Madras High Court
M/S.Logos Construction Pvt. Ltd vs Alstom T & D India Ltd on 19 September, 2018
Author: M.Sundar
Bench: M.Sundar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 07.03.2019
Delivery on : 25.03.2019
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR
O.P.No.180 of 2019
&
A.No.1790 of 2019
M/s.Logos Construction Pvt. Ltd.,
Rep. by its Managing Director Mr.S.S.Antony
O Block, 18th Avenue, Ashok Nagar
Chennai – 600 083 ..Petitioner
Vs.
1.Alstom T & D India Ltd.,
Rep. by its Head of Corporation SRI (South)
IOC Building, No.19/1 G S T Road
Pallavaram, Chennai – 600 043
2.M/s.Tamilnadu Transmission Corpn. Ltd.,
Rep. by its Director
Transmission Project
NPKRR Malligai No.144/Old No.800
Anna Salai
Chennai – 600 002 .. Respondents
Original Petition filed under Section 34 of Arbitration and
Conciliation Act, 1996 (Act 26 of 1996) to set aside the award dated
19.09.2018 passed by the learned Tribunal and to allow the claim of the
petitioner.
For Petitioner : Mr.S.S.Rajesh
For Respondents : Mr.Krishna Srinivasan
for M/s.S.Ramasubramaniam Associates
http://www.judis.nic.in
2
JUDGMENT
This 'Original Petition' ('OP' for brevity) presented in this Court on 17.12.2018 has been filed under Section 34 of 'The Arbitration & Conciliation Act, 1996' ('A & C Act' for brevity). Instant OP has been filed assailing an arbitral award dated 19.09.2018 (hereinafter 'impugned arbitral award' for brevity) made by an ' Arbitral Tribunal' ('AT' for brevity) constituted by a sole Arbitrator.
2. As mentioned supra, instant OP has been filed under Section 34 of A & C Act. Section 34 of A & C Act is under Chapter VII captioned 'RECOURSE AGAINST ARBITRAL AWARD' . A perusal of Section 34 of A & C Act reveals that recourse to a Court against an arbitral award may be made only by an application.
3. Section 34 itself is captioned 'Application for setting aside arbitral award' . Be that as it may, the nomenclature ' Original Petition' is being assigned to proceedings under Section 34 of A & C Act and therefore, I am referring to the instant proceedings as ' OP' for the sake of convenience and clarity.
http://www.judis.nic.in 3
4. The specific sub-sections/clauses and sub-clauses of Section 34 of A & C Act under which instant OP has been filed or in other words, the specific grounds on which instant OP assailing impugned arbitral award of AT is predicated is set out in the caption to the instant OP. Caption reads as follows:
'PETITION FILED UNDER SEC.34(2)(b)(ii) & (iii) OF ARBITRATION AND CONCILIATION ACT, 1996'
5. Mr.S.S.Rajesh, learned counsel on record for the petitioner in the instant OP, who was before this Court, submitted that Section 34(2)(b)(iii) is a typographical error as there is no sub-clause (iii) under Section 34(2)(b) of A & C Act. Making further submissions in this regard, learned counsel submitted that instant OP is under Section 34(2)(b)(ii) read with (r/w) Sub- clause (ii) of Explanation 1 of Section 34(2)(b)(ii). In other words, it is learned counsel's specific say that the impugned arbitral award is being assailed in the instant OP on the ground that the impugned arbitral award is in conflict with public policy of India, as according to learned counsel, it is in contravention with fundamental policy of Indian law. To be noted, this is the lone ground on which the instant OP is predicated. No elucidation is required for the proposition that the Court can entertain an application or petition if it other wise has powers to do so, even if a wrong provision of law is quoted. To put it differently, quoting wrong or incorrect provision of law will not denude the Court of its powers to look into the matter if the http://www.judis.nic.in 4 Court otherwise has powers to do so. In the case on hand, it is not even a case of quoting the wrong provision of law or incorrect provision of law and in my considered view, it is more in the nature of an inaccurate description of the specific ground / specific sub-clause under Section 34(2)(b) under Section 34 of A & C Act as in any case 34(2)(b)(ii) has been invoked. Therefore, this Court proceeds to test the instant OP by treating the same as one under Section 34(2)(b)(ii) r/w.Clause (ii) of Explanation 1.
6. Petitioner before me was claimant before AT. Respondents 1 and 2 before me were Respondents 1 and 2 respectively before AT. Respondent No.1 before me is on Caveat and Mr.Krishna Srinivasan of M/s.S.Ramasubramaniam Associates (Law Firm) is before Court for the Caveator/first respondent.
7. Before this Court proceeds further, it is necessary to set out a Bird's eye view of necessary facts or in other words facts that are imperative for appreciating this order. This Court shall set out the same under the caption ' Factual Matrix in a Nutshell' infra.
8. FACTUAL MATRIX IN A NUTSHELL:
http://www.judis.nic.in 5 8(i) As mentioned supra, lone petitioner before this Court is the lone claimant before AT. Respondents 1 and 2 before this Court are Respondents 1 and 2 before AT also. Therefore, I shall refer to the petitioner before this Court as petitioner/claimant.
8(ii) First respondent is a company that provides power generation/ power transmission and rail infrastructure technologies as can be culled out from the claim petition. Court is informed that Alstom Grid is a unit of the first respondent. Alstom Grid designs, manufactures, installs and services power transmission and distribution products besides systems for electrical utilities and industries. However, for the sake of convenience, first respondent will be referred to by its rank, its rank being the same before the AT and before this Court. Both the respondents collectively shall be referred to as 'respondents' in plural.
8(iii) To be noted, second respondent Tamil Nadu Transmission Corporation Ltd., (hereinafter 'TANTRANSCO') is not a party to the arbitration agreement, but was before the AT more in the nature of a Garnishee. This has been articulated in the impugned arbitral award and there is no dispute or disagreement on this aspect of the matter before this Court.
http://www.judis.nic.in 6 8(iv) Claimant is in the business of civil construction work. 8(v) TANTRANSCO is a company wholly owned by the Government of Tamil Nadu and it has been functioning from 14.12.2009 as a company wholly owned by the Government of Tamil Nadu. This is owing to the re- structuring of 'Tamil Nadu Electricity Board' ('TNEB' for brevity) and it is not necessary to go into those details as the same are not germane to the instant lis.
8(vi) Suffice to say that TANTRANSCO awarded the work of establishing Sub-stations to first respondent. The work so awarded included establishing one sub-station at Rasipalayam for connecting Tamil Nadu transmission network to India's national grid. This is an air insulated sub- station. The other two sub-stations which were to be established (as part of work awarded to the first respondent by TANTRANSCO) are air insulated sub-stations at Vyasarpadi and in Omega Industrial Estate near Chennai.
8(vii) Sometime in August 2014, first respondent called for offers from various sources for civil work to be done as a part of aforesaid 400 KV sub-station at Rasipalayam. Petitioner/claimant offered to do the civil work and after a series of meetings and negotiations it was decided that the total cost for civil work to be done by petitioner would be Rs.34,21,00,000/. http://www.judis.nic.in 7 In other words, Rs.34.21 Crores. There was a suppliers meeting on 14.10.2014 wherein this was accepted and offer was confirmed by the first respondent in the minutes of the meeting recorded in the said suppliers meet. Broadly speaking, the scope of the work agreed to be done by the petitioner/claimant was Tower Foundation, Transformer Foundation, Reactor Foundation, Equipment Foundation, construction of Retainer Wall and Firewall for the aforesaid 400 KV Substation at Rasipalayam.
8(viii) Thereafter on 30.10.2014, petitioner/claimant submitted Price Schedule – Bill of Quantities (BOQ) for the civil works setting out in detail the description of works, the quantity, unit of measurement, unit price and amount. First respondent had, thereafter, on 03.11.2014 sent a communication giving go ahead for the petitioner/claimant to proceed with mobilization of civil and construction work. This was followed by a Purchase Order dated 19.01.2015 given by the first respondent to the claimant. To be noted, the purchase order was prepared on 20.11.2014 and given to the claimant on 19.01.2015. On the same day, petitioner/claimant also signed what is known as 'General Conditions of Contract, Special Conditions of Contract, the Techno Commercial Conditions of Contract and the responsibility matrix.
8(ix) Even according to the claim statement, all the aforesaid http://www.judis.nic.in 8 documents shall cumulatively and collectively form the contract documents. Therefore, in this order, all the aforesaid shall be, cumulatively and collectively, referred to as 'said contract' for the sake of convenience and clarity. There is no dispute or disagreement before me that there is an arbitration agreement between the parties i.e., petitioner/claimant on the one side and first respondent on the other. This arbitration agreement is in the form of a clause in the said contract and that clause is Clause 23.4. As the work progressed, disputes arose between petitioner/claimant and first respondent. Suffice to say that arbitration clause was invoked and ultimately AT was constituted. Legal proceedings in the interregnum are not of relevance and therefore, it is not necessary to advert to the same.
8(x) Before the AT, petitioner/claimant made a total claim of Rs.7,83,97,174/- and sought an award for said sum together with future interest at 24% per annum on Rs.5,69,12,976/-. This, claim of little over Rs.7.83 Crores together with future interest is under three heads. One head is balance of amount payable by first respondent towards certified bills for work done. Money claimed under this head is Rs.5,69,12,976. Second head of claim is interest at the rate of 24% per annum on the aforesaid sum from 27.11.2015 (date of closure of contract) to the date of claim being 21.10.2016. This interest claimed is Rs.1,23,49,336/-. The third head of http://www.judis.nic.in 9 claim is liquidated damages at 10% of the value of amended Purchase Order dated 08.12.2015 and the money claimed under this head is Rs.91,34,862/-. In other words, the three heads of claim are little over Rs.5.69 Crores towards unpaid amounts qua certified bills, little over Rs.1.23 Crores towards interest for the period from date of termination of contract to date of claim petition and little over Rs.91 lakhs towards liquidated damages. First respondent entered appearance through counsel and filed a defence statement dated 12.01.2017. In the defence statement first respondent made a counter claim for a total sum of Rs.3,47,04,341/-. This counter claim is also under three heads. To be noted, thrust of the defence of first respondent is delay on the part of the petitioner/claimant. The three heads under which the counter claim was made are Rs.3,42,10,000/- towards liquidated damages, Rs.1,15,000/- towards statutory violations and Rs.3,79,341/- towards certain items, which according to first respondent were given to the claimant as free issue items, but were not returned. According to first respondent, the sum of little over Rs.3.79 lakhs is the cost of such free issue material which have not been returned by the petitioner/claimant. In other words the counter claim of the first respondent, which was little over Rs.3.47 Crores was constituted by a sum of little over Rs.3.42 Crores towards liquidated damages due to delay in work and Rs.1.15 lakhs towards statutory violations by claimant qua environment, health and safety regulations and little over Rs.3.79 lakhs http://www.judis.nic.in 10 towards free issue of material given by first respondent which were not returned by the claimant. To be noted, the prayer of the first respondent with regard to the counter claim was for Rs.1,42,41,665/- after adjusting the amounts payable. As the first respondent had made a counter claim in the defence statement, petitioner/claimant was given the opportunity to file a reply as well as a defence statement for the first respondent's counter claim. Pursuant to this, petitioner/claimant filed its reply, which is also its defence statement qua counter claim by first respondent. This reply/defence statement filed by petitioner/claimant dated 03.03.2017. Pleadings were thus completed and as many as six issues were framed by AT.
8(xi) Six issues framed by AT are as follows:
'1. Whether the claims of the Claimant are maintainable in law and on facts of the case considering the terms agreed between the parties including those contained in the Purchase Order dated 20.11.2014 its Annexure and related documents thereafter collectively referred to as the 'Contract'?
2. Whether the Claimant has fulfilled its obligations under the contract and /or committed breach of the provisions of the contract?
3. Whether the Claimant is entitled to the various claims put forth in the claim statement?
4. Whether the 1st Respondent is entitled to the various claims as put forth in their counter claim?
5. Whether the Claimant/1st Respondent are entitled to the interest/ costs as claimed by them respectively.
http://www.judis.nic.in 11
6. To what reliefs to the parties are entitled?' 8(xii) Before the AT, oral and documentary evidence was let in. On the side of claimant, Mr.S.S.Antony, Managing Director of petitioner/claimant company was examined as CW1 and on the side of the respondent, Mr.T.Selvamuthukumaran, first respondent's site Engineer was examined as RW1. Petitioner/Claimant summoned an official from TANTRANSCO and as the official from TANTRANSCO was summoned at the instance of the petitioner/claimant, he was examined as CW2 and his name is Mr.R.Malarvannan. Exs. C1 to C80 were marked through CW1 and C81 to C91 were marked through CW2. In other words, there were 91 exhibits on the side of the petitioner/claimant , namely Exs.C1 to C91. On the side of the first respondent 37 exhibits were marked as Exs.R1 to R37.
8(xiii) There were oral hearings and oral arguments. 8(xiv) After a detailed analysis of oral and documentary evidence before AT, besides pleadings and oral arguments, AT made the impugned arbitral award vide which AT held that balance amount due to petitioner/claimant for work done is Rs.2,04,62,808/-. In other words, part of the claim was allowed. With regard to the counter claim, again the same was allowed in part and AT vide impugned arbitral award held that http://www.judis.nic.in 12 the first respondent is entitled to Rs.3,25,76,831/-.
8(xv) As the counter claim allowed in favour of the first respondent vide the impugned arbitral award was in excess of the balance amount due to the claimant, the ultimate result of the impugned arbitral award is to the effect that first respondent was awarded a sum of Rs.1,21,14,000/- with 18% interest. Aggrieved, claimant has filed instant OP laying challenge to the impugned arbitral award and assailing the same on grounds which have been alluded to supra.
9. Having set out the factual matrix in a nutshell, this Court now proceeds to discuss the grounds raised and give its dispositive reasoning.
10. DISCUSSION AND DISPOSITIVE REASONING:
10(i) Learned counsel for petitioner/claimant made clear, categoric and pointed submissions.
10(ii) Learned counsel for petitioner/claimant made it clear that the instant OP turns solely on Issue No.4. To be noted, 6 issues were framed by AT and all the 6 issues have already been extracted and set out supra. Issue No.4 is with regard to whether the first respondent is entitled to the three heads of claim put forth by the first respondent as counter claim. http://www.judis.nic.in 13 10(iii) Three heads under which first respondent made counter claim has already been set out supra, they being liquidated damages of little over Rs.3.42 Crores, a sum of Rs.1.15 lakhs towards statutory violations by petitioner/claimant and costs of free issue material by little over Rs.3.79 lakhs. The exact numbers have also been set out supra.
10(iv) Advancing arguments on the above basis, learned counsel for petitioner/claimant further submitted that the core issue in the instant OP is whether liquidated damages, which according to the covenant in the said contract cannot exceed 10% of the contract value can be granted on original contract value when admittedly the scope of said contract was narrowed down / reduced twice resulting in consequent reduction in contract value. This narrowing down and reducing the scope of said contract is referred to as 'Descoping' and as this term has been used by the AT, for the sake of convenience and clarity, this Court continues to use the term 'Descoping'. Learned counsel for petitioner/claimant submitted that vide first descoping the value of said contract was reduced from Rs.34,21,00,000/- to Rs.24,69,00,161.43 and vide second descoping, value of the said contract was further reduced to Rs.8,12,99,946.70.
10(v) For the sake of convenience, it can be set out that said http://www.judis.nic.in 14 contract which was originally of a value of Rs.34.21 Crores, vide first descoping was reduced to little over Rs.24.69 Crores and vide second descoping it was further reduced to Rs.8.12 Crores. Learned counsel for petitioner submitted that liquidated damages, which has been covenanted to be 10% of the contract value, cannot be qua the original value i.e., 10% of Rs.34.21 Crores and it should be 10% of the descoped value of said contract i.e., 10% of little over Rs.8.12 Crores. It was submitted that this is the crux and gravamen of the argument on which instant OP is predicated.
10(vi) This leads us to embarking upon the exercise of examining how Issue No.4 was dealt with by AT and as to how the same was answered.
10(vii) Issue No. 4 has been dealt with and answered by AT primarily in Paragraphs 90 to 97 of the impugned arbitral award. To be noted, the entire impugned arbitral award was perused and examined, but in the light of the afoersaid focused submission and pointed challenge to impugned arbitral award, the aforesaid paragraphs dealing with Issue No.4 gain immense significance.
10(viii) To be noted, that said contract was descoped twice and original value of Rs.34.21 Crores was ultimately reduced to little over Rs.8.12 Crores was not in dispute before the AT and it is not in dispute http://www.judis.nic.in 15 before this Court either.
10(ix) As already set out supra, counter claim made by first respondent falls under three heads. With regard to the second head of statutory violations, AT has disallowed and rejected the same by holding that though considerable delay on the part of petitioner/claimant in complying with statutory requirements have been established, there is no proper calculation or quantification of the same. With regard to the third head of counter claim pertaining to free materials issued by first respondent, which were not returned by the petitioner/claimant, AT, on examination of documentary evidence before it, particularly Ex.R36, came to the conclusion that the value of the free material so issued by the first respondent and not returned by the petitioner/claimant has been established/proved to be Rs.3,79,341/- and allowed this third head of counter claim wholly. Therefore what remains and what is in dispute before me as it emerges clearly from the submission which has been captured and alluded to supra is the first head of claim, namely liquidated damages. As mentioned supra first respondent has made a counter claim of Rs.3,42,10,000/ towards liquidated damages. AT, after detailed examination of the clauses concerned, namely Clauses 7.0 to 7.4 of the said contract, noticed that liquidated damages shall be 10% of the contract value. AT has also noticed that the said contract was descoped twice and http://www.judis.nic.in 16 the original value of said contract stood reduced by more than 75%. Be that as it may, AT has returned a finding that actual loss to first respondent to the tune of Rs.3,21,97,490/- has been established, as TANTRANSCO has admitted, levied the same on first respondent. On holding that actual loss of Rs.3,21,97,490/- has been established by first respondent, AT came to the conclusion that even if this amount cannot be treated as liquidated damages in terms of Clauses 7.0 to 7.4 of said contract and even if it exceeds 10% of the value of the descoped work, the said amount is recoverable as amount due to first respondent, as first respondent is entitled to be compensated having suffered due to the delays and defaults on the part of the petitioner/claimant.
10(x) A closer examination of impugned arbitral award on this aspect of the matter reveals that the judgment of Hon'ble Supreme Court in Kailashnath Associations Vs. Delhi Development Authority reported in 2015(4) SCC 136, was pressed into service before the AT. Relying on Kailashnath case, it was argued by petitioner/claimant that liquidated damages cannot be claimed by way of penalty without proof. First respondent placing reliance on the Kailashnath case has contended before AT that first respondent is a party entitled to liquidated damages, it was a genuine pre-estimate and it was contended that it will be a measure of reasonable compensation.
http://www.judis.nic.in 17 10(xi) AT after capturing these rival contentions has held that on facts Kailashnath case law is distinguishable. AT has come to the conclusion that facts of Kailashnath case reveal that there was no breach of contract whereas in the instant case AT has held after a detailed analysis that petitioner/claimant had breached said contract.
10(xii) Furthermore, AT has also referred to relevant paragraph in Kailashnath case law and returned a finding (obviously on the factual matrix of case on hand and on the basis of evidence before AT in instant case) that it is only in cases where damages or loss is difficult or impossible to prove that liquidated damages named in the contract if that be a genuine pre-estimate of damage or loss can be awarded. It was also held that the expression 'whether or not actual damage or loss is proved to have been caused' means that where it is possible to prove actual damage or loss, such proof is not to be dispensed with.
10(xiii) After taking the aforesaid view and after holding that Kailashnath case is distinguishable on facts, AT has held that in the instant case, running accounts bill being Ex.R34 clearly establishes that actual damage has been suffered by first respondent as TANTRANSCO has levied Rs.3,21,97,490/- as liquidated damages for the delay in execution of work http://www.judis.nic.in 18 under said contract. Thereafter, AT has gone on to hold that when there is proof of actual damage suffered by the first respondent, the said amount has to necessarily be taken as money recoverable even if it is not treated as liquidated damages within the meaning of Clauses 7.0 to 7.4 of said contract. It is also to be borne in mind that while the claim of liquidated damages by first respondent was Rs.3,42,10,000/-, the actual loss that has been established inter alia by Ex.R34 is Rs.3,21,97,490/- and only that has been awarded as actual loss, if not as liquidated damages.
10(xiv) Paragraph 97 of the impugned arbitral award reveals that AT has described this as 'liquidated damages or actual loss'.
10(xv) Therefore it comes out very clearly that AT has certainly accepted the pivotal submission that has been made by petitioner/claimant that there is descoping of said contract and the original value of said contract stood reduced by nearly 75%. AT has also noticed that the relevant clauses in said contract are to the effect that 10% of the value of the said contract shall be liquidated damages. Thereafter, AT, on the basis of the oral and documentary evidence that has been placed before it and on the basis of appreciation of such evidence, has come to the conclusion that actual loss has been suffered by the first respondent and the exact amount/actual loss that the first respondent has suffered owing to delay on the part of TANTRANSCO in execution of said contract, has awarded the http://www.judis.nic.in 19 said amount under the caption 'liquidated damages or Actual Loss'.
10(xvi) Learned counsel pointed out that AT held that there is actual loss and has awarded that amount and has also come to the conclusion that first respondent is entitled to the said sum i.e., actual loss as loss suffered by first respondent owing to delay on the part of the petitioner/claimant, if not as liquidated damages. On this basis it was submitted by learned counsel for caveator/first respondent that this is a mere case of nomenclature and semantics on which petitioner is harping.
10(xvii) On a careful analysis of the rival submissions before this Court, I am of the considered opinion that the view taken by AT is clearly a possible view and it is a possible view because that has been taken on the basis of thorough, clear and cogent examination of pleadings as well as oral and documentary evidence before it. If it is a possible view, it is not for this Court to substitute its view even if this Court opines that such substitution is necessary. In any event, in the instant case, this Court does not consider that a different view ought to have been taken. In other words this Court is of the considered opinion that it is not just a possible view, but a plausible view too. However, this Court does not delve further into that aspect of the matter as instant OP is not an appeal.
10(xviii) As a further submission, learned counsel for http://www.judis.nic.in 20 petitioner/claimant submitted that though Ex.R34 reveals that TANTRANSCO has mulcted the first respondent with the aforesaid sum of Rs.3,21,97,490/-, it cannot be readily inferred that this entire amount levied by TANTRANSCO pertains to civil construction work done by the petitioner / claimant as there are several other aspects of the project which form part of establishment of a 400 KV air insulated power station. A careful perusal of the impugned arbitral award reveals that such a plea has not been taken before AT either in the hearing or in the arguments.
10(xix) Furthermore, official from TANTRANSCO (as mentioned supra) was examined as CW2 and CW2 has admitted that liquidated damages to the aforesaid tune was actually levied. AT has also recorded that CW2 for his own reasons did not specify the exact amount. After saying so, AT has identified the exact amount by appreciation of Ex.R34. Ex.R34 is a Running Account bill of TANTRANSCO, which is pre-audited and checked for payment. One has to bear in mind that Ex.R34 is a document filed by the claimant/petitioner and not by the first respondent. Having filed this document, it cannot now be gainsaid by petitioner/claimant that this entire amount mulcted on first respondent by TANTRANSCO may not be attributed to the civil work as there are several other aspects for establishing a sub- station. It is also to be borne in mind that the official from TANTRANSCO, who deposed as CW2, has admitted levy of liquidated damages. Therefore, obviously such levy pertains to dispute between the claimant/petitioner and http://www.judis.nic.in 21 the first respondent.
10(xx) AT has also come to the conclusion that descoping of the said contract twice and reduction of the original value of the said contract by nearly 75% itself reflects on the progress of the work executed by petitioner/claimant.
10(xxi) This takes us to the specific legal provision on which instant OP is predicated. As mentioned supra, it is under Section 34(2)(b)(ii) and
(iii) r/w. Clause (ii) of Explanation 1. This means that challenge to impugned arbitral award is predicted on the ground that it is in conflict with public policy of India as it is in contravention of fundamental policy of Indian law.
10(xxii) As AT has come to the conclusion that first respondent is entitled to the aforesaid sum of Rs.3,21,97,490/- towards actual loss if not as liquidated damages, the issue turns solely on facts and appreciation of evidence before it. It is also to be noted that Explanation 1 to Section 34(2)(b) is controlled by Explanation 2. It is my considered view that Explanation 2 controls Explanation 1. In this view of the matter, test as to whether there is contravention with the fundamental policy of Indian law shall not entail a review of the dispute on merits.
http://www.judis.nic.in 22 10(xxiii) As AT has returned a categoric finding that first respondent is entitled to the aforesaid sum towards the actual loss suffered if not towards liquidated damages, any further examination of the same will clearly be a review of merits of the arbitral disputes between the parties, which is impermissible owing to aforesaid Explanation 2.
10(xxiv) Be that as it may, AT has clearly articulated that first respondent is entitled to the actual loss if not towards liquidated damages, Section 34(2)(b)(ii) r/w. Clause (ii) of Explanation 1 does not carry the petitioner/claimant far in instant OP.
10(xxv) Before concluding and parting with dispositive reasoning, it is deemed appropriate and pertinent to refer to Fiza Developers case [ Fiza Developers and Inter-Trade Private Limited Vs. AMCI (India) Private Limited reported in (2009) 17 SCC 796]. Fiza Developers principle laid down by the Hon’ble Supreme Court is to the effect that applications under Section 34 are summary procedures. Reiterating Fiza Developers principle Hon’ble Supreme Court in Emkay Global Financial Services Ltd. v. Girdhar Sondhi reported in (2018) 9 SCC 49 held that Fiza Developers principle (applications under Section 34 are summary procedures), to be step in the right direction towards expeditious disposal of applications http://www.judis.nic.in 23 under Section 34.
10(xxvi) This Court is of the considered view that judicial intervention particularly under Section 34 of A & C Act should be minimal and it should be done only when a challenge to an arbitral award neatly and snugly fits into any one of the specific grounds adumbrated in Section 34 of A & C Act and that also should be within the contours and confines of Section 34 of A & C Act. It follows as a sequitur that the petitioner has not made out a case for judicial intervention qua impugned arbitral award.
11. DECISION:
Owing to all that have been set out supra, instant OP fails and the same is dismissed. Considering the nature of the submissions made and the trajectory of instnat OP, this Court deems it appropriate to leave the parties to bear their respective costs. Consequently, connected application is closed.
25.03.2019 Speaking order/ Non-Speaking order Index: Yes / No gpa http://www.judis.nic.in 24 M.SUNDAR.J., gpa Pre-delivery order in O.P.No.180 of 2019 & A.No.1790 of 2019 25.03.2019 http://www.judis.nic.in 25 Pre-delivery order in O.P.No.180 of 2019 To The Hon'ble Mr.Justice M.Sundar Most Respectfully submitted GPA http://www.judis.nic.in