Madras High Court
Chennai Petroleum Corporation Ltd vs Urc Constructions (P) Ltd
Author: Abdul Quddhose
Bench: Abdul Quddhose
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.07.2018
DELIVERED ON : 19.07.2018
CORAM
THE HONOURABLE Mr.JUSTICE ABDUL QUDDHOSE
O.P.No.698 of 2009
Chennai Petroleum Corporation Ltd.,
536, Anna Salai, Teynampet,
Chennai 600 018,
Represented by its Company Secretary,
Mr.M.Sankaranarayanan .. Petitioner
Vs
1.URC Constructions (P) Ltd.,
119, Power House Road,
Erode 638 001.
2.Mr.P.Sridharan,
Sole Arbitrator .. Respondents
Original Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 praying to set aside the impugned arbitral award dated 02.06.2009 insofar as it relates to the award of refund of the sum of Rs.30,17,422/- deducted from the final bill of the first respondent (Claim 1) and simple interest at the rate of 12% per annum thereon (Claim 2) by allowing this petition with costs, or in the alternative, to remit the matter to the arbitral tribunal to consider the evidence relating to the issuance of notice to the first respondent for rectification of defects and pursuant thereto or in the light thereof to adjudicate the dispute between the parties.
For Petitioner : Mr.R.Senthil Kumar
For Respondent 1 : Mr.P.J.Rishikesh
O R D E R
The instant petition has been filed by the petitioner under section 34 of the Arbitration and Conciliation Act, 1996 challenging the Award dated 02.06.2009 passed by the second respondent/Arbitrator against the petitioner.
2. The brief facts leading to the filing of the instant petition are as follows: The petitioner awarded a contract to the first respondent in the year 2001 to carry out civil and structural works in utilities and offsite (Part B) in the petitioners Refinery III Expansion Project. Under the contract, the first respondent will have to complete the work on or before November 2002 i.e., within a period of 12 months from the date of contract. According to the petitioner, the contract was completed by the first respondent only on 30.04.2004. Under the contract, the defect liability period was to run for a period of one year from the date of actual completion i.e., on 30.04.2004 and the said period expired on 29.04.2005.
3. On 21.06.2003, i.e., prior to the actual completion date, the Engineer-in-charge under the contract namely Engineers India Limited wrote to the first respondent informing that the Chief Technical Examiner of the Central Vigilance Commission was scheduled to inspect the quality of work done by the first respondent between 26.06.2003 to 30.06.2003. According to the petitioner, the work site was inspected on 28.06.2003 in the presence of both the Engineer-in-charge and the first respondent and various items of work were checked and defects pointed out. In relation to the present case, defects in structural steelwork, i.e., welding (item 14.7.1) and painting (item 14.7.3) were pointed out. Thereafter, the Chief Technical Examiner of the Central Vigilance Commission vide letter dated 29.08.2003 forwarded his inspection report to the petitioner. The said report inter alia recorded that during the site inspection, it was found that the welding in the structural steelwork was not of uniform size and that the painting thickness on structural steelwork was found to be inconsistent and not uniform.
4. According to the petitioner, the first respondent, who was present during the inspection was made aware of the various defects in the work and pursuant to the said report, the Engineer-in-Charge directed the first respondent by letter dated 30.09.2003 to rectify the various defects, including the defects relating to welding and painting. Pursuant thereto, the Engineer-in-charge vide Circular dated 22.10.2003, informed the petitioner that the first respondent has been directed to complete rectification by 15.12.2003.
5. The report of the Chief Technical Examiner of the Central Vigilance Commission forwarded via letter dated 29.08.2003 advised the petitioner that the work done by the first respondent be further examined keeping in view the observations made in the said report. Subsequently, the petitioner set up a three-member internal committee (Committee) to look into the same. The said committee examined various defects pointed out in the report of the Chief Technical Examiner of the Central Vigilance Commission. In relation to welding in structural steelwork, the same was inspected in September 2004 and portals in three areas, namely Area 63, Area 65 and Area 70 were examined. In each area, roughly seventy joints were measured in the presence of the first respondent and the measurement sheet dated 15.09.2004 annexed to the report of the Committee was countersigned by the first respondent. From the measurement sheet and the report of the Committee based on the said measurements, it is apparent that the weld thickness was not uniform and was not as per the welding specification. The said report and measurements were made and taken during the defect liability period under the contract and the first respondent was made aware of the shortfall in weld thickness in the measurements on 15.09.2004.
6. According to the petitioner, the first respondent having countersigned all the measurements was duly aware of the number of areas and welds examined by the Committee in preparation of its report. While the first respondent carried out a portion of the rectification work as directed by the Engineer-in-charge, rectification was not carried out in relation to certain items, including defects in relation to welding and painting in relation to structural steelwork, slag cement and honeycombs in RCC structures. In particular, the first respondent did not carry out any rectification in relation to welding or painting, despite being made aware of the defects in structural steelwork both prior to and during the defect liability period under the contract.
7. The committee in its report also recommended monetary deductions from payments due to the first respondent, including a sum of Rs.29,56,227/- towards deficient weld thickness in structural steelwork and a recovery of Rs.1,05,486/- towards the paint on structural steelwork that was not as per specifications in respect of the coefficient of thickness. The deduction with respect to paintwork was on account of the variation in paint thickness. Under the contract, the minimum dry thickness was to be 225 microns and the maximum 258.5 microns. The average dry thickness of various areas was considered by the Committee and it was found that the dry film thickness in the four areas was less than the minimum standard requirement of 225 microns. Hence, the deduction as above was made. The total deductions made by the petitioner amounted to a sum of Rs.33,00,172/-. These deductions were reflected in payments for the final bill dated 12.05.2005. The said bill was countersigned by the first respondent, who received final payment of Rs.33,93,742.08 after deductions.
8. On 07.07.2005, the first respondent wrote to the petitioner claiming to have completed all rectification work as directed by the Engineer-in-Charge and hence, sought the release of deducted payment as well as certain other amounts withheld against jobs in the final bill.
9. The first respondent vide letter dated 21.07.2006 accepted the deductions in respect of defects relating to non-use of slag cement, poor quality concrete in dyke wall construction, honey-combs in RCC structure, honey-combing and cracks in pre-cast sleepers, poor quality shuttering and workmanship in RCC pre-cast sleepers and poor quality shuttering and workmanship in unplastered area and the RCC slab of the highway culvert. In this letter, the first respondent took the position that the sample checking of the quality of work done by the first respondent as earlier carried out by the Chief Technical Examiner and the Committee, was of a limited nature, not commensurate with the quantity of work involved and therefore not a representative sample capable of global extrapolation to cover the entire work done.
10.Thereafter, vide letter dated 24.03.2007, the first respondent reiterated that it is not accepting the deduction in respect of the items mentioned above. In respect of this disputed claim, the first respondent submitted that, in his opinion, assuming the quantum of deficiency in welding thickness as averaging 1.5 mm, it was liable to deduct amounting to Rs. 4,65,888/- only for the entire welding work. It also stated that as only three portals were subject to actual testing, a pro-rate sum of Rs.9,312/- only ought to have been deducted from the final bill and requested that in the light of the above only a reasonable sum be deducted.
11. On 31.01.2008, the first respondent through its counsel issued a notice to the petitioner under the arbitration clause 102 of the General Conditions of Contract, directing the petitioner to appoint an Arbitrator in accordance with the arbitration clause. The said notice did not quantify the claim of the first respondent.
12. Accordingly, the petitioner vide letter dated 22.02.2008 appointed the second respondent as the sole Arbitrator. The second respondent/sole Arbitrator acted upon the reference and after issuing notice to the parties to the dispute and after considering the materials available on record and after hearing the submissions of the parties, passed an Arbitral Award dated 02.06.2009 directing the petitioner to pay the first respondent the following sums towards claim No.1: Refund of the sum of Rs.30,17,422/- deducted from the final bill of the first respondent, claim No.2 : Simple Interest at the rate of 12% per annum on the sum of Rs.30,17,422/- deducted from the final bill of the first respondent for the period from 12.05.2005 until the actual date of payment of such amount. Claim No.3: The claim of the first respondent for costs of the arbitration was denied.
13. Aggrieved by the Arbitral Award dated 02.06.2009, the instant petition has been filed by the petitioner challenging the Award of the Tribunal in relation to claim No.1 & claim No.2, which according to the petitioner is bad in law and contrary to the terms and conditions of the contract and the facts of the case.
14. Heard, Mr.R.Senthil Kumar, learned counsel for the petitioner as well as Mr.P.J.Rishikesh, learned counsel for the respondent.
15. The learned counsel for the petitioner drew the attention of this Court to the rejoinder filed by the first respondent before the learned Arbitrator wherein, according to him, the first respondent has admitted that their representative was present, while the test was carried out by the Central Vigilance Commission. The test was carried out by the Central Vigilance Commission between 26.06.2003 and 30.06.2003 in the presence of the officials of the petitioner as well as the representative of the first respondent/contractor. The learned counsel for the petitioner then drew the attention of this Court to paragraph 4 of the same rejoinder wherein, according to the learned counsel, the first respondent has admitted that a copy of undated confidential report of the committee which was made available to the first respondent along with letter dated 01.08.2008 discloses that the committee has conducted the test dated 15.09.2004 and enclosed the annexure containing the test result for welding and signature of the first respondent and the petitioner with dated initials on 15.09.2004.
16. According to the learned counsel for the petitioner, since the tests were carried out only in the presence of the first respondent, the notice as contemplated under Clauses 77, 81 and 83.1 of the General Conditions of Contract read with Clauses 24, 27 and 46 of special conditions of the contract is deemed to have been given to the first respondent.
17. The learned counsel for the petitioner then drew the attention of this Court to Clause 46 of the General Conditions of Contract which reads as follows:
46.0 ACTION AND COMPENSATION PAYABLE IN CASE OF BAD WORK:
The work during its progress (or) during the defect liability period an also be inspected by the Chief Technical Examiner (or) his authorised representatives of the Central Vigilance Commission and any defects pointed out by him shall be attended by the Contractor in the same manner as specified in clause no.77 of General Conditions of Contract. Relying on Clause 46 of addendum to the General Conditions of Contract, the learned counsel for the petitioner submitted that once the Chief Technical Examiner or his authorised representative of the Central Vigilance Commission after inspection during defect liability period points out defects, the same shall be attended to by the contractor in the same manner as specified in clause 77 of the General Conditions of Contract.
18. According to the learned counsel for the petitioner, when the Chief Technical Examiner has examined as an inspector and conducted the test in the presence of the first respondent's representative, there is no necessity to issue notice of inspection as contemplated under clause 77 of General Conditions of Contract. Clause 77 of the General Conditions of Contract reads as follows:
Action and compensation in case of bad work It is shall appear to the Engineer-in-Charge that any work has been executed with unsound, imperfect or unskilled workmanship, or with materials of any inferior description , or that any materials or articles provided by the Contractor for the execution of the work are unsound, or of a quality inferior to that contracted for, or otherwise not in accordance with the contract, the Contractor shall on demand in writing from the Engineer-in-Charge or his authorised representative specifying the work materials or articles complained of notwithstanding that the same may have been inadvertently passed, certified and paid for, forthwith rectify, or remove and reconstruct the work so specified and provide other proper and suitable materials or articles at his own charge and cost, and in the event of failure to do so within a period to be specified by the Engineer-in-Charge in his demand aforesaid, the Contract shall be liable to pay compensation at the rate of half percent of the estimated cost of the whole work for every day limited to a miximum of five percent of the value of the whole work while his failure to do so shall continue and in the case of any such failure the Engineer-in-Charge may on expiry of notice period rectify or remove, and re-execute the work or remove and replace with others, the materials or articles complained of as the case may be at the risk and expense in all respects of the Contractor. The decision of the Engineer-in-Charge as to any question arising under this clause shall be final and conclusive.
19. According to the learned counsel for the petitioner, since clause 46 of addendum to the General Conditions of Contract is a special condition which overrides the general condition namely clause 77, no notice in writing is required to be given by the Engineer in charge of the petitioner to the first respondent as contemplated under clause 77.
20. The learned counsel for the petitioner then drew the attention of this Court to the letter dated 24.03.2007 sent by the first respondent to the petitioner wherein according to the learned counsel for the petitioner, the first respondent has agreed to deduct the sum of Rs.4,65,888/- from and out of the claim amount of Rs.33,00,172/-. By relying on this letter, the learned counsel for the petitioner would submit that the first respondent has admitted deficiency in the welding work and only for that reason, they have agreed to deduct a sum of Rs.4,65,888/- from and out of their claim amount.
21. The learned counsel for the petitioner then submitted that the petitioner had filed an application under Section 26 of the Arbitration and Conciliation Act, 1996 before the learned Arbitrator for appointment of an expert to report on the specific issue of defects in welding of structural steelwork by the first respondent. He then drew the attention of this Court to the findings of the learned Arbitrator which held that the suggestion for appointment of an expert at this juncture is not of much significance as the main issue to be decided by the Tribunal whether the action of the petitioner in straightway recovering the amount from the final bill towards deficiency found and assessed in the first respondent's work by CTE who is authorised representative of CVC without following the specific clause 46.0 incorporated in the agreement is correct. On this finding, the Tribunal has rejected the request made by the petitioner to appoint an expert.
22. According to the learned counsel for the petitioner, the petitioner was not given due opportunity by the learned Arbitrator to prove the deficiency in the welding work completed by the first respondent. According to him, the learned arbitrator ought to have allowed the application filed by the petitioner under Section 26 of the Arbitration and Conciliation Act, 1996 seeking appointment of an expert to identify the defects in the welding work completed by the first respondent.
23.The learned counsel for the petitioner then drew the attention of this Court to the Arbitral Award dated 02.09.2009 which is the subject matter of challenge in the instant petition and he referred to paragraph 8.7 of the Arbitral Award which reads as follows:
The Tribunal is of the view, that the suggestion for appointment of an expert at this juncture is not of much significance as the main issue to decided by the Tribunal is whether the action of the Respondent in straightaway recovering the amount from the final bill towards deficiency found and assessed in the claimant's work by CTE/his authorised representative of CVC without following the specific clause 46.0 incorporated in the agreement is correct. Hence the Tribunal decides that it is not necessary to appoint an expert.
24. According to the learned counsel for the petitioner, the learned Arbitrator has verbatim reproduced the order passed in the application filed by the petitioner under section 26 of the Arbitration and Conciliation Act, 1996 instead of giving independent findings on the need for appointment of an expert to identify the deficiency in the welding works completed by the first respondent.
25. The learned counsel for the petitioner then drew the attention of this Court to the paragraph 1.2 of the Arbitral Award which reads as follows:
1.2. the work was completed and the final bill was certified by the consultants M/s. Engineers India Ltd., an undertaking of Government of India on 27.12.04. The Respondent unilaterally and without any notice to the Claimant deducted a sum of Rs.33,00,172/- while making final payment on 12.05.05.
26. According to the learned counsel for the petitioner, M/s. Engineers India Limited is not an expert. Therefore the learned Arbitrator ought not to have relied upon the certificate issued by M/s. Engineers India Limited on 27.12.2004.
27. Per contra, Mr.P.J. Rishikesh, learned counsel for the first respondent submits that the first respondent has completed the work in accordance with the terms of the Contract. He drew the attention of this Court to the final completion certificate dated 10.12.2004 issued by Engineers India Limited, which reveals that the first respondent has performed all the obligations under the contract. According to the learned counsel for the first respondent, having completed the work in accordance with the works contract, no deduction in the amount payable under the contract is permissible.
28. According to the learned counsel, the first respondent had completed the work for 170 portals whereas the Chief Technical Examiner of the Central Vigilance Commission inspected only three portals and has submitted a report without evidence that all 173 portals for which work was done by the first respondent as defective. According to the learned counsel for the first respondent, the petitioner has deliberately inspected the portals selectively only to deprive the first respondent from getting the payment.
29. Learned counsel for the first respondent then drew the attention of this Court to the findings of the learned Arbitrator at Clause 46 and Clause 77 of the Contract. According to the learned counsel for the first respondent, the learned Arbitrator has categorically given a finding that all the three reports dated 29.08.2003, 21.10.2004 and 22.12.2012 by the Chief Technical Examiner/Technical Examiner of the Central Vigilance Commission and the Committed which are interdepartmental confidential correspondences were kept concealed by the petitioner and was never made known to the first respondent, until the commencement of the arbitral proceedings. The learned Arbitrator has also recorded the fact that all the three reports were filed as documents, only during the arbitral proceedings on 17.06.2008 and 01.08.2008 and copies of the reports were also not furnished to the first respondent prior to commencement of the Arbitral proceedings.
30. The learned counsel drew the attention of this Court to the findings of the learned Arbitrator that the amounts recommended by the committee to be recovered was straightaway deducted from the final bill of the first respondent on 12.05.2005 without giving any details and reasons for the recovery. The learned counsel also referred to the observation made by the learned Arbitrator that after recovering the amount from the first respondent on 12.05.2005, the petitioner did not give the details of the recovery, despite the request made by the first respondent. The learned Arbitrator has also recorded the fact that the petitioner did not respond to the several letters of the first respondent.
31. The learned counsel for the first respondent also referred to paragraph 9.7 of the Award, wherein the learned Arbitrator has given a categorical finding that the petitioner never took any action to give notice to the first respondent, demanding rectification of the deficiencies found in the work as per the procedure stipulated in clause 46.0 of the Special Conditions of Contract. The learned counsel for the first respondent also referred to the findings of the learned Arbitrator at clause 83.1 of General Conditions of Contract. He also referred to paragraphs 9.8.2, 9.8.3, 9.8.4, 9.8.5, 9.8.9, 9.9.1, 9.9.2, 9.10 and 9.10.1. Only after examining and analysing the various clauses under the Contract, the learned Arbitrator has given a finding that the petitioner never gave any notice to the first respondent, demanding rectification of defects within the stipulated period. He also referred to the findings of the learned Arbitrator in the alleged rectification done by the petitioner, due to the alleged default of the first respondent and submitted that the petitioner ought to have got the cost of rectification done assessed and certified by the Engineer-in-Charge and such amounts certified by the Engineer-in-charge ought to have been recovered from the petitioner. The learned Arbitrator has given a finding that such a procedure as stipulated in clause 46.0 of the Special Conditions of contract was not adopted by the petitioner.
32. The learned counsel for the first respondent also submitted that the learned Arbitrator has observed that the amount assessed and recommended to be recovered by the Chief Technical Examiner, the Central Vigilance Commission and the committee formed by the petitioner on 22.12.2004 was straightaway deducted from the first respondent. This is a gross violation of the Conditions of Contract by the petitioner which is not justifiable.
33. The learned counsel for the first respondent also drew the attention of this Court to paragraph 10.3 of the Award wherein the learned Arbitrator has disallowed certain sums of money, based on the statements made by the first respondent offered to forego some amount recovered and restricted the claim to Rs.30,17,422/- out of the total claim of Rs.33,00,172/- recovered by the petitioner in the final bill. According to the learned counsel for the first respondent, the learned Arbitrator has applied his mind in accordance with law and only thereafter, passed the Award in favour of the first respondent.
34. This Court has examined and analysed the Arbitral Award dated 02.06.2009 and has also perused the documents marked as exhibits before the learned Arbitrator and after hearing the submissions of the respective counsels, observes the following:
(a) The Award dated 02.06.2009 passed by the learned Arbitrator is a detailed and a well considered Award.
(b) The committee constituted by the petitioner to inspect the deficiencies in the work done by the first respondent, gave its first report on 21.10.2004 and revised conclusive report on 22.12.2004. But the committee inspected only three portals namely area 63, area 65 and area 70 and the committee presumed that in all other 170 portals also the same deficiency will exist. The committee did not inspect all the 173 portals but only inspected 3 portals. Both the reports of the Committee dated 21.10.2004 and 22.12.2004 were never furnished to the first respondent and they were made available to the first respondent, only during the arbitral proceedings. This fact was also recorded by the learned Arbitrator in paragraph 9.4 of the Award.
(c) The amount was also deducted from the final bill of the first respondent on 12.05.2005 without giving any details and reasons for the recovery. Despite requests made by the first respondent to give details of recovery, the petitioner did not respond and did not give any detail.
(d) No notice was given to the first respondent by the petitioner demanding rectification of the deficiencies found in the work as per procedure stipulated in clause 77 of the Special Condition of Contract.
(e) The learned Arbitrator has also considered clause 46, clause 77, clause 81 and clause 83.1 of the General Conditions of Contract and only thereafter, has come to the conclusion that the recovery made by the petitioner from the final bill of the first respondent has totally ignored the stipulations in clause 46 of the Special Conditions of Contract is not justified and so he has cancelled the same and directed the petitioner to refund the sum deducted from the final bill on 12.05.2005 to the first respondent.
(f) There is no necessity on the part of the petitioner to file an application under Section 26 of the Arbitration and Conciliation Act, 1996, seeking for appointment of an expert to inspect the alleged deficiencies in the welding and painting work completed by the first respondent. The inspection was already carried out by the Central Vigilance Commission as well as the Committee appointed by the petitioner, even prior to the commencement of the Arbitration. Neither the Central Vigilance Commission report nor the Committee report was furnished to the first respondent prior to the Arbitration, but the copy of the same was furnished to the first respondent only during the arbitral proceedings. There should have been transparency on the part of the petitioner while conducting the inspection on the alleged deficiencies in the welding and painting work completed by the first respondent. Instead of showing transparency by giving due notice as contemplated under Clause 77 of the General Conditions of Contract as well as furnishing copy of the Central Vigilance Commission report and the Committee report to the first respondent, the petitioner has filed the application under Section 26 of the Arbitration and Conciliation Act, 1996 seeking for appointment of an expert.
35. This Court is of the considered view that the order passed by the Arbitrator, rejecting the application filed by the petitioner under Section 26 of the Arbitration and Conciliation Act, 1996 is perfectly a valid order as the findings of the Arbitrator is not a perverse finding.
36. The Award dated 02.06.2009 passed by the learned Arbitrator is a detailed and well reasoned Award and this Court does not find any perversity or patent illegality in the Award. The view taken by the learned Arbitrator is a plausible view and this Court under Section 34 of the Arbitration and Conciliation Act, 1996 cannot substitute its view for the view taken by the learned Arbitrator when the said finding is found to be in accordance with law.
37. The Hon'ble Supreme Court in a Catena of decisions starting from Renusagar Power Company Ltd vs. General Electric Company 1994 Supp (1) SCC 644 to the recent Associated Builders Vs DDA (2015) 3 SCC 49 has held only under the following grounds the Arbitral Award can be challenged under Section 34 of the Arbitration and Conciliation Act:
(a)Procedure contemplated under Arbitration and Conciliation Act was not followed by the Arbitrator.
(b)The Arbitral Award is a non speaking Award.
(c)The Arbitrator has transgressed his jurisdiction.
(d)The Arbitral Award is in conflict with the public policy of India.
(iii)An award would be regarded as conflicting with the public policy of India if:-
(a) it is contrary to the fundamental policy of Indian law, or
(b) it is contrary to the interests of India,
(c) it is contrary to justice or morality,
(d) it is patently illegal, or
(e)it is so perverse, irrational, unfair or
unreasonable that it shocks the
conscience of the court.
(iv)An award would be liable to be regarded as
contrary to the fundamental policy of Indian law,
for example, if
(a) it disregards orders passed by superior
courts, or the binding effect thereof, or
(b)it is patently violative of statutory
provisions, or
(c) it is not in public interest, or
(d)the arbitrator has not adopted a
judicial approach, i.e. has not acted in
a fair, reasonable and objective
approach, or has acted arbitrarily,
capriciously or whimsically, or
(e) the arbitrator has failed to draw an
inference which, on the face of the facts,
ought to have been drawn, or
(f) the arbitrator has drawn an inference,
from the facts, which, on the face of
it, is unreasonable, or
(g) the principles of natural justice have
been violated.
(v)Insofar the patent illegality has to go to the
root of the matter. Trivial illegalities are
inconsequential.
(vi) Additionally, an award could be set aside if
(a) either party was under some
incapacity, or
(b) the arbitration agreement is invalid
under the law, Or
(c) the applicant was not given proper
notice of appointment of the arbitrator,
or of the arbitral proceedings, or was
otherwise unable to present his case, or (d)the award deals with a dispute not submitted to arbitration, or decides issues outside the scope of the dispute submitted to arbitration, or
(e)the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, or in accordance with Part I of the Act, or
(f)the arbitral procedure was not in accordance with the agreement of the parties, or in accordance with Part I of the Act, or
(g) the award contravenes the Act, or
(h) the award is contrary to the contract between the parties.
(vii) Perversity, as a ground for setting aside an
arbitral award,has to be examined on the
touchstone of the Wednesbury principle of
reasonableness. It would include a case in which
(a) the findings, in the award, are based on no evidence, or
(b) the Arbitral Tribunal takes into account
something irrelevant to the decision
arrived at, or
(c)the Arbitral Tribunal ignores vital
evidence in arriving at its decision.
(viii) At the same time,
(a) a decision which is founded on some evidence, which could be relied upon, howsoever compendious, cannot be
treated as perverse,
(b) if the view adopted by the arbitrator is
a plausible view, it has to pass muster,
(c) neither quantity, nor quality, of
evidence is open to re-assessment in
judicial review over the award.
(ix)Morality would imply enforceability, of the
agreement, given the prevailing mores of the day.
Immorality, however, can constitute a ground
for interfering with an arbitral award only if it
shocks the judicial conscience.
38. The petitioner has not satisfied any of the grounds mentioned above to interfere with the Award dated 02.06.2009. Hence, the Original Petition shall stand dismissed. However, there shall be no order as to costs.
19.07.2018 Index: Yes Speaking orders nl ABDUL QUDDHOSE, J.
nl Pre-Delivery Order in O.P.No.698 of 2009 19.07.2018