Delhi District Court
Mr. Sanjay Soni-Proprietor vs M/S. Prexma Ltd on 24 December, 2022
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
OMP (Comm.) No. 80/2021
Mr. SANJAY SONI-Proprietor
M/s. Incredible Design
Having Office at: B-143, 1st Floor,
Mayapuri Industrial Area, Phase-1
New Delhi.
Ph. 9810069570
Email: [email protected] ...Petitioner/Applicant
versus
1. M/s. PREXMA LTD.,
Through S.P.A. Shri C.S. Shukla,
Son of Late Hari Prasad Shukla,
Office at: 31C, Pocket-B,
Siddhartha Extension,
New Delhi-110014
E-Mail: [email protected]
2. Shri Padam Kant Saxena (Ld. Sole Arbitrator)
(Retd. Distt. & Sessions Judge)
At: B-155, Mount Kailash, East of Kailash
New Delhi-110065.
Ph. 9910384668
Email:[email protected] ...Respondents
Date of Institution : 18/08/2021
Arguments concluded on : 30/11/2022
Decided on : 24/12/2022
Appearances : Sh. Manoj Kumar Singh, Ld. Counsel for petitioner.
Sh. Nain Tripathi, Ld. Counsel for respondent no.1.
JUDGMENT
1. Petitioner had filed the present petition/objection application under Section 34 of The Arbitration and Conciliation Act, 1996 (herein after referred as The Act), seeking setting aside of the OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 1 of 32 impugned arbitral award dated 16/04/2021 passed by Ld. Sole Arbitrator Sh. Padam Kant Saxena, Former Additional District & Sessions Judge, Delhi in ARB.P. 216/2017 titled 'M/s Prexma Ltd. vs Mr. Sanjay Soni-Proprietor M/s Incredible Design'. Ld. Sole Arbitrator awarded Rs 28,14,260/- with interest @ 9% per annum with effect from 01/10/2016 till the payment thereof with cost of Rs. 11,00,000/- in favour of claimant/respondent no. 1 payable by petitioner whereas counter claim of petitioner was dismissed.
2. I have heard Sh. Manoj Kumar, Ld. Counsel for petitioner; Sh. Nalin Tripathi, Ld. Counsel for respondent no. 1 and perused the record of the case; reply filed on behalf of respondent no. 1; 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. Adumbrated in brief, following are the brief relevant facts of case set up by claimant/respondent no. 1 before Arbitral Tribunal. Claimant/respondent no. 1 was awarded a Tender for PR and Event Management by 'Madhya Pradesh State Tourism Development Corporation (in short MPSTDC) for a total value of Rs. 1,31,76,300/-. The period of validity thereof was 01/09/2014 to 31/08/2015. Letter Of Acceptance (in short LOA) was given by claimant/respondent no. 1. Claimant/respondent no. 1 submitted an EMD for Rs. 1,00,000/- and also Performance Security Guarantee @ 5% DD of the total Tender.
Claimant/respondent no. 1 entered into a Consortium Agreement [Memorandum of Understanding (in short MoU)] with petitioner.
OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 2 of 32The scope of work was defined in the Tender and the MoU. As per scope of work stand construction quote was provided by the petitioner and rest of the quote was provided by the claimant/respondent no. 1. Event management costs was also defined to avoid any complications and billing was also made, defining the services. Following four different types of works were therein 'Tender Document':-
"i. PR Retainership for one year(Services to be provided by Prexma Limited in Europe) Project Value INR 38,40,000/- (To be paid in four installments of INR 9,60,000/- each), ii. 6 Road Shows (Services to be provided by Prexma Limited in Europe) Project Value INR 28,48,000/-, iii. Exhibitions (Stand Construction Services to be provided by Incredible Design in Berlin and London) for a value of a. Project Value Berlin INR 19,28,000/-
b. Project Value London INR 21,60,300/-
iv. Event Management at the Shows in London and Berlin
(Services to be provided by Prexma Limited in Europe) for a value of a. Project Value in Berlin INR 9,00,000/-
b. Project Value in London INR 10,00,000/-"
Beside above said miscellaneous or third party costs was INR 5,00,000/-. Petitioner and claimant/respondent no. 1 were known to each other for many years. Claimant/respondent no. 1 was a full Service Agency for Advertising, Marketing and Internet, which thus produced mostly everything in the house, made the quotation on the basis of Agency Days and valid price list acceptable to each other. After completion of the first event, and the first PR quarter, invoice was issued by claimant/respondent no. 1 to MPSTDC but it refused to make payments in foreign account. This was new for the claimant/respondent no. 1 as claimant/respondent no. 1 had worked earlier but since the claimant/respondent no. 1 did not have a bank account and as such had to agree to the proposal OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 3 of 32 that after completion of each work, claimant/respondent no. 1 being the lead partner will prepare final report and write invoices for the exact quoted amount in INR converted in Euro to the petitioner; who in turn will submit the invoice in INR to MPSTDC and upon payment being made, same was to be transferred to the bank account of claimant/respondent no. 1. The claimant/respondent no 1 thereafter made a request to MPSTDC vide its letter dated 03/01/2015. It was mutually agreed upon between the claimant/ respondent no. 1 and petitioner that after successful completion of each work, the claimant being the lead partner will prepare a final report and write invoices for the exact quoted amount in INR converted in Euros to the petitioner who in turn will submit the invoice in INR to MPSTDC and upon payment being made, the same was to be transferred to the bank account of claimant/respondent no. 1. The bank charges for the said international transfer were to be borne by the claimant/respondent no. 1. Pursuant to said agreement claimant/respondent no. 1 raised the first invoice and upon the payment being made by MPSTDC in the designated account of petitioner, the funds were transferred to the account of the claimant/respondent no. 1. Aforesaid period of contract was extended for another year i.e., 01/09/2015 to 31/08/2016. On the recommendation of the claimant/respondent no. 1, the project value WTM London 2015 was increased from INR 21,60,300 to INR 47,73,600 and the Project Value ITB Berlin 2016 was increased from INR 19,28,000 to INR 29,00,000. However the value of the Event Management remained the same i.e., Project Value London 2015 INR 10,00,000 and the Project Value in Berlin 2016 INR 9,00,000. Accordingly, reports were prepared by OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 4 of 32 the claimant/respondent no. 1 and thereafter invoices were raised and payments were made by MPSTDC in the designated account of the petitioner. Apart from the first remittance, petitioner did not make payments as per the invoices raised by claimant/respondent no. 1 and made 'on account payments' and started making claim in the share of the PR business which was exclusively done by claimant/respondent no. 1. Exhibitions and the Event Management project finished in March, 2016 and the PR and the Consultancy part of the project was to be provided until August, 2016. The parties finalized the dues. As per calculations prepared by petitioner, final due amount of INR 22,89,202 was shown payable to the claimant/respondent no. 1 but even that amount was not paid by the petitioner. Suspecting the foul intention of petitioner, the claimant/respondent no. 1 while submitting the 2nd quarter report requested to MPSTDC to make direct payment to it for PR Services vide letter dated 22/06/2016. Claimant/respondent no. 1 had also claimed sum of Rs. 7,00,000/- incurred by it in taking bank loan for discharging its liabilities and towards legal and travel costs. In June, 2016 petitioner remitted a sum of Rs. 7,55,076 against due amount of Rs. 15,34,126/- whereas in Statement of Claim it was mentioned that said part payment was made against the due amount of Rs. 22,89,202/- leaving a balance of Rs. 15,34,126/-. When no further payments were received, Legal Notice dated 26/07/2016 was got issued by claimant/respondent no. 1 through Counsel to the petitioner. Claimant/respondent no. 1 opened a subsidiary company namely Prexma Consulting and vide letter dated 22/06/2016 intimated Mr. Vivek Mathur of MPSTDC to make future payments in the Indian Bank account of said company.OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 5 of 32
Petitioner dishonestly issued an invoice to MPSTDC for PR services of 2nd quarter without the instructions of the claimant/respondent no. 1 and got the payment of Rs. 12,80,000/- which was due to the claimant/respondent no. 1. MPSTDC extended the contract for another three months from September, 2016 to 30/11/2016 and the claimant/respondent no. 1 agreed to undertake the same on payment being made in the account of the said subsidiary company. Disputes arose between the parties. Claimant/respondent no. 1 invoked the arbitration clause contained in MoU dated 18/07/2014 which finds mention of venue shall be at New Delhi. Claimant/respondent no. 1 filed Arbitration Petition No. 216/2017 under Section 11 of the Act in Delhi High Court seeking appointment of Arbitrator to adjudicate the dispute between the parties. Petitioner through Ld. Counsel gave no objection before Delhi High Court for appointment of the Arbitrator and with the consent of Counsel for parties, Delhi High Court appointed Ld. Sole Arbitrator vide order dated 13/07/2017. Subsequently vide various orders, lastly by order dated 10/02/2020 in OMP (Misc.) (Comm.) 38/2020 of Delhi High Court, extension of time was granted by Delhi High Court for completion of arbitral proceedings and rendering of award, lastly till 17/07/2020. Covid Pandemic ensued. Arbitral proceedings culminated into impugned arbitral award.
4. Petitioner has impugned the arbitral award mainly on the following premise and grounds, for which Ld. Counsel for petitioner also submitted the following arguments. Arbitral Tribunal gravely erred in directing the petitioner to pay back Rs. 28,14,260/- to the claimant/respondent no. 1 ignoring the terms OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 6 of 32 of the MoU dated 18/07/2014 and holding that tender was not awarded to the consortium, which is contrary to material or evidence on record. Arbitral Tribunal had also returned the finding contrary to material and evidence on record to the effect that tender was neither submitted by consortium nor the same was awarded to the consortium, which amounts to breach of fundamental principle of equity and justice. The documents available on record were ignored. Fundamental principles of justice were breached on the basis of preponderance and probability. The conduct of parties, namely, that a unilateral addition or alteration of a contract had been foisted upon petitioner. The party to the agreement cannot be made liable to perform something for which it had not entered into a contract as re-writing a contract for the parties would be a breach of fundamental principles of justice entitling this Court to interfere since the findings given by Ld. Arbitrator are one which shocks the conscience of the Court and as such, would fall in the exceptional category and impugned arbitral award is liable to be set aside. Ld. Sole Arbitrator has travelled beyond the contract, and thus beyond his jurisdiction on the basis of preponderance and probability ignoring the evidence available on record. Arbitral Tribunal cannot exercise its power ex debitio justitiae. Ld. Sole Arbitrator erred in not appreciating and considering that his jurisdiction being confined to the four corners of the agreement and therefore, he can only pass such an order which may be subject matter of the reference. Therefore, the impugned arbitral award would come under the realm of patent illegality and is liable to be set aside. Petitioner has been treated with in discriminatory manner as against the claimant/respondent no. 1 OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 7 of 32 as evident from arbitral proceedings as without adjudicating and/or deciding the objections raised by petitioner during evidence, Ld. Sole Arbitrator passed the impugned arbitral award without quantifying or crystallization of the amount i.e., third party audit and then ascertaining the due under the agreement to respective parties. Ld. Sole Arbitrator accepted the unilateral claim made by claimant/respondent no. 1 ignoring the terms of consortium agreement. While interpreting the MoU dated 18/07/2014 and passing the impugned arbitral award Ld. Sole Arbitrator failed to adhere with UNIDROIT principles of Commercial Contract which provides the rules of interpretation of contracts. Such principles provide that a contract shall be interpreted according to the common intention of the parties. It is only when the intention cannot be established that the contract shall be interpreted according to the meaning that a reasonable person of the same kind as a party, would give in the same circumstances which the Ld. Sole Arbitrator failed to adhere to by giving his own interpretation to the MoU. From bare perusal of the MoU as well as the conduct of the parties, it is clear that parties intended to participate in tender process as consortium and/or associate partner in accordance with terms of the MoU, which claimant/respondent no. 1 tried to alter by its subsequent conduct and act which was not accepted by MPSTDC. The intention of parties to participate in bid process as consortium is clarified and substantiated by eligibility condition of the tender document, terms of MoU and averments made in claim petition and testimony of summoned witness CW2 Mrs. Deepika Roy Chowdhury from MPSTDC. Claimant/respondent no. 1 had indulged into the conduct of approbate and reprobate. In claim OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 8 of 32 petition, claimant/respondent no. 1 took a specific stand that it had entered into a 'consortium agreement' with petitioner and later turned around and took a stand in the arbitration proceedings that MoU dated 18/07/2014 is forged and fabricated and further petitioner was made custodian of the payments received from MPSTDC as tender was solely awarded to it. Claimant/respondent no. 1 initiated arbitration proceedings with a view to take double advantage by indulging into acts approbate and reprobate, by taking conflicting stand before Arbitral Tribunal in order to take huge undue benefit in its favour by declining to go for third party audit to ascertain investment, costs/expenses and sharing of profit in terms of the MoU, by wrongly holding that tender was not awarded to consortium but to claimant/respondent no. 1 alone. Ld. Sole Arbitrator arrived at a categorical finding that the project was applied by claimant/respondent no. 1 solely and was solely awarded to it and said award of project under the tender was not awarded to consortium, and therefore, Ld. Sole Arbitrator gravely erred in directing the petitioner to pay awarded sum to claimant/respondent no. 1 which is contrary to the terms of agreement entered into between the parties. Awarded sum is contrary to the agreement between the parties whereas Ld. Sole Arbitrator is bound by the terms of the agreement and is not a Court of equity. Ld. Sole Arbitrator erred in giving a finding by holding that tender was awarded to claimant/respondent no. 1 not to consortium by ignoring eligibility conditions of tender document, deposition made by CW2 asserting that claimant/respondent no. 1 was solely not eligible for the project and subsequent conduct of the parties in performing work in OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 9 of 32 respect with project which clearly established that the project could not have been awarded to claimant/respondent no. 1 without credentials of petitioner and thus, without settlement of account by way of audit as asked and requested by petitioner since inception, the imposition of the liability on the petitioner is illegal and contrary and liable to be set aside. Without any evidence on record, Ld. Sole Arbitrator gravely erred in determining and directing the petitioner to make payment of Rs. 11,00,000/- on account of alleged costs/expenses whereas in claim petition claim of Rs. 7,00,000/- was laid for which no evidence was placed on record. Reasonable offer of 'third party audit' for settlement of account was made by petitioner since inception of the dispute for which there was denial by claimant/respondent no. 1; which Ld. Sole Arbitrator ought to have considered under Section 31(3)(d) of the Act and thus petitioner could not have been made liable for the acts of the claimant/respondent no. 1. On the basis of preponderance and probability, Ld. Sole Arbitrator gave a finding that claim petition filed by claimant/respondent no. 1 through Ms. Neena Hartman, replication cum written statement filed by Mr. C.S. Shukla (alleged SPA of Ms. Neena Hartman) and deposition made by Ms. Neena Hartman on behalf of claimant/respondent no. 1, without any authorization/Board Resolution, was a claim filed by authorized and competent person. The impugned arbitral award is bad being in breach of legal provisions and is liable to be set aside. Impugned arbitral award has been passed in haste manner with complete biasness which is so confusing and misleading as to suppress and hide the biased mood, attitude and approach to the real questions and controversy between the OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 10 of 32 parties. By not considering and appreciating the evidence available on record whereas Ld. Sole Arbitrator dealt with each issues on the basis of facts which were not even present before him. Ld. Sole Arbitrator totally ignored the documents/pleadings of the petitioner and evidence produced by independent witness CW2. Ld. Sole Arbitrator made erroneous conclusion and approach of Ld. Sole Arbitrator to the matter in dispute, palpably vitiates the entire arbitral proceedings conducted by him and the same caused irreparable injury and pecuniary loss to the petitioner. Impugned arbitral award is unreasonable, suffers from perversity and is also contrary to the public policy of India and also shocks the judicial conscience of the Court by committing error in law and facts in not giving cogent findings and legal reasoning while passing the impugned arbitral award. Ld. Sole Arbitrator failed to appreciate that while deposing on behalf of claimant/respondent no. 1, CW1 failed to give any detail of its investment in the project. All facts, circumstances and conduct of respective parties should have been taken note of and should have been appreciated in the light of documents and evidence available on record by Ld. Sole Arbitrator, who instead had drawn conclusions on conjectures and surmises and findings arrived at by Ld. Sole Arbitrator are totally misconceived, biased and based on misconstruction, ignoring the vital evidence available on record. Impugned arbitral award is vitiated by patent illegality appearing on the face of award. Impugned arbitral award is against the public policy of India and suffers from material irregularity and illegality and is against the well settled principles of law. The observations, findings and decision of the Arbitral Tribunal on material aspect of the case are not only OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 11 of 32 wrong, but also the same are arbitrary, biased, collusive, one sided, perverse, unjust and wholly unsustainable. Ld. Sole Arbitrator committed mistake in relation to findings at serial nos. 11, 12, 13, 14 and 15 apparent on the face of record, so these are liable to be set aside. Ld. Counsel for petitioner argued for setting aside of the impugned arbitral award, relying upon the following precedents:-
1. PSA Sical Terminals Pvt. Ltd. vs The Board of Trustees of V.O. Chidambranar Port Trust Tuticorin & Ors., Civil Appeal Nos. 3699-3700 of 2018 decided by Supreme Court of India on 28/07/202;
2. Dakshin Haryana Bijli Vitran Nigam Ltd. vs Navigant Technologies Pvt. Ltd., Manu/SC/0135/2021.
5. Following are the brief relevant material averments of Ld. Counsel for claimant/respondent no. 1 in filed reply through Ld. Counsel and arguments of Ld. Counsel for claimant/respondent no. 1. None of the grounds specified in Section 34 of the Act exist nor have been carved out, so petition is liable to be summarily rejected. Petition is barred by limitation and has been filed belatedly without any application for condonation of delay.
Letter of Acceptance dated 08/08/2014 issued by MPSTDC is an admitted document which is amply clear that tender was awarded to claimant/respondent no. 1. Dispute arose between the parties due to malafide intentions of the petitioner, who taking advantage of the trust reposed by Ms. Neena Hartmann, Director of the answering respondent, as a result of which a page was later changed by petitioner, in the MoU dated 18/07/2014; which issue was dealt by the Arbitral Tribunal in impugned arbitral award. Claimant/respondent no. 1 is a Limited Company and is a renowned name in so far as PR activities are concerned, specially in the tourism sector; on the contrary the petitioner was OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 12 of 32 a Proprietorship firm, involved in stand construction for various companies. Claimant/respondent no. 1 had duly authorized Ms. Neena Hartmann to represent it and to initiate all steps to seek recovery of the amount as due from the petitioner and in furtherance thereof Ms. Neena Hartmann had executed SPA in favour of Mr. C.S. Shukla; which documents were filed in Arbitration Petition No. 216/2017 in Delhi High Court and therein petitioner had not raised any objection; so applying the principle of estoppel, petitioner is estopped from raising such frivolous objections, at such a belated stage. Ld. Sole Arbitrator has dealt with the issue of authorization in the impugned arbitral award in favour of claimant/respondent no. 1. The actual amount due to be paid by the petitioner to claimant/respondent no. 1 was actually more, but it is the petitioner who on its own volition, after making all sorts of deductions/adjustments (though not legal and pertaining to the answering respondent) admitted that a sum of Rs. 28,14,260/- was due and payable and Ld. Sole Arbitrator awarded the admitted amount, in favour of claimant/respondent no. 1 and declined to grant other amounts as claimed by claimant/respondent no. 1 in its claim petition. Since the transaction was a commercial transaction and the amount admittedly was due with effect from 01/10/2016, interest was payable on the outstanding amount and accordingly interest @ 9% per annum was awarded by Ld. Sole Arbitrator on the admitted amount. In view of the admitted figures available on record, the question of third party audit is grossly misconceived. The averments of petitioner do not carve out any ground specified under Section 34 of the Act and so the petition is bereft of any merits and hence deserves to be dismissed. It is apparent OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 13 of 32 that the petitioner seeks to re-agitate the issue, which has already been dealt with by Ld. Sole Arbitrator. Objections are grossly misconceived. In the absence of any ground as specified under Section 34 of the Act no interference in the impugned arbitral award is warranted from this Court. The scope of the present petition is limited to the grounds specified under Section 34 of the Act and hence does not warrant any consideration by this Court; as the same have been dealt in detail by Ld. Sole Arbitrator in the impugned arbitral award, whereas as per law re- appreciation of evidence is not within the scope of the petition under Section 34 of the Act. Supreme Court in the case of SREI Infrastructure Finance Limited vs Tuff Drilling Private Limited, (2018) 11 SCC 470 inter alia held that though Section 19 of the Act provides that Arbitral Tribunal shall not be bound by rules of procedure as contained in Civil Procedure Code; however, Section 19 of the Act cannot be read to mean that arbitral tribunal is incapacitated in drawing sustenance from any provisions of the Code of Civil Procedure. Supreme Court also in the case of Nahar Industrial Enterprises Limited vs Hong Kong & Shanghai Banking Corporation, (2009) 8 SCC 646 inter alia held that though the Arbitral Tribunal is not bound by the Code of Civil Procedure, but it does not mean that it would not have jurisdiction to exercise powers of a court as contained in the Code; rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice. In the entire petition, petitioner has failed to show patent illegality in the impugned arbitral award. Ld. Sole Arbitrator has dealt with each and every issue raised by the parties in the impugned arbitral award. With OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 14 of 32 regard to contention of third party audit, it was not within the scope of arbitration and only amount admitted by petitioner was awarded by impugned arbitral award; so there was no occasion for the Arbitral Tribunal to direct the parties for third party audit. Ld. Sole Arbitrator has dealt with each and every issue raised by the parties in detail in the impugned arbitral award. If a page has been altered in the MoU dated 18/07/2014, as were submitted with the tender document, it would certainly tantamount to forgery and fabrication of record. In filed reply, answering claimant/respondent no. 1 through Ld. Counsel in para no. 24 submitted that initially the preliminary hearing took place at High Court; however, later proceedings took place at Neeti Bagh, Defence Colony and finally due to Covid 19, the arbitration took on video conferencing and the award was passed by Ld. Sole Arbitrator from his residence at Mount Kailash, East of Kailash. East of Kailash falls within the territorial jurisdiction of District Court, Saket and this Court has no territorial jurisdiction to entertain this petition. Ld. Counsel for claimant/respondent no. 1 relied upon the cases of (i) BGS SGS Soma JV vs NHPC Limited, (2020) 4 SCC 234; (ii) Bharat Aluminium Company vs Kaiser Aluminium Technical Services INC., (2012) 9 SCC 552;
(iii) Union of India vs Hardy Exploration & Production (India) INC., (2019) 13 SCC 472 and (iv) Omprakash & Ors. Vs Vijay Dwarkada Varna, Writ Petition No. 4248 of 2019 decided by Bombay High Court on 27/04/2020. The impugned arbitral award was pronounced through video conferencing in the presence of parties and their Counsel and copy of the same was duly sent by email to the parties on the same day, with the direction to the parties to collect the signed award from Ld. Sole OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 15 of 32 Arbitrator with prior appointment and admittedly petitioner took an appointment from Ld. Sole Arbitrator on 11/06/2021 and collected the impugned arbitral award dated 16/04/2021, on 14/06/2021 and merely if the petitioner has chosen to collect the award at a later date, that would not extend the statutory period for challenge of the impugned arbitral award. Ld. Counsel for claimant/respondent no. 1 also relied upon the case of Bai Vasanti vs Suryaprasad Ishvarlal Patel, 1968 SCC OnLine Guj 24 wherein it was inter alia held that the preparation of the decree did not alter the date of the decree; so supplying of stamp paper, is a step towards preparation of the decree and hence even if it is supplied at a belated stage, it would not lead to a change in the date of the decree/award. Ld. Counsel for claimant/ respondent no. 1 also relied upon the case of M. Anasuya Devi & Anr. Vs M. Manik Reddy & Ors., (2003) 8 SCC 565 wherein Supreme Court had held that the question as to whether the award is required to be stamped and registered, would be relevant only when the parties would file the award for its enforcement under Section 36 of the Act and at that stage parties can raise objections regarding its admissibility on account of non- registration and non-stamping under Section 17 of the Registration Act. Ld. Counsel for claimant/respondent no. 1 also relied upon the case of McDermott International Inc. vs Burn Standard Co. Ltd. & Ors., (2006) 11 SCC 181 wherein Supreme Court had held that Act makes provision for the supervisory role of courts for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. whereas the court OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 16 of 32 cannot correct errors of the arbitrators and can only quash the award leaving the parties free to begin the arbitration again if it is desired. Also was held therein that scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court's jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. Ld. Counsel for claimant/respondent no. 1 argued that Ld. Sole Arbitrator had denied many claims of the claimant/ respondent no. 1 and had only awarded sum of Rs. 28,14,260/- which was the admitted amount as per Ex RW1/1, hence the same cannot be a subject matter of challenge. It was also argued that only interest @ 9% has been awarded on the aforesaid admitted amount, whereas as per Section 31(7) of The Act; interest on due amount is payable at higher rate. Ld. Counsel for claimant/respondent no. 1 relied upon the case of BBM Enterprises vs State of West Bengal & Anr., (2020) 9 SCC 448 wherein Supreme Court had inter alia held that though awarded interest was @ 18% , interest of justice required and so interest payable to claimant was reduced to the rate of 15%. Ld. Counsel for claimant/respondent no. 1 also argued that awarded cost to the tune of Rs. 11,00,000/- included legal expenses and arbitrator's fees; which cannot be said to be unjustified, as it is so prescribed in the statute itself. Ld. Counsel for claimant/ respondent no. 1 also argued that even otherwise, it is settled law that no appeal lies against the award of cost in a legal proceedings. Ld. Counsel for claimant/respondent no. 1 prayed for dismissal of the petition with costs.
OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 17 of 326. Supreme Court in Suo Moto Writ Petition (Civil) no. 3 of 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, present petition filed on 18/08/2021 is within the period of limitation.
7. Supreme Court in the case of Hindustan Construction Company Limited vs NHPC Ltd & Another, (2020) 4 SCC 310 held that once the seat of arbitration is designated, the same operates as an exclusive jurisdiction clause as a result of which only the courts where the seat is located would have the jurisdiction, to the exclusion of all other courts, even court(s) where part of the cause of action may have arisen, to entertain the application under Section 34 of The Arbitration & Conciliation Act, 1996 for setting aside an arbitral award. In said case contract between the parties was executed at Faridabad and part of cause of action arose there, whereas New Delhi was the chosen seat of the parties. Applying the law laid in the case of BGS SGS Soma JV vs NHPC Ltd., (2020) 4 SCC 234, it was held that Courts at New Delhi alone would have jurisdiction for the purposes of challenge to the award under Section 34 of the Arbitration & Conciliation Act, 1996.
8. Supreme Court in the case of Indus Mobile Distribution Pvt. Ltd. vs Datawind Innovations Pvt Ltd., (2017) 7 SCC 68 has held that if the juridical seat of arbitration is chosen by OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 18 of 32 parties in terms of arbitration agreement, such designated seat of arbitration is akin to an exclusive jurisdiction clause as the Court has supervisory powers over the arbitration. It was held that the Mumbai Courts alone thus had the jurisdiction to the exclusion of all other Courts in the country, as the juridical seat of arbitration was at Mumbai.
9. Supreme Court held in the case of Inox Renewables Ltd. vs Jayesh Electricals Ltd., 2021 SCC OnLine SC 448 that the moment the seat is chosen as Ahmedabad, it is akin to an exclusive jurisdiction clause, thereby vesting the courts at Ahmedabad with exclusive jurisdiction to deal with the arbitration. Supreme Court had also appreciated the relevant clauses of Purchase Order therein and held that two clauses must be read together as the Courts in Rajasthan have been vested with jurisdiction only because the seat of arbitration was to be at Jaipur. Once the seat of arbitration is replaced by mutual agreement to be at Ahmedabad, the Courts at Rajasthan are no longer vested with jurisdiction as exclusive jurisdiction is now vested in the Courts at Ahmedabad, given the change in the seat of arbitration. It is pertinent to mention that the purchase order therein had Clause 8.5 inter alia finding mention of venue of the arbitration shall be at Jaipur and Clause 9.11 and 9.12 of Business Transfer Agreement designated Vadodara as the seat of the arbitration between the parties, vesting the courts at Vadodara with exclusive jurisdiction qua disputes arising out of the agreement.
10. Delhi High Court in the case of Goyal MG Gases Private OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 19 of 32 Limited vs Steel Authority of India, OMP (Comm.)536/2020 decided on 18/11/2020 inter alia held that mere act of the pronouncement of an award at different place would have no impact on the agreed seat of arbitration.
11. Own version of claimant/respondent no. 1 in para no. 24 of para wise reply in the reply of claimant/respondent no. 1 to petition is that initially the preliminary hearing took place at Delhi High Court after appointment of Ld. Sole Arbitrator by Delhi High Court (with the consent of parties) and only later thereto the venue of arbitral proceedings was changed to Neeti Bagh, then changed to Defence Colony and then due to Covid 19, the arbitral proceedings were done on video conferencing and Ld. Sole Arbitrator had passed the award at his residence at Mount Kailash, East of Kailash.
12. Arbitration clause in the MoU dated 18/07/2014 Ex C-2 inter se petitioner and claimant/respondent no. 1 finds clear mention that the venue of arbitration shall be New Delhi. Arbitral proceedings commenced at Delhi High Court after appointment of Ld. Sole Arbitrator by Delhi High Court. Delhi High Court is in New Delhi District. In view of law laid in the cases (i) Hindustan Construction Company Limited vs NHPC Ltd & Another (supra); (ii) BGS SGS Soma JV vs NHPC Limited (supra); (iii) Indus Mobile Distribution Pvt. Ltd. vs Datawind Innovations Pvt Ltd. (supra); (iv) Inox Renewables Ltd. vs Jayesh Electricals Ltd. (supra) and (v) Goyal MG Gases Private Limited vs Steel Authority of India (supra); accordingly this Court is vested with territorial jurisdiction to adjudicate the OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 20 of 32 present petition.
13. Precedents relied upon by Ld. Counsel for claimant/respondent no. 1 on the facet of territorial jurisdiction are accordingly not applicable in the present case as they embody facts and circumstances entirely different and distinguishable to the facts and circumstances of case in hand.
14. Following are the claims laid by claimant/respondent no. 1 before Arbitral Tribunal:-
(1) Recovery of Rs. 28,14,260/- with interest @ 24% from the date of payment of said amount by petitioner from MPSTDC till payment;
(2) Direction to petitioner to reimburse the money received by him for PR Services from the MPSTDC for the extension granted in March, 2017;
(3) Recovery of sum of Rs. 7,00,000/- from petitioner for sum incurred by claimant in taking bank loan for discharging its liabilities on account of travel and legal expenses.
15. Following are the claims laid by petitioner in his counter claim before Ld. Sole Arbitrator:-
(1) Recovery of Rs. 40,00,000/- from claimant/respondent no. 1 for excess money paid to claimant/respondent no. 1; (2) Direction to claimant/respondent no. 1 to submit Statement of Account of expenses in respect of the business conducted under the consortium agreement for the work awarded by MPSTDC and then to determine the shares of the claimant and the petitioner in the profit of the project as per MoU along with interest @ 18% per annum till payment;
(3) Recovery of Rs. 7,00,000/- as costs, legal expenses, travelling expenses etc.;OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 21 of 32
(4) Interest @ 18% per annum on counter claim amounts.
16. Following are the issues framed by Ld. Sole Arbitrator:-
"i. Whether the Claimant is entitled to receive a sum of Rs.
28,14,260/- from the Respondent? OPC ii. Whether the Claimant is entitled to reimbursement of the money received by the respondent from M.P. Tourism for PR Services for the extension granted in March, 2017? OPC iii. Whether the Claimant is entitled to receive a sum of Rs.
7,00,000/- from the respondent on account of travel and legal expenses? OPC iv. Whether the Claimant is entitled to receive costs from the Respondent? OPC v. Whether the Claimant is entitled to grant of interest from the Respondent? If so, at what rate, for what period and on which amount? OPC vi. Whether the Respondent/Counter Claimant is entitled to receive a sum of Rs. 40,00,000/- from the Claimant? OPR vii. Whether the Claimant and/or the Respondent are/is entitled to grant of any money under Counter Claim No. 2, as mentioned by the Respondent/Counter Claimant? OPR viii. Whether the Respondent/Counter Claimant is entitled to receive a sum of Rs. 7,00,000/- from the Claimant under various heads as detailed in Counter Claim No. 3? OPR ix. Whether the Respondent/Counter Claimant is entitled to grant of interest from the Claimant? If so, at what rate, for what period and on which amount? OPR x. Relief"
17. Admitted portion of MoU dated 18/07/2014 Ex C-2 inter alia finds mention that parties to said MoU had authorized Ms. Neena Hartman, Managing Director of claimant/respondent no. 1 to sign all the documents for the bid proposal. Also no objection OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 22 of 32 was taken by petitioner in filed written statement cum counter claim that Ms. Neena Hartman, who had signed on Statement of Claim on behalf of claimant/respondent no. 1, had no authorization nor Power of Attorney/Board Resolution of claimant/respondent no. 1 nor on said premise the claim of claimant/respondent no. 1 was liable to be rejected. Accordingly in absence of such pleadings no issue to that effect was framed by Arbitral Tribunal. Only at the stage of arguments before Ld. Sole Arbitrator, present Ld. Counsel for petitioner therein raised objection that Ms. Neena Hartman was not duly authorized to file claim or testify on behalf of claimant/ respondent no. 1. After appreciation of the pleadings, evidence, documents and material placed before Arbitral Tribunal and taking aid of Order XXIX Rule 1 of CPC, in the fact of the matter, Ld. Sole Arbitrator rejected the contention of Ld. Counsel for petitioner of Ms. Neena Hartman being not duly authorized to file claim or testify on behalf of claimant/respondent no. 1. How can petitioner approbate and reprobate? Having admitted Ms. Neena Hartman as Managing Director of claimant/respondent no. 1 in Ex C-2, as above said, and having raised no objection on the facet in filed defence in written statement and counter claim, it does not lie in the mouth of petitioner through Counsel to reagitate the admitted facts. Such raising of said facet in fact defeats the objective of arbitration, to which parties adverted to by agreement. Extensive appreciation of Ld. Sole Arbitrator is vivid and clear in 53 pages impugned arbitral award. Therein Ld. Sole Arbitrator appreciated deposition of examined CW2 Mrs. Deepika Roy Chowdhury, the summoned witness of record and reached the finding that MoU dated 18/07/2014 annexed by claimant/respondent no. 1 with its OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 23 of 32 Statement of Claim between page nos. 62 to 69 Ex C-2 clearly tally word by word with the contents of copy Ex CW2/X1 and copy of Memorandum of Understanding dated 18/07/2014 which are available at page nos. 342 to 349 of Ex CW2/X3 (350 pages) summoned which were produced by above said CW2 and said Ex CW2/X1 was annexed with the tender documents at the time of submission of the bid in question to MPSTDC; which proved that the allegations of petitioner regarding forgery in said MoU is false and an afterthought. Ld. Sole Arbitrator also appreciated the evidences including admitted document C-1 (Colly), the request for proposal and also (1) Letter Of Acceptance (LOA) issued by MPSTDC to claimant/respondent no. 1 also mentioning its address of Germany; (2) Annexure III on page 9 part of Ex CW2/X3 (colly).(350 pages) finding mention/containing details of bidder i.e., claimant/respondent no. 1 including its registration; bank details of Germany, address and contact numbers, but significantly not mentioning the name of consortium/petitioner as joint bidder. Ld. Sole Arbitrator gave the finding of fact that the bid was submitted in the name of the claimant/respondent no. 1 and tender in question was awarded to claimant/respondent no. 1.
18. Ld. Sole Arbitrator had also seen and appreciated the copies of Memorandum of Association and Article of Association inter alia in Ex CW2/X3 (colly)(350 pages) depicting Ms. Neena Hartmann as Managing Director/Director of claimant/respondent no. 1 who according to Order XXIX Rule 1 CPC and as per law laid by Supreme Court in the case United Bank of India vs Naresh Kumar & Ors., AIR 1997 SC 3 was accordingly competent to depose being Managing Director/Director of OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 24 of 32 claimant/respondent no. 1.
19. Ld. Sole Arbitrator was appointed by Delhi High Court vide order dated 13/07/2017 in Arbitration Petition No. 216/2017 on the premise of arbitration clause in MoU dated 18/07/2014 between petitioner and respondent no. 1 whereby disputes arising between the parties to agreement were to be settled by arbitration in accordance with the Act and the venue shall be New Delhi. Ld. Sole Arbitrator accordingly in this backdrop of the events/admitted facts inter alia held that "the submission of Ld. Counsel for the Respondent (petitioner herein) that 'this portion of the controversy about the entitlement/otherwise of the Claimant to receive any payment from the Respondent(petitioner herein)/otherwise in respect of the project in question', cannot be adjudicated upon in the present proceedings in the absence of an Audit by an Auditor of the accounts of the parties, is not tenable in the eyes of law and is an effort of the Respondent (petitioner herein) to wriggle out of the admitted contractual obligations." Ld. Sole Arbitrator has taken lot of pains in his endeavor to interpret various clauses of the admitted documents including MoU dated 18/07/2014 in a harmonious way, which are vivid and clear in the impugned arbitral award and with respect to various works performed by the parties at the loggerheads, referring to "scope of work" detailed in the tender documents and MoU dated 18/07/2014, which had clear details of four different types of above said works. Ld. Sole Arbitrator also appreciated the material placed before him with respect to roles and responsibilities of the parties to arbitration; values of the work done; payments received; conduct of parties while the project in OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 25 of 32 question was being executed by the parties and the matter related to settlement of payments; correspondence including emails exchanged between the parties, Ld. Sole Arbitrator gave finding that as per own admission of petitioner, contained in Ex RW1/1 (page no. 38) appended with his Written Statement cum Counter Claim, as on 09/06/2016, the petitioner was liable to pay a sum of Rs. 28,14,260/- to the claimant/respondent no. 1 in respect of the work done by claimant/respondent no. 1 but petitioner failed to pay the same and instead retained and used the same. Ld. Sole Arbitrator also gave finding that instead of making the payment of admitted payable sum to claimant/respondent no.1, petitioner had pushed the claimant to the corner and forced it into the present litigation, for which the petitioner must bear the burden.
20. Ld. Sole Arbitrator rejected the claim of the claimant/respondent no. 1 of Rs. 10,00,000/- for loss of business from MPSTDC in March, 2017 holding that claimant/respondent no. 1 had failed to prove this portion of the claim as there was no convincing evidence on record produced by claimant/respondent no. 1 that the said work was awarded to petitioner and performed by him, thereby causing loss to claimant/respondent no. 1, whereas as per bottom email on page 115A part of Ex C9 (pages 115A to 115C) shows that even MPSTDC had not even decided about the award of the publicity for the said event.
21. Ld. Sole Arbitrator also rejected the claim of claimant/ respondent no. 1 of Rs. 7,00,000/- towards expenses incurred in taking a bank loan holding that claimant had not produced any evidence in support of said portion of the claim.
OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 26 of 3222. Ld. Sole Arbitrator gave finding that not only the soft copies of various bills/expenses incurred were sent by Ld. Counsel for claimant but also Ld. Counsel for claimant filed hard copies of the same amounting to total Rs. 9,30,200/- spent by claimant/ respondent no. 1 under various heads mentioned therein inter alia including the professional fees paid by claimant to Counsel, miscellaneous expenses of drafting, filing of pleadings, affidavits, expenses incurred for ministerial charges and miscellaneous expenses, expenses incurred for booking of venue, booking of typist, computer operator charges. Ld. Sole Arbitrator also kept into consideration the fees paid by claimant/respondent no.1 to himself (Ld. Arbitrator). On said premise cost of Rs. 11,00,000/- was awarded.
23. Section 31A of the Act embodies regime for costs and it was inserted in the Act with effect from 23/10/2015 by virtue of Section 17 of the Act 3 of 2016. It reads as under:-
"31A. Regime for costs.-- (1) In relation to any arbitration proceeding or a proceeding under any of the provisions of this Act pertaining to the arbitration, the Court or arbitral tribunal, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), shall have the discretion to determine--
(a) whether costs are payable by one party to another;
(b) the amount of such costs; and
(c) when such costs are to be paid.
Explanation.-For the purpose of this sub-section, "costs" means reasonable costs relating to--
(i) the fees and expenses of the arbitrators, Courts and witnesses;
(ii) legal fees and expenses;
(iii) any administration fees of the institution supervising the arbitration; and
(iv) any other expenses incurred in connection with the arbitral or Court proceedings and the arbitral award. (2) If the Court or arbitral tribunal decides to make an order as to payment of costs,-
OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 27 of 32(a) the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party; or
(b) the Court or arbitral tribunal may make a different order for reasons to be recorded in writing.
(3) In determining the costs, the Court or arbitral tribunal shall have regard to all the circumstances, including--
(a) the conduct of all the parties;
(b) whether a party has succeeded partly in the case;
(c) whether the party had made a frivolous counter-claim leading to delay in the disposal of the arbitral proceedings; and
(d) whether any reasonable offer to settle the dispute is made by a party and refused by the other party.
(4) The Court or arbitral tribunal may make any order under this section including the order that a party shall pay--
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings;
and
(g) interest on costs from or until a certain date. (5) An agreement which has the effect that a party is to pay the whole or part of the costs of the arbitration in any event shall be only valid if such agreement is made after the dispute in question has arisen."
24. The impugned arbitral award for the award of cost is perfectly reasoned in terms of Section 31(3) of the Act and is in consonance with above elicited Section 31A of the Act. The grounds for impugning the arbitral award for the award of cost do not hold water for setting aside even that part of the award.
25. 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 OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 28 of 32 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 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 OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 29 of 32 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.
26. 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 OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 30 of 32 hand, so they are of no help to petitioner for setting aside of the impugned arbitral award.
27. The impugned award was passed by an experienced Former Additional District & Sessions Judge, Delhi as Learned 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 Learned Sole Arbitrator are logical but all the material and evidences were taken note of by the Learned Sole Arbitrator. The 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 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 Learned Sole Arbitrator. The 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 Learned 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.
OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 31 of 32None of the grounds raised by the petitioner attract Section 34 of the Act; though concerted efforts have been made to give them color to term the impugned arbitral award to be (i) perverse, overlooking express terms of the contract; (ii) patently illegal and
(iii) against the fundamental policy of Indian law.
28. For the foregoing reasons, the petition is hereby dismissed.
29. The parties are left to bear their own costs.
30. File be consigned to record room.
Digitally signed by GURVINDER GURVINDER PAL SINGH
PAL SINGH Date: 2022.12.24
11:24:41 +0530
ANNOUNCED IN (GURVINDER PAL SINGH)
OPEN COURT District Judge (Commercial Court)-02
th
On 24 December, 2022. Patiala House Court, New Delhi.
(DK) OMP (Comm.) No. 80/2021 Mr. SANJAY SONI vs M/s. PREXMA LTD. & ANR. Page 32 of 32