Bombay High Court
Edifice Developers And Project ... vs M/S. Essar Projects (India) Ltd on 3 January, 2013
Author: D.Y.Chandrachud
Bench: D.Y. Chandrachud, A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.11 OF 2012
IN
ARBITRATION PETITION NO.313 OF 2007
Edifice Developers and Project Engineers Ltd. ..Appellant.
Versus
M/s. Essar Projects (India) Ltd. ..Respondent.
.....
Mr. Shailesh Shah, Senior Advocate i/b Ms. Vaishali Choudhari for the Appellant.
Mr. Nishant Sasidharan with Mr. Nikhil Karnawat i/b Maniar Srivastava
Associates for the Respondent.
....
CORAM : DR.D.Y.CHANDRACHUD, AND
A.A. SAYED, JJ.
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
3 January 2013.
This Appeal arises from a judgment of a Learned Single Judge dated 11 November 2011 on a petition under Section 34 of the Arbitration and Conciliation Act 1996.
2. On 28 February 1998 a letter of intent was issued by the Respondent to the Appellant for the construction of Plant 'C' building at a contract price of Rs.1.63 Crores. A reference was made to arbitration of the disputes and differences between the parties in the execution of the work under the contract.
By the award of the Arbitral Tribunal, the Respondent was directed to pay an amount of Rs.1.93 Crores to the Appellant together with interest at 10% per annum on the principal sum of Rs.1.84 Crores. The heads of claim which were awarded by the Arbitral Tribunal were as follows :
1) Principal Retention Money
Amount payable by the
Respondent to the Appellant Rs.1,43,028/-
2) Principal amount of overhead loss Rs.1,32,53,248/-
3) Principal amount of loss of profit Rs.13,50,715/-
4) Loss for underutilized plant and equipment Rs.38,11,531/-
5) Reimbursement of infrastructure expenses Rs.2,01,417
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Interest was awarded on the principal retention money and loss of profits pendente lite.
3. The Learned Single Judge affirmed the award of the Arbitral Tribunal insofar as it allowed the claim in respect of retention money in the amount of Rs.1.43,028/- holding that the claim arose out of the contract and that the conclusion which was arrived at by the Arbitrator was a possible conclusion to be drawn on the basis of the material on the record. The arbitral award in respect of the remaining claims was, however, set aside.
4. The Appellant had claimed an amount of Rs.1,88,15,960/- towards overhead losses on the basis of Hudson's Formula. While noting that the Appellant had not produced either the basis of the account or led any oral evidence in support of the claim, the Arbitrator nonetheless allowed the claim on the basis of a finding that Hudson's Formula is adopted for quantification of claims for overhead losses in India. The award contains the following finding :
"35(i) The Claimants have claimed a sum of Rs.1,88,15,960/- for overhead loss on the basis of Hudson Formula. The Respondents have denied their liability and have stated that no evidence of actual loss alleged to have been suffered by the Claimants has been led so as to entitle the Claimants to claim the same from the Respondents. It is correct that the Claimants have not produced their basis of account nor led any oral evidence to prove the overhead loss caused to or suffered by the Claimants. However, in the construction industry when the resources are mobilized and the delay is caused in execution of work which is not attributable to the contractor, overhead losses consequently caused to the contractor, the contractor becomes entitled to same on the basis of Hudson Formula even in want of direct evidence to prove the same. ......
This formula is adopted for quantification of claims for overhead losses in India. Even in the case of Messrs A.T. Brij Paul Singh & Brothers Vs. State of Gujarat (AIR 1994 SC 1703) on which reliance is placed by Dr. Dave, learned Techno - Legal Consultant for the Claimant, this formula has been accepted by the Hon'ble Supreme Court for quantification of claims for overhead losses. On the basis of Hudson Formula, the Claimants have claimed overhead losses upto 28 th January 2002 amounting to Rs.1,88,15,960/-."
5. The Learned Single Judge, while setting aside the arbitral award noted ::: Downloaded on - 09/06/2013 19:32:21 ::: PNP 3/7 APP11-3.1 that -
(i) The Respondent had specifically objected to the adoption of Hudson's Formula noting that this was not an accepted method or measure for the quantification of losses and that the Appellant had in fact failed to produce any evidence in support of the claim. The Arbitral Tribunal had not dealt with the objections of the Respondent;
(ii) The finding of the Arbitrator that Hudson's Formula had been accepted by the Supreme Court in the decision in M/s. A.T. Brij Paul Singh and Bros.
v. State of Gujarat1 was incorrect. As a matter of fact, the judgment of the Supreme Court in Brij Paul Singh's case only noted that in that case the High Court had referred to Hudson's treatise on Building and Engineering Contracts as stating that in major contracts subject to a competitive tender, evidence given in litigation on many occasions suggests that the head office overheads and profits are between 3 to 7% of the total price of cost which is added to the tender;
(iii) The Arbitrator has purported to rely on 'prevalent trade practice' though as a matter of fact the Appellant was not able to demonstrate any material placed on the record to show that any such practice prevailed or was accepted in the trade;
(iv) The Arbitrator had not considered any other formula and had proceeded on the erroneous premise that Hudson's Formula is the only formula available and which is accepted by the Supreme Court. This, it was held, was contrary to the law laid down by the Supreme Court in McDermott International Inc. v. Burn Standard Co. Ltd. 2
6. Learned senior counsel appearing on behalf of the Appellant submits that in the present case the Appellant had relied upon documentary material consisting of correspondence exchanged between the parties. It was urged that if the Appellant had sought to establish the claim for overhead losses on the basis of that correspondence, it would have become necessary to lead evidence in support of the claim set out by the Appellant in its letters. However, the Appellant sought to claim a lesser amount. Hence, it was urged that the Arbitrator was justified in taking recourse to Hudson's Formula. Moreover it was sought to be urged that the reliance which was placed on the judgment of the 1 AIR 1984 SC 1703.
2 2006(2) Arb. LR 498 (SC).
::: Downloaded on - 09/06/2013 19:32:21 :::PNP 4/7 APP11-3.1 Supreme Court in Brij Paul Singh's case by the Arbitrator cannot be faulted.
7. The arbitral award, ex facie, demonstrates that the Arbitrator proceeded on the basis that the Appellant had not produced either the basis of the account or any oral evidence to prove the overhead losses caused to or suffered by it. Despite that finding the Arbitrator held that in the construction industry a contractor becomes entitled to overhead losses on the basis of Hudson's Formula, even in the absence of direct evidence to prove such losses when resources are mobilized and delay is caused in the execution of the work not attributable to the contractor. In holding this the Arbitrator relied upon the judgment of the Supreme Court in Brij Paul Singh's case (supra).
8. The Learned Single Judge, in our view, was justified in coming to the conclusion that the Arbitrator was manifestly in error in awarding the claim for overhead losses in spite of the fact that no oral evidence was adduced on behalf of the Appellant. In Brij Paul Singh's case the Supreme Court noted that it was not disputed that where in a works contract a party entrusted with the work commits a breach of the contract, the contractor would be entitled to claim damages for loss of profit which he expected to earn by undertaking the contract.
The Supreme Court, however, noted that what must be the measure of the profit and what evidence should be tendered to sustain the claim are different matters. The judgment of the Supreme Court adverts to the fact that in that case the High Court had referred to Hudson's treatise on Building and Engineering Contracts. Hudson states there that in major contracts subject to competitive tender on a national basis, the evidence given in litigation on many occasions suggests that head office overheads and profits are between 3 to 7% of the total price of cost which is added to the tender. The High Court in that case had rejected the claim of the contractor. The Supreme Court noted that in an identical contract with regard to another portion of the same road and for the same type of work the High Court had accepted loss of profit at 15% of the price of the balance of work as a reasonable measure of damages if the State is guilty of a breach of contract. It was on this basis that the Supreme Court came to the conclusion that since for the same type of work, between the same parties involving a nearby portion of the same road a certain measure of damages had been adopted by the High Court, the same measure ought to have been adopted in ::: Downloaded on - 09/06/2013 19:32:21 ::: PNP 5/7 APP11-3.1 that case as well.
9. Brij Paul Singh's case therefore does not stipulate as a doctrine of law that the formula which has been prescribed in Hudson's treatise must invariably be accepted in all cases as a measure of damages sustained on account of loss of overheads. On the other hand in the subsequent decision of the Supreme Court in McDermott International (supra), the Supreme Court has relied upon the following observations contained in the earlier decision in M.N.Gangappa v Atmakur Nagabhushanam Setty & Co.3.
"In the assessment of damages, the court must consider only strict legal obligations, and not the expectations, however reasonable, of one contractor that the other will do something that he has assumed no legal obligation to do."
10. The judgment in McDermott International (supra) considers various formulae including Hudson's Formula, Emden Formula and Eichleay Formula. As regards Hudson's Formula the Supreme Court has noted, in the following extract, that although it has received judicial support in many cases, it has been the subject matter of criticism :
"(a) Hudson Formula : In Hudson's Building and Engineering Contracts, Hudson formula is stated in the following terms :
"Contract head office overhead & contract sum period of delay"
profit percentage x --------------------- x
contract period
In the Hudson formula, the head office overhead percentage is taken from the contract. Although the Hudson formula has received judicial support in many cases, it has been criticized principally because it adopts the head office overhead percentage from the contract as the factor for calculating the costs, and this may bear little or no relation to the actual head office costs of the contractor." (emphasis supplied)
11. In McDermott International (supra) the Supreme Court has held that it is an accepted position that different formulae can be applied in different circumstances and the question as to whether damages should be computed by taking recourse to one or other formula, having regard to the facts and circumstances of a particular case, would fall within the domain of the Arbitrator. In the present case no other formula other than Hudson's formula has been considered in the arbitral award. In the present case the Arbitrator proceeded on the basis that it was only Hudson's Formula which was to be applied and that 3 (1973) 3 SCC 406.
::: Downloaded on - 09/06/2013 19:32:21 :::PNP 6/7 APP11-3.1 even though no direct evidence had been adduced on behalf of the Appellant, nonetheless the Appellant would be entitled to damages measured with reference to the aforesaid formula. This approach of the Arbitrator is manifestly in the teeth of the law laid down by the Supreme Court in McDermott International. Section 28(1)(a) requires that the Arbitral Tribunal shall decide a dispute submitted to arbitration in accordance with the substantive law for the time being in force in India. Section 28(3) requires the Arbitral Tribunal to decide in accordance with the terms of the contract and take into account the usages of the trade applicable to the transaction. The Arbitral Tribunal under Section 28(2) can act as amiable compositeur and can decide ex aequo et bono only if parties have expressly authorized it to do so. In the present case, the Learned Single Judge was correct in coming to the conclusion that the award of the Arbitrator proceeds on the manifestly misconceived notion that a contractor is entitled to claim overhead losses even in the absence of evidence on the basis of Hudson's Formula. Similarly, the Arbitral Tribunal proceeded on a misconceived premise that this formula is invariably adopted for quantification of claims for overhead losses in India. In the present case the Appellant produced no evidence in support of its claim; this has been so stated in the Award. The award of the claim is on the misconceived basis that the Hudson's Formula must be applied despite the absence of evidence. Since the fundamental basis that has permeated the award is contrary to law, the judgment of the Single Judge cannot be faulted in setting aside the arbitral award on that aspect.
12. The Arbitrator, as noted earlier, also awarded claims in respect of loss of profit, for under utilized plant and equipment and for reimbursement of infrastructure expenses. In respect of loss of profits, the Arbitrator merely held that a measure of 10% on the value of the remaining part of the works contract cannot be said to be unreasonable. The Arbitrator observed that a percentage representing 10% of the rate of profit is invariably accepted in the construction industry. Evidently save and except for an priori assumption, no evidence whatsoever was led before the Arbitrator in that regard. In P.R. Shah, Shares and Stock Brokers Private Limited v. B.H.H. Securities Private Limited 4 the Supreme Court has held that while an Arbitral Tribunal cannot make use of its personal knowledge of the facts of the dispute, which is not a part of the record, 4 (2012) 1 SCC 594.
::: Downloaded on - 09/06/2013 19:32:21 :::PNP 7/7 APP11-3.1 the Tribunal can certainly use its expert or technical knowledge or the general knowledge about the particular trade in deciding a matter. That is why in many arbitrations, persons with technical knowledge are appointed since they may be well-versed with the practices and customs in the respective fields. The Arbitrator in the present case was not an arbitrator drawn from the trade. No basis whatsoever has been indicated in the award for accepting 10% as a measure representing loss of profits. No material was produced before the Arbitrator on the nature of the practice in the trade. During the course of the hearing no basis has been indicated to the Court from the record to suggest that any practice of that nature in the construction industry was brought to the notice of the Arbitral Tribunal. In the circumstances, the arbitral award to the extent that it allows the claim for loss of profits is based on pure conjecture and in the absence of any evidence whatsoever was correctly set aside. Similarly, in regard to the claim for underutilized plant and equipment and for reimbursement of expenses of infrastructure, it is evident that the Arbitrator has merely awarded a sum which he considered to be reasonable. No evidence whatsoever was led before the Arbitral Tribunal.
In the circumstances, we do not find any reason to interfere with the judgment of the Learned Single Judge. The Appeal shall accordingly stand dismissed.
There shall be no order as to costs.
(Dr. D.Y.Chandrachud, J.) (A.A. Sayed, J.) ::: Downloaded on - 09/06/2013 19:32:21 :::