Karnataka High Court
M/S Ssjv Zvs Joint Venture vs Itd Comentations India Limited on 20 July, 2022
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
COMAP No.114 OF 2022
BETWEEN
M/S SSJV -ZVS JOINT VENTURE
HAVING ITS OFFICE AT NO 25/2,
12 FLOOR, S N TOWERS M G ROAD,
BANGALORE 560001,
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER
MR SOMASHEKAR SALIMATH
...APPELLANT
(BY MS AISHWARYA PASPULATE, ADVOCATE FOR
SRI SHREYAS JAYASIMHA, ADVOCATE)
AND
ITD COMENTATIONS INDIA LIMITED
1ST FLOOR, DANI WOOLTEX
COMPOUND NO 158,
VIDYANAGARI MARG SANTACRUZ
EAST MUMBAI 400098
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENT
THIS COMAP/COMMERCIAL APPEAL FILED UNDER
SECTION 13-1 OF COMMERCIAL COURTS, COMMERCIAL
DIVISION AND COMMERCIAL APPELLATE DIVISION OF HIGH
COURT ACT, 2015 R/W SECTION 37 OF THE ARBITRATION AND
CONCILIATION ACT, 1996, PRAYING TO SET ASIDE THE
JUDGMENT DATED 12/11/2021 IN COM.A.S.NO. 91/2019 ON
THE FILE OF THE LXXXV ADDITIONAL CITY CIVIL AND
2
SESSIONS JUDGE, BENGALURU (CCH-86) WHICH UPHOLDS THE
AWARD- REJECTING THE APPLICANT'S CLAIMS AND ALLOWING
THE RESPONDENT'S CLAIM TO THE EXTENT OF RS.
6,65,55,228/- (RUPEES SIX CRORE SIXTY-FIVE LAKHS FIFTY-
FIVE THOUSAND AND TWO HUNDRED AND TWENTY-EIGHT
ONLY) AND ETC.
THIS COMAP COMING ON FOR ADMISSION, THIS DAY
P.S. DINESH KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard Ms. Aishwarya for the appellant.
2. Brief facts of the case are, Appellant was awarded a contract by NTPC on 23.3.2007 for a total project cost of Rs.276,91,55,240/- and the time stipulated for completion of the project was 44 months and it included construction of upstream and downstream cut off walls at a cost of Rs.5,14,00,000/-. After about two years, appellant negotiated with the respondent in respect of upstream and downstream cut off walls and awarded the contract to the respondent on 6.2.2009. The appellant initiated Arbitration Proceedings against the respondent claiming payment towards demobilization charge and cost of equipments etc., 3
3. Respondent also filed its counter claim. Appellant's claim has been rejected and respondents counter claim has been awarded directing the appellant to pay a sum of Rs.6,65,55,228/- with interest. Appellant challenged the said arbitral award before the Commercial Court in Com A.S. No.91/2019 contending inter alia that the learned Arbitrator had traveled beyond the scope of arbitration proceedings in allowing the application filed by respondent calling for production of documents in arbitration proceedings between the NTPC and the appellant. The Commercial Court on consideration of material on record has dismissed the application. Hence, this appeal.
4. Smt. Aishwarya, learned Advocate for the appellant urged a solitary contention that the arbitrator was not justified in calling for the records of arbitration proceedings although he has recorded in the award that he has not relied upon the same while passing the award.
5. We have carefully considered the arguments advanced by the learned advocates.
4
6. Admittedly, appellant was awarded contract by NTPC. A small portion to the contract namely construction of upstream and downstream cut off walls for Rs.5,14,00,000/- was given to the respondent by the appellant. It is also not in dispute that the learned Arbitrator has called for the documents in the arbitration proceedings between the NTPC and the appellant. The learned Arbitrator has recorded in para No.4 of the award that the appellant had initiated a parallel arbitral proceedings against NTPC in relation to the termination of the contract by the NTPC and an award has been passed in that regard. Since the respondent was not a party to the said proceedings, it was not permissible for the learned Arbitrator to refer to the proceedings in the arbitration between the appellant and NTPC. Further, based on the evidence, the learned Arbitrator has recorded a finding in para No.25 that the delay and suspension of work by the respondent had occurred solely because of the reasons attributable to the appellant so much so, that NTPC had to 5 take over payment of balance money directly to the respondent herein.
7. Learned Arbitrator has adverted to the documents marked during the proceedings to record the said finding. It is settled law that the arbitrator is the sole Judge of quality and quantity of evidence. The Commercial Court having reconsidered the matter, has, in our opinion, rightly held that there was no scope for interference under Section 34 of the Arbitration and Conciliation Act, 1996. We find no ground to interfere in this appeal and it is accordingly dismissed.
No costs.
SD/-
JUDGE SD/-
JUDGE BS