Bangalore District Court
Bharat Heavy Electricals Ltd vs ) Sterling Bio Energy System Pvt. Ltd on 4 January, 2017
IN THE COURT OF THE VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
CCCH. 11
Dated this the 4th day of January, 2017
PRESENT: Sri.K.M.Rajashekar, B.Sc., LL.B.,
VI Addl. City Civil & Sessions Judge,
Bengaluru City.
A.S.NO: 90/2013
PETITIONER/ : BHARAT HEAVY ELECTRICALS LTD.,
PLAINTIFF Electronics Divisions, P.B.No.2606,
Mysore Road, Bengaluru-560 026.
By Mr.Umesh G. Padagatti,
Sr.Manager,
Energy Meters - Commercial
(By Pleader Sri.S.R.Shiva Prakash)
/Vs/
RESPONDENTS/ : 1) Sterling Bio Energy System Pvt. Ltd.,
DEFENDANTS Chennai - 600 078.
Represented by Managing Director-
Mr.Inayathulla Khan Lodi,
S/o.Mr.M.A.K.Lodi,
Aged about 64 years,
R/at "Mangala" No.26, 69th Street,
11th Sector, K.K.Nagar,
Chennai - 600 078.
(By Pleader Sri.S.H.Prashanth)
2 AS.90/2013
2) Sri.S.Srinivas Murthy,
Sole Arbitrator
R/at No.1313, Ground Floor,
27th Cross, 3rd Block East,
13th Main, Jayanagar,
Bengaluru-560 011.
--
JUDGMENT
The Plaintiff has got filed this suit under Section 34 of the Arbitration and Conciliation Act, 1996, for setting aside the award dated 20.07.2013 passed by the sole Arbitrator-2nd Defendant in Dispute No.1/2010 and consequently reject the claim of the Defendant in its entirety.
2) In nutshell Plaintiff's case is that, Plaintiff is a Public Sector Undertaking and a Government Company being manufacturers of control equipments for control equipments for power plants and semi conductors, photovoltaic etc. The Defendant is a private limited company incorporated under the Companies Act being an agent of a system integrator of a marketing company at 3 AS.90/2013 Singapore called M/s.Semitech Innovations Global Pvt ltd. (SIG), their principal manufacturing company Semiconductor Technologies, Australia (STA). The Defendant envisaged a pilot project to design, develop and manufacture an embedded system for energy meters called "Automatic Meter Reading" (AMR). The Plaintiff availed the services of the Defendant to explore and to develop the AMR and "Evaluation Agreement Pilot Project' dated 26.10.2005 was executed between the parties viz., the Plaintiff, Defendant No.1 and SIG Singapore. The project was purely on an experimental basis and on demonstration and trial run basis and the entire work was to be executed within a period of 90 days by the Defendant, but the Defendant did not even commence the progress even after six months. Thereafter, the Defendant carried out certain amendments to the design as required and presented it to the Plaintiff during March, 2006, but by such time, the pilot project had lost its purpose. The Defendant having kept quiet for almost four years, all of a 4 AS.90/2013 sudden issued a letter dated 01.07.2009 seeking payment of Rs.1,07,000,00/- as expenditure incurred and to arbitrate; the Plaintiff denied any liability, despite reply by the Plaintiff, the Defendant initiated Arbitration proceedings and a sole Arbitrator was nominated to adjudicate the dispute. The Defendant filed its claim petition on 26.07.2010 before the Arbitral Tribunal claiming Rs.5.63 Crores towards air travel, preparation of pilot project, loss of expected profit, deprivation of use of technology, fees/royalty, the learned Arbitrator overruled the objections of the Plaintiff in toto and awarded a sum of Rs.1,10,93,642/- along with 18% interest from 08.07.2010 till payment, hence, the award dated 20.07.2013 is challenged as arbitrary, illegal, without due application of law governing contracts, limitation, etc. Aggrieved by the arbitration award, the Plaintiff herein has preferred this suit on the following among other grounds.
The award is patently illegal and beyond its jurisdiction. The award is null and void as the cause of 5 AS.90/2013 action to initiate the arbitration proceedings is hit by Articles of the Limitation Act. The award is based on surmises and inference, thus the entire award stands vitiated. The award is liable to be set aside for want of principles of natural justice as the fundamental rules of Evidence Act, is given a complete go bye. The claim petition before the Tribunal is not maintainable as the Defendant being only an agent of the principal at Singapore, cannot maintain an independent claim and is hit by Section 230 of the Indian Contract Act, 1872 and the award is opposed to public policy.
3) On service of notice, Defendant No.1 entered appearance through his counsel and filed statement of objections. Defendant No.2 remained absent, hence, he has been placed exparte.
4) The Defendant No.1 in his objection statement has denied the plaint averments in general and para-wise and contended that the suit is not maintainable either in law 6 AS.90/2013 or on facts and is liable to be dismissed in limine. the present suit is vexatious and is yet another attempt of the Plaintiff to deny the Defendant what is legitimately due to it. No grounds have been made out by the Plaintiff that would necessitate interference by this court under Section 34 of the Act. It is contended that the agreement as interpreted by the Arbitrator is not against public policy and prayed for dismissal of the suit with exemplary costs.
5) Heard. Perused the records.
6) The points that arose for my consideration are :-
(1) Whether Plaintiff proves that the
suit is barred by time and patently
illegal?
(2) Whether Plaintiff has made out
any of the grounds under Section
34 of the Arbitration and
Conciliation Act, to set aside the
Arbitration award?
(3) What Order?
7) My answer to the above points are :-
Point No.1 - In the Negative;
7 AS.90/2013
Point No.2 - In the Negative;
Point No.3- As per final order, for the following :
REASONS
8) Point No.1 and 2 : Since these points are inter related to each other, they are taken up together to avoid repetition of facts and for convenience of the court.
The admitted facts of this case indicate that Plaintiff is a Public Sector Undertaking and a Government company dealing with manufacturing and development of electricity related equipments. The Plaintiff envisaged a scheme to design, develop and manufacture an embedded system for energy meters called 'Automatic Meter Reading' (AMR), which is a cutting edge technology. In that regard, the Plaintiff entered into an 'Evaluation Agreement Pilot Project' dated 26.10.2005 with the 1st Defendant herein and SIG, Singapore. This project was purely on an experimental basis and on demonstration and trial run basis. Both the parties were required to comply certain conditions which 8 AS.90/2013 were encrypted in the agreement. However, the purpose was not materialized as per the agreed terms, there arose a dispute between the Plaintiff and Defendant regarding the expenses incurred for transportation and other incidental charges, which is related to conducting the experimentation. In that regard, matter was referred to learned Arbitrator, the 2nd Defendant herein. Both the parties fought to the tooth and nail in the arbitration proceedings. The learned Arbitrator passed an impugned award dated 20.07.2013 directing the Plaintiff herein to pay Rs.1,10,93,642/- together with interest. Aggrieved by the said award, the Plaintiff herein who is Respondent before the learned Arbitrator preferred this suit contending that the award of the learned Arbitrator is opposed to public policy, there is apparent error in the award, the learned Arbitrator is guilt of abuse of process of law. The Plaintiff contended that the learned Arbitrator allowed the claim without any proof of expenses merely relying on the hotel tariffs and train/air fares. The Plaintiff further 9 AS.90/2013 contended that the claim regarding travel and accommodation are all time barred, inspite of that the learned Arbitrator awarded the same etc. Another ground is that, a loss to the Agent has to be compensated by the Principal and not by any other. The Principal is not made a party to this proceedings, at the same time, the claims are made against the 3rd party alone is not maintainable etc.
9) At this stage, it is relevant to have a look at the provisions of Section 34 of the Arbitration and conciliation Act, 1996.
" 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 my be set aside by the Court only if -
(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 10 AS.90/2013 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 conflict with a provisions 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.- Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81."
The Arbitration and Conciliation (Amendment) Act, 2015 reads as under:
"18. In Section 34 of the Principal Act.-11 AS.90/2013
(I) In sub-section (2), in clause (b), for the Explanation, the following Explanations shall be substituted, namely :-
(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.", (II) after sub-section (2), the following sub-section shall be inserted, namely :-
"2(A) 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 re- appreciation of evidence."
10) To add to this, in a land mark judgment rendered by the Hon'ble Supreme Court of India in Civil Appeal No.10531/2014 reported in AIR 2015 SC 620 between 12 AS.90/2013 Associate Builders Vs. Delhi Development Authority dated 25.11.2014 extends a wider scope to Section 34 of the Arbitration and Conciliation Act, 1996. Their Lordships have clearly mandated that :
"an extent of judicial intervention notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. (Section 5) It is important to note that, the 1996 Act was enacted to replace the 1940 Arbitration Act in order to provide for an arbitral procedure which is fair, efficient and capable of meeting the needs of Arbitration; also to provide that the tribunal gives reasons for an arbitral award; to ensure that the tribunal remains within the limits of its jurisdiction; and to minimize the supervisory roles of courts in the arbitral process.
Therefore, in our view, the phrase "public policy of India" used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term "public policy" in Renusagar case is required to be held that the award could be set aside if it is patently illegal. The result would be, award could be set aside if it is contrary to :
(a) Fundamental policy of Indian law; or
(b) The interest of India; or
(c) Justice or morality, or
(d) In addition, if it is patently illegal.13 AS.90/2013
Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.
103. Such patent illegality, however, must go to the root of the matter. The public policy, indisputably, should be unfair and unreasonable so as to shock the conscience of the court. Where the Arbitrator, however, has gone contrary to or beyond the expressed law of the contract or granted relief in the matter not in dispute would come within the purview of Section 34 of the Act.
35. Without meaning to exhaustively enumerate the purport of the expression "fundamental policy of Indian law", we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the fundamental policy of Indian law. The first and foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called as "judicial approach" in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of a judicial approach in judicial and quasi-judicial determination lies in the fact that so long as the court, tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge.
14 AS.90/2013The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where-
1. a finding is based on no evidence, or
2. an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or
3. ignores vital evidence in arriving at its decision.
such decision would necessarily be perverse.
A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.
It must clearly be understood that 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 fact cannot be corrected. A possible view by the Arbitrator on 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 his 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.
A Court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act.15 AS.90/2013
The third ground of public policy is, if an award is against justice or morality. These are two different concepts in law. An award can be said to be against justice only when it shocks the conscience of the court. An illustration of this can be given. A claimant is content with restricting his claim, let us say to Rs.30 lakhs in a statement of claim before the Arbitrator and at no point does he seek to claim anything more. The arbitral award ultimately awards him 45 lakhs without an acceptable reason or justification. Obviously, this would shock the conscience of the court and the arbitral award would be liable to be set aside on the ground that it is contrary to "justice".
If the Arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction. But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. Extrinsic evidence is admissible in such cases because the dispute is not something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such a jurisdictional error needs to be proved by evidence extrinsic to the award.
The court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the Arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding."
16 AS.90/2013
11) Upon going through the materials available on record, it indicates that a contract was entered into between the Plaintiff and Defendant No.1 which is annexed to the arbitration proceedings. Even though the Plaintiff contended that the 1st Defendant herein who is Claimant before the learned Arbitrator is only an Agent and cannot maintain any claim against the Plaintiff herein etc., but the very arguments speaks otherwise. The Pilot Project Agreement which is marked as C-12 before the learned Arbitrator indicates that a Pilot Project and Evaluation Agreement dated 26.10.2005 was entered into between M/s.Semitech Innovations Global Pte. Ltd., and M/s.Bharat Heavy Electricals Limited and M/s.Sterling Bio Energy System Pvt.Ltd., who is none other than the 1st Defendant herein. The very agreement itself clearly indicates that the Plaintiff herein is also one of the party to the written agreement, on which the entire claim is based, hence, the first ground attacking the Arbitration award falls to the ground.
17 AS.90/2013
12) The next ground of the Plaintiff is that, the learned Arbitrator has entertained the claim without any proof of expenses etc. It is pertinent to note that the learned Arbitrator has exhaustively considered all the voluminous records produced by both the parties. At page-16 of the award the learned arbitrator made the following observation :
" 1.5 The claimant has claimed an amount of Rs.34 lakhs towards expenditure incurred towards international air fare, domestic air fare, accommodation, and local transport in order to bring foreign engineers, company Directors and other person. According to the claimant the following persons visited BHEL for the purpose of Pilot Project :
a) Stephen-Moo-Kim - Australia
b) Bannistr Stuart Ross - Australia
c) Briyan - R&D Manager - Australia
d) Rokia Ahamed - Singapore
e) Mohammed Zakaria - From Singapore
f) M/s.Livefit India Private Limited Hang - China etc.
In addition, several local engineers of the claimant have visited the Respondent site to implement the pilot project. It is not in dispute that the aforesaid persons have visited BHEL. Though the BHEL contends that the claimant has not produced the Gate Passes for entry into the BHEL Complex situated at Mysore Road, Bangalore, nevertheless the names of all the persons who have visited the BHEL Complex are referred to in one way or the other in the correspondence. The claimant has also sent letter on 4-2-2009 along with Annexure indicating, expenses of 34 lakhs that it allegedly incurred. However this Respondent has replied in negative on 20.05.2009 vide Exhibit-'R-6' and this claimant has notice on
04.06.2000 (Exhibit R-7) giving the details as to how things transpires from the beginning and demanded the 18 AS.90/2013 amount and also damages. Again the claimant wrote one more letter dated 01.07.2009 i.e. Exhibit 'R-8' noting the amounts due to it. The Respondent has submitted that loan Agreement, Sanction Letter and utilization of the amount for some other purpose and not for the project in question.
1.6 The Respondent has not denied the visits of the aforesaid persons. Further the Respondent has only contended that BHEL has not at any point of time requested either SIG or its agents to help it by arranging to implement the pilot project at BHEL, by bringing the Semiconductor Technologies of Australia, Semi Tech Global Innovations Pvt., Ltd and other technical teams. However the Respondent in para 15 of the written statement has admitted as under " However it is true that it was agreed in principle to allow a trial for evaluation at BHEL township at EPD Division, Kashi Mutt Road". If BHEL wanted only a trial for evaluation it should & would have made it clear that it would not pay any amount towards the arrangement for the trial. In fact in the Agreement Annexure 'B' specially provides for payment of the amount. "
This fact clearly indicates that the learned Arbitrator did not proceed to pass award based on mere assumptions and presumptions, rather, there is concrete materials available on record for the learned Arbitrator to arrive at such a fare conclusion, hence, the second ground of the Plaintiff also falls to the ground.
13) The third and most important ground urged by the Plaintiff is that, the claim is barred by limitation. The learned counsel appearing for the Plaintiff vehemently 19 AS.90/2013 argued that the claim of the Defendant is totally barred under law. The learned counsel pointed out that for all practical purpose the Limitation Act is squarely applicable to the case of Arbitration like any other case. Herein, the agreement is entered into between the parties, hence, under Article 15 of Limitation Act, the claim of the Defendant is time barred. Even though the agreement does not provide for damages direct or indirect or any loss, the learned Arbitrator has awarded the claim etc.
14) Upon going through the Arbitration agreement, at para-14 of page-6, Clause (e), there is a specific mention that :
" The expenses towards transport of SIG's Products and Software for testing and evaluation and its subsequent return of the same to Sterling shall be borne by BHEL."
Added to that, at page-7, para-(f) it is specifically mentioned that :
"Independent Contractor : It is understood and agreed that the relationship between the parties is on a principal-to-principal basis. Nothing in this Agreement shall constitute an agency, partnership 20 AS.90/2013 or any other relationship whether in the nature of a joint venture or otherwise between the parties.
(g) Binding Nature and Assignment : This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns provided that party assigning its rights and obligations shall take the prior written consent of the other party.
(h) Limitation of Liability : EXCEPT AS REGARDS ANY LIABILITY ASSOCIATED WITH THE BREACH OF CLAUSES 2, THE LIABILITY OF EITHER PARTY SHALL BE LIMITED TO OBJECTIVELY MEASURABLE GENERAL DAMAGES AND SHALL NOT EXTEND TO ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSS OF PROFITS, IN TORT OR IN CONTRACT."
Apart from that, the agreement is attached with Annexure-'A' which describes the liability of the parties regarding expenses to be incurred by the respective parties. At Sl.No.6 it is mentioned that the expenses towards visits (minimum two visits), flights (US $ 1.3 K per person per trip), accommodation out of project expenses, shall be borne by the BHEL. Hence, as rightly argued by the learned counsel appearing for the Defendant there was a specific understanding between the Plaintiff and Defendant that the expenses incurred towards travel expenses pertaining to the visits of the technical experts 21 AS.90/2013 shall be borne by the BHEL. Apart from that, there is a specific mention and rider clause in the said agreement that the claim is limited to 1.3000 US $ for a person per trip and the visit is also fixed as there shall be minimum two visits.
15) As far as the question of limitation is concerned, the learned Arbitrator at page-30 of the Award has made the following observation :
" A joint visits were made by the claimant and its overseas partners, namely STA, Australia; SIG, Singapore; Between 2004-2006 for presentation of the project. BHEL officials appreciated the technology and in turn suggested some modifications and minutes were drawn on 25.04.2005 and subsequently an Agreement was entered into on 26.10.2005 (Exhibit C-12). The claimant imported 80 interfaces in terms of Exhibit C-69 which were intended to be interfaced with BHEL energy meters. Discussions were held to implement the pilot project and subsequently the demonstration regarding interfaced energy meters before the Executive Director of the Respondent. BHEL held discussion on 23.11.2005, then certain modifications were suggested in the meter box made of polycarbonate and house the interface until in a single meter box and a sample of the box was handed over to STA. Accordingly the interface was modified, designed and manufactured by the SIG to mount inside the single meter Box supplied by BHEL and the same was delivered to BHEL during March 2006 for implementing the pilot project. BHEL entertained the claimants engineers on 12.06.2006, who apparently demonstrated successfully the newly 22 AS.90/2013 developed interface in the laboratory and BHEL was about to give clearances for implementation of the Pilot project at Malleshwaram staff quarters. On 07.07.2006 BHEL asked the claimants to put the project on hold, but they did not terminate the contract. On 29.09.2006 the claimant addressed a letter to the BHEL and requested them to fulfill the terms of the Agreement, for which there was no reply. Therefore, the claimant wrote another letter on 08.05.2007 and started demanding certain amounts more particularly by their letter dated 04.02.2009. The Respondent wrote a letter on 20.05.2009 (C-39) in which the Respondent declined the request of the claimant for payment of Rs.34 lakhs as sought in his letter 04.02.2009. Added to this the Respondent has not terminated the contract. RW-1 has stated in the cross examination that they have not terminated the agreement. Therefore the claims are well within the period of limitation. The arbitral proceedings commenced on 08.07.2010. Therefore, Issue No.9 is answered in negative."
16) Even though the learned counsel appearing for the Plaintiff vehemently argued that the learned Arbitrator has ignored the question of limitation, even though the claim is barred by law of limitation under Article 15 he has entertained the claim and passed illegal award etc., but absolutely the Plaintiff had utterly failed in establishing the fact that the period of events mentioned by the learned Arbitrator in the above referred paragraph is incorrect and not based on the materials available on record. Absolutely 23 AS.90/2013 no proof is established by the Plaintiff to make out a case that the learned Arbitrator has misread the dates of events and arrived at a false conclusion.
17) Under the facts and circumstances of the case, I am of the opinion that absolutely no grounds are made out by the Plaintiff to establish any of the grounds mentioned in the plaint or any of the grounds available in Section 34(b) of the Arbitration and Conciliation Act, 1996. The judgment referred supra rendered by the Hon'ble Supreme Court in Associate Builders Vs. Delhi Development Corporation makes it very clear that this court cannot sit on an appellate jurisdiction and the arbitral award cannot be set aside on trivial grounds. The Hon'ble Supreme Court consistently mandated that, if the Arbitrator wonders outside the work and deals with the matter not allotted to him, then only it can be termed as judicial error. Herein is the case, the learned Arbitrator has dealt the matter squarely within the four corners of the matter allotted to him. Added to that, no 24 AS.90/2013 act is done by the learned Arbitrator which could be termed the award as perverse or unfair and unreasonable, so as to shock the conscience of the court. The Plaintiff has utterly failed to establish that the learned Arbitrator has gone contrary to law or beyond the express law of the contract or granted relief in the matter not in dispute. Under these circumstances, I hold that the Plaintiff has utterly failed in establishing that the award passed by the learned Arbitrator falls within any of the clauses of Section 34 of the Arbitration and Conciliation Act, 1996, much less, any of the grounds mentioned in the plaint is established, accordingly, I answer Point No.1 and 2 in the negative.
18) Point No.3: In view of the foregoing reasons and answer to Point No.1 and 2, the suit fails and is liable to be dismissed. In the result, I proceed to pass the following :
25 AS.90/2013
ORDER (1) The suit filed by the Plaintiff under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the award dated 20.07.2013 passed by the 2nd Defendant in Dispute No.1/2010; is hereby dismissed.
(2) Parties to bear their own costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open Court, dated this the 4th January, 2017.) (K.M.RAJASHEKAR) VI Addl.City Civil & Sessions Judge Bengaluru City.