Orissa High Court
Jindal India Thermal Power Ltd vs Quartz Infra And Engineering Pvt on 29 September, 2022
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.4 Of 2021
(Through hybrid mode)
Jindal India Thermal Power Ltd. .... Appellant
Mr. C. Mukhopadhya, Senior Advocate
Mr. S.P.Mishra, Senior Advocate
Mr. Satyajit Mohanty, Advocate
Mr. Prashant Mehta, Advocate
Mr. Asit Kumar Dash, Advocate
Ms. Divita Vyas, Advocate
-versus-
Quartz Infra and Engineering Pvt. .... Respondent
Ltd.
Mr. Vegesna Subba Raju, in person
CORAM: JUSTICE ARINDAM SINHA
ORDER
29.09.2022 Order No.
20. 1. Mr. Mukhopadhya, learned senior advocate appears on behalf of appellant resumes his argument. He reiterates findings in paragraphs 242 and 243 in the award regarding his client's unfettered right to terminate under it, held to have been qualified by right to reduce the quantity of work, if any contingency arose. He relies on judgment of the Supreme Court in Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum, reported in (2022) 4 SCC 463, paragraphs 43 and 44. Paragraph 44 is reproduced below. Page 1 of 1
// 2 // "44. An Arbitral Tribunal being a creature of contract, is bound to act in terms of the contract under which it is constituted. An award can be said to be patently illegal where the Arbitral Tribunal has failed to act in terms of the contract or has ignored the specific terms of a contract.
He submits, the Tribunal in ignoring the contract term was in breach of mandate under sub-section (3) in section 28, Arbitration and Conciliation Act, 1996.
2. On the Tribunal having rejected his client's application under section 27, he draws attention to paragraphs 486 and 487 in the award. He submits, facts are that the measurement book was signed by respondent. Relying on some scoring out, it disputed the same in the reference. Facts are also that there was joint measurement between respondent and the next contractor engaged by his client. His client wanted to examine said contractor to prove said measurements, to corroborate the measurement book disputed by respondent. This was not allowed by the Tribunal.
3. He submits, on wrongful termination and prejudice caused straightaway his client has demonstrated patent illegality in the award to extent of approximately Rs.2.7 crores. Clause (iv) under sub-section (2) in section 34 only allows for severance of award in respect of the Page 2 of 3 // 3 // part therein on matters not submitted to arbitration. Here the case is, the disputes were referred culminating in award of Rs.6 crores and odd. At this point he submits, entire award is liable to be set aside on adjudication in appeal that finding on wrongful termination and prejudice by rejecting section 27-A application, going in favour of his client. He relies on judgment of the Supreme Court in NHAI v. M. Hakeem, reported in (2001) 9 SCC 1, paragraphs 2, 16, 41 and 42. He submits, law declared is, there cannot be modification of the award by either enhancing or reducing it.
4. There are other smaller claims, on which he would like to point out apparent illegality as well as rejection of counter claims of his client.
5. List on 19th October, 2022 marked at 2.00 P.M. (Arindam Sinha) Judge Sks Page 3 of 3