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[Cites 8, Cited by 0]

Madras High Court

M/S.Kamarajar Port Limited vs Ms/.Chettinad International Coal ... on 28 July, 2020

Author: M.Sundar

Bench: M.Sundar

                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated:28.07.2020

                                                       CORAM

                                   THE HON'BLE MR.JUSTICE M.SUNDAR

                                                  O.P No.47 of 2020


                      M/s.Kamarajar Port Limited,
                      2nd Floor, (North Wing), 3rd Floor,
                      Jawahar Building, 17, Rajaji Salai,
                      Chennai 600 001.                                          ... Petitioner

                                                            Vs.

                      Ms/.Chettinad International Coal Terminal Pvt Ltd.,
                      Represented by its authorised signatory,
                      603 Anna Salai, Chennai 600 006.                          ... Respondent

                             Original Petition filed under Section 34 of Arbitration and
                      Conciliation Act, 1996 praying to set aside the directions (i), (iv) and (v)
                      and the corresponding impugned portions of the Arbitral Award dated
                      26.08.2019, passed by the Arbitral Tribunal consisting of Hon'ble
                      Mr.Justice J.Kanakaraj (Retd.), Hon'ble Mr.Justice K.P.Sivasubramaniam
                      (Retd.) and Hon'ble Mr.Justice S.Rajeswaran (Retd.), under sections
                      34(2)(b) & (2-A) of the Arbitration and Conciliation Act, 1996, by
                      allowing the present original petition.

                                   For Petitioner :   Mr.Krishna Ravindran

                                   For Respondent : Mr.Anirudh Krishnan

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                                                        ORDER

                             Instant 'Original Petition' ('OP' for the sake of brevity) is an

                      application under Section 34 of 'The Arbitration and Conciliation Act,

                      1996 (Act 26 of 1996)', which shall hereinafter be referred to as 'A and C

                      Act' for the sake of convenience and clarity.

                             2. An 'arbitral award dated 26.08.2019' (hereinafter 'impugned

                      award' for the sake of convenience and clarity) made by a three member

                      'Arbitral Tribunal' ('AT' for the sake of brevity) constituted by three

                      former Hon'ble Judges of this Court has been called in question in instant

                      OP by respondent before the AT. The claimant before the AT has been

                      arrayed as the sole respondent.

                             3.From the case file placed before me, it is seen that instant OP

                      was presented in this Court on 25.11.2019.         This is mentioned to

                      highlight that instant OP is post 23.10.2015 amendment to A and C Act.



                             4.As has been repeatedly held by this Court, an application under

                      Section 34 of A and C Act is neither an appeal nor a revision and it is not

                      even a full-fledged judicial review. It is a very limited challenge to an

                      arbitral award and that limited challenge is confined to 8 different

                      grounds, which have been adumbrated in sub-section (2) of Section 34 as
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                      interpreted and as per principles laid down by Hon'ble Supreme Court in

                      this regard. These 8 grounds have been described as pigeon holes by this

                      Court. An application under Section 34 being a summary proceedings,

                      short facts, shorn of particulars which are not necessary for appreciating

                      this order, will suffice. To be noted, that testing an arbitral award under

                      Section 34 of A and C Act is a summary procedure is principle has been

                      declared by Hon'ble Supreme Court in Fiza Developers case [Fiza

                      Developers and Inter-Trade Private Limited Vs. AMCI (India) Private

                      Limited reported in (2009) 17 SCC 796] reiterated in Emkay Global

                      case being Emkay Global Financial Services Ltd. v. Girdhar Sondhi

                      reported in (2018) 9 SCC 49 as a step in the right direction and further

                      reiterated very recently in Canara Nidhi Limited case [M/S. Canara

                      Nidhi Limited vs M. Shashikala reported in 2019 SCC Online SC 1244].

                             5.Short facts shorn of particulars not necessary for appreciating

                      this order or in other words, factual matrix in a nutshell, which is

                      necessary and which contains facts imperative for appreciating this order

                      are as follows:

                                  a) Fulcrum of this lis is a licence agreement dated

                             14.09.2006 between the parties. To be noted, from hereon,


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                             claimant before the AT, who is sole respondent before me,

                             shall be referred to as 'SPV' for the sake of convenience and

                             clarity as it is a special purpose vehicle constituted vide a

                             memorandum made by three other companies which formed a

                             consortium and made a bid qua tender floated by Kamarajar

                             Port Limited (earlier Ennore Port), which shall hereinafter be

                             referred to as 'Port'.        In other words, while the claimant

                             company (sole respondent before me) shall be referred to as

                             'SPV', respondent before AT (lone petitioner before me) shall

                             be referred to as 'Port';

                                    b)   The    aforementioend      license   agreement   dated

                             14.09.2006 shall be referred to as 'said agreement' and the same

                             is the nucleus of this lis.

                                    c) Said agreement is for designing, engineering,

                             financing, constructing, operating, maintaining and thereafter

                             transfering a common user coal terminal i.e., BOT basis. To be

                             noted, BOT denotes Build Operate Transfer.

                                    d) The life of said agreement is 30 years and there is no

                             disputation on this.

                                    e) While the said agreement was operating post
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                             completion of construction phase (construction phase ended in

                             September 2010), a tempest set in, which has caused this wave

                             litigation i.e., case on hand.

                                   f) This litigation essentially centres around claim of Port

                             qua revenue share in Consultancy income, Wind Mill income

                             and Tipper income, besides lease rental. In other words, it

                             essentially centres around revenue sharing qua Consultancy

                             income, Wind Mill income, Tipper income, and lease rental;

                                   g) Suffice to say that the arbitration agreement between

                             SPV and Port is in the form of a covenant in said agreement

                             and that covenant is clause 24.       To be noted, arbitration

                             agreement is arbitration agreement within the meaning of

                             Section 2(1)(b) read with Section 7 of A and C Act. In other

                             words, there is no disputation or disagreement about the

                             existence of arbitration agreement between SPV and Port,

                             which is in the form of covenant in the said agreement i.e.,

                             Clause 24.

                                   h) Owing to the waves of disagreement, which constitute

                             this lis, the arbitration agreement was triggered, AT was

                             constituted, AT entered upon reference and after full contest,
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                             AT rendered the impugned award.

                                      i) SPV, as claimant, made claims under five heads,

                             besides interest /future interest and costs. Out of the 5 heads,

                             claim under two heads were allowed fully and claim under

                             three heads were partly allowed. To be noted, one of the claims

                             which was wholly allowed is by a 2:1 majority in the AT.

                                      j) With regard to one of the heads of claim pertaining to

                             Revenue share on Wind Mill income, there is no contest before

                             me.

                                      k) Assailing the impugned award instant OP has been

                             filed.

                             6.With consent of Mr.Krishna Ravindran, learned counsel for Port

                      and Mr.Anirudh Krishnan, learned counsel for SPV, who is on caveat,

                      main OP was heard out.



                             7.Learned counsel for Port submitted with specificity that

                      impugned award is assailed on one of the eight slots available under

                      Section 34(2) and that one slot is, the impugned award is in conflict with

                      public policy of India. Furthering his submissions in this direction,

                      learned counsel for Port submitted that challenge to impugned award is
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                      posited on 34(2)(b)(ii) read with Clause (ii) of Explanation 1 thereat. In

                      other words, challenge to impugned award is on the ground that it is in

                      conflict with public policy of India owing to it being in contravention of

                      fundamental policy of Indian Law.



                             8.Before proceeding further, it is necessary to set out the five

                      heads of claim and the conclusion arrived at vide the impugned award.

                      For this purpose, I deem it appropriate to usefully replicate a portion of a

                      chart in the impugned award and the same is as follows:

                             S.No.                  Claims             Amount (in INR)
                             A.      Restrain the Respondent from -
                                     demanding Revenue Share with
                                     respect to Consultancy Income
                             B.      Speedy Evacuation Charges       Direct the Respondent
                                                                     to             refund
                                                                     Rs.5,37,33,414   with
                                                                     15% p.a. from date of
                                                                     tender to date of
                                                                     realization
                             C.      Restrain the Respondent from -
                                     demanding Revenue Share with
                                     respect to Windmill Income
                             D.      Restrain the Respondent from -
                                     demanding Revenue Share with
                                     respect to Tipper Income
                             E.      Lease Rental                    Direct the Respondent
                                                                     to              refund
                                                                     Rs.29,01,06,797.09/-
                                                                     with 15% p.a. from the
                                                                     date of tender to date
                                                                     of realization

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                             9. Serial No.A was allowed by 2:1 majority. Serial No.B was

                      rejected unanimously and there is no contest before me. Serial No.C was

                      allowed unanimously, but there is no contest before me in this OP on

                      that is the say of learned counsel for Port. Serial No.D was also partly

                      allowed but the same is in contest before me. Serial No.E was partly

                      allowed and that is also contested.



                             10.Advancing arguments on conflict with public policy and

                      contravention of fundamental policy of Indian law, learned counsel for

                      Port invited my attention to paragraphs 29 to 31 of the impugned award

                      and submitted that AT has applied a different formula which is

                      completely different from the one contemplated under said agreement

                      and therefore this is clearly a ground for setting aside the award. Besides

                      this, learned counsel for Port also drew my attention to paragraph 39 of

                      the impugned award and submitted that AT holding that there cannot be

                      increased lease amount of more than 5% over the previous year is

                      incorrect and AT erred in taking this view on the teeth of said agreement.

                      Learned counsel also drew my attention to the dissenting award made by

                      one of the Hon'ble Arbitrators on one of the five heads of claim namely
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                      claim (A) i.e., revenue share with respect to consultancy income.

                      Drawing my attention to the dissenting award, learned counsel for Port

                      submitted that the dissenting award has interpreted clause 14(V)(g) of

                      said contract correctly as the income has been earned by SPV and is

                      relatable to the project.



                             11.Counsel for SPV, who was on caveat, submitted that documents

                      were marked by both sides and therefore there are exhibits on both sides.

                      To be noted, there is no disputation or disagreement about this. It was

                      also submitted that oral evidence was let-in by SPV and two witnesses

                      were examined. There is no disagreement about this aspect of the matter

                      also. It was submitted by learned counsel for SPV that the interpretation

                      is based on appreciation of oral and documentary evidence and counsel

                      for Port should be able to demonstrate that the majority view is

                      completely implausible to succeed in his campaign against the impugned

                      award.

                             12.In the aforesaid backdrop, I now proceed to consider the rival

                      submissions, discuss the same and give my dispositive reasoning to

                      arrive at a conclusion. As already alluded to supra, learned counsel for

                      Port drew my attention to paragraphs 29 to 31 and paragraph 39 of the
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                      impugned award and the same read as under:

                                     “29.We will now refer to the statement of defence in
                              relation to consultancy income. The first point relied on is that
                              the consultancy income has been shown in the books of accounts
                              of the Respondent. This in itself would not be sufficient to prove
                              that the consultancy income would come within the definition of
                              gross revenue. The second point is coal handling system at the
                              port is 'similar' to that of the work orders issued by India
                              Cements Ltd. This has been found to be incorrect by the evidence
                              above referred to. The third point is that the Claimant can invest
                              only the surplus funds in non operational activities like investing
                              in share market, FD in banks etc. Says the Respondent, that
                              clause 2(10)(h) of the Licence Agreement prohibits such activities
                              by the Claimant. Clause 2(10) bears the heading 'representations
                              and warranties'. Clause (h) says as follows:- 'It is not engaged in
                              any business other than the business of operating and managing
                              ports and other ancillary activities;' It is further contended by the
                              Respondent that the Claimant is extending the service to ICL only
                              through the knowledge gained from the project of the Respondent,
                              which will clearly come under the gross revenue.
                                     30.Learned counsel for the Claimant says that one has to
                              keep in mind the opening sentence in clause 2(10). It reads:-
                              'The Licensee hereby represents and warrants to the Licensor that
                              as of the date hereof.' The underlined portion is referred to and
                              the licensee warrants only on the date of the agreement that they
                              are not engaged in any business other than the business of
                              operating and managing Ports and other ancillary activities. In

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                              other words, after the project commences there is no bar for
                              undertaking such businesses. The last argument is based on
                              clause 15.2.10 which according to the Respondent prohibits
                              transfer of technology and know-how to any person other than the
                              Respondent. This again is fallacious because reference to clause
                              15.2.10 of the license agreement shows that at the end of the lease
                              period the Claimant is supposed to transfer the knowledge and
                              know-how of the operation in the Port to the Respondent. It does
                              not prohibit the transfer of such technology to other persons.
                              Further we have already seen that the coal handling system at the
                              Respondent's Port is far different from the work orders issued by
                              India Cements Ltd.
                                    31.What remains therefore is the one and only conclusion
                              that the consultancy income from India Cements Ltd. Is outside
                              the scope of the project and project facilities and cannot be
                              equated   to   gross   revenue   mentioned     in   clause   14(V).
                              Consequently the prayer sought for in para 1 of para 101(V) of
                              the statement of claim has to be granted in favour of the
                              Claimant. Issue No.1 is answered accordingly. Further, the
                              contention of the Respondent that the Claimant had gained know-
                              how from and out of the present property of the Respondent is
                              also to be rejected. This present tender was floated by the
                              Respondent, calling for the pre-expertise holders to participate in
                              builds-operate-transfer of the common user coal handling facility.
                              But for their know-how and expertise in the field, the Claimant
                              would not have been selected by the Respondent as a successful
                              bidder. Hence this contention of the Respondent would not hold
                              water, as the Claimant had already possessed the knowledge and

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                              technical know-how.
                                     39.In the above state of confusion, we direct that the
                              following will be the correct method of calculation of lease
                              rentals. From the year 2009, the lease rentals were charged at
                              the rate of Rs.30/- per sq.mtr. From the said year it is open to the
                              parties to revise the lease rentals every five years but the increase
                              cannot be more than 5% over the previous year. If so revised in
                              the year 2019 the parties will arrive at a particular figure. As
                              already stated the increase cannot be more than 5% over the
                              previous year. The rate so arrived for the year 2019 will be the
                              correct lease rental which we approve as Legal and binding on
                              the parties. As already stated it is open to the parties to opt for
                              any other amount as may be agreed upon between them either
                              based on the said sub-committee report or other wise. Therefore
                              instead of prayer 5 under para 101(V), we give the following
                              direction. Any lease amount paid by the Claimant over and above
                              the rate fixed as above or the rate admitted between the parties as
                              per the decision of the sub-committee, shall be refundable to the
                              claimant on the date of the award, but it will be adjusted in future
                              payment of lease rentals.”


                              13.As I have extracted the portions of the impugned award to

                      which my attention was drawn, I deem it appropriate to extract relevant

                      portions of the dissenting award also viz., paragraphs V, IX and X, and

                      the same read as follows:

                                    'V. How the Claimant themselves have understood their

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                              contract with and income from ICL is the fact that the income
                              from ICL is shown in the accounts of the Claimant company. It
                              will be blowing hot and cold to say that the said income cannot
                              fall under gross revenue under Clause 14(v)(g) which is an all
                              inclusive clause which would encompass all income other than
                              investing the surplus funds. The exclusion has to be strictly
                              interpreted and therefore what is not specifically excluded must
                              be included/ treated as gross revenue.
                                     IX. It is true that the MoA of the Claimant company
                              enables the Claimant to offer services to any other entity. But
                              that is only an enabling clause and as long as the facts disclose
                              that the services rendered by Claimant to the ICL were
                              interconnected with the project and its facilities, the said income
                              would be included under clause 14(v)(g).
                                     X. The Consortium consists of only (i) South India
                              Corporation, (ii) Portia Management Services Ltd. And (iii)
                              Nava Yuga Engineering Ltd. If consultancy services rendered to
                              ICL is referable only to the group companies of the Claimant, it
                              cannot be perceived as to how the other two companies forming
                              the consortium (Portia and Nava Yuga) will have any right to
                              share the income of the Claimant company. The fact remains
                              that the income is shown as that of the consortium over which
                              the group companies of the Claimant cannot have any claim.'
                               14. I have carefully considered paragraphs 29 to 31. A careful

                      perusal of these paragraphs reveal that they turn on interpretation of

                      clauses 2.10(h), 14(V) of said agreement. As this portion of the


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                      impugned award, deals with interpretation of clauses in said agreement, I

                      carefully read through the relevant clauses also which read as follows:

                              2.10(h):
                              '2.10.Representations and warranties
                                     The Licensee hereby represents and warrants to the
                              Licensor that as of the date hereof:
                              ....
                              h) it is not engaged in any business other than the business
                              of operating and managing ports and other ancillary
                              activities'
                              14(V):
                              14.Payments to the Licensor
                              V.The Gross Revenue accrued shall be calculated as
                              provided for in Section 13 VIII and IX and shall be
                              aggregate of the following revenues whether or not such
                              revenues are actually realized from consignees/agents/
                              customers:
                              a) all the gross revenues according to the License for the
                              services rendered and facilities provided by the License
                              including revenues accruing from berth hire charges for
                              the berth built by the Licensee.
                              b) all the gross revenues accruing to the Licensee from
                              handling, whargage, stevedoring, storage and movement of
                              cargo including transhipment.
                              c)all the gross revenues accruing to the Licensee from

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                              shifting of cargo within the Terminal for inspection,
                              processing, storage or loading/unloading.
                              d)all the gross revenues and income from storage charges
                              and demurrage/ detention chages.
                              e)all the gross revenues and income from miscellaneous
                              services offered and facilities provided within the Terminal
                              f) all other gross revenues and income from charges not
                              specified above, if any, for handling, storage and
                              movement of cargo within the Terminal
                              g) any other gross revenues and income earned by the
                              Licensee not specified above and directly attributable to
                              the Project and Project Facilities, provided that any
                              income earned from investing surplus funds and from
                              investments not directly related to the Project would be
                              excluded from the computation of accrued revenue.'



                              15.A careful perusal of the aforementioned clauses and

                      interpretation of the same as articulated by AT in paragraphs 29 to 31

                      leaves me with the considered view that the interpretation is not

                      implausible or in other words, not a view which no reasonable person

                      would take. It is certainly not just a plausible but a possible view. More

                      importantly, it leaves me with the considered view that no new formula

                      has been set out or no new formula has been adopted, but it is only a


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                      question of interpretation of clauses of said agreement.

                              16.This takes us to paragraph 39 which has already been extracted

                      and reproduced supra. The articulation of AT therein that increase of

                      lease rental cannot be more than 5% over the previous year, is based on a

                      letter dated 03.10.2015, which according to the AT, is contrary to the

                      clauses of the license agreement. This is articulated in paragraph 37 of

                      impugned award (infra) and the relevant portion of paragraph 37 of

                      impugned award reads as follows:

                              '37. ..... By letter dt. 30.10.2015 the Respondent again
                              increased the lease rentals from Rs.87/- to Rs.132. This is
                              contrary to the license agreement because it contemplates
                              only an increase at the maximum rate of 5% p.a. on the
                              previous year's rate.'



                              17.Therefore this again turns on interpretation of said agreement.

                      There is nothing to demonstrate that this interpretation is perverse. It is

                      necessary for a protagonist qua Section 34 of A and C Act to

                      demonstrate that the interpretation is perverse if he were to succeed in

                      dislodging an impugned award. As perversity is the sheet anchor plank

                      on which challenge to impugned award is predicated and posited in

                      instant case, it would be appropriate to look at what is perversity and

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                      what would be a good working test for perversity. Hon'ble Supreme

                      Court has held that a good working test for perversity is contained in two

                      judgments namely, H.B.Gandhi v. M/s. Gopinath and Sons reported in

                      1999 (Suppl)2 SCC 312 and Kuldeep Singh V. Commissioner of Police

                      and Others reported in (1999) 2 SCC Page 10. This was articulated by

                      Hon'ble Supreme Court while dealing with three juristic principle qua

                      public policy. The three juristic principles qua public policy as culled

                      out by Hon'ble Supreme Court are:

                              (a) judicial approach;

                              (b) Natural Justice Principles (NJP); and

                                 (c) Irrationality /perversity.



                              18.Hon'ble Supreme Court has also laid down tests for these three

                      facets /distinct juristic principles qua public policy and the tests are:

                              a) Fidelity of judicial approach;

                              b) audi alteram partem; and

                              c) Wednesbery principle of reasonableness

                              19.In the instant case, we are not concerned with juristic principles

                      1 and 2. We are concerned only with juristic principle No.3 to test

                      whether the interpretation is perverse. It is for this purpose that I have
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                      referred to Gopi Nath case [H.B.Gandhi, Excise and Taxation Officer-

                      cum-Assessing Authority Vs. Gopi Nath & Sons reported in 1992 Supp

                      (2) SCC 312] and Kuldeep Singh case [Kuldeep Singh Vs.

                      Commissioner of Police reported in (1999) 2 SCC 10], which were

                      reiterated by Hon'ble Supreme Court in Associate Builders case, being

                      Associate Builders Vs. Delhi Development Authority reported in (2015)

                      3 SCC 49, which arose under Section 34 of A and C Act. Relevant

                      Paragraph in Gopi Nath case is Paragraph 7 and relevant paragraph in

                      Kuldeep Singh case is Paragraph 10 and the same read as follows:

                              “Paragraph 7 in Gopinath's case:
                                    7. ...................It is, no doubt, true that if a finding of fact
                              is arrived at by ignoring or excluding relevant material or by
                              taking into consideration irrelevant material or if the finding so
                              outrageously defies logic as to suffer from the vice of
                              irrationality incurring the blame of being perverse, then, the
                              finding is rendered infirm in law."
                              Paragraph 10 in Kuldeep Singh case:
                                    "10. A broad distinction has, therefore, to be maintained
                              between the decisions which are perverse and those which are
                              not. If a decision is arrived at on no evidence or evidence which
                              is thoroughly unreliable and no reasonable person would act
                              upon it, the order would be perverse. But if there is some
                              evidence on record which is acceptable and which could be
                              relied upon, howsoever compendious it may be, the conclusions

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                              would not be treated as perverse and the findings would not be
                              interfered with."
                              20.This takes us to the minority dissenting view made by one

                      Hon'ble Arbitrator. Learned counsel for Port, drawing inspiration from

                      Ssangyong case [Ssangyong Engineering and Construction Company

                      Limited Vs. National Highways Authority of India reported in (2019)

                      15 SCC 131] canvassed that the minority view has to be upheld.

                              21.I have already extracted and reproduced relevant portions of the

                      minority award. A careful perusal of the relevant portion of the minority

                      award and interpretation of Hon'ble Judge qua clauses 14(V)(g) of said

                      contract, leaves me with the considered view that it is also certainly not

                      an implausible view and that it is highly a possible view. Clause 14(V)(g)

                      has already been extracted and reproduced supra.

                              22.Clause 14(VIII) read with clauses 2 and 3 of Appendix 8

                      captioned 'Lease Agreement' read as follows:

                                     '14(VIII). Upon the achievement of Financial Close,
                              Parties shall execute the Lease Agreement. Land lease rentals,
                              security deposit and lease premium for the Licensed Premises
                              given to the Licensee for undertaking the Project shall be payable
                              by the Licensee at the rate and schedule specified in the Lease
                              Agreement in Appendix 8 and calculated from the date of the
                              Lease Agreement. The land lease rentals shall be payable at

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                              monthly intervals in advance for the following month on the 5th of
                              every month.'
                              Appendix 8: Lease Agreement
                              2.Base Lease Rate
                              The Base Lease Rate shall be Rs.30/- per square meter or part
                              thereof per calendar year or part thereof and shall be valid for a
                              period of 5 (five) years.
                              The Base Lease Rate shall be revised at the end of 5 years for the
                              following five year period, based on commercial principles as
                              adopted by the Lessor.
                              3.Revision of Rent
                              The Lease rent shall be computed as a product of the Lease rate
                              as described in this section and the total land area leased as per
                              this Lease Agreement.
                              The Lease rate for the first year shall be equal to the Base Lease
                              Rate. The Lease rate for the year immediately following revision
                              of the Base Lease Rate, shall be equal to such revised Base Lease
                              Rate. The Lease rate for all interim years between the years of
                              revision of Base Lease Rate shall be calculated based on a 5%
                              increase on the previous years rate and shall be computed as:
                              Lease rate for following year = Lease rate for previous year x
                              1.05.'


                              23.To be noted, clause 14(V) has already been extracted in its

                      entirety that contains sub-clause (g) also. Of the two views, left to this

                      Court, I would go with the minority view, though it was canvassed by


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                      learned counsel for SPV that for Clause 14(V)(g) to operate two

                      conditions have to be satisfied and those two conditions are (a) income

                      should be earned by SPV and (b) it should be relatable to the project and

                      the conclusion arrived at i.e., the conclusion by the majority that it did

                      not relate to the project was arrived at based on oral and documentary

                      evidence. The oral and documentary evidence and sifting through the

                      same may not be necessary, as if I were to substitute the minority view

                      and hold that the same is acceptable to me, that would tantamount to

                      substituting my view to the majority view of AT. As already delineated

                      supra, learned counsel for Port submitted that his plea to sustain minority

                      view is predicated on Ssangyong case, but it is a case where the majority

                      view was held to be implausible view by Hon'ble Supreme Court. In the

                      case on hand, this Court is unable to convince itself that the majority

                      view is an implausible view. The reason is , there is no disputation or

                      disagreement that documentary and oral evidence was before AT, it

                      comes to light that though not articulated with specificity in the

                      impugned award by necessary inference, all these interpretations of the

                      clauses of said agreement are based on the documentary and oral

                      evidence which was before the AT. Therefore, in this view of the matter,

                      I deem it appropriate to not to dilate further and articulate my views in
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                      support of the minority view taken by Hon'ble Judge.



                              24.For all the reasons alluded to supra, I find that there is no scope

                      for interfering with the impugned award in the Section 34 application,

                      which is before me.



                              25.Before parting with this matter, it is made clear that I have

                      reminded myself that Section 34 of A and C Act is a delicate balance

                      between finality of an arbitral award (ingrained in Section 35 of A and C

                      Act) or in other words the sanctity attached to finality of arbitral award in

                      'Alternate Dispute Resolution' ('ADR') mechanism and the sacrosanct

                      philosophy attached to judicial review. As already delineated supra, an

                      application under Section 34 being a summary procedure, it may not be

                      necessary to enter upon the arena of re-evaluating/re-appreciating

                      evidence which was before the AT, which in any case is forbidden as far

                      as patent illegality plea is concerned vide one limb of proviso to sub-

                      section (2A) of Section 34.



                              26.Owing to the narrative supra, more particularly owing to the

                      discussion and dispositive reasoning it follows as an inevitable sequitur
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                      that the OP fails and the same is dismissed. There shall be no order as to

                      costs.



                                                                                    28.07.2020
                      Speaking Order: Yes/No
                      Index: Yes/No
                      gpa/sgl




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                                M.SUNDAR, J.

gpa/sgl O.P.No.47 of 2020 28.07.2020 http://www.judis.nic.in 24/24