Delhi District Court
Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma on 30 November, 2022
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
OMP (Comm.) No. 52/2022
Swastik Infraestate Pvt. Ltd,
Having its Registered Office at
37, Eligin Road,
Civil Lines,
Allahabad-211001
W-mail:[email protected] ...Petitioner
versus
Shri B.D. Sharma,
S/o Late Shri Chetram Sharma,
R/o B-1/12, Hauz Khas,
New Delhi-110016
Mob. No. 9810546411
E-,ail:[email protected] ...Respondent
Date of Institution : 26/03/2022
Arguments concluded on : 31/10/2022
Decided on : 30/11/2022
Appearances : Sh. Manish Kumar, Ld. Counsel for petitioner.
Ms. Ruchira V. Arora and Sh. Dhananjay Mehlawat, Ld.
Counsel for respondent.
JUDGMENT
1. Petitioner had filed the present petition under Section 34 of The Arbitration and Conciliation Act, 1996 (herein after referred as The Act), seeking setting aside of the impugned arbitral award dated 19/05/2020 passed by Sh. Prem Kumar, Ld. Sole Arbitrator in Case Ref. No. DAC/2361/01-19 titled 'Sh. B.D. Sharma vs Swastik Infra Estate Pvt. Ltd.'. Ld. Sole Arbitrator awarded Rs. 61,71,148/- with future interest on amount of Rs. 38,08,000/- @ 12% per annum from the date of award till realization in favour of respondent/claimant payable by petitioner.
OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 1 of 292. I have heard Sh. Manish Kumar, Ld. Counsel for petitioner; Ms. Ruchira V. Arora and Sh. Dhananjay Mehlawat, Ld. Counsel for respondent and perused the record of the case, reply of respondent; the arbitral proceedings record, filed brief written arguments on behalf of parties, relied upon precedents and given my thoughtful consideration to the rival contentions put forth.
3. Following is the brief factual matrix of the case set up by respondent/claimant before Ld. Sole Arbitrator. Respondent/ claimant had entered into an agreement with M/s. Ansal Hi-Tec Townships Ltd., (hereinafter called as "Ansals") dated 31/03/2012, whereby a plot of land measuring 350 sq. yards was to be allotted to respondent/claimant, in the developed area, on payment of sum of Rs. 35,00,000/-which entire amount was paid by respondent/claimant to Ansals, vide cheque dated 23/03/2012. Said agreement had a clause of buy back of the said plot measuring 350 sq. yards by Ansals at the rate Rs. 16,000/- per sq. yards. The total buy back amount was a sum of Rs. 56,00,000/- which the respondent/claimant was entitled to get from Ansals after expiry of a period of 24 months from the date of receipt of final payment. Ansals committed a default in paying the buy back amount of Rs. 56,00,000/- to respondent/claimant, when it became payable on 01/04/2014, despite the respondent/claimant having become entitled and having exercised the buy back option and claiming the buy back amount. A dispute thus arose between the respondent/claimant and Ansals on failure of Ansals in paying the buy back amount to respondent/claimant. A Tripartite Settlement Agreement was executed on 30/04/2015 between the respondent/claimant (as first party), Ansals (as second party) and OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 2 of 29 petitioner (as confirming party). Vide said agreement Ansals admitted that a sum of Rs. 56,00,000/- (mentioned as maturity amount) is due and payable to respondent/claimant, for the period up to 01/06/2014. Under the said agreement, the liability of Ansals of Rs. 56,00,000/- was taken over by the petitioner and Ansals was discharged and absolved from its liability, towards respondent/claimant, in respect of the maturity amount of Rs. 56,00,000/-. On the same day i.e., 30/04/2015, when the aforesaid Tripartite Settlement Agreement was made, another agreement i.e., a Bi-Partite Agreement was executed between the petitioner and respondent whereby in lieu of Rs. 56,00,000/- petitioner had agreed to reserve a flat measuring 1867 sq. ft. area @ Rs. 3,000/- sq. ft., in their upcoming project being 'Group Housing-1 at Gold Community, Shushant Golf City, Lucknow'. Said flat was to be fully furnished. The said agreement provided an option to the respondent/claimant of opting the buy back of the area by the petitioner. The buy back amount, which was available at the end of two months from the date of said agreement was fixed at Rs. 3540/- per sq. ft. The total buy back amount of Rs. 66,08,000/- was agreed to be paid by the petitioner to the respondent/claimant within 15 days of completion of two months of said agreement dated 30/04/2015. Said amount was thus due and payable by petitioner to respondent/claimant on 15/07/2015. Said agreement was binding on the petitioner. Said obligation of the petitioner was unimpeachable. The liability was an admitted liability. Respondent/claimant opted the buy-back option by exercising the right guaranteed under the agreement. In discharge of the obligation to pay the buy-back amount and in acknowledgment of said amount of Rs. 66,08,000/- crystallized OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 3 of 29 as the buy-back amount under the agreement, respondent/ claimant issued a cheque dated 30/12/2015, for the amount of Rs.28,00,000/- drawn on HDFC Bank, towards part payment, to the respondent/claimant. Said cheque was presented by respondent/claimant to his banker for encashment but was returned back unpaid with remarks "Funds Insufficient". Respondent/claimant immediately took up the matter with Sh. Ajit Kumar Mishra, Director of petitioner and therefore, on 15/01/2016 an amount of Rs. 28,00,000/- was transferred by RTGS in the account of respondent/claimant. Said payment by petitioner was in part discharge of their admitted liability of payment of buy back amount of Rs. 66,08,000/- under the said agreement to the respondent/claimant. Balance amount due and payable by petitioner after adjusting the said amount of Rs. 28,00,000/- was a sum of Rs. 38,08,000/-. Said amount was due and payable by petitioner on 15/07/2015. Having not paid the said amount, petitioner committed breach of the agreement dated 30/04/2015. Respondent/claimant is a senior citizen and is deliberately and willfully being harassed by petitioner in not paying the amount due and payable to respondent/claimant. Respondent/claimant repeatedly requested the directors and persons in-charge of affairs of petitioner to pay the balance amount with interest and respondent/claimant was assured of immediate release of money. Despite such firm assurances petitioner failed to discharge its obligations under the said agreement. Since the petitioner defaulted in payment of money due and payable to respondent/claimant, respondent/claimant issued a legal notice dated 28/09/2017, calling upon the petitioner and its directors/persons in-charge of its affairs to pay OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 4 of 29 the amount of Rs. 52,93,120/- within a period of 15 days from the date of receipt of the said notice. Said amount included the principal amount of Rs. 38,08,000/- and the interest amount of Rs.14,85,120/-. Petitioner was also called upon by respondent/ claimant to pay a sum of Rs. 22,000/- being the cost of the said notice. Said notice was duly served upon the petitioner and the persons in-charge of its affairs/directors. Despite service of notice dated 28/09/2017, petitioner neither paid the amount due and payable to respondent/claimant nor replied the said notice. Respondent/claimant vide notice dated 16/11/2017 through Advocate invoked the arbitration Clause 8 of the Agreement dated 30/04/2015. In terms of Clauses, respondent/claimant referred the name Sh. Nishit Kush, Advocate, Chamber No. 136, Delhi High Court, New Delhi to enter into the reference and act as a Sole Arbitrator. The notice of invocation of arbitration clause was sent by respondent/claimant to petitioner who failed to respond. Petitioner neither agreed on the name of Sh. Nishit Kush, who was nominee of respondent/claimant, to act as an Arbitrator to adjudicate upon the disputes between the parties, nor the petitioner nominated its Arbitrator. Sh. Ajit Kumar Mishra, AR/Director of petitioner vide email dated 30/12/2017, referred to some challenges faced by petitioner company but did not dispute their liability. However, it contained assurances. Respondent/claimant filed Arbitration Petition no. 94/2018 before Delhi High Court seeking appointment of an Arbitrator, in view of the fact that dispute between the parties had arisen. Delhi High Court vide order dated 20/11/2018, rejected the contentions of the petitioner, appointed Ld. Sole Arbitrator. Arbitral proceedings culminated into impugned arbitral award.
OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 5 of 294. Shorn of unnecessary details, following are the relevant facts of the case of the petitioner and premise laid for impugning the arbitral award. Award is ex-facie illegal and runs contrary to fundamental public policy as defined under Section 34(2)(b)(ii) and (iii) of the Act. Reliance in this regard was placed on the decision of Supreme Court in the case of Indian Oil Corporation Limited through its Senior Manager vs Shree Ganesh Petroleum Rajgurunagar through its Proprietor Laxman Dagu Thite, (2022) 4 SCC 463 and Ssangyong Engineering & Construction Company Limited vs National Highways Authority of India (NHAI), (2019) 15 SCC 131. Award is bad for non-joinder of party, as Ansal Hi Tech Township Ltd. (in short AHTTL) was a party to the Tripartite Agreement dated 30/04/2015 (in short Tripartite Agreement). Reliance in this regard was placed on the decision in the case of Mumbai International Airport Private Limited vs Regency Convention Centre and Hotels Private Limited & Ors., (2010) 7 SCC 417, Pankajbhai Rameshbhai Zalavadia Vs Jethabhai Kalabhai Zalavadiya (Deceased) through Legal Representatives & Ors., (2017) 9 SCC 700 and Ramesh Hirachand Kundanmal vs Municipal Corporation of Greater Bombay & Ors. MANU/SC/0493/1992. A conjoint reading of both the Tripartite and Bi-Partite Agreements dated 30/04/2015 (in short Bi-Partite Agreement) leaves no room of doubt that the performance of obligation in the Bi-Partite agreement was contingent upon performance of obligation under the Tri-Partite Agreement. Reliance in this regard was placed upon the cases of Gian Chand & Ors. Vs York Exports Limited & Anr., (2015) 5 OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 6 of 29 SCC 609, Nandkishore Lalbhai Mehta vs New ERA Fabrics Private Limited & Ors., (2015) 9 SCC 755. Arbitral Tribunal cannot go beyond the scope of submission to arbitration whereas Arbitral Tribunal being a creature of contract is bound to act by the terms of contract under which it is constituted and cannot pass a patently illegal award by ignoring the terms of contract. Reliance was placed on decision of Supreme Court in the case of Anglo American Metallurgical Coal PTY. Limited vs MMTC Limited, (2021) 3 SCC 308. The contract between the parties must be in obedience to law and not in derogation thereof. Contracting out is permissible provided it does not deal with a matter of public policy. Section 23 of The Indian Contract Act, 1872 also embodies the doctrine of public policy as evolved by the common law. Supreme Court observed in the case of State of Rajasthan & Ors. Vs Basant Nahata, (2005) 12 SCC 77, that what is opposed to public policy would be a matter depending upon the nature of the transaction. The impugned award suffers from grave perversity and patent illegality as Ld. Sole Arbitrator did not consider the submissions advanced on behalf of the petitioner in the correct perspective. The impugned award has been rendered in contravention of the fact that liability of respondent was a contingent one and the issue could not have been decided without impleading AHTTL which was necessary party in the matter. The impugned award exhibits patent and gross illegality as passed in ignorance of the fact that in Clause 4 of the agreement there was an apparent misprint/typographical error, in as much as instead of two years for the option of buy- back, it erroneously recorded two months. In arguendo, even if it is considered that the period of buy back was 'two-months' then OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 7 of 29 the annualized rate of return would be 108%. Such a rate on a debt instruments is highly obnoxious usurious and unconscionable and against public policy. Such material mistake of fact has resulted in unjust enrichment to the respondent, thus warranting interference in the impugned award by this court inter alia on the principles of doctrine of restitution. Impugned award based on a contract which is vitiated owing to the said mistake of fact is also against public policy as there are like chances of other investors placed in similar setting, dragging the petitioner into frivolous legal proceedings thus burdening the judicial system with unnecessary litigation. The said mistake of fact/term of the contract is extremely unfair and unreasonable as the annual rate of return calculated with 'Simple Interest' and 'Compound Interest' works out to approx. 85.2% and 531% respectively which is inconceivable in any trade/industry. Ld. Sole Arbitrator also incorrectly awarded the interest at 12% per annum without any rational whatsoever. In absence of reason much less a valid one, no order/award could withstand judicial conscience. The impugned award is otherwise contrary to law and facts of the present case. Supreme Court in the case of Biswanath Agarwalla vs Sabitri Bera & Ors., (2009) 15 SCC 693 and Praful Manohar Rele vs Krishnabai Narayan Ghosalkar & Ors., (2014) 11 SCC 316 held that defendant may raise inconsistent pleas provided they are not mutually exclusive. It was in lieu of settlement arrived at vide above said Tripartite Agreement dated 30/04/2015; another Bi-Partite Agreement was entered into between petitioner and respondent/claimant on 30/04/2015 itself; making it clear that Bi-Partite Agreement shall be contingent upon terms contained in Tripartite Agreement. A OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 8 of 29 settlement agreement was entered into between petitioner, AHTTL and Ansal Properties and Infrastructure Limited (in short APIL), on 07/05/2015 adjusting development rights in respect of certain FSI in the project "Group Housing-1, at Golf Community, Sushant Golf City, Lucknow" against the aforesaid liability in favour of petitioner. Aforesaid agreement dated 07/05/2015 was entered into in lieu of the impact of demonetization on the real estate developers which led to Tulsiani Construction & Developers Pvt. Ltd (in short TCDPL) expressing its reservation in continuing the project and its inability to give the assured returns to investors. Thus, petitioner reached out to its investors offering to settle at principal amount/maturity amount. It was in this context, upon reaching an understanding with the respondent/claimant, respondent/claimant was paid a sum of Rs. 28,00,000/- out of the settled amount of Rs. 56,00,000/- and the balance 50% in due course, whereafter the respondent/claimant was to give no claim/no objections to petitioner. However, subsequently respondent/claimant by misusing the Bi-Partite Agreement illegally demanded an amount of Rs. 66,08,000/- towards buy back, after allegedly adjusting an amount of Rs. 28,00,000/- when neither the option of buy back was ever exercised nor petitioner ever agreed to accept the buy back along with interest. Ld. Counsel for petitioner also argued that before Delhi High Court in Arbitration Petition No. 94/2018, the question of non joinder was raised, but since Delhi High Court exercised the power under Section 11 (6-A) of the Act, where only agreement and disputes were to be looked into, it left the question open to be decided by Arbitral Tribunal. Ld. Counsel for petitioner also argued that Ld. Sole Arbitrator relied upon Clause OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 9 of 29 7 of the Tripartite Agreement, it conveniently ignored Clause 2 of the same agreement in impugned arbitral award whereas issue no. 2 for non joinder was decided against the petitioner. Ld. Counsel for petitioner also argued that the impugned award is passed in ignorance of the terms of the contract and is against the public policy, so present petition deserves to allowed and the award is liable to be set aside with costs.
5. Following are the relevant material averments in the filed reply of respondent/claimant through Ld. Counsel as well as arguments set up by respondent/claimant through Ld. Counsel for dismissal of the petition on the following premise. No legal or valid grounds have been urged for setting aside the award under challenge passed by Arbitral Tribunal on 19/05/2020, as an award can be set aside only on the grounds mentioned in Section 34 of the Act, which grounds are absent in the present case. It is the settled law that an Arbitral Tribunal being a creature of contract, is bound to act in terms of the contract under which it was constituted. In the present case, Arbitral Tribunal had passed the award under challenge, within the four corners of the contract between the parties. The interpretation of terms of contract by Arbitral Tribunal is correct. Since this court is not sitting in appeal over the award made by Arbitral Tribunal and when the interpretation made by Arbitral Tribunal of contractual provisions is correct, the same is not liable to be interfered with. In the present case, it cannot be said that the interpretation made by Arbitral Tribunal is patently unreasonable or perverse. The contractual provisions contained in the Bi-Partite Agreement dated 30/04/2015, between the parties, are not ambiguous and are OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 10 of 29 not capable of being interpreted in more ways than one. If the interpretation of contract as per the petitioner is accepted or correct, it would amount to re-writing of the contract, which would be in breach of fundamental principles of justice. The role of an Arbitrator is to arbitrate within the terms of the contract between the parties, which in this case Arbitral Tribunal had correctly done. Petitioner by way of the present petition is trying to give a different reading and meaning to the agreement dated 30/04/2015, by adding words to it and subtracting words from it. Petitioner is also alleging, albeit for the first time that there was an error in mentioning the period in the agreement, when there was no challenge by the petitioner to the terms of the agreement in last seven years. Said contentions of the petitioner are liable to be rejected. The clauses of the agreement are clear and unambiguous, not permitting any other interpretation. It is the settled law that if the terms of the document are clear and unambiguous, extrinsic evidence to ascertain the intention of the parties is inadmissible. Reliance in this regard was placed upon the case of Raj Kumar Rajinder Singh vs State of Himachal Pradesh & Ors., (1990) 4 SCC 320 and United India Insurance Company Limited vs Orient Treasures Private Limited, (2016) 3 SCC 49. Petitioner had changed and shifted its stand from time to time. Regarding the buy-back option contained in the agreement dated 30/04/2015 and its valid exercise by the respondent, pursuant whereto a sum of Rs. 28,00,000/- was transferred by the petitioner to the respondent, as part-payment, the stand of the petitioner has changed/varied from time to time i.e., from reply filed by the petitioner to Section 11 Petition filed by the respondent before Delhi High Court, bearing ARB. P. OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 11 of 29 94/2018, to the Statement of Defence before Ld. Sole Arbitrator and now the present petition. Petitioner is guilty of taking inconsistent pleas and it cannot be allowed to approbate and reprobate. Reliance in this regard was placed on the case of Karam Kapahi & Ors. vs Lal Chand Public Charitable Trust & Anr., (2010) 4 SCC 753. Ld. Counsel for respondent argued that rate of awarded interest is fully justified and proper and a discretion in this regard is vested with Arbitral Tribunal under Section 31(7) of the Act and the findings for awarding the interest are correct and do not call for any interference. Arbitral Tribunal has returned issue-wise findings after due consideration of rival cases of both the parties. There is no infirmity in the award for the reasons detailed therein. In the present petition, a totally new case has been set up by the petitioner. Petitioner has raised new pleas and filed fresh documents, when there were no pleadings to that effect before the Arbitral Tribunal and no reference to the documents filed now can be made. It is settled law that a plea not taken before Arbitrator cannot be raised in a challenge to the award. Ld. Counsel for respondent relied upon the case of PEC Limited vs ADM Asia Pacific Trading PTE Ltd., 2016 SCC OnLine Del 3953. Clause 2 of the agreement dated 30/04/2015 made it very clear that, how the Confirming Party i.e., the petitioner was to receive its money from Ansals was no concern of the First Party i.e., the respondent/claimant. Respondent/claimant was not concerned with any arrangement between the petitioner and Ansals, which would be their internal matter. Petitioner had expressly admitted its liability to pay the amount to the respondent by way of the agreement. Part amount of Rs. 28,00,000/- was paid by petitioner to the respondent in OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 12 of 29 furtherance of its admitted liability. Ansal Hi-Tech Township Limited is not a necessary or proper party to the present proceeding as the respondent/claimant has no claim against Ansals in view of the Tri-Partite agreement dated 30/04/2015. Respondent is not concerned with what has been agreed between the petitioner and Ansals and for that the petitioner is free to take whatever action it proposes to initiate against Ansals, by way of its separate proceedings. In view of the Bi-Partite Agreement dated 30/04/2015 and in acknowledgement of its liability by petitioner to pay the buy back amount and by paying Rs. 28,00,000/- as the part amount, respondent/claimant is entitled to the awarded amount. Petitioner has deprived the respondent with his money, which has been illegally withheld by the petitioner. Ld. Counsel for respondent prayed for dismissal of the present petition with cost.
6. Supreme Court in case of Dakshin Haryana Bijli Vitran Nigam Ltd. vs M/s Navigant Technologies Pvt. Ltd, 2021 SCC OnLine SC 157 has held that the date on which the signed award is provided to the parties is a crucial date in arbitration proceedings under the Act. It is from this date that: "(a) the period of '30 days' commences for filing an application under Section 33 for correction and interpretation of the award, or for additional award; (b) the arbitral proceedings would terminate as provided by Section 32(1) of the Act; (c) the period of limitation for filing objections to the award under Section 34 commences."
7. Supreme Court in Suo Moto Writ Petition (Civil) no. 3 of OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 13 of 29 2020, In Re: Cognizance For Extension Of Limitation vide order dated 10/01/2022 has excluded the period from 15/03/2020 till 28/02/2022 for computing the period of limitation for any suit, appeal, application or proceedings and the petition under Section 34 of The Act is also eligible for the same. Accordingly, the present petition filed on 26/03/2022 is within the period of limitation.
8. Clauses 1,2,3 and 7 of Tripartite Settlement Agreement dated 30/04/2015 read as under:-
"1. The First Party and the Second Party hereby confirms and acknowledges that for the period uptill 1st June 2014 the Maturity Amount (i.e., an amount of Rs.56,00,000.00) is payable by the Second Party to the First Party. The First Party further confirms that no amount in addition to the Maturity Amount is payable to it by the Second Party.
2. The First Party hereby assigns its right and entitlement to receive Maturity Amount in favour of the Confirming Party and confirms that the Maturity Amount be paid by the Second Party to the Confirming Party in the manner as may be mutually agreed between the Second Party and the Confirming Party, to which the First Party shall raise no objections.
3. From the Effective Date, the Second Party stands discharged completely and absolved from all liabilities towards the First Party in respect of the Maturity Amount under the Agreement dated 31st March 2012 and the First Party confirms that no additional / other amounts except the Maturity Amount are due and payable to the First Party.
..........................................................................................................
7. The Confirming Party undertakes and warrants that neither the First Party nor the Confirming Party shall question / dispute the Maturity Amount payable and settlement terms as contemplated herein and shall not initiate any suits, proceedings or disputes of any nature whatsoever against the Second Party in this regard. The Confirming Party undertakes to keep the Second Party indemnified from and against all claims, disputes, suits etc. raised by First Party against the Second Party in respect thereof.OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 14 of 29
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9. Clauses 4 and 5 of Bi-Partite Agreement dated 30/04/2015, above said, read as under:-
"4. The Developers offers to the Purchaser, an option to Buy Back the area at the end of two months from the execution of this agreement. The buy-back rate is fixed at Rs. 3540 per square foot. The Developer agrees to pay the Purchaser an amount of Rs. 66,08,000.00/- (Rupees Sixty Six Lakh Eight Thousand Only) within 15 days of completion of two months of this agreement.
5. The Purchaser shall exercise the right by notifying the Developer of his/her decision to opt the Buy Back option. Failing to notify the Developer of opting the Buy Back option shall be deemed as opting to retain the unit by the Purchaser."
10. In the statement of defence filed by petitioner to the claim of respondent/claimant before Ld. Sole Arbitrator in para H of preliminary objections, it is the averment of petitioner that respondent/claimant was under compulsory obligation to notify the petitioner for the buy back option in terms of Bi-Partite Agreement dated 30/04/2015 but the claimant/respondent did not exercise buy back option. In the rejoinder on behalf of respondent/claimant to the statement of defence of petitioner before Ld. Sole Arbitrator, in response to aforesaid para H of preliminary objections of petitioner, following is the response of respondent/ claimant to aforesaid objection:-
"H. That the contents of para H of the preliminary objections, as stated are wrong and denied. Since the respondents had paid a part sum of Rs. 28,00,000/- (Rupees Twenty Eight Lacs Only) from the total buyback amount of Rs. 66,08,000/-
(Rupees Sixty Six Lacs Eight Thousand Only) to the Claimant by RTGS on 15.01.2016, therefore, it does not lie in the mouth of Respondent at this stage to take an objection that no option of buyback was availed by the Claimant. It is obvious that the part buyback amount of Rs. 28,00,000/- was paid by the Respondent to the Claimant upon exercise of buyback option by the Claimant, which OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 15 of 29 was duly acknowledged by the Respondent. The notification of buyback option was not required to be in writing. No particular mode or manner of buyback option was prescribed under the agreement. It could be an oral notification/invocation/exercise of buyback option or through phone. It is thus denied that the Claimant had not complied with clause 5 of the agreement dated 30.04.2015. It is thus denied that there was no notification of buyback option by the Claimant. It is thus denied that the Claimant did not exercise the buy-back option in terms of the Bipartite Agreement dated 30.04.2015. It is stated that in para 11 of the order dated 20.11.2018 passed by the Hon'ble High Court, it was recorded that the Respondent had concededly paid a part of sum against the buyback option i.e. Rs. 28,00,000/-. Therefore, the allegations made in the para under reply are not only false but otherwise an attempt to overreach the findings of the Hon'ble High Court."
11. Following issues were framed by Ld. Sole Arbitrator:-
"1. Whether the claim is liable to be dismissed as mentioned in para-A of the preliminary objections of the statement of defence? OPR
2. Whether the M/s. Ansal Hi-Tech Townships Ltd. is unnecessary / proper party? If so, what effect? OPR
3. Whether the Bi-Partite Agreement dated 30/04/2015 is liable to be impounded and not liable to be received in evidence as alleged in Part-I of the statement of defence? OPR
4. Whether the respondent's liability is contingent upon Ansal marking the payment to the respondent? OPR
5. Whether the claimant is entitled to interest? If so, the rate, period and the amount thereof? OPC
6. Whether the claimant is entitled to the claim raised in the petition? OPC
7. Relief."
12. Following is the part appreciation of pleadings and the oral and documentary evidence on arbitral record on issue no. 1 and 4 by Ld. Sole Arbitrator:-
"50. The claimant has not denied the factum of having received the amount of Rs.28 Lakhs from the respondent. The relevant portion of the Tri-Partite Agreement dated 30.04.2015 cited above by the respondent is hardly of any help to the respondent. It does not show that the remaining / balance payment to be made to the claimant is contingent upon the receipt of further amount from the Ansals. Rather the aforesaid portion clearly shows that Ansals confirm that OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 16 of 29 the maturity amount to be paid to the claimant by the respondent is as may be mutually agreed between the claimant and the respondent to which Ansals shall have no objection. Ansals stand discharged and absolved from the liability of Rs.56 Lakhs towards the claimant under the said Tri-Partite Agreement dated 30.04.2015. There is nothing to show that the claimant is in any way concerned about the arrangement between the respondent and Ansals. That is a matter entirely between the respondent and Ansals. In terms of Tri-Partite Agreement dated 30.04.2015 the respondent had admitted its liability to pay the amount to the claimant irrespective of whether respondent receiving the amount from Ansals or not. The liability of the respondent towards the claimant is not dependent upon what the respondent receiving from Ansals and is not a contingent liability. The liability of the respondent towards the claimant is towards the discharge of the obligation by the respondent to pay the buyback amount. Hence, there is no merit in the plea of the respondent that the liability of the respondent is contingent upon the receipt of amount from Ansals.
51. The communication by the claimant to Ansals vide letter dated 30.04.2015 requesting Ansals to provide consent for the aforesaid transfer and also to acknowledge that Ansals shall discharge all its liability and obligations in terms of the agreement towards the claimant is hardly of any help to the respondent because the liabilities and obligations under the Tri-Partite Agreement dated 30.04.2015 are not dependent upon any such request as made by the claimant as mentioned above.
52. Hence, issue no. 1 is decided against the respondent.
53. Issue no.4 is decided against the respondent as would be clear from the discussion in issue no.1 that the liability of the respondent is not contingent upon the receipt of amount from Ansals as discussed in para 84 above."
13. Following is the appreciation of pleadings and the oral and documentary evidence on arbitral record by Ld. Sole Arbitrator on issue no. 2:-
"54. Issue No.2: Whether the M/s. Ansal Hi-Tech Townships Ltd. is a necessary / proper party? If so, what effect? OPR
55. According to the respondent Ansals is the necessary and proper party for the adjudication of the present lies as the respondent had agreed to forward the benefit to the claimant but was unable to do so as Ansals had proposed to give the OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 17 of 29 adjustment to the respondent for the liability of the claimant. It is contended that the Ansals only provided the part adjustment of the liability of the claimant to the tune of Rs.28 Lakhs and the same amount has been transferred to the claimant. The liability of the respondent being contingent upon Ansals giving the adjustment to the respondent, Ansals is a necessary party. It is also submitted that in the absence of Ansals presence, the controversy between the claimant and the respondent cannot be effectively adjudicated. In this regard Ld. Counsel for the respondent relies upon the two judgments i.e. Ramesh Hiranand Kundanmal Vs MCG Bombay & Ors. ; AIR 1992 SCW 846; and Pankajbhai Rameshbhai Zalavadia Vs Jethabhai Kalabhai Zalavadiya & Ors. : VII (2017) SLT 462.
56. There is no merit even in the objection. Ansals is neither necessary nor a property party in the present case. As per the Tri-Partite Agreement dated 30.04.2015 the respondent has taken over the liability of Ansals of Rs.56 Lakhs. Ansals stand totally discharged and absolved from its liability towards the claimant. In this regard Clause 7 of the Tri-Partite Agreement dated 30.04.2015 is quite relevant and material. Clause 7 reads as under:-
"7. The Confirming Party undertakes and warrants that neither the First Party nor the Confirming Party shall question / dispute the Maturity Amount payable and settlement terms contemplated herein and shall not initiate any suits, proceedings or disputes of any nature whatsoever against the Second Party in this regard. The Confirming Party undertakes to keep the Second Party indemnified from and against all claims, disputes, suits etc. raised by First Party against the Second Party in respect thereof."
57. As per the above clause the Respondent undertook not to initiate any suits, proceedings or dispute of any nature whatsoever against the Ansals and further undertook to keep Ansals indemnified from and against all claims, dispute, suits etc raised by the Claimant against Ansals in respect thereof. Hence, Ansals is neither a necessary nor property party to the present proceeding as the Claimant has no claim against them in view of the Tri-partite agreement.
58. Hence, issue No.2 is also decided against the respondent."
14. The proceedings under Section 34 of the Act are summary in nature and the scope of enquiry in the proceedings under Section 34 of the Act is restricted to specified grounds for setting OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 18 of 29 aside only, as was held in the case of Canara Nidhi Limited vs M. Shashikala & Ors., 2019 SCC Online SC 1244. The Court would not construe the nature of claim by adopting too technical an approach or by indulging into hair-splitting, otherwise the whole purpose behind holding the arbitration proceedings as an alternative to Civil Court's forum would stand defeated, as was held in the case of Sangamner Bhag Sahakari Karkhana Ltd. vs Krupp Industries Ltd., AIR 2002 SC 2221. An award is not open to challenge on the ground that the arbitrator had reached a wrong conclusion or had failed to appreciate some facts, but if there is an error apparent on the face of the award or if there is misconduct on the part of the arbitrator or legal misconduct in conducting the proceedings or in making the award, the court will interfere with the award; as was held by Supreme Court in the case of Oil & Natural Gas Corporation vs M/s Wig Brothers Builders & Engineers Pvt. Ltd., (2010)13 SCC 377. Reappraisal of evidence by the court is not permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under the Arbitration Act; as was held by Supreme Court in the case of Ispat Engineering & Foundry Works vs Steel Authority of India Ltd., (2001) 6 SCC 347. In order to provide a balance and to avoid excessive intervention, the award is not to be set aside merely on the ground of an erroneous application of the law or by re-appreciating evidence; as was held by Supreme Court in the case of P.R Shah, Shares & Stock Brokers Pvt. Ltd vs B.H.H. Securities Pvt.Ltd. & Ors., (2012) 1 SCC 594. At global level the doctrine of 'Contra Proferentem' is generally applied by the Judges/Arbitrator in the cases where a contract appears ambiguous to them; the Judges/Arbitrator in OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 19 of 29 India have appreciated and adopted similar line of reasoning in the cases involving ambiguous contract wherein it is believed that 'an ambiguity is needed to be resolved' in order to find the correct intention of the contract. If the conclusion of the arbitrator is based on a possible view of the matter, the court is not expected to interfere with the award and if the Arbitrator relies on a plausible interpretation out of the two possible views, then it would not render the award perverse; as was held by Supreme Court in the case of M/s Sumitomo Heavy Industries Ltd. vs Oil & Natural Gas Commission of India, 2010 (11) SCC 296. Award is not open to challenge on the ground that the Arbitral Tribunal had reached a wrong conclusion or had failed to appreciate the facts; the appreciation of evidence by the arbitrator is never a matter which the Court considers in the proceeding under Section 34 of the Act, as the Court is not sitting in appeal over the adjudication of the arbitrator.; as was held by Delhi High Court in the case of NTPC Ltd vs Marathon Electric Motors India Ltd., 2012 SCC OnLine Del 3995. Supreme Court in the case of Associate Builders vs Delhi Development Authority, (2015) 3 SCC 449 has restricted the scope of public policy, so the Court does not act as a Court of appeal and consequently errors of fact cannot be corrected. An error relatable to interpretation of the contract by an arbitrator is an error within his jurisdiction and such error is not amenable to correction by Courts as such error is not an error on the face of the award; as was held by Supreme Court in the case of Steel Authority of India Ltd. vs Gupta Brother Steel Tubes Ltd., (2009) 10 SCC
63. OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 20 of 29
15. It remain unexplained in arbitral proceedings record by petitioner as to why petitioner had issued cheque of Rs. 28,00,000/- to respondent/claimant on 30/12/2015 and upon dishonor of said cheque, it transferred by RTGS Rs. 28,00,000/- to account of claimant/respondent on 15/01/2016; when in same breadth it has been vehemently argued that respondent never exercised the buy back option within 15 days of completion of two months of the buy back agreement. Ld. Sole Arbitrator inter alia held that Bi-Partite Agreement by itself did not create any interest in or charge on any property but at best merely conferred a right to obtain another document like an allotment letter; no right in the estate was created by the Bi-Partite Agreement; which under the circumstances cannot be construed as an agreement to sell, and since it was an agreement simplicitor, so it cannot be said to be inadequately stamped. It is also the finding of Ld. Sole Arbitrator that Tripartite Agreement dated 30/04/2015 did not show the remaining/balance payment to be made to the respondent/claimant was contingent upon receipt of further amount from the Ansals; rather it clearly shows that Ansals had confirmed that the maturity amount to be paid to the respondent/ claimant by petitioner to which the Ansals had no objection; Ansals stood discharged and absolved from the liability of Rs.56,00,000/- towards the respondent/claimant under the Tri- Partite Agreement. Also before Ld. Sole Arbitrator there was nothing to show that the respondent/claimant was in any way concerned about any kind of arrangement between the petitioner and Ansals; whereas in terms of the Tripartite Agreement, petitioner had admitted its liability to pay the amount to the respondent/claimant, irrespective of whether petitioner receives OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 21 of 29 the amount from Ansals or not; whereas in clear precise terms the liability of petitioner was not a contingent liability.
16. Sections 28(3) and 31 (7) of The Act read as follows:
"28. Rules applicable to substance of dispute.-- ........................................................................... (3) While deciding and making an award, the arbitral tribunal shall, in all cases, take into account the terms of the contract and trade usages applicable to the transaction.
..........................................................................
31. Form and contents of arbitral award.--
............................................................................ (7) (a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.
(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of two per cent. higher than the current rate of interest prevalent on the date of award, from the date of the award to the date of payment.
Explanation.- The expression "current rate of interest" shall have the same meaning as assigned to it under clause (b) of section 2 of the Interest Act, 1978 (14 of 1978)."
17. In the case of Ashi Limited vs Union of India, MANU/DE/1094/2020, Hon'ble Ms. Justice Jyoti Singh of Delhi High Court had also appreciated law laid by Supreme Court in the case of Sree Kamatchi Amman Constructions vs The Divisional Railway Manager (Works) Palghat & Ors., MANU/SC/0625/2010 and inter alia held as follows:
"54. In so far as the grant of interest by an Arbitrator is concerned, the law is no longer res integra, Section 31(7)(a) of the Act clearly stipulates that unless otherwise agreed by the parties, where the Award is for payment of money, the Tribunal may grant such rate as it deems reasonable, on the whole or any part of the money and for the whole or any part of the period between the date of cause of action and the date OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 22 of 29 of the Award. In the case of Jaiprakash Associates Ltd. (Jal) v. Tehri Hydro Development Corporation India Ltd., MANU/SC/0157/2019, the Supreme Court after noticing the provisions of the 1996 Act and various judgments on the issue of interest, more particularly, the recent judgment in the case of Reliance Cellulose Products Ltd. v. ONGC Ltd., MANU/SC/0777/2018: (2018) 9 SCC 266, summed up the law on interest as under:
"13. Insofar as power of the arbitral tribunal in granting pre- preference and/or pendente lite interest is concerned, the principles which can be deducted from the various judgments are summed up below:
(a) A Constitution Bench judgment of this Court in the case of Secretary, Irrigation Department, Government of Orissa vs G.C. Roy exhaustively dealt with this very issue, namely, power of the arbitral tribunal to grant pre-
reference and pendente lite interest. The Constitution Bench, of course, construed the provision of the 1940 Act which Act was in vogue at that time. At the same time, the Constitution Bench also considered the principle for grant of interest applying the common law principles. It held that under the general law, the arbitrator is empowered to award interest for the pre- reference, pendente lite or post award period. This proposition was culled out with the following reasoning:
"43 The question still remains whether arbitrator has the power to award interest pendente lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does not provide for grant of such interest nor does it prohibit such grant. In other words, we are dealing with a case where the agreement is silent as to award of interest. On a conspectus of aforementioned decisions, the following principles emerge:
(i) A person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This basic consideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of Section 34, Civil Procedure Code and there is no reason or principle to hold otherwise in the case of arbitrator.OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 23 of 29
(ii) An arbitrator is an alternative form (sic forum) for resolution of disputes arising between the parties. If so, he must have the power to decide all the disputes or differences arising between the parties. If the arbitrator has no power to award interest pendente lite, the party claiming it would have to approach the court for that purpose, even though he may have obtained satisfaction in respect of other claims from the arbitrator. This would lead to multiplicity of proceedings.
(iii) An arbitrator is the creature of an agreement. It is open to the parties to confer upon him such powers and prescribe such procedure for him to follow, as they think fit, so long as they are not opposed to law. (The proviso to Section 41 and Section 3 of Arbitration Act illustrate this point).
All the same, the agreement must be in conformity with law. The arbitrator must also act and make his award in accordance with the general law of the land and the agreement.
(iv) Over the years, the English and Indian courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. Thawardas [Seth Thawardas Pherumal v.
Union of India, MANU/SC/0070/1955 : (1955) 2 SCR 48: AIR 1955 SC 468] has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jena case [MANU/SC/0004/1987 : (1988) 1 SCC 418: (1988) 1 SCR 253] almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law.
(v) Interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred."
OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 24 of 29It is clear from the above that the Court decided to fall back on general principle that a person who is deprived of the use of money to which he is legitimately entitled to, has a right to be compensated for the deprivation and, therefore, such compensation may be called interest compensation or damages.
(b) As a sequitur, the arbitrator would be within his jurisdiction to award pre-reference or pendente lite interest even if agreement between the parties was silent as to whether interest is to be awarded or not.
(c) Conversely, if the agreement between the parties specifically prohibits grant of interest, the arbitrator cannot award pendente lite interest in such cases. This proposition is predicated on the principles that an arbitrator is the creature of an agreement and he is supposed to act and make his award in accordance with the general law of the land and the agreement. This position was made amply clear in G.C Roy case in the discussion thereafter:
"44. Having regard to the above consideration, we think that the following is the correct principle which should be followed in this behalf:
Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes or refer the dispute as to interest as such to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view."
(d) Insofar as 1940 Act is concerned, it was silent about the jurisdiction of the arbitrator in awarding pendente lite interest. However, there is a significant departure on this aspect insofar as 1996 Act is concerned. This distinction has been spelt out in Sayeed Ahmed case in the following manner:
"Re: Interest from the date of cause of action to date of award OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 25 of 29
7. The issue regarding interest as noticed above revolves around Clause G1.09 of the Technical Provisions forming part of the contract extracted below:
"G. 1.09. No claim for interest or damages will be entertained by the Government with respect to any money or balance which may be lying with the Government or any become due owing to any dispute, difference or misunderstanding between the Engineer- in-Charge on the one hand and the contractor on the other hand or with respect to any delay on the part of the Engineer-in-Charge in making periodical or final payment or any other respect whatsoever."
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14. The decisions of this Court with reference to the awards under the old Arbitration Act making a distinction between the pre-reference period and pendente lite period and the observation therein that the arbitrator has the discretion to award interest during pendente lite period in spite of any bar against interest contained in the contract between the parties are not applicable to arbitrations governed by the Arbitration and Conciliation Act, 1996."
..........................................................................
56. In the case of Union of India v. Bright Power Projects (India) (P) Ltd., MANU/SC/0712/2015 : (2015) 9 SCC 695, Supreme Court held that when agreement between the parties bars interest on the amounts from cause of action to the date of the Award, the Arbitrator is bound by it and cannot award interest as Section 31 (7)(a) clearly begins with the words 'unless otherwise agreed by parties'.
57. In State of Haryana v. S.L Arora & Co., MANU/SC/0131/2010 : (2010) 3 SCC 690, Supreme Court has held that it is not open to the courts to interfere in the discretion exercised by an Arbitrator in granting the rate of interest. This is purely the domain, power and prerogative of the Arbitrator. Relevant part of the judgment reads as under:-
"23. The difference between clauses (a) and (b) of Section 31(7) of the Act may conveniently be noted at this stage. They are:
(i) Clause (a) relates to pre-award period and clause
(b) relates to post-award period. The contract binds and prevails in regard to interest during the pre-award OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 26 of 29 period. The contract has no application in regard to interest during the post-award period.
(ii) Clause (a) gives discretion to the Arbitral Tribunal in regard to the rate, the period, the quantum (principal which is to be subjected to interest) when awarding interest. But such discretion is always subject to the contract between the parties. Clause (b) also gives discretion to the Arbitral Tribunal to award interest for the post-award period but that discretion is not subject to any contract; and if that discretion is not exercised by the Arbitral Tribunal, then the statute steps in and mandates payment of interest, at the specified rate of 18% per annum for the post-award period.
(iii) While clause (a) gives the parties an option to contract out of interest, no such option is available in regard to the post-award period.
In a nutshell, in regard to pre-award period, interest has to be awarded as specified in the contract and in the absence of contract, as per discretion of the Arbitral Tribunal. On the other hand, in regard to the post-award period, interest is payable as per the discretion of the Arbitral Tribunal and in the absence of exercise of such discretion, at a mandatory statutory rate of 18% per annum."
18. Bi-Partite Agreement dated 30/04/2015 contained no clauses having any express bar against claim for interest or award of interest. Also petitioner has not placed on record any material reflecting that the interest awarded @12% per annum for pre- award period and post award period was excessive or exorbitant in any manner.
19. In view of law laid by Supreme Court in the cases including Jaiprakash Associates Ltd. (supra), Reliance Cellulose Products Ltd. (supra), Sree Kamatchi Amman Constructions (supra), Union of India vs Bright Power Projects (India) (P) Ltd. (supra), State of Haryana v. S.L Arora & Co. (supra) and the law laid in the case of Ashi Limited vs Union of India OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 27 of 29 (supra) by Delhi High Court, since there was no express bar for grant of interest by Ld. Sole Arbitrator, the impugned arbitral award does not suffer from any illegality or perversity, as the respondent was deprived of the use of money to which it was legitimately entitled and has a right to be compensated for the deprivation, on the premise of which interest was awarded in the impugned arbitral award.
20. The facts and circumstances embodied in the precedents relied upon by Ld. Counsel for petitioner are entirely different and distinguishable to the facts and circumstances of the case in hand, so they are of no help to respondent for dismissal of the present petition.
21. The impugned award was passed by former Learned Additional District Judge as Ld. Sole Arbitrator whereas the findings were given, based on appreciation of facts, evidences and law after giving all reasonable opportunities to the parties to present their case. Not only the reasonings of Ld. Sole Arbitrator are logical but all the material and evidences were taken note of by the Ld. Sole Arbitrator. The Court cannot substitute own evaluation of conclusion of law or fact to come to the conclusion other than that of the Ld. Sole Arbitrator, as per the law laid in the precedents, elicited herein above. Cogent grounds, sufficient reasons have been assigned by the Ld. Sole Arbitrator in reaching the just conclusion and no error of law or misconduct is apparent on the face of the record. This Court cannot re-appraise the evidence and it is not open to this Court to sit in the appeal over the conclusion/findings of facts arrived at by Ld. Sole Arbitrator.
OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 28 of 29The impugned award does not suffer from vice of irrationality and perversity. No error is apparent in respect of the impugned award. I do not find any contradiction in the observations and findings given by Ld. Sole Arbitrator. The conclusion of the Ld. Sole Arbitrator is based on a possible view of the matter, so the Court is not expected to interfere with the award. Even impugned award passed by Ld. Sole Arbitrator cannot be set aside on the ground that it was erroneous. The award is not against any public policy nor against the terms of contract of the parties. No ground for interference is made out. None of the grounds raised by the petitioner attract Section 34 of the Act.
22. For the foregoing reasons, the petition is hereby dismissed.
23. The parties are left to bear their own costs.
24. File be consigned to record room.
Digitally signed by GURVINDER PAL GURVINDER SINGH
PAL SINGH Date: 2022.11.30
12:07:58 +0530
ANNOUNCED IN (GURVINDER PAL SINGH)
OPEN COURT District Judge (Commercial Court)-02
th
On 30 November, 2022. Patiala House Court, New Delhi.
(DK) OMP (Comm.) No. 52/2022 Swastik Infraestate Pvt. Ltd vs Shri B.D. Sharma Page 29 of 29