Bangalore District Court
M/S Sri Sai Enterprises vs M/S Multi Coats In on 31 March, 2022
1
Com.A.P 84/2021
IN THE COURT OF LXXXVII ADDL.CITY CIVIL &
SESSIONS JUDGE, (EXCLUSIVE DEDICATED
COMMERCIAL COURT)
AT BENGALURU (CCH.88)
THIS THE 31st DAY OF MARCH 2022
PRESENT:
SRI.CHANDRASHEKHAR U., B.Sc., LL.M.,
LXXXVII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.A.P.No. 84/2021
PLAINTIFF: M/s Sri Sai Enterprises,
No. C-310, 9th Cross,
3rd Main, 1st Stage,
Peenya Industrial Area,
Bengaluru 560 058
Represented by its Proprietor
Mrs P.N. Hemanalini
(Reptd by Mr. SDB -Adv)
AND
DEFENDANT : M/s Multi Coats In.
Shed No.3, Plot No. 5/1,
Karihobanahalli Main Road,
Karihobanahalli,
Nagasandra Post,
Bengaluru 560 058
Represented by its Director,
Sri. Balakrishna M.
(Reptd by Mr. AT - Adv)
2
Com.A.P 84/2021
Date of Institution of the 29.10.2021
suit
Nature of the suit (suit on
pronote, suit for declaration
& Possession, Suit for Arbitration Petition
injunction etc.)
Date of commencement of -
recording of evidence
Date on which judgment
was pronounced 31 .03.2022
Total Duration Year/s Month/s Day/s
00 05 02
(CHANDRASHEKHAR U),
LXXXVII Addl.City Civil & Sessions Judge,
(Exclusive dedicated Commercial Court)
Bengaluru.
JUDGMENT
The plaintiff has filed the above petition under Section 34 of the Arbitration & Conciliation Act, 1996, (hereinafter called as 'the Act') for setting aside the arbitration award dated, 8th July 2021, passed in A.C. No.204/2019 by learned Arbitrator Sri. Justice Ashok B Hinchigeri and to allow the counter claim to the tune of Rs.24,70,000/-. 3
Com.A.P 84/2021
2. The brief facts of the case of the plaintiff are as hereunder:-
M/s Tenovo India Private Limited, now, Delkor India, known as end-user, placed the purchase order to the defendant M/s Multi Coats Inc., for erection of painting and blasting booth, vide purchase order No.3750000217, dated 6.4.2017 for total amount of Rs.64 lakhs. Further, the defendant informed the Tenova their inability to perform the purchase order to erect painting and blasting booth by letter dated 18.9.2018. Due to the financial constraint of the defendant, it requested M/s Tenovo India Private Limited to transfer the purchase order to the plaintiff and earnestly requested defendant to be treated as sub-
contractor to the plaintiff and promised to fulfill the obligation of erecting and completing the painting and blasting booths. M/s Tenovo India Private Limited requested the plaintiff to perform purchase order by financing to execute the erection of painting and blasting booths along with the defendant. It is specifically 4 Com.A.P 84/2021 submitted that since, the plaintiff is having long business relation with M/s Tenovo India Private Limited for the supply of industrial paints, accepted the purchase order bearing No. 3750000275, dated, 20.11.2017 for Rs.64 lakhs. The plaintiff only financed the defendant as requested and there is no contract between them and therefore, the plaintiff is not liable to pay any amount and though, it is contended before the learned Arbitrator that M/s Tenovo India Private Limited is necessary party, which placed the order through the plaintiff and financed the same and therefore, the award is liable to be set aside. The plaintiff has also placed the purchase order Ex.R4 by M/s Tenovo India Private Limited for Rs.64 lakhs, in turn the plaintiff had placed the purchase order to the defendant as per Ex.R5, for lump sum price Rs.59 lakhs. The difference amount of Rs.5 lakhs was the profit to the plaintiff for financing for the contract. It is further stated that after the defendant erection of paint booth and it is the plaintiff who invested the funds for execution of the paint and blasting 5 Com.A.P 84/2021 booth as required by M/s Tenovo India Private Limited and as per the purchase order, at Ex.R5, the last and final payment will be made on completion and successful erecting and satisfactory report from the customer and receipt of the payment from them as per Ex.R5. The defendant did not complete the purchase order as per Ex.R5, therefore, the end-user Tenova did not make the balance payment. The plaintiff received Rs.60 lakhs, out of which, Rs.59 lakhs was paid to the defendant as admitted by the defendant. The end-user made alternate arrangement for painting and blasting booth, due to which the plaintiff suffered loss and further M/s Tenovo India Private Limited withhold the amount belonging to the plaintiff to the tune of Rs.24,70,400/- on account of failure of the painting booth and therefore, it made counter claim before the learned Arbitrator that was not considered. Learned Arbitrator, by his award, allowed the claim of the defendant herein to the tune of Rs.19,92,000/- subject to certain condition mentioned therein and when the plaintiff 6 Com.A.P 84/2021 intimated the end user M/s Tenovo India Private Limited to allow the defendant to carry out the repair as directed by learned Arbitrator, the end-user issued a letter stating that it has completed the work by employing some others by spending Rs. 45 lakhs and it did not allow the defendant to carry out the repair, if any. Since, in view of the above fact, it has incapacitated the plaintiff to perform, pursuant to the Arbitration Award and therefore, the same has been challenged on the ground that the award of the arbitral tribunal is beyond the scope of submission made by plaintiff in their objection and counter claim clearly stated that due to faulty supply made by the defendant M/s Delkor, which was earlier M/s Tenova withhold the payment of Rs.24,70,400/- to it. The end user is a necessary party without whom the Arbitrator has not proceeded with the case. Further, RW2 A.Shahjahan, who is a employee of the end-user has been examined on behalf of the plaintiff herein and learned Arbitrator has not taken into consideration the material on record and passed 7 Com.A.P 84/2021 impugned award. Accordingly, it has prayed for allowing the petition by setting aside the award.
3. The respondent has filed objection, stating that the application is not maintainable and the same is liable to be dismissed in limine. No grounds are made out, much less one mentioned under Section 34 to set aside the award.
4. It is stated that the claimant/defendant is a registered micro manufacture enterprises registered with Ministry of MSME bearing UAM No. KR 03A 0002866, engaged in the business of manufacture of fabricated metal products. The defendant had supplied painting blasting booth and painting booth on behalf of the plaintiff to M/s Tenova and it has acted as per the purchaser order placed by the plaintiff and the plaintiff had to pay a sum of Rs.69,62,000/- and it failed to pay the balance amount of Rs.21,03,312/-. Accordingly, the defendant approached the MSEFC, Bengaluru for resolution of dispute. It after hearing the parties, directed to approach the arbitral 8 Com.A.P 84/2021 tribunal by appointing the arbitrator. The learned Arbitrator, after going through the claim statement, objection, etc., and also evidence placed before him, by the parties, passed an impugned award directing the plaintiff herein to pay a sum of Rs.19,92,000/-.
5. The plaintiff has not made out any grounds under Section 34 of the Act and the scope under Section 34 is very limited. Further, the plaintiff has not complied the mandatory provisions of Section 19 of Micro Small and Medium Enterprises Development Act, 2006 by depositing 75% of the decreetal amount and therefore, it has no locustandi to continue the proceedings. Accordingly, it has prayed for dismissal of the petition.
6. Heard, learned counsel for the plaintiff and defendant.
7. Now, the points that arise for my consideration are:-
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Com.A.P 84/2021
1. Whether the plaintiff proves that it was incapacitated to perform the obligation cast under the purchase order?
2. Whether the plaintiff further proves that award is against the terms of the contract?
3. What Order?
8. My findings on the above Points are as under:
Point No.1 :- In the Negative.
Point No.2 :- In the Negative.
Point No.3 :- As per the final Order for the following reasons.
REASONS
9. POINT Nos.1 & 2: For the sake of convenience and to avoid the repetition of facts, I would like to deal the above points together for consideration.
10. Learned counsel for the plaintiff would argue that the award passed by learned Arbitrator is against the terms of the contract and learned Arbitrator has exceeded his 10 Com.A.P 84/2021 jurisdiction in directing the claimant to get the painting booth repaired and then, to claim the amount, within 30 days from the date of obtaining certified copy of the award. According to him, the matter cannot be decided by the learned Arbitrator in the absence of end-user M/s Tenovo India Private Limited, which is subsequently taken over by the Delkor India situated at Peenya Industrial area, Bengaluru. Further, initially, the order was placed by the end-user to the claimant, directly as per the purchase order and since, the claimant/defendant expressed its inability to complete the work, asked the end-user to appoint someone else. Accordingly, M/s Tenovo India Private Limited appointed the plaintiff and therefore, the plaintiff is only a facilitator and it is the contract between the claimant/ defendant and the end-user M/s Tenovo India Private Limited and therefore, in the absence of M/s Tenovo India Private Limited before the Arbitral Tribunal, the award ought not to have been passed. While canvassing his argument, he took the Court to Ex.R1, which is purchase 11 Com.A.P 84/2021 order placed by M/s Tenovo India Private Limited to the claimant/defendant on 12.4.2017 for the purpose of manufacturing of paint and blasting booth and the total amount was Rs.64 lakhs. The terms and conditions mentioned in the purchase order and the said purchase order provides for resolution of dispute by arbitration. Thereafter, he refers to the Ex.R2, i.e., mail sent to the end- user by the defendant/claimant stating that he is not in a position to carry on the work and he may be treated as sub-contractor of M/s Sri Sai Enterprises, which is the plaintiff herein and respondent before the learned Arbitrator. Accordingly, the end-user M/s Tenovo India Private Limited issued fresh purchase order as per Ex.R4 before learned arbitrator, dated 20.11.2017 for the same amount with same terms and conditions. Thereafter, Sri Sai Enterprises issued purchase order to the claimant/defendant requesting to manufacture the said unit with the specification as mentioned in the earlier purchaser order. Thereafter, M/s Tenovo India Private 12 Com.A.P 84/2021 Limited wrote a letter to Sri Sai Enterprises about quality of the machine supplied by the claimant/defendant and withhold the amount due to the plaintiff, which has been carrying on business with M/s Tenovo India Private Limited. Due to the act of the claimant/defendant, it has lost the faith of the end-user and lost money relating to the material supplied to the end-user. After the award, since, there is a direction to comply, the repair the machinery by the claimant, the plaintiff wrote a letter to the Delkor India, which is the end-user, which did not allow the claimant/defendant to effect repair as directed by learned Arbitrator. So, in this back ground, it is necessary to go through the award portion. The operative portion of the award reads thus:
"Award - the claimant is entitled to Rs.19,92,000/- from the respondent subject to the following conditions:
a) The respondent is directed to have the infrastructure created at the project site of the end-
user on the lines mentioned in the minutes of the meeting held on 29.8.2018 (Ex.P3). No direction can be given to the end-user, M/s Tenova because it is not a party to this arbitration case. The creation of the said infrastructure has to be completed by the respondent 13 Com.A.P 84/2021 within 30 days from the date of issuance of certified copy of this award;
b) The claimant has to repair/replace the components as specified in the end-user's letter date 2.7.2019 (Ex.R7) within 30 days from the date of creation of the specified infrastructure"
It is held that the claimant/defendant is entitled to Rs.19,92,000/- and a direction was given to respondent to have the infrastructure created at the project site of the end-user on the lines mentioned in the minutes of the meeting held on 29.8.2018 (Ex.P3). Further, the claimant has repaired the same as per the letter dated 2.7.2019 at Ex.R7 within 30 days from the date of creation of specified infrastructure. So, a duty was cast upon the plaintiff to create an infrastructure for the purpose of repair of the painting booth by claimant/defendant, for which, the plaintiff wrote a letter to M/s Tenovo India Private Limited, now, it is Delkor India which wrote letter to the plaintiff herein on 2.8.2021 stating that they got repaired the painting booth by spending Rs.45 lakhs and there is no scope for repairing or replacing the blasting painting booth. 14
Com.A.P 84/2021 Since, end-user did not allow the plaintiff to create necessary infrastructure for the purpose of repair, the same was intimated to the claimant/defendant by way of mail, dated 17.8.2021 along with the letter of the Delkor.
11. So, with the help of this document, learned counsel for the plaintiff would argue that, since, the Delkor India did not allow the plaintiff to create necessary infrastructure to facilitate the claimant to repair the booth, the plaintiff cannot be found fault with and the way in which the award came to be passed, which incapacitated the plaintiff to perform and such award cannot be passed, which is against Section 14 of the Specific Relief Act.
12. Per contra, learned counsel for the defendant would argue that the award passed by learned Arbitrator is based upon the contention raised by the parties, oral and documentary evidence and detailed written arguments were also submitted and on the basis of that, by taking appropriate decision, the learned Arbitrator allowed the 15 Com.A.P 84/2021 claim and rejected the counter claim and therefore, if, the plaintiff is not able to get the necessary infrastructure from the end-user Delkor for which the claimant was not responsible. The claimant is always ready to affect repair and it has conducted a joint meeting and inspection and everything was found well and on account of poor maintenance of the booth, it developed certain problems, for which, the manufacturer is not responsible. Further, though, the products were to be supplied to end-user Delkor, the plaintiff herein has issued a separate purchase order, which form a new contract in the place of earlier contract, and therefore, the plaintiff cannot contend that it is the end-user Delkor is responsible to pay the amount and not the plaintiff. Further, as soon as the contract is taken over by the plaintiff by issuing a purchase order, dated 20.11.2017 in purchase order No. 3750000275 and the work was finished as desired by the plaintiff herein and supplied to the end-user and therefore, in view of substitution of the contract, it is the responsibility of the 16 Com.A.P 84/2021 plaintiff to pay the amount or to facilitate necessary infrastructure for effecting repairs. Further, the same has not been done and the courier is sent on 17.8.2021, to the address shown that it was delivered at Nelagedaranahalli, Bengaluru, which does not belong to claimant/defendant and whose industry is situated at Karihobanahalli Main Road, and therefore, according to learned counsel for the defendant, the plaintiff has not taken any steps to comply the conditions of the award and therefore, the plaintiff is liable to pay the amount. Further, as per para No.3, it is very clear that the Tennova India Private Limited is a third party and there is no contract between the defendant and Tennova, which was subsequently taken over by the plaintiff as per the latest purchase order and therefore, the contention of the plaintiff that there is no privity of contract, etc., cannot be considered. Further, as per the provisions of MSMED Act, in order to challenge the award, the plaintiff must deposit 75% of the award amount and therefore, on its failure to pay the said amount, the 17 Com.A.P 84/2021 present challenge under 34 is not maintainable. In the said regard, he took the attention of the Court under provisions of Section 13 of the MSMED Act and to substantiate further, he would cite the decision in the case of M/s Crompton Greaves Ltd., Vs. M/s Annapurna Electronics & Others, dated 20th August 2013, in Writ Petition No. 12465/2010 (GM-ERS), wherein, at para No.6, his lordship has held that:
6. "At the outset, from the decision in the case of Snehadeep Structures Private Limited -vs-
Maharashtra Small Scale Industries Development Corporation (2010(3) SCC 34) and in the case of Goodyear India Limited -vs- Norton Intech Rubbers Private Limited and Another (2012(6) SCC 345) as also the final order dated 21.03.2013 passed by the Hon'ble Supreme Court in the same case relied on by the learned counsel for the first respondent, it is clear that the legal position enunciated is that the application for setting aside the decree, award or order as provided under Section 34 of the A & C Act is in terms of the Petition/Suit under Section 19 of MSMED Act. In such event, the pre-deposit of 75% of the award amount is a mandatory requirement and the Court has no discretion to reduce or waive the amount. To that extent of the legal position, there appears to be no dispute raised by the petitioner, but the contention is that the award dated 14.07.2008 passed by the KIFC is without jurisdiction and contrary to procedure and is therefore nullity. In that 18 Com.A.P 84/2021 regard, it is contended that when the award is nullity, the pre-deposit need not be made".
13. The second decision is in the case of Indian Oil Corporation Limited Vs. FEPL Engineering (P) Limited and another , dated 30th July 2020 in OMP (Comm) No. 144/2019 by the Hon'ble Delhi High Court, wherein, his lordship has held at para No. 39 and 56 that:
39. "It is an admitted position of the petitioner/non-applicant as well as a settled position of law that the party challenging an Award passed in terms of the MSME Act, is mandated to make a pre-deposit for the Court to entertain a challenge against an arbitral award."
It is further decided that:
56. "In the light of above discussion, this Court is of the view that the prayers made by the applicant/respondent are liable to be granted and accordingly, the following directions are issued:
(i). the petitioner/non-applicant shall deposit with Registrar General of this Court 75% of the interest awarded by the Arbitral Tribunal computed till the date of deposit of the principal amount in this Court within three weeks;"
14. So, with the help of the above decision, he would argue that since, the Arbitrator came to be appointed as 19 Com.A.P 84/2021 per the order of the Facilitation Council, under the MSMED Act, the plaintiff ought to have deposited 75% of the amount in order to get the stay of the operation of the award. Non-deposit of 75% of would go against the plaintiff seeking any relief under Section 34 of the Act.
15. Now, regarding, the grounds for setting aside the award. Infact, except the stating facts, no grounds are made out, how the award is against the public policy of India, against the terms of the contract or that, it is patently illegal. Though, it is contended that the conditions imposed in the award incapacitated the plaintiff to perform is not a ground, which is not available under Section 34.
16. The grounds provided under Section 34(2)(a)(i) available only prior to the award and not the post award incapacity. What is the meaning of incapacity as per Section 34 has been held in the decision in the case of Delhi Jal Board Vs. Reliable Diesel Engineering (P) Ltd., and another, dated 14th December 2005 reported in 2005 20 Com.A.P 84/2021 (3) ARBLR 602 Delhi, wherein, at para No.10 it is held by his lordship that:
10. "As regards the ground of "incapacity" under Section 34, the learned counsel for the petitioner was unable to explain what he meant by it. The ground 'K' taken in the petition reads as under:-
"K. Because the "incapacity" of the petitioner is writ large and that admits justification to invoke the provisions of Section 34 of the Act in question praying for setting aside the ex-parte award."
Apart from taking the aforesaid ground, there is no factual basis to assert "incapacity" of the petitioner other than trying to bring in the very same grounds urged under Section 34 which, in any event, are without any basis. Moreover, the 'incapacity' referred to in Section 34, it appears to me, relates to issues such as mental incapacity, minority and such like circumstances. Entanglement in bureaucratic red-tape cannot, by any stretch of imagination, constitute 'incapacity', at least in the context of Section 34. Both the grounds taken by the learned counsel for the petitioner fail. This petition stands dismissed. No order as to costs."
17. Therefore, in view of the above decision, according to learned counsel for the defendant, contention that the 21 Com.A.P 84/2021 condition of the award incapacitated the plaintiff to perform it for non-cooperation of the end-user cannot be considered unless, the same is sought to be rectified by way of an application before Arbitrator under Section 33 of the Act. Having failed to file such an application seeking clarification, plaintiff cannot contend that it has been incapacitated to perform the obligation under conditions mentioned in the award and therefore, award is un- executable.
18. With this background, let me go through the award passed by learned Arbitrator. The learned Arbitrator, after framing necessary issues regarding the right of the claimant to claim an amount of Rs.21,03,312/- and the quality of the material supplied and also on the basis of the counter claim, has clearly held that there is a defect in the blasting machine supplied by the defendant/claimant, but, the same is ordered to be rectified within 30 days from the date of supply of certified copy. As far as issue No.1 is concerned, learned Arbitrator has 22 Com.A.P 84/2021 categorically held at para No.20 that the total amount spent for construction of painting booth was Rs.69,62,000/- and purchase order is also produced at Ex.R1, which was issued by the plaintiff herein for Rs.69,62,000/- and work was carried on by the defendant and handed over the same to the end-user. Learned Arbitrator has referred to the cross-examination of PW1 at question No.18 regarding receipt of Rs.49,70,000/- by the plaintiff company and there is a categorical admission about acknowledgment of Rs.49,70,000/- by the claimant/ defendant and therefore, learned Arbitrator was of the view that the balance amount as could be seen from the invoice and purchase order is only Rs.19,92,000/- and he refers to the terms of the purchase order regarding payment of advance amount and second and 3rd installment, etc. Though, it is contended by the plaintiff herein that the defendant is not entitled to balance amount as the blasting booth was not successful in its operation on account of poor quality, etc. However, learned Arbitrator refers to a 23 Com.A.P 84/2021 joint meeting held by the claimant, respondent and also end-user M/s Tenovo India Private Limited and they have reduced the same in the minutes of the meeting, which discloses that both the booths are functioning normally and they found satisfied with functioning of the booth and in para No.25, the minutes of the meeting recorded by them has been stated as "1. It was agreed by all the parties, for proper functioning of the Booths, it needs periodical maintenance.
2. The maintenance process is as follows:
a) Water Seepage into the Booths to be arrested 100%.
b) Dust collection Bags has to be cleaned once in 15 days.
c) The moving parts in the Bucket elevator system viz., Belt adjuster, Gears, Shaft, and chain etc., to be greased fortnightly.
d) Excess Grits collected in the Bucket elevator pit to be removed before starting the blasting job on daily basis.
e) Air line should be free of moisture and should be checked on daily basis.
f) Blasted grits to be cleaned by filtering twice a week using 500 micron mesh.
g) Work area, electrical panel areas, should cleaned/mopped on daily basis.
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Com.A.P 84/2021
h) Filters to be replaced once in six months depending on the usage.
1. It was observed all 4 suction motor in blasting booth functioning properly and dust collected was removed within 10 min after the blasting process with all the suction motors kept on.
2. Ladder provision to be made to claim the booths for maintenance procedures.
3. All temporary structures above and in sides the booth needs to be removed and permanent shelter has to be provided".
19. Since, it was the minutes of the end-user M/s Tenovo India Private Limited, learned Arbitrator after referring to the complaint given by M/s Tenovo India Private Limited and by going through the result of joint meeting and also the minutes of the meeting, has come to the conclusion that the blasting booth was workable, except some mistakes. Thereafter, learned Arbitrator refers the cross-examination of PW1, at question No. 5, 19, 20 and 21 and by referring to those questions, learned Arbitrator has come to conclusion that since, there was financial crunch to the claimant, delay has been occurred and moreover, there is a letter written to M/s Tenovo India 25 Com.A.P 84/2021 Private Limited to give the same to plaintiff herein, which goes to show that claimant was under financial crunch. Therefore, learned Arbitrator has not accepted the delay and accordingly, there is a direction to set right the mistake in the blasting booth by inserting certain conditions, thereby directing the plaintiff herein to provide necessary infrastructure for repair of the booth. So, I do not find any mistake in the present award for the reason that what best the arbitrator can do, has been ordered by way of putting conditions and whether those conditions can be performed or not is a question that cannot be decided now. The plaintiff had made an attempt to allow the end-user M/s Tenovo India Private Limited to provide an opportunity to set right the mistake, but, they did not co-operate, for which, claimant is not responsible. Ofcourse, it is contended that the said condition incapacitated it to get the blasting booth repaired and that will not absolve the liability of the plaintiff to pay the amount. The question of 26 Com.A.P 84/2021 plaintiff suffering loss on account withholding of the amount due to him is not a ground to reject the claim.
19. As far as counter claim is concerned, it is categorically stated in the objection statement that M/s Tenovo India Private Limited has withhold the amount belonging to plaintiff to the tune of Rs.24,70,400/- and there is no due from the defendant herein. If anything is due from M/s Tenovo India Private Limited for which, the plaintiff has got separate remedy, which has been stated by learned Arbitrator in the impugned award.
20. Since, the scope of Arbitration was very limited, based upon the conditions of the purchase order, I think, learned Arbitrator has understood the reference made to him and given findings, which according to me, is appropriate in the given circumstances. Though, it is contended by the plaintiff that initially purchase order was issued to the defendant by M/s Tenovo India Private Limited, directly, is of no significance in view of 27 Com.A.P 84/2021 subsequent issue of purchase order by the plaintiff to the defendant, which is nothing, but, a separate contract, for which, he cannot haul upon the third party, as it is not a party before the Court. Since, M/s Tenovo India Private Limited was not a party before the Arbitrator, counter claim came to be rejected and therefor, there cannot be any second view by this Court.
21. Now, coming to the argument of incapacity to perform the conditions as per the award, as I have already stated the incapacity as found in Section 34(2)(a)(i) of the Act, which relates to mental incapacity or certain other legal disability and not because of the conditions mentioned in the award. Though, there is nothing stated in the claim petition, they cannot be termed as grounds for challenging the award as grounds under Section 34 of the Act, are limited. The plaintiff has failed to show that the award is against the public policy of India or patently illegal or against the terms of contract. Certainly, Section 34(2)(a)
(i) is not applicable in the present case. In a situation like 28 Com.A.P 84/2021 this, whether the award can be set aside has been stated in catena of decisions and one of the decisions is in the case of Fiza Developers and Inter Trade Private Limited Vs. AMCI (India) Private Limited and another, reported in (2009) 17 SCC 796, wherein, it is categorically held by their lordships that the award can be set aside, if, the grounds are made out under Section 34(2)(a) or (b) of the Act. So, I am of the firm view that though, the condition which was imposed by learned Arbitrator incapacitated the plaintiff to some extent to get the painting booth repaired, still the plaintiff is liable to make good to the defendant. Unless and until under which pretext so called letter was issued by the Delkor India, is ascertained, this Court, at this stage, cannot simply rely upon the same and create ground to set aside the award. So, there are no merits in the application. Hence, I answer point Nos.1 and 2 in the Negative.
22. Point No.3: For the above said reasons, I proceed to pass the following.
29
Com.A.P 84/2021 ORDER The petition filed by the plaintiff under Section 34 of the Arbitration & Conciliation Act, 1996, is hereby dismissed. No costs.
(Dictated to the Stenographer, typed by him, corrected and then pronounced by me in open Court on this the 31st day of March, 2022).
(CHANDRASHEKHAR U), LXXXVII Addl.City Civil & Sessions Judge, (Exclusive dedicated commercial Court) Bengaluru.
sk 30 Com.A.P 84/2021