Delhi District Court
Telecommunication Engineering Centre vs Sterlite Technologies Limited on 30 October, 2021
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
OMP (Comm.) No. 18/2019
Telecommunication Engineering Centre
(Department of Telecommunication)
Khurshid Lal Bhawan,
Janpath, New Delhi ...Petitioner
versus
1. Sterlite Technologies Limited
IFFCO Tower, 3rd Floor,
Plot No. 3, Sector-29,
Gurgaon, Haryana-122001
2. Sarvendra Singh
Sole Arbitrator
Sr. DDG TERM DOT
Himachal Pradesh, LSA ...Respondents
Date of Institution : 17/01/2019
Arguments concluded on : 30/09/2021
Decided on : 30/10/2021
Appearances : Sh. Ashish Sharma, Ld. Counsel for petitioner.
Sh. A.K Thakur, Ld. Counsel for respondent no. 1.
JUDGMENT
1. Petitioner had filed the present objection petition under Section 34 of The Arbitration and Conciliation Act, 1996 (herein after referred as The Act) seeking setting aside of the impugned additional award dated 20/09/2018 passed by Sh. Sarvendra Singh, Ld. Sole Arbitrator in case titled Sterlite Technologies Limited vs Telecommunication Engineering Centre. Ld. Sole Arbitrator directed petitioner to pay 75% of 30% (i.e. net 22.5% instead of 30%) of the total contract cost to the claimant/ respondent no. 1 in terms of Clause 14.1(d) Section IV of OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 1 of 17 bid/contract document and accordingly the para 4 (a) of the original award dated 15/06/2017 was corrected. Ld. Sole Arbitrator also directed petitioner to pay 10% of the value of bid/ contract to claimant/respondent no. 1 against successful testing of First Device Under Test in terms of Clause 14.1(e) section IV of bid/contract document. Ld. Sole Arbitrator also directed respondent no.1/claimant to rectify/replace the faulty cards and make the NGN lab operational with loading of perpetual license within 30 days from the date of passing of said Additional Award, failing which petitioner would be entitled to hold the release of any payment as directed above under additional award until such rectification was carried out. Ld. Sole Arbitrator also concluded that the warranty will commence from the date when respondent no. 1/claimant makes the lab operational. Ld. Sole Arbitrator also concluded that since the AMC pertains to operation of entire supplied equipment and software, hence the charges for the same were also directed to be paid as per the full value of the contract. The payments were directed to be made by petitioner to respondent no. 1/claimant within 30 days of additional award, failing which simple interest @12% per annum was payable for default period.
2. Despite opportunities respondent no.l/claimant did not file any reply to the objection petition.
3. I have heard Sh. Ashish Sharma, Ld. Counsel for petitioner, Sh. A.K Thakur, Ld. Counsel for respondent no. 1 and perused the record, the arbitral proceedings record, relied upon precedents, filed brief written arguments on behalf of petitioner OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 2 of 17 as well as on behalf of respondent no.1 and given my thoughtful consideration to the contentions put forth.
4. Vide order dated 15/01/2021, 27 days delay in filing the petition, after passing of statutory period of three months from the date of receipt of copy of award, was condoned.
5. Shorn of unnecessary details, brief facts of the case of petitioner as well as arguments set up by petitioner through Ld. Counsel are as follows:-
Respondent no. 1/claimant was awarded work by petitioner for Supply, Installation and Commissioning of Next Generation Network (NGN) Transport Lab at TEC, New Delhi through open tender. The payments schedule agreed between the parties is as follows:-
"PAYMENT SCHEDULE 14.1 (a) 20% payment shall be released on proof of receipt of material by consignee.
(b) 20% payment shall be released on installation of racks, cables and test instruments.
(c) 20% payment shall be released on Hardware and software conformity checks of the supplied equipment.
(d) 30% payment shall be released on acceptance/validation of supplied equipment.
(e) Balance 10% of the payment shall be released after successful testing of first Device Under Test (DUT) with the help of supplied equipment or satisfactorily performance for 6 months whichever is earlier."
Dispute arose between the parties. On request of respondent no. 1/claimant, the arbitration clause was invoked and matter was placed before Ld. Sole Arbitrator Sh. Deepak Sinha, appointed by petitioner to adjudicate upon the dispute. Held arbitration proceedings culminated into arbitral award dated 15/06/2017. Petitioner filed an application under Section 33(4) of the Act for OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 3 of 17 passing additional award for decision regarding incomplete validation, start of warranty and AMC charges with respect to quantum of completed validation as these aspects are not covered in the award. Claimant/respondent no. 1 filed an application under Section 33(1) of the Act for rectification of the award claiming therein that Ld. Sole Arbitrator had committed a typographical error. Sh. Deepak Sinha, Ld. Sole Arbitrator was elevated to higher position, so petitioner appointed Sh. Sarvendra Singh as Ld. Sole Arbitrator who resumed the further arbitration proceedings from 28/06/2018 and also extended the period for completing the proceedings. Petitioner has impugned the additional award dated 20/09/2018 mainly on the following grounds. Findings of Ld. Sole Arbitrator in impugned additional award dated 20/09/2018 are against the scope and ambit of Section 33 of the Act and against the object and spirit of main award dated 15/06/2017 without giving any reasoning whatsoever opining main award dated 15/06/2017 having clerical and typographical errors which must have happened due to oversight. In main award dated 15/06/2017 Ld. Sole Arbitrator had held that he feels some payment ought to have been released to claimant out of 30% payment mentioned under Clause 14.1(d) since nearly 75% of the tests have been successfully completed by the claimant. Accordingly, in main award dated 15/06/2017 Ld. Sole Arbitrator thought it appropriate to release some payment i.e., 40% of 30%, which ought not to be changed/ modified later on, assuming it to be typographical and clerical error. Finding of Ld. Sole Arbitrator in the additional award in respect to clause (d) of 14.1 of payment schedule is patently illegal and liable to be set aside since it is against the scope and OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 4 of 17 ambit of Section 33 of the Act. Subsequent Arbitrator by increasing the percentage from 40% to 75% in additional award completely changed the object and purpose of main award. Subsequent Arbitrator had become biased against petitioner and gave illogical and illegal finding. Ld. Sole Arbitrator failed to show any legal reason as to why 40% of 30% was not correct. The finding of Ld. Sole Arbitrator in respect of clause (d) of 14.1 of Payment Schedule is against the contract between the parties. Finding of Ld. Sole Arbitrator regarding full payment of AMC charges despite non completion of all tests is against settled principle of law. Petitioner prayed for setting aside the finding in respect of clause (d) of 14.1 and clause 14.1 (e), Section IV of Payment Schedule made in award dated 20/09/2018. Petitioner also prayed for passing an award to complete the pending validation points and make the lab fully operational so that warranty can be started from the date the lab becomes fully operational and in case respondent no. 1 does not complete it within reasonable time, award appropriate damages for not providing the full software as agreed during signing of the contract. Petitioner also prayed for setting aside para 12(e) of the award and pass an award to resolve the disputes regarding AMC in a manner as per quantum of completed validation, so as to protect the interest of purchaser. Ld. Counsel for petitioner argued that impugned award dated 20/09/2018 of Ld. Sole Arbitrator [except directions in para 12 (c) to 12 (e)] is liable to be set aside.
6. Ld. Counsel for respondent no. 1 argued that premise of the petition is not substantiated by any material or evidence placed OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 5 of 17 on record and petitioner failed to explain as to how the award is against the public policy of India, which facet has been appreciated by Supreme Court in (i) Renusagar Power Co. Ltd. vs General Electric Company & Anr., (1984) 4 SCC 679 and (ii) Oil & Natural Gas Corporation Ltd. vs SAW Pipes Ltd., (2003) 5 SCC 705. It was also argued that patent illegality should be such that must go to the root of the matter and should not be a trivial one. Error of fact cannot be corrected as this Court is not sitting in appeal nor it can appreciate the evidence. Ld. Sole Arbitrator acted in terms of the contract as per Section 28(3) of The Act. The impugned additional award does not contravene any substantiative law of India. It was argued that there are no error of facts or law in the impugned arbitral award. Claimant/ respondent no. 1 before Arbitral Tribunal had claimed partial non payment of his contracted amount i.e. 40% (30%+10%) payment amounting to Rs. 1.04 crores which was stuck up with petitioner. It was argued that as per Clause 5.5 of General (Commercial) Conditions of the contract contained in Section II of bid document, the so called pendency being minor in nature, the payment cannot be withheld. Respondent no. 1/claimant had set up the lab successfully which was working satisfactory since 05/03/2012 and the lab was able to test Device Under Test (DUT) regularly. The objection raised by petitioner was that certain tests were still pending, therefore, the payment of respondent no. 1/ claimant was withheld. It was argued by Ld. Counsel for respondent no. 1 that the tests which petitioner defined as pending due to non availability of functionality in the supplied equipment aim to the capability of the test equipment to test the device which will be manufactured in future. Awarded work was OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 6 of 17 to commission Next Generation lab which in itself means that it be capable to test Devices which would come in future and therefore, the requirement functionaries in supplied equipment would also be commissioned once the technology advances. It was argued that respondent no. 1/claimant had completed 97% stipulated tests in the contract in different phases up to date and only small futuristic tests were pending which were to be done as and when technology advances. It was argued that respondent no. 1/claimant claimed validation to the extent of 97% whereas petitioner disputed that only 63.8% validation could be done satisfactorily. On said issue, there was correct view of first Ld. Sole Arbitrator that such disputes are common in legal matters and therefore, the jurisprudence would mean that none of the figure is correct since there is no common signature test sheet and the correctness should lie somewhere in between. Therefore, this was intended to believe by Ld. Sole Arbitrator that around 75% of the tests were successfully completed by respondent no.1. Since only nearly 75% of the tests were carried out by respondent no. 1, the complete payment of 30% as envisaged under Clause 14.1 (d) was not maintainable in favour of respondent no.1. Thus with the above findings, Ld. Second Sole Arbitrator awarded 75% of 30% (i.e., net 22.5% instead of 30%) and payment as contained in Clause 14.1 (e) i.e., 10% was ordered to be released in favour of respondent no. 1. It was argued that inspite of recording the finding in para 3.1 of the award dated 15/06/2017, Ld. First Sole Arbitrator passed an award that partial payment to the extent of only 40% of 30% be released to respondent no.1. As a matter of fact, 40% should have been 75% as according to Ld. First Sole Arbitrator 75% tests were completed and therefore, by OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 7 of 17 that logic respondent no.1 was entitled to 75% of the 40% as envisaged in Clause 14.1 (d). Therefore, respondent no. 1/ claimant had moved an application under Section 33(1) and (2) of the Act seeking rectification of clerical and typographical error, which application was allowed by Ld. Second Sole Arbitrator and award dated 15/06/2017 was rectified by additional award dated 20/09/2018. The original award dated 15/06/2017 has not been challenged by petitioner, which had attained finality wherein there was direction of payment as contained in Clause 14.1 (e) of the bid/contract document i.e., 10% of the balance payment. Ld. Counsel for respondent no. 1 argued that impugned additional award is legal and logical, so petition is liable to be dismissed with cost. Ld. Counsel for respondent no. 1/claimant also relied upon the case of Associate Builders vs Delhi Development Authority, (2015) 3 SCC 49.
7. An arbitral award can be set aside on the grounds set out in Section 34 (2) (a), Section 34 (2) (b) and Section 34 (2A) of the Act in view of Section 5 of the Act and if an application for setting aside such award is made by party not later than 3 months from the date from which the party making such application had received the signed copy of the arbitral award or if a request had been made under Section 33 of the Act, from the date on which that request had been disposed of by the Arbitral Tribunal. If the Court is satisfied that the applicant was prevented by sufficient cause from the making the application within the said period of three months it may entertain the application within further period of 30 days, but not thereafter.
OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 8 of 178. Section 34 (1) (2), (2A) and (3) of The Arbitration and Conciliation Act, 1996 read as under:-
"34. Application for setting aside arbitral award- (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3).
(2) An arbitral award 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
(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-
(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 OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 9 of 17 the public policy of India.
Explanation 1 - For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-- (i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.-- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
9. Supreme Court in case of Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49 has held that the interference with an arbitral award is permissible only when the findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the Court is shocked or when illegality is not trivial but goes to the root of the matter. It is held that once it is found that the arbitrator's approach is neither arbitrary nor OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 10 of 17 capricious, no interference is called for on facts. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbitral award. Patent illegality must go to the root of the matter and cannot be of trivial nature.
10. Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. vs. National Highways Authority of India, 2019 SCC OnLine SC 677 has held that under Section 34 (2A) of The Act, a decision which is perverse while no longer being a ground for challenge under "public policy of India", would certainly amount to a patent illegality appearing on the face of the award. A finding based on the documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties and therefore would also have to be characterized as perverse. It is held that a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality.
11. 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 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 OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 11 of 17 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 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 OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 12 of 17 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.
12. Following are some of the findings in the main award dated 15/06/2017:-
".......................................................................................................... 3.1 I find that claimant has claimed that he has completed 97% of the stipulated tests whereas respondents have claimed that the figure is 63.8%. Such disputes are common in legal matters and; therefore, the juries-prudence would mean that none of the figures is correct since there is no common signatured test-sheet and the correctness should lie somewhere in-between. I, therefore, intend to OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 13 of 17 believe that around 75% of the tests have been successfully completed by the respondents.
Since only nearly 75% of the tests have been successfully carried out by the claimant, the left out tests cannot be defined under minor category, and hence, the complete payment of 30% as envisaged under clause 14.1(d) is not maintainable in favour of the Claimant at this point of time.
3.2 Having said that, I find from the tender document that the intention of the respondents from day one while designing the tender document was to release payments in phased manner after completion of different activities which is evident from clause 14.1
(a) to (e) wherein the entire payment has been divided into five stages and the payment is to be released after completion of designated works.
Having designed the tender conditions with the spirit to make payment in stages after completion of work activities, I feel that the justice demands that some payment ought to have been released to the claimant out of 30% payment mentioned under clause 14.1(d) since nearly 75% of the tests have been successfully completed by the claimant.
...........................................................................................................
4.0 Having considered the petition, counter reply, rejoinder, arguments and counter arguments and the conclusion drawn in the matter, I order the following:
(a) Partial payment under clause 14.1(d) to the extent of 40% of 30% (i.e., net 12% instead of 30%) be released to the claimant immediately within 4 weeks of the receipt of this order,
(b) Payment as contained in clause 14.1(e) i.e. 10% may be released to the claimant immediately within 4 weeks of the receipt of this order, ........................................................................................................."
13. Following is the appreciation of second Ld. Sole Arbitrator in impugned additional award dated 20/09/2018:-
".........................................................................................................
6. That the claimant in their application dated 13/07/2017 filed under section 33(1) brought an argument against point 4 (a) of the Arbitral Award dated 15/06/2017 that the learned Arbitrator - Mr. Deepak Sinha had erroneously passed an Award for partial payment under clause 14.1(d) (Section IV) of bid/contract document as mentioned as page 32 to the extent of 40% of 30% (i.e. net 12% instead of 30%) be released to the claimant immediately, within 4 weeks of receipt of this Award. The Claimant argued that this 30% payment of total contract value was to be released on acceptance / validation of supplied equipment. The dispute on this subject was with respect to percentage of validation. The claimant claimed OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 14 of 17 completion of validation to the extent of 97% whereas the respondent while disputing it claimed and substantiated through the report of the committee constituted by Sr. DDG (TEC) that only 63.8% validation has been done. The learned Arbitrator - Mr. Deepak Sinha did not accept percentage of validation claimed by either party and applying to his own sense of justice deduced a logical figure of the 75% validation tests having been completed by the Claimant and accordingly he passed the award for the dispute in payment under clause 14.1(d) of bid / contract. However, the said Arbitrator appears to have mentioned an erroneous figure of 40% validation instead of mentioning the figure of 75% validation to conclusion of which he himself has given his finding in para 3.1 of the Award. I am therefore of the considered view that this mismatch in figure must had happened due to an oversight or a typographical error. Hence, it needs to be corrected. I therefore find that true order for payment would be 75% of 30% (i.e. net 22.5% instead of 30%) of the total contract cost in terms of clause 14.1 (d) and accordingly Award para 4 (a) needs to be corrected.
7. Neither of the parties has raised any objection or any argument in contradiction to para 4 (b) of the Award, directing payment as contained in clause 14.1 (e) of the bid / contract document to the claimant immediately within 4 weeks of receipt of said award. Hence, this award para stands still valid and compliable.
..........................................................................................................
11. The bid document under clause 14.1 of schedule IV has laid down stages and percentage of payment commensurate with the work carried out by the claimant. The factual analysis of the claims and the reply of respondent illustrates that both the claimant and the respondent have failed in their respective obligations as mandated under this clause. The claimant failed to conduct 100% validation tests within the stipulated time frame whereas the respondent failed on their part to make proportionate payment in lieu of the percentage of the validation test admittedly carried out by the claimant and also for balance 10% of payment for successful testing of FIRST DEVICE UNDER TEST (DUT) as per clause (d) and (e) respectively of 14.1 of bid. Therefore, neither the respondent is eligible for any damages, nor the claimant is entitled for any interest in lieu of non payment or any delayed payment under payment schedule 14.1(d) and (e).
........................................................................................................."
14. The main arbitral award dated 15/06/2017 finds no mention of any reasoning to conclude and award partial payment under clause 14.1(d) to the extent of 40% of 30% (i.e., net 12% instead OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 15 of 17 of 30%) to be released to respondent no. 1 by petitioner after giving finding that first Ld. Sole Arbitrator intended to believe that around 75% of the tests were successfully completed by respondent no.1/claimant.
15. The impugned additional award dated 20/09/2018 was passed by Ld. Sole Arbitrator who was Sr. DDG TERM DOT of petitioner, was appointed by petitioner; whereas the findings were given, based on appreciation of facts, evidences and law after giving all reasonable opportunities to the parties to argue their case. This Court cannot substitute own evaluation of conclusion of law or fact to come to the conclusion other than that of the Learned Sole Arbitrator, as per the law laid in the precedents, elicited herein above. Cogent grounds, sufficient reasons have been assigned by the Learned Sole Arbitrator in reaching the 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 Learned Sole Arbitrator. The impugned award does not suffer from vice of irrationality and perversity. The conclusion of the 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 Learned Sole Arbitrator cannot be set aside on the ground that it was erroneous. The award is neither 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.
OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 16 of 1716. For the foregoing reasons, the petition under Section 34 of the Act is hereby dismissed.
17. The parties are left to bear their own costs.
18. File be consigned to record room.
Digitally signed by GURVINDER GURVINDER PAL SINGH
PAL SINGH Date: 2021.10.30
12:43:03 +0530
ANNOUNCED IN (GURVINDER PAL SINGH)
OPEN COURT District Judge (Commercial Court)-02
th
On 30 October, 2021. Patiala House Court, New Delhi.
(DK) OMP (Comm.) No. 18/2019 Telecommunication Engineering Centre vs Sterlite Technologies Limited & Anr. Page 17 of 17