In the Statement of Claim of claimant/ respondent before Ld. Sole Arbitrator there was no challenge to these deductions marked as 'B'. No dispute was raised in respect of these deductions. Consequently, there was no relief claimed by respondent/claimant before Ld. Sole Arbitrator in this respect. While Ld. Sole Arbitrator relied upon Payment Advice Note as a document admitted between the parties, Ld. Sole Arbitrator completely ignored the debit entries which were a part of the same document and proceeded to award the entire amount holding the debit entries i.e., a part of the admitted document, to be incorrect. This was an error appearing on the face of the award and requires no evidence. Bills filed by respondent in support of its claims were wrongly admitted and accepted by Ld. Sole Arbitrator. The bills filed by respondent/claimant were Tax Invoices. These computer generated tax invoices had been admitted by Ld. Sole Arbitrator as 'R.A Bills' of work done. Ld. Sole Arbitrator ignored the objection of petitioner to the bills as ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 4 of 28 produced by respondent/claimant. The original bills were in possession of respondent/claimant and were produced before Ld. Sole Arbitrator. This itself shows that such bills were never submitted to petitioner. Even otherwise, there was no evidence of either the bills having been sent to petitioner or being received much less accepted by it. As per Section 28(3) of the Act, Ld. Sole Arbitrator was required to decide the disputes in consideration with the industry practice. Running Account Bills (in short R.A Bills) in any construction contract are detailed bills giving the rates and quantities of each item of work. What Ld. Sole Arbitrator has accepted as evidence in the present case are clearly computer generated tax invoices and not the R.A bills. It is a standard industry practice that the bills are paid upon certification. Bills produced by respondent/claimant were neither certified nor signed by petitioner or its officials. During cross examination, the witness of respondent also admitted that certification was a pre-requisite for payments. Therefore, awarding the entire gross amount of the bill to respondent on the basis of uncertified bills is an error apparent on the face of the award and is in contravention of Section 28(3) of the Act, which requires consideration of industry practice. Assuming the bills produced by respondent/claimant to be genuine (though denied), the bills totalled to an amount of Rs. 2,44,48,632/-. The witness CW1 of respondent admitted during cross examination in answer to question no. 25 that the value of work done was Rs. 1,66,77,876/-, whereas Ld. Sole Arbitrator in the award has accepted the bills produced by respondent and the value of work as Rs. 1,77,66,141/-. Therefore, the findings of Ld. Sole Arbitrator are liable to be set aside as no reasonable person could ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 5 of 28 arrive at the conclusion as done in the award. As per the Work Order, the project in question was exempt from payment of service tax. Ld. Sole Arbitrator while accepting the Statement of Account (C-23) filed by claimant/respondent ignored the contractual terms of the work order thereby contravening Section 28 of the Act. The Statement of Account of claimant (C-23) contained an entry of Rs. 11,58,858/- towards service tax which was contractually not payable for this project. This, itself established that the Statement of Account was incorrect. Even otherwise there was no proof of actual payment made by respondent/claimant on account of service tax to the authorities. The award therefore suffers from patent illegality and the view taken by Ld. Sole Arbitrator is not a plausible view. Alternative calculation was given by petitioner without prejudice to its counter claim. As per Statement of Claim, respondent stated the total value of bills raised to be Rs. 1,77,66,141/-, whereas during the cross examination witness of claimant admitted that value of work executed was Rs. 1,66,77,876/- which matches with certification amount stated in C-24 and is inclusive of retention money. The certified amount as per C-24 is Rs. 1,55,19,804/-. Even if claim of respondent of retention money is accepted (which is otherwise denied by petitioner) and an amount of Rs 8,59,263/- is added, at the highest the entitlement of respondent would be Rs. 1,63,79,067/-. Respondent admits it has received payment of Rs. 1,65,08,553/-. Therefore, as per record before Ld. Sole Arbitrator, respondent has been over paid by an amount of Rs. 1,29,486/-. To this extent the award is perverse and liable to be set aside. Ld. Sole Arbitrtor has ignored the fundamental policy of Indian law as he has held contrary to the precedents of ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 6 of 28 Supreme Court. Ld. Sole Arbitrator has supported his award of the entire claim amount on the reasoning that petitioner has failed to support its contention with documents. While doing so, Ld. Sole Arbitrator has completely ignored the objections of petitioner and the evidence before it. Justification of Ld. Sole Arbitrator ignores the fundamental policy of Indian Law as laid down by precedents that claimant/plaintiff is required to prove and establish its claim independent of the presence or otherwise of the respondent/defendant. Ld. Sole Arbitrator had effectively taken adverse inference against petitioner for not producing documents supporting the debit entries in C-25 whereas at no point of time, petitioner was directed to do so. Even in law, petitioner was not required to prove the debit entries since documents C-25 and C-24 were stated to be admitted documents. The finding of Ld. Sole Arbitrator was perverse and contrary to the fundamental policy of Indian Law. Ld. Sole Arbitrator held RW-1, the witness of petitioner, to be an unreliable witness. Ld. Sole Arbitrator erroneously proceeded to consider RW-1 from engineering background whereas in his deposition, he clearly stated his qualification as MBA (Finance) and L.L.B. Infact in response to a specific question, RW-1 specifically responded that he does not have engineering background. Finding of Ld. Sole Arbitrator that RW-1 being from engineering background is clearly contrary to the evidence before it and had committed an error, which is apparent on the face of it. Ld. Sole Arbitrator had not accorded equal treatment to the parties as required under Section 18 of the Act. Ld. Sole Arbitrator ignored the evidence of RW-1 on the ground of being unreliable. Ld. Sole Arbitrator has accepted the Statement of Account (C-23) prepared and filed by ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 7 of 28 respondent/claimant without any independent evidence, rejected the Statement of Account Ex RW-1/3 filed by petitioner with supporting affidavit and deposition of RW-1 who had himself prepared the Statement of Account and was the best person to prove the contents thereof. Ld. Counsel for petitioner prayed for setting aside of the impugned arbitral award. Ld. Counsel for petitioner also relied upon the case of Ssangyong Engineering & Construction Co. Ltd. vs National Highways Authority of India, MANU/SC/0705/2019.
5. Respondent through Ld. Counsel averred in reply and argued that the impugned arbitral award passed by Ld. Sole Arbitrator was perfectly valid and is in consonance with law. The grounds taken by petitioner in petition are bereft of law and not covered under any of the clauses of Section 34 of the Act. Respondent/claimant had filed two claims before Ld. Sole Arbitrator, (a) Rs. 12,16,851/, being the balance payment and (b) Rs. 8,59,263/-, being refund of retention money. Ld. Sole Arbitrator allowed both the claims of the respondent after considering the documents and also taking into account the evidence led by both the parties. Petitioner had filed objections against the award on the grounds that Ld. Arbitrator had afforded an erroneous interpretation of documents, failed to appreciate the evidence, which is perverse, contrary to fundamental policy of India, fair proceedings and error apparent on the face of the award. Ld. Sole Arbitrator is the final judge of the facts. The findings of facts recorded by Ld. Sole Arbitrator cannot be interfered on the ground that the terms of the agreement were not correctly interpreted by Ld. Sole Arbitrator. Interpretation of the ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 8 of 28 contract is a matter for the Arbitrator, who is a judge chosen by the parties to determine and decide the dispute. The Court is precluded from re-appreciating the evidence and to arrive at different conclusion by holding that the arbitral award is against the public policy. When a Court is applying the public policy test to an arbitration award, it does not act as a Court of appeal and consequently errors of facts cannot be corrected. A possible view by the Arbitrator on the facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers the arbitral award. Thus, an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the Arbitrator's approach is not arbitrary or capricious, then he is the last word on facts, as was so was held by Supreme Court in the case of Associate Builders vs Delhi Development Authority, (2015) 3 SCC 49. Ld. Counsel for respondent also relied upon the following precedents:-
1. Swan Gold Mining Ltd. vs Hindustan Copper Ltd., 2014 (4) Arb LR 1 (SC);
2. Ashwani Khattar vs Vijay Kumar Bhatia, 2018 (168) DRJ 486 and
3. Ashwani Khattar vs Vijay Kumar Bhatia, 2019 (173) DRJ 82 (DB).
6. An arbitral award can be set aside on the grounds set out in Section 34 (2) (a), Section 34 (2) (b) and Section 34 (2A) of the Act in view of Section 5 of the Act and if an application for setting aside such award is made by party not later than 3 months from the date from which the party making such application had received the arbitral award or if a request had been made under Section 33 of the Act, from the date on which that request had ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 9 of 28 been disposed of by the Arbitral Tribunal. If the Court is satisfied that the applicant was prevented by sufficient cause from the making the application within the said period of three months it may entertain the application within further period of 30 days, but not thereafter.
7. Section 34 (1) (2), (2A) and (3) of The Arbitration and Conciliation Act, 1996 read as under:-
"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 furnishes proof 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 ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 10 of 28 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.
(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
8. Supreme Court in case of Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49 has held that the ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 11 of 28 interference with an arbitral award is permissible only when the findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the Court is shocked or when illegality is not trivial but goes to the root of the matter. It is held that once it is found that the arbitrator's approach is neither arbitrary nor capricious, no interference is called for on facts. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbitral award. Patent illegality must go to the root of the matter and cannot be of trivial nature.
9. Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. vs. National Highways Authority of India, 2019 SCC OnLine SC 677 has held that under Section 34 (2A) of The Act, a decision which is perverse 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. A finding based on the 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 characterized as perverse. It is held that 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.
10. Following are the issues, which were framed by Ld. Sole Arbitrator on the basis of pleadings of the parties of arbitration:-
"1. Whether the Claimant is entitled to claim and receive the amount of Rs. 21,16,851/- as claimed in the claim statement or any part thereof?ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 12 of 28
2. Whether the Claimant is entitled to a sum of Rs. 13,97,121/-
towards pre-pendentelite interest @ 18% p.a for the period from 01.09.2008 till 30.04.2013?
3. Whether the Claimant is entitled to pendentelite and future interest @ 18% p.a w.e.f 31.05.2013?
4. Whether the Claimant is entitled to cost of arbitration proceedings?
5. Whether the Respondent is entitled to claim and receive an amount of Rs. 4,23,016/- as claimed in the counter claim?
6. Whether the Respondent is entitled to an amount of Rs.
4,21,959/- towards pre pendentelite interest @ 18% p.a for the period from 01.10.2008 till 15.05.2014?
7. Whether the Claimant is entitled to pendentelite and future interest @ 18% p.a w.e.f 16.05.2013?
8. Whether the Respondent is entitled to receive Rs, 10,00,000/-
on account of cost of arbitration proceedings?
9. Relief."
11. Following are some of the excerpts of the findings of Ld. Sole Arbitrator in impugned arbitral award:-
".....................................................................
32. That on the other hand, the counsel for the Respondent, at the outset, has questioned the veracity of the bills (Ex. CW-1/3 to CW-1/22) placed on the record by the Claimant on the ground that some of them had never been submitted to the Respondent as the originals thereof have been placed on the record of the Arbitral Tribunal and others do not bear the stamp of receipt by the Respondent. It has been further submitted by the Counsel for the Respondent that it as per the terms of the Work Order, mere raising of the bills would not suffice for payment until and unless the same are certified and as no such certification has been placed on record by the Claimant, the bills as raised by the Claimant cannot be paid. Counsel for the Claimant has countered the argument by submitting that as per practice, no certification was given by the respondent but the approval of the bill by the DMRCL constituted as an automatic certification for payment and this is evident from a perusal of the admitted document Ex. C-24, which is the 'Memorandum of Payment' in respect of R.A Bill no. 0016 dated 30.09.2008. Further, even in the Reply, the Respondent has not specifically disputed the bills as details in ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 13 of 28 the Statement of claim but the only contention is that the claimant has not annexed the bills as certified by the Respondent. The counsel for the Claimant has also drawn my attention to the reply dated 1.6.2011 (Ex. CW1/34) given by the Respondent to the legal notice dated 11.5.2011 (Ex. CW1/33) where also there is no denial with regard to the details of the bills. The counsel for the Claimant further submitted that in case there was any doubt about the authenticity of the bills, the respondent ought to have produced the bills that have been raised and certified for payment and in the absence of the same, no grievance can be raised about the veracity and authenticity of the bills placed on the record by the Claimant. The counsel for the Claimant has also referred to the questions no. 12, 13, 14 and 15 (recorded on 12.3.2015) and question no. 31 (recorded on 8.4.2016) put to CW-1 to submit that the line of questioning adopted by the Respondent indicates that there was no dispute about the factum of raising of the bills as detailed in the Statement of Claim. In so far as the certification of the bills is concerned, the counsel for the Claimant has submitted that it was obligatory on the part of the Respondent to confront CW-1 with the duly certified bills / document giving intimation about the certification of the bills to counter the statement given in response to question no. 33 and 34 (recorded on 8.4.2016) and the failure on the part of the Respondent to do so demonstrates the correctness of the stand of the Claimant.
33. The upon a scrutiny of the details of the bills as stated in paragraph no. 5 of the Statement of Claim and the admitted document Ex. CW-25, I find that Ex. C-25 is the 'Payment Advice Note' in respect of R.A Bill no. 0015 / 31.07.2008 wherein the amount claimed for the 'current month' is Rs. 5,35,360/-. As per the list of bills detailed in paragraph no. 5 of the Statement of Claim, this amount of Rs. 5,35,360/- corresponds to Bill at serial no. 19 i.e., WCT/DEL/03 dated 31.7.2008, which bill has been placed on the record and exhibited as Ex. CW1/21. It is therefore clear that each of the R.A bills would correspond to the bills detailed in the Statement of Claim and stated to have been raised by the Claimant. I also find that as per Ex. RW1/3 which is the 'Account Abstract of Indo Alusys in DMRCL Project' placed on record by the Respondent, reference has been made to as many as 17 R.A Bills. If the respondent was serious about disputing the bills placed on the record, they ought to have placed on record the said R.A bills as referred to in Ex. RW1/3 and made good their contention. However, having failed to do so, the objection of the respondent regarding the authenticity of the Bill placed in the record by the claimant cannot be sustained and I reject the same.ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 14 of 28
.........................................................................................................
37. That as can be culled out from the Statement of Claim, the claim for Rs. 21,16,851/- comprises of two parts i.e., (i) Claim for balance payment of Rs. 12,57,587/- and (ii) Claim for Refund of Retention money of Rs. 8,59,263/-. I propose to deal with both separately.
38. Balance payment of Rs. 12,57,587/-
(a) Before considering whether the Claimant would be entitled to the amount of Rs. 12,57,587/- from the Respondent, it would be necessary to understand, how this amount has been arrived at by the Claimant. The counsel for the Claimant has explained that the amount of Rs. 12,57,587/- has been arrived at with reference to the admitted documents Ex. C-24 and Ex.
C-25 and has also been explained by CW-1 in his deposition recorded on 11.2.2016 as follows:-
(i) In Ex. C-24 (Memorandum of Payment in respect of RA Bill no. 0016 date 30.9.2008) the total value of the work done (since previous) is Rs. 2,95,498/- out of which the Recoveries (Security deposit @ 5% TDS @ 1% surcharge 010.000% edu. Cess @ 3.000% and others) have been deducted and the amount of Rs. 2,70,720/-
(marked 'D') is certified as payable to the Claimant.
(ii) In Ex. C-25 (Payment Advice Note in respect of RA Bill no. 0015 dated 31.7.2008), the cumulative amount found payable is Rs. 4,57,412/- out of which an amount of 2,57,412/- has been received by the Claimant leaving a balance of Rs. 2,00,000/- (marked 'C').
(iii) In Ex. C-25 (Payment Advice Note in respect of RA Bill no. 0015 dated 31.7.2008), the entries occurring at serial no. 2(v) others (Debit Notes) (marked 'B') totaling to Rs. 7,86,868/- i.e., Other debit note Rs. 1,04,877/-
Other material issued Rs. 1,08,143/-
Labour charges glass Rs. 73,200/-
Hold due to DMRCL hold Rs. 5,00,648/-
have been incorrectly deducted from the payment due to the Claimant and therefore the Claimant would also be entitled to the same from the Respondent.
In this manner at by adding Rs. 7,86,868/- + Rs. 2,00,000/- + Rs. 2,70,720/- ('B'+'C'+'D'). the amount claimed i.e., Rs. 12,57,587/- can be arrived.
ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 15 of 28(b) As per the counsel for the Claimant, there cannot be any doubt regarding the claim of the amount of Rs. 2,70,720/- (marked 'D') and Rs. 2,00,000/- (marked 'C'), which emerge on the face of Ex. C-24 and Ex. C-25. In so far as the four entries in C-25, (marked 'B') stated to be debits, it is the contention of the counsel for the Claimant that the respondent has failed to place on record any documentary evidence to support the said debit entries as the respondent has not filed any letter from DMRC to establish their contention that DMRC had withheld their payment of Rs. 5,00,648/-. Further, the respondent has also not filed any document to show proof of payment of "Labour charges glass of Rs. 73,200/-", "Other material Issues of Rs. 1,08,143/-" and 'Debit notes of Rs. 1,04,877/-". Counsel for the Claimant has further submitted that these debit entries can also not be culled out from RW1/3, which is a Statement of Account. Therefore, such debit entries that have been made without any justification or proof are liable to be ignored and the Claimant is entitled to the credit of the said amounts.
(c). The counsel for the Claimant has also assailed the 'Account Abstract of Indo Alusys in DMRCL Project' (Ex. RW1/3) as being of doubtful integrity for the reasons (i) several entries at point 'A' do not bear any date (ii) There is unexplained blank at point 'B' (iii) there is no explanation why entries pertaining to the year 2011 have been haphazardly inserted between the entries for the year 2007 and then between the entries for the year 2009 and 2008 (iii) the document does not bear any signatures and stamp of the Respondent company
(iv) the audited balance sheet and Auditors certificate has not been placed on the record (v) though this is stated to be a computerized statement of account, there is no plausible explanation why the notation "debit balance in NCC books"
has been written by hand at the bottom.
(d). The Counsel for the Claimant has further contended that no voucher or cash payment receipt has been placed on the record in support of the various cash and debit entries mentioned in the 'Account Abstract of Indo Alusys in DMRCL Project' (Ex. RW1/3). Moreover, entries in Ex. C-25 do not match with the entries made in RW-1/3 for instance, as per RW-1/3, the respondent is showing an amount of Rs.
5,78,263/- as being withheld by DMRC but as per Ex. C-25, the Respondent is showing the amount of Rs. 5,00,648/- as being withheld by DMRC. The absence of supporting documents and the inconsistency in the two statement of account, Ex C-25 and Ex RW-1/3, shows that Ex RW-1/3 is a manipulated document created to support the false defense of the Respondent.
ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 16 of 28(e). Further, the counsel for the Claimant has questioned the credibility of the evidence given by the witness for the Respondent on the ground that RW-1 has admitted that the Evidence by way of affidavit (Ex RW-1/A) was prepared by legal department of Respondent and is not his own version i.e., it is only a hearsay evidence which is no evidence in the eyes of law. According to the counsel for the Claimant, the falsehood and manipulation of accounts in Ex RW-1/3 is borne from the deposition of RW-1 in response to questions no. 2,3,6,9,10,16,21,22,26,29,31,32,33,34,38,39,41,46, 47,48,51, 53,55, 56,64, and 65 put to the said witness of the Respondent during cross examination recorded on 27.03.2017 and 28.03.2017.
(f). The counsel for the Respondent on the other hand has vehemently argued that the method of arriving at the amount of Rs. 12,57,588/- by considering Ex. C-24 and Ex. C-25 together as proposed by the Claimant is invalid and cannot from the basis of their claim since it proceeds on the assumption that the deductions mentioned in Ex. C-25 are liable to be ignored. Counsel for the Respondent has submitted that in the absence of any claim which seeks a declaration that these deductions are incorrect or a prayer that Ex. C-25 which records the deductions which the Claimant disputes, are liable to be ignored and without any evidence having been led based on which there can be any adjudication on this aspect, no relief can be granted in favour of the Claimant that these deductions are incorrect. The counsel for the Respondent by relying on the judgment of the Hon'ble Supreme Court of India reported as 'United of India V/s Ibrahim Uddin & Anr.' MANU/SC/0561/2012 and 'Manohar Lal (D) by LR's V/s Ugrasen (D) by LR's MANU/SC/0415/2010, contended that no party can travel beyond its pleadings and the case set up by it and that no evidence is permissible to be taken on record in the absence of pleadings in that respect. Hence, it is is the contention of the counsel for the Respondent that the Claimant cannot be permitted to set up a new case by assailing the deductions as reflected in Ex. C-25. Counsel for the Respondent placed heavy reliance on Ex. RW1/3 which is the 'Account Abstract of Indo Alusys in DMRCL Project', which has been prepared on the basis of the accounts maintained by the Respondent, duly certified by the auditors and forming part of the balance sheet of the Respondent and reflects that an amount of Rs. 4,23,016.01 is the debit balance in the books of the Respondent which amount has been arrived at after taking into account the payments made, the debit notes and cash payments made to the third parties for carrying out the balance and rectification work at the risk and cost of the Claimant.
ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 17 of 28(g) From the record I find that the Respondent has not placed any material on the record to support the various debit notes and cash payments as reflected in Ex. C-25 and Ex RW1/3. Rather, upon a detailed scrutiny of Ex RW1/3, I find force in the contention of the counsel for the Claimant that Ex. RW1/3 appears to have been created by inserting random entries so as to support the version of the Respondent as stated in the reply to the Statement of Claim and the Counter Claim. I further find that although Ex. RW1/3 is stated to be based upon the audited accounts of the Respondent which are part of the balance sheet of the Respondent, neither the certificate from the Statutory Auditor namely M/s M.B.R Chartered Accountants and Delloite Chartered Accountants, who audit the accounts of the Respondent (as per the deposition of the witness of the Respondent RW-1), nor the audited balance sheet of the Respondent has been placed on the record in order to allay any doubts regarding the authenticity of the entries made in Ex. RW1/3. I further find that the deposition of the witness of the Respondent, RW-1 regarding his knowledge about the defective work is not on the basis of his personal knowledge but on the information given by the Project Manager and thus being hearsay, cannot be taken into consideration. This is fortified from the fact that there is nothing to evidence the presence of RW-1 at the site in Delhi. But, what creates more doubt is that RW-1, who has an engineering background, in his deposition, has admitted to making entry in his hand writing in Ex. RW1/3, which is a stated to be a statement of account prepared in MS Excel based on electronic accounting records of the Respondent. It goes without saying, that no such authorization from the Respondent enabling RW-1 to make alterations in the accounting records of the respondents has been placed in record. I therefore find that the RW-1 is an unreliable witness and his deposition cannot be believed.
In so far as the contention of the respondent that no pleadings have been made by Claimant as to on what basis they have claimed the amount of Rs. 12,57,588/-, I find from the record that there are as many as five letters / reminders issued by the Claimant dated 01.08.2009 (Ex. CW-1/28), 23.11.2009 (Ex. CW-1/29), 08.12.2010 (Ex. CW-1/30), 11.02.2011 (Ex. CW-1/31), and 14.4.2011 (Ex. CW-1/X-1) as well as the Legal Notice dated 11.5.2011 (Ex. CW-1/33), wherein the Claimant has specifically stated that the balance amount of Rs. 12,57,587/- was due and payable by the Respondent. The Statement of claim also specifically refers to the balance payment of Rs. 12,57,587/- and is supported by documents interalia Ex. C-24 and C-25 (which have been admitted by the Respondent). The witness for the Claimant, CW-1, in ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 18 of 28 answer to the specific query put by the counsel for the Respondent during cross examination, has clearly explained the methodology of arriving at this amount which removes any shadow of doubt that may have been cast by the Respondent on the amount as claimed by the Claimant. Hence, it cannot be said that there are no pleadings in the statement of claim or a new case has been set up by the Claimant. Therefore, the judgments referred by the Respondent in the case of 'Union of India vs. Ibrahim Uddin and Anr.' (supra) and 'Manohar Lal (D) by LR's V/s Ugrasen(supra)' would not assist the case of the respondent.
(h) In the above facts and circumstances, I have no hesitation in concluding that the Respondent could not have deducted any amount under debit entries as mentioned in Ex. C-25 and hold the Claimant entitled to the balance payment of Rs. 12,57,587/- as claimed.
39. Refund of Retention money of Rs. 8,59,263/-
Clause 11 of Work Order dated 6.9.2006 (Ex. C-2) provided as under:-
11. Retention Money: 5% shall be deducted from your bills as Retention Money. The cash retention withheld in each bill shall be released after defect liability period that is 12 months after taking over of site by client.
Retention money could be released against submission of BG of equivalent Amount.
(a) There is no dispute that retention money @ 5% was being deducted by the Respondent from the bills submitted by the Claimant. The only difference is in the amount. According to the Claimants, the retention amount is Rs. 8,59,263/- while according to the Respondent, the retention amount is Rs. 8,76,727/. As per the Claimant, the retention amount ought to have been released by the Respondent upon the taking over of the site by the DMRCL and after the expiry of the defect liability period. The Respondent has sought to deny this claim on the ground that work carried out by the Claimant was incomplete and defective and the retention money was adjusted towards the balance and rectification work got executed from third parties at the risk and cost of the Claimant in term of clause 16 of the Work Order.
Thus, the essential question to be determined is whether the risk and cost work was got executed by the Respondent.
(b) As per the Respondent, the Claimant was put to notice vide ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 19 of 28 letter dated 31.3.2007 (Ex. RW1/4) that the work would be completed at the risk and cost of the Claimant and further, according to the Respondent, the execution of the risk and cost work is borne out from the letter of the DMRCL dated 26.2.2009 (Ex. CW1/X-2), wherein the DMRCL had listed out the defects which the Claimant was required to rectify, but failed to do so. It is submitted that as per the industry norm as well as the Work Order, if the contractor/claimant was lagging behind in any part of the work, such part could be completed at its risk and cost and such expense would be to the account of the claimant and would figure either in the debits or in the payments made. Accordingly, in the Account abstract of Indo Alusys in DMRC Project (Ex. RW1/3), various debits and payments are mentioned interalia, Rs. 10,64,186/- paid to MAC Associates on 31.5.2011 and Rs. 5,78,263/- recovered by DMRCL towards aluminum work reflected against the date of 31.5.2011.
(c) On the other hand, counsel for the Claimant by placing reliance upon the judgment of Delhi High Court reported as Union of India V/s Daisy Construction 2006 (89) DRJ 24, has contended that the Respondent has failed to place on record any document to demonstrates that any such risk purchase order was placed on a third party on such terms and conditions which were more or less similar to the work order of the Claimant, particularly with respect to the work order placed upon MAC Associates to whom Rs. 10,64,186/- was paid on 31.5.2011 and the document showing the recovery of Rs. 5,78,263/- by DMRCL on 31.5.2011. It is also pointed out that both these events have admittedly occurred after the service of the legal notice dated 11.5.2011 but nothing in this regard was stated in the reply dated 1.6.2011 given by the Respondent. In so far as the letter of DMRCL dated 26.2.2009 (Ex. CW1/X-2) was concerned, the same was duly replied by the Claimant vide letter dated 14.3.2009 ( Ex. CW1/14) clearly pointing out that the list of defects given by the DMRCL were never brought to their notice but the Claimant had managed to completed the project. In this letter also, the Claimant has requested for the release of Rs. 8,59,263/- lying with the Respondent as Retention money. Further, from their letter dated 20.4.2009 ( Ex. CW-1/26), the intention of the Respondent to release the further payment to the Claimant, albeit, on the furnishing of Bank Guarantee is very clear. Moreover, in response to this letter, the Claimant vide their letter dated 23.4.2009 (Ex. CW1/27) had clearly brought to the notice of the Respondent that they had already performed and completed the work. According to the Claimant nothing further was heard from the DMRCL as all defects had been duly rectified which is also supported by the unrebutted statement of CW-1 in response question no. 41, ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 20 of 28 42, 43 and 44 recorded on 8.4.2016. In so far as the letter of Respondent dated 31.3.2007 and 14.12.2009 are concerned, the Claimant has denied the receipt of the same. As per the counsel for the Claimant, the RW-1 has made a false deposition regarding the hand delivery of the letter dated 31.3.2007 upon the Claimant in his presence (as deposed in answer to questions no. 58 to 65 recorded on 28.3.2017) since admittedly CW-1 had been transferred to Hyderabad in the year 2007 and nothing has been placed on record in the form of air / rail travel to show that the witness was in Delhi on 31.7.2007. In so far as the letter dated 14.12.2009 is concerned, RW-1 (in response to Question no. 57 recorded on 28.3.2017) was even unable to say by what mode the said letter was sent to the Claimant. Hence, the Respondent has been unable to prove these letters which consequently, cannot be relied upon. Counsel for the Claimant has lastly contented that the claim for risk and cost work cannot be sustained as the Respondent is itself not sure what is the total value of such risk and cost work in as much as in the reply to the legal notice dated 1.6.2011 (Ex. CW1/34), the Respondent claims to have incurred expenditure of Rs. 6,70,825/- on rectifying the defects, strangely and without any explanation, in the counter claim, it has been stated that as per accounts maintained by the Respondent, the total amount due from the Claimant to the Respondent is Rs. 12,99,743/-.
(d) After due consideration of the pleadings, documents, evidence and arguments addressed by both the parties, I am of the considered opinion that it was incumbent upon the Respondent to place on record documents in the form of work orders and vouchers / bills evidencing such risk and cost work got executed by third parties in support of their contention that risk and cost work was got executed by them. Further, in view of the several inconsistencies as pointed out by the counsel for Claimant and the vague and unexplained entries appearing in RW1/3 coupled with the discrepancy in the amount of expenditure claimed to have been borne by the Respondent in the execution of the risk and cost work make the claim of the Respondent unsustainable. Further, the Respondent has failed to prove the service of the letters dated 31.3.2007 and 14.12.2009 upon the Claimant. As such, I am unable to persuade myself that such risk and cost work was in fact carried out and the expenses towards the same were liable to be adjusted from the retention money of the Claimant. The Claimant is therefore entitled to the refund of the retention amount of Rs. 8,59,263/- from the Respondent.
Accordingly, I hold that the Claimant is entitled to the payment of the total sum of Rs. 21,16,851/- comprising of Rs.
ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 21 of 2812,57,587/- towards the payment of the balance amount as well as to the refund of the retention amount of Rs.8,59,263/- from the Respondent."
12. In the impugned arbitral award Ld. Sole Arbitrator has appreciated the oral as well as documentary evidence led before him thread bare excerpts of which have been quoted herein above.
13. Memorandum of Payment (C-24) and Payment Advice Note (C-25), filed alongwith Statement of Claim by claimant/ respondent were infact documents issued by petitioner to respondent/claimant which during the course of arbitral proceedings were admitted by petitioner before Ld. Sole Arbitrator, even in the affidavit of admission and denial filed by petitioner. In the petition and written arguments an endeavor has been made by petitioner through Ld. Counsel to project that neither there was challenge raised to these two documents nor their contents were disputed by respondent/claimant in pleadings filed before Ld. Sole Arbitrator. Appreciation of evidence by Ld. Sole Arbitrator makes it abundant clear that the essential ingredients for summarily determination of claims of respondent/ claimant on the basis of admissions on part of petitioner did not exist in the absence of any clear, unambiguous, unconditional and unequivocal admissions in the pleadings or documents by the petitioner. Accordingly, Ld. Sole Arbitrator had proceeded to determine the claims of claimant on the basis of pleadings, documents and evidence led by parties to arbitration. It is not the case that claimant/respondent in totality admitted all the contents of aforesaid documents C-24 and C-25 sent to it by petitioner ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 22 of 28 but had laid its claims aforesaid in arbitration also on aforesaid documents. Appreciation of evidence in arbitral proceedings by Ld. Sole Arbitrator is inter alia based upon the oral and documentary evidence led by parties including the answers of witness CW-1 Mr. Piyush Goyal of claimant/respondent and of witness RW-1 Mr. K. Rajasekhar of petitioner which also include the answers of CW1 to question no. 19 eliciting the computation for arrival at the sum of Rs, 12,57,588/- with respect to the claim of balance payment adjudicated in para 38 of impugned arbitral award. The appreciation of Ld. Sole Arbitrator was also inter alia based upon the answers of RW-1 including (i) Legal Department of respondent having prepared affidavit Ex RW1/A; (ii) no certificate from auditors of petitioner having been placed on record with respect to Statement of Account Ex RW1/3; (iii) non production of original ledger books of petitioner; (iv) non placing on record the copies of debit notes allegedly issued by petitioner;
(v) Statement of Account Ex RW1/3 having been prepared in MS Excel from the audited financial statements of petitioner which are based on the electronic form of books of account; (vi) no intimation had been placed on arbitral proceedings record for sending intimation in writing to claimant/respondent for entries pertaining to cash payments allegedly made on behalf of respondent/claimant and informing that those would be debited from their payments; (vii) letter Ex CW1/28 bearing the rubber stamp of petitioner company; (viii) Ex RW1/3 finding no mention of the period of Statement of Account at the top; (ix) last entry in Ex RW1/3 at page 2 being in handwriting of RW1. Ex RW1/3 has been appreciated at length by Ld. Sole Arbitrator as has been elicited in the excerpts of appreciation of Ld. Sole ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 23 of 28 Arbitrator above. Ex RW1/3 is not a copy of financial year wise account of respondent/claimant maintained in the ledger of petitioner in routine course of business but on top of it is mentioned 'ACCOUNT ABSTRACT OF INDO ALYSYS IN DMRCL PROJECT' and after providing of particulars and amounts of R.A Bills from year 2006 to 2011, it subsequently finds mention of particulars of retention money deposited from 31/12/2006 to 31/08/2011, after which are the provided particulars of withheld amount of an R.A Bill of 31/03/2008, after which are the provided particulars of payments made from year 2006 to year 2008 later to which are again the entries/particulars for years 2007, 2011, 2008, 2009; which all particulars are not as per what is being maintained in a ledger account in date wise sequence, financial year wise sequence, reflecting debit and credit entries accordingly and appropriately. Ld. Sole Arbitrator had also appreciated the fact that petitioner had failed to place on record any documentary evidence to support the debit entries in document C-25. Ld. Sole Arbitrator had also appreciated that even petitioner had not supplied/filed/ proved any documents supporting the averment of the petitioner that service tax was exempted whereas in order to claim exemption the petitioner was required to provide the exemption certificate to the respondent/claimant which was not done. It was also appreciated by Ld. Sole Arbitrator that as required by law, respondent/claimant had deposited the service tax in the sum of Rs.11,58,858/- which amount was subsequently refunded by the petitioner whereas both of these entries of the payment of service tax by respondent/claimant and such refund of service tax by petitioner were duly reflected in Ex CW1/23.
ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 24 of 2814. The proceedings under Section 34 of the Act are summary in nature and the scope of enquiry in the proceedings under Section 34 of the Act is restricted to specified grounds for setting aside only, as was held in the case of Canara Nidhi Limited vs M. Shashikala & Ors., 2019 SCC Online SC 1244. The Court would not construe the nature of claim by adopting too technical an approach or by indulging into hair-splitting, otherwise the whole purpose behind holding the arbitration proceedings as an alternative to Civil Court's forum would stand defeated, as was held in the case of Sangamner Bhag Sahakari Karkhana Ltd. vs Krupp Industries Ltd., AIR 2002 SC 2221. An award is not open to challenge on the ground that the arbitrator had reached a wrong conclusion or had failed to appreciate some facts, but if there is an error apparent on the face of the award or if there is misconduct on the part of the arbitrator or legal misconduct in conducting the proceedings or in making the award, the court will interfere with the award; as was held by Supreme Court in the case of Oil & Natural Gas Corporation vs M/s Wig Brothers Builders & Engineers Pvt. Ltd., (2010)13 SCC 377. Reappraisal of evidence by the court is not permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under the Arbitration Act; as was held by Supreme Court in the case of Ispat Engineering & Foundry Works vs Steel Authority of India Ltd., (2001) 6 SCC 347. In order to provide a balance and to avoid excessive intervention, the award is not to be set aside merely on the ground of an erroneous application of the law or by re-appreciating evidence; as was held by Supreme Court in the case of P.R Shah, Shares & Stock ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 25 of 28 Brokers Pvt. Ltd vs B.H.H. Securities Pvt.Ltd. & Ors., (2012) 1 SCC 594. At global level the doctrine of 'Contra Proferentem' is generally applied by the Judges/Arbitrator in the cases where a contract appears ambiguous to them; the Judges/Arbitrator in India have appreciated and adopted similar line of reasoning in the cases involving ambiguous contract wherein it is believed that 'an ambiguity is needed to be resolved' in order to find the correct intention of the contract. If the conclusion of the arbitrator is based on a possible view of the matter, the court is not expected to interfere with the award and if the Arbitrator relies on a plausible interpretation out of the two possible views, then it would not render the award perverse; as was held by Supreme Court in the case of M/s Sumitomo Heavy Industries Ltd. vs Oil & Natural Gas Commission of India, 2010 (11) SCC 296. Award is not open to challenge on the ground that the Arbitral Tribunal had reached a wrong conclusion or had failed to appreciate the facts; the appreciation of evidence by the arbitrator is never a matter which the Court considers in the proceeding under Section 34 of the Act, as the Court is not sitting in appeal over the adjudication of the arbitrator.; as was held by Delhi High Court in the case of NTPC Ltd vs Marathon Electric Motors India Ltd., 2012 SCC OnLine Del 3995. Supreme Court in the case of Associate Builders vs Delhi Development Authority, (2015) 3 SCC 449 has restricted the scope of public policy, so the Court does not act as a Court of appeal and consequently errors of fact cannot be corrected. An error relatable to interpretation of the contract by an arbitrator is an error within his jurisdiction and such error is not amenable to correction by Courts as such error is not an error on the face of the award; as ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 26 of 28 was held by Supreme Court in the case of Steel Authority of India Ltd. vs Gupta Brother Steel Tubes Ltd., (2009) 10 SCC
63.
15. The impugned award was passed by an experienced Advocate as Sole Arbitrator whereas the findings were given, based on appreciation of facts, evidences and law after giving all reasonable opportunities to the parties to lead their evidence. Not only the reasonings of Ld. Sole Arbitrator are logical but all the material and evidences were taken note of by the Ld. Sole Arbitrator. The Court cannot substitute own evaluation of conclusion of law or fact to come to the conclusion other than that of the Ld. Sole Arbitrator, as per the law laid in the precedents, elicited herein above. Cogent grounds, sufficient reasons have been assigned by Ld. Sole Arbitrator in reaching the just conclusion and no error of law or misconduct is apparent on the face of the record. This Court cannot re-appraise the evidence and it is not open to this Court to sit in the appeal over the conclusion/findings of facts arrived at by Ld. Sole Arbitrator. The impugned award does not suffer from vice of irrationality and perversity. No error is apparent in respect of the impugned award. The conclusion of the arbitrator is based on a possible view of the matter, so the Court is not expected to interfere with the award. Even impugned award passed by Ld. Sole Arbitrator cannot be set aside on the ground that it was erroneous. The award is not against any public policy nor against the terms of contract of the parties. No ground for interference is made out. None of the grounds raised by the petitioner to impugn arbitral award attract Section 34 of the Act. Per contra grounds of ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 27 of 28 appeal have been dressed by the petitioner in garments of grounds to impugn arbitral award under Section 34 of the Act.
16. For the foregoing reasons, the petition is hereby dismissed.
17. The parties are left to bear their own costs.
18. File be consigned to record room.
Digitally signed by GURVINDER PAL GURVINDER SINGH
PAL SINGH Date: 2021.12.14
14:09:57 +0530
ANNOUNCED IN (GURVINDER PAL SINGH)
OPEN COURT District Judge (Commercial Court)-02
th
On 14 December, 2021. Patiala House Court, New Delhi.
(DK) ARBTN No. 5737/2018 NCC Ltd. vs M/s INDO ALUSYS INDUSTRIES LTD. Page 28 of 28