Bangalore District Court
M/S. Karnataka State CoOperative vs M/S. United Commercial Company on 30 January, 2020
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY[CCH-84]
PRESENT: Sri S.A. HIDAYATHULLA SHARIFF,
B.A., LL.M.,
LXXXIII Additional City Civil and
Sessions Judge
Dated this the 30th day of January 2020
COM.A.S.No.45/2012
petitioner: M/s. Karnataka State Cooperative
Marketing Federation Limited, No.9,
Cunningham Road, P.B.No.150,
Bangalore560052.
Represented by its Managing
Director, Sri. H.G.Shivananda and
Murthy, (Respondent in Arbitration)
[By Sri. SPK, Advocate]
/v e r s u s/
Respondents: 1. M/s. United Commercial Company,
Kalibari Road, Silchar788001,
District Cachor, Assam State,
Represented by its Partner Sri.
Mahaveer Prasaar Jain, (Claimant
in Arbitration).
Sri. Kukkaji Ramakrishna Bhat,
Sole Arbitrator,
District & Sessions Judge (Retd),
F112, 4C, 1st Floor, Central
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Chambers, 2nd Main Road,
Gandhinagar, Bangalore560009.
[R1 by: Sri. GKM, Advocate,
R2 by: Arbitrator]
Date of institution of the : 26/04/2012
suit
Nature of the suit : Arbitration suit
Date of commencement of :
recording of the evidence
Date on which the : 30/01/2020
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
07 09 04
(S.A. Hidayathulla Shariff)
LXXXIII ACC & SJ: Bengaluru
The petitioner M/s. Karnataka State Cooperative
Marketing Federation Limited has filed this petition
U/S.34 of Arbitration & Conciliation Act against the 1st
respondent M/s. United Commercial Company to set
aside the arbitral award dated 31/1/2012 made in
A.C.No.8/2019 by the sole arbitrator in the matter of
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dispute between the petitioner and the 1st respondent.
Consequently to allow the counter claim of the petitioner
and to dismiss the claim made by the 1st respondent in
A.C.No.8/2009.
2. The brief facts of the case as stated in the petition
by the petitioner is that the 1st respondent who was the
claimant before the Arbitrator filed claim petition with a
prayer to pass an award for payment of Rs.1,20,55,000/
towards the balance amount alleged to be payable to the
1st respondent along with interest thereon @ 24% per
annum from 13/4/2005 till realization of the amount.
3. The case of the 1st respondent who was the
claimant before the Arbitrator in brief is that it is a
partnership firm dealing in commodities including sugar
had entered into a memorandum of understanding dated
5/3/2005 with the petitioner agreeing to purchase 2325
Metric tons of premium quality granulated white sugar @
16,550/ per metric ton. The memorandum of
understanding was followed by addendum dated
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15/3/2005. The 1st respondent also claimed that the
petitioner is the seller and the 1 st respondent is the buyer
under the memorandum of understanding with M/s.
Astral Exim International represented by Mrs. Bhavana
Viswanath is the facilitator. The 1st respondent has also
claimed that the seller under the MOU clearly stated that
it certified, represented and warranted with full corporate
authority and responsibility certified that it could fulfill
the requirement of the MOU and could provide the
product. The 1st respondent also contended that the
word 'representative' after the word 'seller' is an insertion
with a pen in the MOU. It was agreed that proportionate
to the payment released by the buyer to the seller after
inspection and clearance of stock, the buyer has to issue
NOC to the seller so that amount would be released to
the Associate Agency by the seller. The 1 st respondent
also contended that the associate agency of the seller was
M/s. Super Commercial Company (SCCO) Limited at
Nagpur. It is further stated by the 1 st respondent that
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the petitioner in its letter dated 29/1/2015 insisted that
in order to contain the price of Rs.16.55 per KG the
entire amount shall be remitted to the petitioner and it
was stated that clause 9 of MOU stage wise payment
detailed expected from the buyer was also stated. The 1 st
respondent further contended that it did not enter into
any agreement with the associate agency namely M/s.
SCCO and for all practical purposes the petitioner who
had received all the money from the 1 st respondent is
bound to be the seller and is answerable and accountable
for the same. The 1st respondent further contended that
though MOU is executed on 5/3/2005 the payment made
to the extent of 3,24,00,000/ related to various dates by
way of DDs purchased between 20/2/2005 and
12/3/2005 and the receipts were given on 17/3/2005.
The 1st respondent further contended that another
payment of Rs.9,00,000/ was made by the 1 st
respondent to the petitioner by way of DD on 25/5/2005
and another sum of Rs.50,00,000/ on 5/3/2005 and
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receipts were issued for the same, ultimately resulting in
total payment of Rs.3,83,00,000/ from the 1 st
respondent to the petitioner.
4. The 1st respondent in its claim petition further
contended that it wrote a letter on 12/3/2005 to transfer
partial funds to SCCO Nagpur and the associate agency
informed the 1st respondent that unless and until they
receive the monies the product would not be dispatched.
The 1st respondent explaining the said situation further
contended that there was delay in the dispatch and that
the 1st respondent ultimately was upset with the
transaction. The 1st respondent communicated a letter
dated 21/9/2005 to the petitioner enclosing letter of
SCCO, Nagpur dt. 10/9/2005 and requesting the
petitioner to take further steps for the payment of the
balance amount of Rs.1,20,55,000/ and out of this
amount the 1st respondent agreed to waived off
Rs.6,00,000/ towards excess railway charges. The
respondent in the claim statement further contended that
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ultimately the SCCO, Nagpur handed over prepost dated
cheques to the petitioners to the extent of
Rs.1,06,55,000/ payable to the 1st respondent with the
assurance that the cheque could be converted into DDs.
However, the cheques were not converted into DDs as
agreed and that the problem cropped up in this regard.
5. The 1st respondent in its claim statement further
contended that it had made the payment to the petitioner
and there was an agreement between the petitioner and
associate agency whereby the petitioner had accepted
post dated cheques towards the repayment of balance
and as such the 1st respondent got issued a legal notice
on 24/3/2007, calling upon the petitioner to repay a sum
of Rs.1,14,55,000/ with regard to supply of sugar along
with admitted rate of interest @ 24% per annum. The 1 st
respondent in its claim statement further contended that
having waited for a long time issued notice calling upon
for appointment of arbitrator. The 1st respondent in the
claim statement has further alleged that the petitioner
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did not take action against the SCCO, lot of money
invested by the 1st respondent was wasted and petitioner
has not acted with responsibility and the 1st respondent
had withdrawn concession of Rs.6,00,000/ shown to the
petitioner. In the claim petition, 1 st respondent has
claimed a sum of Rs.1,20,55,000/ along with interest
from the petitioner.
6. The petitioner has contested the claim petition
before the Arbitral Tribunal by filing its written defense
by taking of all legal grounds and contentions. The
petitioner in its written defense has contended that the
claim petition filed by the 1 st respondent before the
Arbitral Tribunal suffered from non joinder of parties and
the 1st respondent has failed to observe the terms and
conditions of MOU dated 5/3/2005. The petitioner in its
written defense has further contended that it is neither
responsible nor accountable for the claim made by the
petitioner before the arbitral tribunal as it has already
been absolved of its responsibility under the
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memorandum of understanding and it is not even liable
to pay cost of the arbitration proceedings.
7. The sole arbitrator on the basis of the pleadings
of the parties has framed following 10 issues:
1) Whether the claimant proves that there exists
relationship of buyer and seller between the claimant and
the respondent in respect of the subject matter of
transaction involved in the claim?
2) Whether the respondent proves that the claim
petition is liable to be dismissed for non joinder of M/s.
Super Commercial Company as a party to this
proceeding?
3) Whether the respondent proves that the claimant
has failed to observe the terms and conditions of the
memorandum of understanding dated 5/3/2005 and
thereby violated the same?
4) Whether the respondent proves that it is neither
responsible nor accountable to the claimant in relation to
the transaction under the Memorandum of
Understanding and the respondent is absolved of its
responsibility under the memorandum of understanding?
5) Whether the claimant proves that it has made in
all payment of Rs.3.83 crores to the respondent and
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therefore the respondent is liable to account for the
same?
6) Whether the claimant proves that the respondent
was liable to make good the short supply of sugar and to
refund the balance amount to the claimant?
7) Whether the claimant proves that, it is entitled to
recover Rs.1,20,55,000/ from the respondent with
regard to the short supply of sugar by M/s. Super
Commercial Company, Nagpur, with interest at 24% per
annum?
8) Whether the respondent proves that it is not
liable to bear the costs of arbitration in these proceeding?
9) Whether the claimant is entitled to an award as
prayed?
10) What award or order?
8. Based on the above mentioned issues, parties
have lead their oral and documentary evidence and
addressed their arguments. The Arbitral Tribual by its
award dated 31/1/2012 has allowed the claim of the 1st
respondent and rejected the contentions of the petitioner.
By stating the above mentioned facts, the petitioner has
challenged the impugned award dated 31/1/2012 passed
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by the learned sole Arbitrator in A.C.No.8/2009 on
following grounds:
9. That the findings given, conclusion arrived at,
decision taken and the very award of the sole Arbitrator,
allowing the claim petition, are totally arbitrary,
erroneous and totally not sustainable in law. The award
cannot stand the test of the requirements contemplated
U/S.34 of the Arbitration & Conciliation Act, 1996.
Therefore, the present application/ appeal is bound to be
entertained by this court, in the matter of the said issue
in question.
10. The findings, conclusions and the very Arbitral
Award dt. 31/1/2012 passed by the sole Arbitrator are
totally arbitrary, erroneous and opposed to law. The
findings and the very award are violative of Section 34 of
the Arbitration Act and the very Arbitral Award is bound
to be set aside/ quashed in view of the law contemplated
U/S.34 of Act.
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11. The MOU dt. 5/3/2005 entered into between
the parties which is marked as Ex.P.1 is the basic
document which clinches the issue in this case. But,
unfortunately, the Arbitral Tribunal has crept into
serious jurisdictional error in not properly understanding
and appreciating the said document MOU and therefore
there is an error apparent on the face of the record and
on this ground alone the Award passed by the Arbitrator
needs to be set aside and the present application/ appeal
is bound to be allowed in law.
12. In as much as, the entire payments have been
made by the 1st respondent institution at the instance
and as per the statement and NOC given by the agency
appointed by the purchaser M/s. United Commercial
Company, the respondent cannot be found fault with in
the transaction. Therefore the claim ought to have been
dismissed by the Arbitrator.
13. The legal position of the buyer and seller of
SCCO has been totally misunderstood and
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misinterpreted by the Arbitrator in the case and therefore
the award cannot stand in law.
14. That several correspondences have been taken
place between the buyer and the supplier which
correspondences clearly show that the transaction has
taken place. Therefore, the claim ought to have been
rejected by the arbitrator.
15. In as much as the payments have been made as
per the instructions of the agent appointed by the
claimant, the applicant cannot be found at fault with the
transaction, which the Hon'ble Arbitrator has failed to
appreciate.
16. That the MOU, Ex.P.1 entered into between the
parties has not been scrupulously and appropriately
appreciated by the Hon'ble Arbitrator. At one stage the
Arbitrator has also culled about a portion of MOU and
appears to have gone into minute details, but, the sum
and substance of the MOU has not been appreciated by
the Arbitrator.
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17. In the cross examination elicited on behalf of the
claimant to Sri. K.P.Ithal, some questions have been put
to him asking regarding the dates of the affidavits for
which, Mr. Ithal has answered that documents are
already produced and therefore, dates of documents
ought to have been enough. This would not amount to
any vital admission, which the Arbitrator has failed to
appreciate. There is no proper appreciation of evidence
and material and record by the Hon'ble Arbitrator.
18. Hon'ble Arbitrator has not properly considered
all the terms of the agreement (MOU) in the context of
admissions given by the witnesses for the claimant.
19. There is vital error by the Hon'ble Arbitrator in
not understanding and appreciating the mandatory
provisions of Indian Evidence Act and also has not
followed the mandatory procedure contemplated under
Sections 24, 28 and 31(3) of the Arbitration &
Conciliation Act, 1996. The learned Arbitrator has
miserably failed to apply the substantive law while
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interpreting the agreements which has resulted in
misreading and misinterpretation of terms of contract in
various documents. Further, the learned Arbitrator ought
to have decided the dispute in accordance with the terms
of the contract and taking into consideration the usages
of the trade between the parties.
20. Some portion of the evidence let in by the
claimant are beyond the pleadings and no amount of
evidence can be allowed in the absence of the pleadings.
Therefore this also is a vital defect in the order passed by
the Honorary Arbitrator.
21. The bunch of documents produced and marked
by Sri. Ithal on behalf of the applicant herein has not
been appreciated and weighed appropriately by the
Hon'ble Arbitrator.
22. As regards the issues framed by the Hon'ble
Arbitrator, the issue in respect of item No.3 pertaining to
the compliance, the strict terms and conditions of MOU
have not complied with by the claimant, and this has not
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been considered by the Arbitrator though pointed out by
the applicant herein.
23. The applicant herein who was the respondent
before the Arbitral tribunal, has proved beyond doubt
that it is neither responsible nor the accountable for the
accounts of the claimant beyond all the reasonable doubt
in respect of transactions between them as framed in
MOU, and as such, he has been absolved of the
responsibility. The reasons assigned by the Hon'ble
Arbitrator to negative the issue are not cogent and
satisfactory.
24. As regards the proof of Rs.3.83 crores to the
applicant herein, the claimant has failed to sow that the
payments have been made to the applicant.
Unfortunately, the Hon'ble Arbitrator has held that all
that payments are proved by the claimant and that, the
applicant has to account for the same.
25. As regards SCCO also, the Hon'ble Arbitrator
has totally erred in holding that Rs.1,20,55,000/ was
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received from the claimant with regard to the short
supply of sugar by SCCO, Nagpur with high rate of 24%
interest.
26. There is no clarity about the vital transactions,
terms of MOU and interpretation regarding the payment
and liability. Therefore, on this ground also the
Arbitrator's Award is liable to be set aside.
27. In respect of some of the documents, the
applicant had got xerox copy/ true copy of the same, and
sought to produce before the Arbitrator, but the Hon'ble
Arbitrator refused the documents on the ground that the
same are not authenticated, original or certified copies
and as such, the same could not have been marked. The
production was totally denied. This has prejudiced case
of the respondent in the arbitration and rejection of the
documents has weighed with the Hon'ble Judge.
28. It is submitted that the Hon'ble Arbitrator has
gone into serious jurisdictional error in disallowing the
I.A filed by the respondent before the Arbitrator seeking
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one for implementing of the supplier viz. M/s. Super
Commercial Company, Nagpur (SCCO), as a vital party to
the proceedings. It is submitted that, in as much as the
said SCCO played vital role in the transactions and led
the respondent in the proceeding for the purpose of the
transactions the said party viz. SCCO was very proper
and necessary party to be brought before the Arbitrator
for effectively proving this defense before the Hon'ble
Arbitrator. If only the said SCCO was to be brought on
record as a party to the proceedings, the conclusion of
the Arbitrator would have been otherwise.
29. The said award is contrary to several judgments
of Hon'ble Supreme Court of India, including ONGC Ltd.
v. Saw Pipes Ltd., reported in AIR 2003 SC 2629, AIR
SCW 2010 page 5027 and AIR SCW 2010 page 5326. The
said award is erroneous on the basis of record with
regard to material propositions If law and their
interpretation. The award conflicts with the substantive
law and the terms of the agreement governing the parties.
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The said award is wholly unfair to the applicants and is
unreasonable and shocks the conscience of the Court,
being violative of public policy. The said award is
opposed to the law of the land and in violation of various
judgments of the Hon'ble Supreme Court of India, as well
as the respective High Courts. As such the said award is
liable to be interfered with.
30. On a bare perusal of the award passed by the
Arbitration Tribunal it will be clear that there are grave
and patent errors in the said award and grave prejudice
has been done to the applicants herein. The award
passed by the arbitration tribunal is completely biased
and is liable to be set aside on this ground alone.
31. That the Hon'ble Arbitrator has totally erred in
allowing the claim petition made by the claimant before
the Arbitrator and in directing the applicant herein to
make good a sum of Rs.1,20,55,000/ calling it as the
balance amount payable to the claimant along with
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interest at 24% interest per annum, from 13/4/2005 till
the date of the claim (15/1/2010).
32. That the Hon'ble Arbitrator has totally erred in
coming to the conclusion that the applicant herein has
totally failed to produce effective evidence to prove his
defense in the said regard, relating to the very disputed
documents and MOU.
33. That the Hon'ble Arbitrator has totally erred in
imposing a cost of Rs.3,20,000/ against the applicant
herein without there being any legal basis for the same.
34. The learned Arbitrator has totally failed to
understand and interpret the purport and the very object
of the MOU entered into between the parties and the true
intent of the same.
35. The impugned award also suffers from various
other legal infirmities which will be pointed out at the
time of final hearing of the arguments.
36. In response to the court notice, the 1 st
respondent appeared before the court and contested the
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petition by filing objections statement by denying the
entire grounds alleged by the petitioner in challenging the
impugned order and sought for dismissal of the petition.
37. Based on the contents of the petition and
objections filed to it, the points that arise for
consideration of this court are :
1) Whether the petitioner proves that the impugned
award dated 31/1/2012 passed in A.C.No.8/2009 by the
Hon'ble sole Arbitrator is illegal, erroneous and opposed
to public policy and liable to be set aside as alleged by
the petitioner?
2) What order?
38. In the present case, initially no oral arguments
were addressed by both the counsels before the court and
no written arguments were also filed. When the case was
posted for judgment, both the counsels got the case
advanced and filed their respective written arguments.
Along with the written arguments filed by the petitioner's
counsel, he has relied on the decisions reported in AIR
1983 SC 1143, AIR 1990 SC 405, AIR 2003 SC 2629,
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2010 AIR SCW 5326 & 2010 AIR SCW 5027. On the
other hand, along with the written arguments, the
counsel for respondent No.1 has relied on the decisions
reported in 2015 (5) SCC 899, 2009 (5) SCC 142 & (2015)
3 SCC 49.
39. Perused the materials placed on record.
40. My findings on the above mentioned points are
as under:
POINT NO.1 : In the negative.
POINT No.2 : As per final order for the following:
41. POINT NO.1 : A perusal of the materials on
record discloses that there are certain undisputed facts
between the parties to the petition. The fact that the 1 st
respondent M/s. United Commercial Company, a
partnership firm trading in sugar entered into
memorandum of understanding dated 5/3/2005 with the
petitioner M/s. Karnataka State Cooperative Marketing
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Federation Limited, agreeing to purchase 2325 metric
tons of premium quality granulated white sugar @
Rs.16,550/ per metric ton is not in dispute. Further
fact that the above mentioned memorandum of
understanding was followed by addendum dated
15/3/2005 issued by the petitioner is also not in dispute.
Further fact that in the memorandum of understanding,
the petitioner is shown as a seller and respondent No.1 is
shown as the buyer and M/s. Astral Exim International
is shown as the facilitator is also not in dispute. It is also
not in dispute that in the memorandum of understanding
it was agreed that proportionate to the payment released
by the buyer - 1st respondent to the sellerpetitioner after
inspection of clearance of stock, the buyer has to issue
NOC to the seller, so that, the amount would be released
to M/s. Super Commercial Company (SCCO) the
associate agency of the seller - petitioner. Further fact
that the 1st respondent has not entered into any
agreement with M/s. SCCO the associate agency of the
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petitioner is also not in dispute. Further fact that the 1st
respondent buyer has totally paid a sum of
Rs.3,83,00,000/ to the petitioner - seller through
Demand Drafts with regard to purchase of the sugar is
also not in dispute. Further fact that the 1 st respondent
out of 2325 metric tons of sugar agreed to purchase had
received only 1600 metric tons of sugar and balance
quantity of 727 metric tons of sugar was not supplied to
the 1st respondent purchaser is also not in dispute.
Since dispute arose between the 1 st respondent
purchaser and petitionerseller with regard to the
memorandum of understanding dated 5/3/2005 with
regard to short supply of sugar and refund of balance
amount of Rs.1,20,55,000/ alleged to be due by the
petitioner supplier to the 1st respondent - purchaser, the
1st respondent purchaser has approached the Hon'ble
High Court of Karnataka in CMP 21/2009 seeking
appointment of arbitrator. The Hon'ble High court of
Karnataka by its order dated 27/8/2009 has appointed
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one of the retired District & Sessions Judge as Arbitrator.
The Arbitrator after entering reference issued notices to
both the parties. Both the parties have putup their
appearance before the arbitrator through their respective
advocates. The 1st Respondent of the present petition who
was the claimant before the arbitrator has filed his claim
statement seeking recovery of a sum of Rs. 1,20,55,000/
with interest @ 24% per annum against the present
petitioner, who was the respondent before the arbitrator.
The present petitioner who was the respondent before the
arbitrator has filed objections by way of defence
statement resisting the claim petition. On the basis of the
respective pleadings of the parties, the arbitrator had
framed 10 issues and on the basis of the oral and
documentary evidence lead by the parties before him,
the arbitrator by his order dated 31/1/2012 has allowed
the claim petition and passed the impugned arbitral
award, directing the present petitioner who was the 1 st
respondent before the arbitrator to make payment of Rs.
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1,20,55,000/ to the 1st respondent of the present
petition who was the claimant before the arbitrator along
with interest @ 24% per annum from 13/4/2005 till the
date of filing of the claim petition and further restricted
the future interest @ 12% per annum from the date of
claim petition till the date of realization of the entire
award amount.
42. Being aggrieved by the impugned award passed
by the Hon'ble Arbitrator the present petitioner who was
the respondent before the arbitrator has filed the present
petition U/s. 34 of the Arbitration & conciliation Act.
43. It is pertinent to note that an arbitral award
may be set aside by the court only on the ground
mentioned U/S.34 of the Arbitration & Conciliation Act
1996. U/S.34(2) of the Act an arbitral award may be set
aside by the court only if
a) the party making the application furnishes proof
that
i) a party was under some incapacity; or
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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
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 provision 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
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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.
44. A perusal of the grounds urged by the petitioner
in the present petition discloses that the petitioner has
challenged the impugned award U/s. 34 (2) (5) (ii) of the
Arbitration & Conciliation Act on the ground that the
impugned award is in conflict with public policy of India.
45. At this stage, it is relevant to go through the
decision of Apex Court of the land on the aspect of
considering the legality and validity of the arbitration
award U/S.34 of the Arbitration & Conciliation Act 1996.
In the decision reported between Puri Constructions
Private Limited v. Union of India reported in (1989) 1
Supreme Court Cases 411, wherein, the Apex Court of
the Land has held that when a court is called upon to
decide the objection raised by a party against an
arbitration award, the jurisdiction of the court is limited
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as expressly indicated in the arbitration act and it has no
jurisdiction to sit in appeal and examine the correctness
of the award on merits with reference to the materials
produced before the arbitrator. The court cannot sit in
appeal over the view of the arbitrator by reexamining
and reassessing materials.
46. Further, in a decision reported in associate
builders v. Delhi Development Authority reported in
(2015) 3 Supreme court cases 49, the Apex court while
considering the scope of interference by court with
findings of fact in arbitral tribunal has indicate that the
arbitrator is the sole judge of quantity and quality of
evidence when he deliver arbitral award. It was further
held that the award based on little evidence or no
evidence which does not measure up any quality to a
trained legal mind cannot be held invalid. It is further
held that once it is found that arbitrator approach is
neither arbitrary nor capricious then no interference is
call for on facts.
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47. In light of the above mentioned settled legal
position a perusal of the materials on record discloses
that the first ground on which the impugned award was
challenged by the petitioner is that the petitioner
Karnataka State Cooperative Marketing Federation
Limited is not the seller but only seller representative and
in the memorandum of understanding, the petitioner is
wrongly quoted as seller and also functioning as Seller
representative which the arbitrator has not understood
and appreciated. It is further alleged that the petitioner
Karnataka State Cooperative Marketing Federation
Limited is not a dealer in sugar. At no point of time it has
acted as an agent to join seller on the one hand and
purchaser on the other hand and the learned Arbitrator
has not considered this aspect properly. It is further
alleged that the word "seller" is loosely worded by the
petitioner Karnataka State Cooperative Marketing
Federation Limited in the memorandum of understanding
and other documents which could have been corrected by
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the 1st respondent, but the 1st respondent did not
corrected the same and accepted the same and arbitrator
has erred in not considering the correct relationship of
the petitioner and respondent in connection with the
memorandum of understanding executed between them.
48. However, a perusal of the impugned award
discloses that the learned Arbitrator while considering
issue No. 1 pertaining to the existence of relationship of
the seller and buyer between the petitioner and 1st
respondent has laboriously gone through the oral and
documentary evidence produced on record.
49. A perusal of the finding of the learned Arbitrator
on issue No. 1 discloses that the Arbitrator has
considered the contents of Ex.P1 memorandum of
understanding entered between the petitioner and 1 st
respondent to come to the conclusion that there exist a
relationship of seller and buyer between the petitioner
and the 1st respondent with regard to the purchase of the
sugar by the 1st respondent from the petitioner. The
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learned Arbitrator has considered the contents of Ex.P1
memorandum of understanding, wherein, the price of
sugar was agreed to be sold to be paid into the hands of
the petitioner by the respondent and further considering
Ex.P4 to P6 receipts given by the petitioner to the 1 st
respondent with regard to the receipt of total amount of
Rs. 3,83,00,000/ as the sale consideration for supply of
sugar and further considering the fact that except the 1 st
respondent and petitioner no other third person was
involved in Ex.P1 sale of sugar by the petitioner to the 1 st
respondent has given a finding with regard to the
existence of the relationship of seller and buyer of sugar
under Ex.P1 memorandum of understanding between the
petitioner and 1st respondent. In Ex.P1 memorandum of
understanding though the petitioner was termed as seller
representative, the arbitrator has analized the said aspect
and come to the conclusion that to understand the terms
of a document and the relationship between the parties
to the transaction, the entire document has to be read.
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The Arbitrator has held that since there was no other
seller named in Ex.P1 Memorandum of understanding,
apart from the petitioner and since there was no privity of
contract between the 1st respondent purchaser and any
other person other than the petitioner, the relationship of
seller and buyer exist between the petitioner and 1 st
respondent. Further, the arbitrator has also considered
Ex.P30 the contract entered between the petitioner with
that of M/s. super commercial company for selling and
buying of sugar. Considering the fact that in Ex.P1
memorandum of understanding, the petitioner has
shoulder the responsibility and liability to sell the sugar
to 1st respondent and in Ex.P30 contract the SCCO has
shoulder the responsibility and liability to sell the sugar
to the petitioner, the Arbitrator came to conclusion that
the relationship of the seller and buyer existed between
the petitioner and respondent under Ex.P1 and the
petitioner was not the seller representative with respect
to the 1st respondent in the transaction of sell of sugar.
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While arriving at a conclusion that the relationship of the
seller and buyer was existence between the petitioner and
1st respondent, the learned Arbitrator has also placed
reliance of Ex.P2 addendum dated 15/3/2005 entered
between the petitioner and 1st respondent, wherein also
there was no involvement of third party and even in
Ex.P2 document the relationship between the petitioner
and 1st respondent was clearly stated as the relationship
of seller and buyer. The learned Arbitrator by analyzing
the contents of Ex.P1 memorandum of understanding
entered between the petitioner and 1st respondent and
Ex.P30 agreement entered between the petitioner and
SCCO has come to the conclusion that these two
documents are separate documents of contract and
Ex.P1 was the contract between the petitioner and 1 st
respondent and Ex.P30 was the contract between the
petitioner and SCCO and the relationship of seller and
buyer was in existence between the petitioner and
respondent under Ex.P1 memorandum of understanding
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and the relationship of seller and buyer was in existence
between SCCO and 1st respondent under Ex.P30
agreement and perhaps due to the above mentioned
relationships the word "representative" after the word
"Seller" was mistakenly written in Ex.P1 by hand while
describing the petitioner as the representative of the
seller.
50. Apart from the above mentioned oral and
documentary evidence relied on by the learned arbitrator,
he has also considered Ex.P3 letter dated 29/1/2005
written by the petitioner to M/s. Astral Exim
International who is shown to be the facilitator of the 1 st
respondent in Ex.P1 stating that it is willing to arrange
sugar for local sale through its associate agency. This
letter was also considered as a piece of document by the
learned arbitrator to come to the conclusion that the
relationship of seller and buyer existed between the
petitioner and 1st respondent. The arbitrator has also
considered the correspondence that took place between
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the petitioner and 1st respondent in the form of Ex.P8
letter to determine the relationship of the seller and
buyer between the petitioner and respondent.
51. A perusal of the impugned award discloses that
the finding given by the learned Arbitrator holding that
there exist a relationship of buyer and seller between the
petitioner and 1st respondent in respect of subject matter
of transaction involved in the claim is based on the
appreciation of oral and documentary evidence by the
arbitrator. This approach of the arbitrator arriving to a
conclusion with regard to the existence of relationship of
buyer and seller between the parties is neither arbitrary
nor capricious.
52. The next ground on which the impugned
award is challenged by the petitioner is that M/s. SCCO
is necessary party to the arbitration proceedings. Since
the 1st respondent/claimant had not impleaded to M/s.
SCCO as necessary party, the claim of 1st respondent/
claimant was liable to be rejected for nonjoinder of
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necessary and proper parties and the learned arbitrator
has erred in not considering the said aspect and erred in
allowing the claim petition in the absence of joining of a
necessary and proper party.
53. However, a perusal of the impugned award
discloses that in issue no. 2 arbitrator has dealt with the
objections of the petitioner pertaining to nonjoinder of
M/s. Super commercial Company as a party to the
arbitration proceedings. A perusal of the findings of the
arbitrator on issue no. 2 discloses that by considering the
Ex.P1 Memorandum of understanding, Ex.P2 Addendum
and Ex.P30 agreement entered between the petitioner
and SCCO, the arbitrator has held that SCCO is neither a
necessary nor a proper party to the arbitration
proceedings and the learned arbitrator by his order dated
17/1/2011 has dismissed IA No. 3 filed by the present
petitioner U/o. 1 Rule 10 of CPC to implead SCCO. The
findings of the learned Arbitrator that SCCO was not a
necessary and proper party to the arbitration proceedings
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was based on the reasoning that SCCO was neither a
party in Ex.P1 memorandum of understanding nor a
party in Ex.P2 addendum entered between the petitioner
and 1st respondent. That there was a separate and
distinct agreement between the petitioner and SCCO
which binds them together without involving the 1st
respondent/claimant. This finding of the learned
arbitrator that the SCCO is not a necessary or proper
party to the arbitration proceedings is based on the
arbitrator appreciation of oral and documentary evidence
and this arbitrator approach is neither arbitrarily nor
capricious in nature.
54. One of the ground on which the impugned
award was challenged by the petitioner is that the article
9(a) to (f) of Ex.P1 memorandum of understanding dated
05/3/2005 executed between the petitioner and 1 st
respondent made some clauses mandatory to be followed
by the 1st respondent and since the 1st respondent has
not followed the same, the claim of the 1 st respondent
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was required to be dismissed and arbitrator has erred in
not considering the same.
55. However, a perusal of the impugned award
discloses that while answering issue No. 3, the learned
arbitrator has considered this allegation of the petitioner
with regard to failure on the part of the 1st respondent to
observe the terms and conditions of Ex.P1 memorandum
of understanding dated 05/3/2005.
56. A perusal of the reasoning given by the
arbitrator on issue No. 3 discloses that the main
allegation of the petitioner against the 1st respondent was
that the petitioner by making full payment to SCCO, with
consent of 1st respondent, the 1st respondent has
committed breach of terms and conditions of
memorandum of understanding dated 05/3/2005 and
the terms of Ex.P2 addendum.
57. However a perusal of the materials on record
discloses that the arbitrator considering the contents of
Ex.P3 letter dated 29/1/2005 written by the present
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petitioner to the 1st respondent seeking immediate full
payment of the price of the sugar to be sold has
compelled the 1st respondent to give consent for making
of the payment of entire money. By considering the
contents of Ex.P3 and Ex.D6 correspondences exchange
between the parties, the learned arbitrator has also came
to the conclusion that there was no breach of the terms
of the contract by the 1st respondent in making full
payment of money to the petitioner for supply of the
sugar. This finding of the arbitrator is based on his
appreciation of oral and documentary evidence produced
before him and this finding of the arbitrator cannot be
considered as perverse and capricious finding.
58. Another ground on which the impugned award
was challenged by the petitioner is that in Ex.P2
addendum dated 15/3/2005 the responsibility of the
petitioner ceases once the 1st respondent and SCCO have
come together for business and thereafter the petitioner
is not responsible to the 1st respondent. When the goods
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are not delivered as per the agreement, the SCCO has to
be blamed for the same and not the petitioner and the
learned arbitrator has failed to consider the same.
59. A perusal of the impugned award discloses
that while answering issue No. 4, the learned arbitrator
has considered the aspect of absolvement of the
responsibility of the petitioner under the memorandum of
understanding and addendum once the payment for
supply of sugar was made by the 1st respondent to the
SCCO.
60. A perusal of the finding of the arbitrator on
issue no. 4 discloses that by considering the oral and
documentary evidence produced on record, the learned
arbitrator has came to the conclusion that though in
Ex.P2 there is an agreement to the effect that the
responsibility of the present petitioner was ceased once
the payment is made to the seller based on the clearance
of the buyer, but the present petitioner has clearly
exhibited its responsibility and liability by insisting SCCO
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the seller of the petitioner under Ex.P30 agreement either
to send the remaining quantity of sugar or to repay the
balance amount to the 1st respondent. To arrive at the
above mentioned conclusion, a learned arbitrator has
relied on the Ex.P11 letter dated 17/5/2005 written by
the petitioner to SCCO seeking for arrangement of
dispatch of balance quantity of sugar of 725 metric tons
to the claimant/1st respondent. The learned arbitrator
has also relied on Ex.P23 letter dated 18/8/2005 written
by the petitioner to SCCO expressing concern about non
supply of the remaining sugar to the 1 st
respondent/claimant and requesting the SCCO to refund
the balance amount immediately to the 1st respondent.
61. By considering the oral and documentary
evidence produced on record, the learned arbitrator has
come to the conclusion that merely because in Ex.P2
addendum it was agreed that the responsibility of the
present petitioner towards funds will cease after sending
of the total amount to SCCO with consent or no
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objections of the 1st respondent/claimant, it cannot be
said that respondent had no liability or responsibility to
see that required and agreed quantity of sugar was
delivered to the claimant / 1st respondent or in case of
failure to do so, the money paid by the 1st respondent
/claimant in excess of the value of the sugar already
supplied to them was repaid to the 1st
respondent/claimant. This finding of the arbitrator is
based on his appreciation of oral and documentary
evidence which cannot be considered as perverse and
capricious finding.
62. Another ground on which the impugned award
is challenged by the petitioner is that the SCCO has
breached the contract and not the petitioner. Payment is
made by the 1st respondent to the SCCO and SCCO is
liable for the amount due to the 1 st respondent and not
the petitioner. It is further alleged that the cheques of Rs.
1,06,55,000/ received by the petitioner from SCCO are
in the form of security and they are to be returned to the
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SCCO or payment of dues and the petitioner cannot be
held liable for the cheques received from the SCCO and
the petitioner is not liable to pay the suit claim to the 1 st
respondent and the learned arbitrator has not considered
the said aspect and erred in allowing the claim of the 1 st
respondent against the petitioner.
63. However, a perusal of the impugned award
discloses that while answering issues No. 5 to 7, the
learned arbitrator has considered the above mentioned
allegations made by the petitioner seeking absolvence of
its liability to make any payment to the 1 st
respondent/claimant.
64. However, a perusal of the finding given by the
learned arbitrator on issues no. 5 to 7 discloses that by
considering the oral and documentary evidence produced
on record, a learned arbitrator has come to the
conclusion that since the petitioner has sold only 1,600
metric tons of sugar instead of agreed quantity of 2325
metric tons of sugar agreed to be sold under Ex.P1
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memorandum of understanding and since the petitioner
had received the entire sale consideration of the Rs.
3,83,00,000/ from the 1st respondent, it is liable to make
good the short fall of sugar of remaining 725 metric tons
and the petitioner cannot seek obsolvence of its liability.
Further, by perusing the oral and documentary evidence
produced before him, the learned arbitrator has come to
the conclusion that Ex.P14(a) three cheques for a sum of
Rs. 1,66,55,000/ received by the petitioner from SCCO
was towards the amount paid by the 1st respondent to the
SCCO for supply of the sugar. On receipt of the cheques
from SCCO a duty was cast on the petitioner to realize
the amount shown in the post dated cheques. The
learned arbitrator by considering the materials placed on
record has come to the conclusion that on receipt of
cheques by the petitioner from SCCO there was a fresh
contract and promise by the petitioner to pay the balance
money to the 1st respondent and the petitioner is not
entitled to take a stand on the ground that it was only a
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mediator in the transaction and once the payment was
made to the sender SCCO on the advice of the 1 st
respondent, the responsibility of the petitioner was
ceased. This finding of the learned arbitrator is based on
his appreciation of oral and documentary evidence and
this finding cannot be considered as perverse and
capricious finding.
65. One of the ground on which the impugned
award was challenged by the petitioner is that the
present suit was filed by the petitioner on 26/4/2012
challenging the impugned award dated 31/1/2012. The
amendment Act of 2015 amending section 34 of
Arbitration & Conciliation Act 1996 making section 34
narrow was notified on 23/10/2015 and in the said
notification it was clearly stated that act will come to
effect from the date of notification and the amendment
act cannot be applied retrospectively to the case in hand
and in the case in hand there is no bar for re
appreciation of evidence by the court.
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66. In support of this argument, the learned
counsel for the petitioner has relied on a decision of the
Apex Court of the Land reported in AIR 1983 SC 1143
and AIR 1950 SC 405. A perusal of the ratio of the above
two decisions discloses that the same was not rendered
pertaining to the interpretation of section 34 of
Arbitration & Conciliation Act in light of amendment
effected in section 34 of the Act in the year 2015. Hence,
the ratio of the above cited decisions is not helpful for the
petitioner.
67. It is pertinent to note that prior to the
amendment act 2015 with respect to scope of section 34
of the act, even as earlier in the year 1984, the Apex
Court of the Land in the decision between Puri
Construction Private Limited v. Union of India reported in
(1989) 1 SCC 4111 has held that while dealing with an
application U/s. 34 of the Arbitration & Conciliation Act
challenging the impugned award court cannot sit in
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appeal over the view of the arbitrator by reexamining
and reassessing the evidence.
68. Considering the fact that there is bar for re
appreciation of evidence of the arbitrator on factual
aspects the arguments of the learned counsel for the
petitioner that the present suit is filed in the year 2012
by the petitioner which is prior to enactment of
Amendment Act of 2015, hence there is no bar for re
appreciation of the evidence placed before the arbitrator
cannot be accepted.
69. A perusal of the present petition filed by the
petitioner U/s. 34 of the Arbitration & Conciliation Act
discloses that mainly on the ground that the impugned
award is in conflict with public policy of India the award
is challenged.
70. In the decision reported between Associate
Builders v. Delhi Development Authority reported in
(2015) 3 SCC 49, the Apex Court of the Land has held
that the merits of the arbitral award are assessable
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before the court U/S.34 of the Arbitration & Conciliation
Act only when award is in conflict with public policy of
India. In the said decision the Apex Court of the Land
has explained in detail the heads under which public
police of India may be violated, enumerated and
elucidated. In the said decision the Apex Court of the
Land has given caution on and limits of power of court to
interfere with arbitral award under the various heads of
public policy. It was further held that none of the
grounds mentioned in Section 34 (2)(a) deal with the
merits of the decision rendered by the arbitral award. It
is only when the arbitral award is in conflict with public
policy of India as per Section 34(2)(b)(ii) the merits of the
arbitral award or to be looked into under certain specified
circumstances. In the said decision, the Apex Court of
the Land has stated the heads of the public policy of
India are :
"I Fundamental policy of Indian Law: (I) Compliance
with statutes and judicial precedents; (ii) Need for judicial
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approach; (iii) Natural Justice compliance; (iv)
Wednesbury reasonableness;
II. Interest of India:
III. Justice or Morality; and
IV. Patent Illegality: (I) Contravention of substantive
law of India; (ii) Contravention of A & C Act, 1996; (iii)
contravention of the terms of the contract."
71. The Apex Court of the Land has further held
that when any of the heads/sub heads of test of public
policy is applied to an arbitral award, the court does not
act as court of appeal. Interference of the court is
permissible only when findings of the arbitrator are
arbitrary, capricious or perverse or when the consance of
court is shocked, or when illegality is not trivial but goes
to the root of the matter. It was further held that the
interference of the court is not permissible when merely
another view is possible. It was further held that
arbitrator being ultimate master of quantity and quality
of evidence while drawing arbitral award, award based on
little evidence or on evidence which does not measure up
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in quality to a trained legal mind cannot be held invalid.
It was further held that once it is found that arbitrator's
approach is neither arbitrary nor capricious, no
interference is called for on facts.
72. In the light of the ratio of the above cited
decision, a perusal of the impugned award discloses that
none of the findings given by the arbitrator in the
impugned award are in conflict with public policy of India
with regard to the circumstances mentioned in the above
cited decision. Hence, the contention of the petitioner
that the finding given in the impugned award by the
learned arbitrator is in conflict with public policy of India
cannot be accepted.
73. The learned counsel for the petitioner in his
written arguments has relied on the decision reported in
AIR SCW 5326, wherein the Apex Court of the Land has
held that when under the agreement parties had agreed
not to claim interest arbitral tribunal cannot award
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interest from the date of cause of action to the date of
award.
74. I have perused the ratio of the above cited
decision. However, a perusal of the impugned award
discloses that unlike cited decision in the present case in
hand under Ex.P1 contract there is an agreement for
claiming interest on unpaid purchase money @ 24% per
annum. By considering the clause in Ex.P1 agreement,
the arbitrator has awarded interest @ 24% per annum
which is neither perverse nor capricious. Hence, the ratio
of the above cited decision is not helpful for the
petitioner.
75. The learned counsel for the petitioner in his
written arguments has also relied on a decision of Apex
Court of the Land reported in 2010 AIR SCCW 5027,
wherein, the Apex Court of the Land has held that when
the award is in conflict with public policy, when the same
is induced by fraud or coercion the same required to be
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setaside under section 34 of the Arbitration &
Conciliation Act.
76. I have perused the ratio of the above cited
decision. However, unlike cited decision in the present
case in hand, the petitioner has failed to prove that the
impugned award is induced by fraud or coercion and the
same is conflict with public policy. Hence, the ratio of the
above cited decision is also not helpful for the petitioner.
77. The learned counsel for the petitioner has
relied on another decision reported in AIR 2003 SC 2629,
wherein, the Apex Court of the Land has held that award
contrary to provisions of the substantive law or Act or
terms of contract can be setaside.
78. I have perused the ratio of the above cited
decision. However, unlike cited decision in the present
case in hand, the petitioner has failed to prove that the
impugned award is contrary to provision of substantive
law or act or terms of contract. Hence, the ratio of the
above cited decision is also not helpful for the petitioner.
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79. It is pertinent to note that the court dealing with
an application to set aside an arbitral award U/S.34 of
Arbitration & Conciliation Act 1996 has not to consider
whether the view of the arbitrator on evidence is justified.
The Arbitrator adjudication is generally considered
binding between the parties as tribunal is selected by the
parties and the power of the court to set aside the award
is restricted to cases set out in Section 34 of the
Arbitration & Conciliation Act 1996. Statute has
restricted challenge to arbitral award only on certain
grounds mentioned in Section 34 of the Act. Any
grounds of challenge to an arbitral award could be
succeed only if its find support from any of grounds of
challenge mentioned in Section 34 and not otherwise.
The challenge of award on factual aspect is not
maintainable.
80. By going through the contents of the petition
filed by the petitioner U/S.34 of the Act challenging the
impugned award, this court is of the opinion that none of
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the grounds mentioned in Section 34 of Arbitration &
Conciliation Act 1996 have been made out by the
petitioner to set aside the impugned award. All the
grounds agitated by the petitioner are the grounds
warranting reappreciation of materials submitted before
and relied upon by the Hon'ble Arbitrator. This court is
not empower to reexamine the evidence or to interfere in
the findings of the fact arrived by the Hon'ble Arbitrator.
81. By perusing the materials produced on record,
this court is of the opinion that the petitioner has not
shown any grounds U/S.34 of the Arbitration &
Conciliation Act 1996 to interfere with the impugned
award passed by the Hon'ble Arbitrator. With these
observations, I answer point No.1 in the negative.
82. POINT No.2 : In view of my findings on point
No.1 and for the reasons assigned thereon, I proceed to
pass the following:
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ORDER
The petition filed by the petitioner U/S.34 of the Arbitration & Conciliation Act is dismissed.
Parties are directed to bear their costs.
[Dictated to the Judgment Writer; transcript thereof corrected, initialed and then pronounced by me, in the Open Court on this the 30th day of January, 2020] [S.A.Hidayathulla Shariff] LXXXIII Additional City Civil Judge.
BENGALURU.