Bangalore District Court
The Petitioner Averred Of Coming To Know ... vs Was Wholly Irrelevant Document In As ... on 13 December, 2021
1
Com.A.S.No.42/2018
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 13TH DAY OF DECEMBER 2021.
PRESENT:
SRI.DEVARAJA BHAT.M., B.COM, LL.B.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.A.S.No.42/2018
BETWEEN:
Sri. P. Purandhara
Reddy, S/o. P.
Chinnathambi Reddy,
aged about 70 years,
residing at No. 57/52,
Ground Floor, Comfort
Enclave, 7th Main, 17th
Cross, BTM Layout 2nd
Stage, Bengaluru - 560
076.
: Petitioner
(Represented by M/s
Lex-Nexus-Advocates)
AND
The Commissioner,
Bruhath Bangalore
Mahanagara Palike,
Bengaluru -560 002,
: Respondent
2
Com.A.S.No.42/2018
(Respondent is
represented by Sri.
Ramu Srikantaiah -
Advocate)
Date of Institution of the suit 24.02.2018
Nature of the suit (suit on
pronote, suit for declaration & Petition for setting aside
Possession, Suit for injunction Arbitral Award
etc.)
Date of commencement of
recording of evidence Nil
Date on which judgment was
pronounced 13.12.2021
Date of First Case - Not held -
Management Hearing
Time taken for disposal from 11 days
the date of conclusion of
arguments
Total Duration Year/s Month/s Day/s
03 09 19
(DEVARAJA BHAT.M),
LXXXII Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a Petition filed under Section 34 of the Arbitration & Conciliation Act, 1996 for setting aside the Arbitral Award dated 07.03.2017 passed in A.C.No.10/2016 by the learned Sole Arbitrator.
3Com.A.S.No.42/2018
2. The Petitioner "Sri. P. Purandhara Reddy" had invoked the Arbitration Agreement and preferred certain Claims against "The Commissioner, Bruhath Bengaluru Mahanagara Palike" the Respondent.
3. The Brief facts leading to the case are as follows:-
The Petitioner had participated in the tender invited for collection and transportation of the solid waste as also the street sweeping in Package No. 20 and upon acceptance of the bid, the work order has been issued to the claimant to pay a sum of Rs. 37,36,350/- as monthly charges, that the Claimant was expected to deploy 570 Pourakarmikas, 13 Tippers, 39 Auto rickshaws with 550 carts with bell, that there were other requirements provided under the tender conditions and the contract regarding the compliance with the labour laws including the ESI and the PF contributions payable, that as per Clause 3.2 of the contract the Municipal Solid waste was to be disposed of only at the designated locations, that for this process a committee had been set-up by the Respondent to ensure the compliance with the terms and conditions of the contract by the contractor/Claimant, that Clause 6.3 provided that Rs. 10/- had to be paid as compensation for every extra kilometer travelled beyond 50 kms (25 Kms one side), that in the event designed location was changed, resulting in 4 Com.A.S.No.42/2018 traversing of longer distance, bills were to be submitted within 7th of every month and the payments had to be released within 30 days after deducting taxes, that the contract period commencing from 15.03.2007, and the contract was for a period of 3 years and since no fresh tenders where invited as per the existing terms and conditions with which the contractors were working, they were requested to continue the work temporarily from time to time, that taking into consideration that there was an increase in the fuel prices, spare parts of the vehicle and the quantum of sweeping in the streets, including the collection of garbage having been cleared on daily basis, the monthly fees agreed to be paid was revised based on the recommendations made by the internal committee of the corporation from time to time, that though the Respondent had to indicate the designated locations or land fill sites or dumping sites, they had not indicated any such dumping sides in turn had insisted that it is for the Petitioner to find a dumping site and that the Respondent would bear additional charges, that the Petitioner with consultation of the concerned officials of the Respondent and also the consent of the villagers was obtained as a result of which there were certain sites identified which were in excess of 20-30 kms as against the permitted 50 kms within which distance, the designated dumping sire had to be identified, that Terafirma landfill which had otherwise been 5 Com.A.S.No.42/2018 designated was found to be phased with lot of local problems, that since no lorrys were permitted the said field has stood frustrated, that though there were no provision under the original contract or subsequent work orders was issued for installation of the GPS, GPS system were installed but had not worked properly, that there was no conditional precedent that the installation of GPS and the GPS record should be submitted for the purpose of claiming bills but nonetheless the Respondent has deducted in the monthly bills of amounts and whimsical grounds without therebeing any basis, the deductions which were made for the amounts which was legally recoverable by the Petitioner was refused to be paid, that there were resolutions to pay escalation charges and circulars had been issued, but amount which were paid with the requisite escalations had not been extended to the Petitioner, that in view of written instructions of the Chief Engineer of Respondent dated 28.01.2013, the garbage was being weighed in the weigh bridge by paying weighment charges, that under the said circumstance excess amount which was required to be paid to the drivers and cleaners as Bata charges had also escalated, that there was a requirement of compliance with the Labour Laws, Minimum Wages Act, the Petitioner had to pay huge amounts as variable dearness allowance, that even this amount which had to be reimbursed by the Respondent had not been 6 Com.A.S.No.42/2018 reimbursed and there were also default at times in payment of the statutory dues including PF and ESI contributions on account of the non-payment or short-payment of the bills raised on account of illegal deductions, that there was no specific Clause for resolution of the dispute through arbitration, that since the contractors had approached the Hon'ble High Court seeking appointment of arbitrator to resolve such dispute, and after notice, Respondent have not objected to the appointment of arbitrator in C.M.P. No. 14/2016 and other connected matters, that the Claimant/Petitioner had made detailed claim, claiming total sum of Rs.11,07,60,368/- and after a detailed enquiry the Learned arbitrator has passed the Impugned Award.
4. Being aggrieved by the said Arbitral Award, the Petitioner has challenged the same on various grounds which will be discussed later in the body of the Judgment.
5. The Respondent has filed his objections statement on main merits, on 22.12.2020 and prayed to dismiss the said application.
6. The Petitioner has filed an I.A. No.I, under Section 5 of the Limitation Act, to condone the delay of 239 days. On 26.07.2018, then the Presiding Officer has passed an Order that Notice to be issued to the Respondent both on main petition 7 Com.A.S.No.42/2018 and I.A. No.I. After appearance of the Respondent the matter is transferred to Commercial Court and the Respondent, though filed his objections, has not raised any objection regarding limitation in filing this Petition. Thereafter the matter was referred to the Mediation Center and Report is received from the Mediation Center, stating that the matter is not settled. Thereafter, I have heard the arguments of both Advocates along with other similar 20 Petitions. Both Advocates have argued on the main matter only. Further, the Hon'ble High Court in W.P. No. 17691/2021 (GM-RES) has ordered this Court to consider the prayer of the Petitioner by granting reasonable accommodation in view of the stakes involved and the bulkiness of the files, as per the Order dated 29.09.2021. Hence, there is an indication to decide the matter on merits. Therefore the aspect of limitation is considered along with main matter.
7. Based on the above contentions of both parties, following Points arise for my consideration:-
1. Whether there are grounds to set aside the Impugned Award under Section 34 of the Arbitration & Conciliation Act?
2. What Order?8
Com.A.S.No.42/2018
8. My findings on the above points are as follows:-
Point No.1:- In the Negative Point No.2:- As per the final Order for the following reasons.
REASONS
9. Point No. 1: - In this case, the Claimant/Petitioner has claimed for the relief of declaration that the Respondent had breached the agreement dated 15.03.2007 and for recovery of Rs. 11,07,60,368/- from the Respondent with interest at 21% per annum and for damages on various heads.
10. The Learned Arbitrator has partly allowed the said claims of the Claimant in the Impugned Award. The Petitioner has challenged the said Impugned Award in this proceeding.
11. Before proceeding to consider the grounds urged in the Main Petition, the aspect of limitation in filing this petition is to be now considered.
12. As mentioned above, the Petitioner has filed I.A. No.I for condonation of delay of 239 days in filing this Petition. In the Accompanying Affidavit to I.A. No.I, the Petitioner has contended that he is not acquainted with the Rules and Regulations of law to file the appeal, that he could not able 9 Com.A.S.No.42/2018 contact his Advocate for filing this Petition in time, that after getting information from the Claimants who are also involved in the similar matter and thereafter has filed this Petition. However, at Para No. 7 of the Petition, the Petitioner has contended that the Arbitrator has not sent any copy of Award to him.
13. The learned Advocate for the Petitioner has drawn my attention to Rule 32 (5) of Arbitration and Conciliation Centre Rules, 2012, wherein it is clearly mentioned that after Arbitral Award is made, a signed copy shall be delivered to each party, by the Directorate and that no such signed copy is delivered to the Petitioner in the present Case. He has also relied on a decision reported in (2012) 9 SCC 496 (Benarsi Krishna Committee & Others vs. Karmyogi Shelters Private Limited), in support of his arguments about the limitation in filing the present Petition. The Hon'ble Supreme Court in the decision reported in (2011) 4 - S.C.C.- 616 ( State of Maharashtra & Others vs. ARK Builders Private Limited) as well as in the above-mentioned decision reported in (2012) 9 SCC 496 (Benarsi Krishna Committee & Others vs. Karmyogi Shelters Private Limited), has held that limitation period for setting aside an arbitral award is to be reckoned from the date the copy of the award duly signed by arbitrator is delivered to/received by the objector and not otherwise.
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14. The records of the Arbitral proceedings are bereft of any cogent material of delivery of signed copy of award upon the Petitioner. The Petitioner averred of coming to know of impugned arbitral award only when the Respondent is trying to finalise the bill in accordance with said award.
15. Further, the Hon'ble Supreme Court in the decision reported in 2021 - S.C.C. Online - S.C. - 157 (Dakshin Haryana Bijli Vitran Nigam Limited vs. M/s Navigant Technologies Private Limited), has held that the date on which the signed award is provided to the parties is a crucial date in arbitration proceedings under the Act. It is from this date that: "(a) the period of '30 days' commences for filing an application under Section 33 for correction and interpretation of the award, or for additional award; (b) the arbitral proceedings would terminate as provided by Section 32(1) of the Act; (c) the period of limitation for filing objections to the award under Section 34 commences."
16. The record of Arbitral proceedings contained no documents depicting service of signed copy of arbitral award upon the Petitioner. In absence of any proof of service of signed copy of impugned arbitral award upon Petitioner, in view of law laid in the above-mentioned decision reported in 2021 - S.C.C. 11 Com.A.S.No.42/2018 Online - S.C. - 157 (Dakshin Haryana Bijli Vitran Nigam Limited vs. M/s Navigant Technologies Private Limited), it cannot be said that present Petition, has been so filed beyond the period of limitation.
17. The Hon'ble High Court in the Judgment dated 17.04.2021 in Com.A.P.No.25/2021 (Union of India vs. M/s Warsaw Engineers) has laid down certain guidelines/principles about the writing of Judgments in a Petition filed under Section 34 of the Arbitration & Conciliation Act. Keeping in my mind the said guidelines, I now propose to examine each and every ground urged by the Petitioner specifically with reference to the submissions made by both Advocates.
18. The learned Advocate for the Petitioner has advanced a common argument on all connected cases by referring to the various documents produced and marked in Com.A.S. No. 180/2017. While arguing the said matters he has drawn my attention to the following documents of the Arbitral Records maintained in Com.A.S. No. 180/2017. For better understanding I arranged the same in chronological order, which are as follows:-
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19. On 09.01.2004, the Ex.P.4/Office Order was issued by the Respondent to consider the request of the contractors to pay Rs. 10 per km for the transport beyond 20 kms. The contractors including the present Petitioner filed W.P. No. 19637/2003 (LB-RES) before the Hon'ble High Court of Karnataka and on 15.09.2005, the Hon'ble High Court of Karnataka has passed Ex.P.5/ Order directing the Respondent to consider the representation of the contractors. On 15.03.2007, Ex.P.6/ Agreement was entered into for collection and transportation of Municipal Solid Waste and Street Sweeping. On the same day, Ex.P.7/ Work Order was issued. On the same day, another work order as per Ex.P.9 was issued. On 22.03.2007, the contractors made Ex.P.18/ Representation. On 27.03.2007, the Deputy Commissioner (Health) issued Ex.P.17/ Letter recommending his opinion to identify the dumping yard even if the same is beyond 20 kms and within 25 kms. On 09.05.2007, an Inter Office Note as per Ex.P.20 was issued for land fill and disposal sites. On 11.05.2007, Ex.P.16/ Letter was issued for identifying the sites for disposal of solid waste. On 13.06.2007, Ex.P.8/ Work Order was issued. On 25.07.2008, Ex.P.23/ Complaint was lodged before the Police for obstruction to the drivers of the lorries by the villagers. On the same day, Ex.P.26/ Representation was made to give protection to the Vehicles. On 22.09.2008, Ex.P.37 & 38/ Inter Office Orders were 13 Com.A.S.No.42/2018 issued about non-installation of GPS to the lorries. On 25.09.2008, the contractors made a representation to the Government for non-providing disposal sites as per Ex.P.19 (a). In pursuance of the said representation the Government issued Ex.P.19/ Letter on 17.10.2008 to take immediate steps and report about the same. On 03.01.2009, Ex.P.44/ Office Order was issued permitting the contractors to use of compactors and tippers instead of lorries. On 12.03.2009, Ex.P.34/ Representation was made by the contactors for giving police protection to their vehicles. On 25.03.2009, Ex.P.30/ Letter was issued by the Respondent requesting the police to give the said police protection to the vehicles. On 07.05.2009, Ex.P.32/ Letter was issued for supply of Municipal Solid Waste. On 11.05.2009, Ex.P.29/ Letter was issued for giving Police protection to the vehicles. On 18.05.2009, Ex.P.28/ Letter was issued by the contractor for providing alternative dumping sites. On 07.07.2011, Ex.P.54/ Representation was made by the contractors to the Respondent. Thereafter, on 31.07.2012, Ex.P.14/ Resolution was passed by the Respondent to pay the service providers the enhanced amount of 20% more than the present rate. Thereafter, on 31.12.2012, revised work orders as per Ex.P.10 & 11 were issued. On 27.09.2013, Ex.P.13/ Representation was made. On 01.02.2013, Ex.P.42/ Internal 14 Com.A.S.No.42/2018 Office Order was issued. On 21.08.2013, Ex.P.43/ Internal Office Order was issued.
20. By considering the said documents, I now propose to examine the various grounds urged by the Petitioner.
21. The First ground is that the Claimant/Petitioner had raised invoices/bills by indicating the total mileage covered by each one of the vehicles on a daily basis and these invoices were raised every month for the years 2006-07 and these invoices had been cleared in as much as there was a monitoring committee which verified the purpose of the Claimant's in accordance with the terms of the contract and the subsequent work orders issued, that it is the physical garbage which matters and it is the specific case of the Claimant/Petitioner that the physical garbage which is Municipal Solid Waste was transported beyond 50 kms and the additional mileage gathered was charged at Rs. 10 per km in the contract, that there was no dispute with regard to the fact that there were no other terms which was connected other than what was existing for the period 2007-10, that even the work orders issued in the initial stages clearly indicated that pending finalization of the tender, work orders were being issued as per the original contract terms and conditions, that the question is as to from where the Municipal Solid Waste was lifted and where 15 Com.A.S.No.42/2018 it was dumped, that in order to establish these facts, the PW.1 examined himself and PW.2 being an employee was also examined to indicate that it was in respect of certain villages where there was a mutual understanding between the Petitioner, Respondent and the villages that the dumping of the municipal solid waste was facilitated, that if this contention had to be denied, the best course open to the BBMP was to state where else it was dumped because it was handling the dump in mammoth quantities as the generation in respect of Package 20 on a monthly basis, that it is not the case of the BBMP that Municipal Solid Waste has not been lifted or shifted or transported but the dispute is being raised to the place where Petitioner claims the same has been dumped, that the physical verification has already been carried out by the BBMP is specific case of the Petitioner and this fact has not been disputed, that it is not the case of the BBMP that the solid waste has been dumped at any other place within 50 kms, that in an adversarial system, more particularly before arbitrator, the material brought before the court has to be assessed to find out as to which version is more probable and acceptable, that if the Petitioner has specifically shown in the invoices raised that from Point A to Point B, distance is in excess of 50 kms and has clearly indicated the place where garbage is dumped, the best course open to BBMP was to go physically and report to the 16 Com.A.S.No.42/2018 arbitrator which then deliberately did not do and on the contrary, they did not take a contention it is not that it was not dumped at Point B and at some other point which was within a distance of 50 kms was not their contention, that whether the GPS system was maintained or not could not have been looked into as no document was produced by the Respondent to indicate that they had mandated adopting of GPS into each one of the vehicles for the purpose of claiming leading charges, that on the contrary, as per Clause 6.3 of the contract, there was a Monitoring Committee to be constituted to ensure the compliance with the terms and conditions of the contract which included the verification of the transportation of the garbage from 5A to 5B, that even otherwise, during the issuance of the work orders, the practice had been that the Medical Health Officer would physically verified dumping sites and there afterwards, the bills had been cleared at earlier instances, that when this was the situation and the circumstances which prevailed if any other system had to be adopted, there should have been either a contract but on the contrary, either by means of issuing a circular, guidelines or communications or by means of any other modes of communicating locking this system of inspection or verification. The only document produced by the Respondent was the map of village where the garbage was supposed to be dumped, one letter and circular, 17 Com.A.S.No.42/2018 that the report of the BMTF which was relied upon by the Respondent was wholly irrelevant document in as much as this report of the BMTF which resulted in initiation of certain proceedings was quashed by the Hon'ble High Court and the writ petition which was filed, that when the Respondent did not take a specific defence that it was not at Point B, some other point where there was a dumping of the Municipal Solid Waste per month and these charges being claimed from 2007 and onwards up to 2012, the bills raised itself clearly indicated that it was almost metric tonnes of garbage which had been disposed of during such period, that the physical verification mechanism which was required to be undertaken by the BBMP having not been undertaken would not be a ground to refuse the lead charges as claimed, that the fact that there was a requirement of payment of lead charges if it exposed 50 kms was not in dispute as per clause 3.2 of the contract which was deemed to have been extended into subsequent work orders, in that view of the matter, the very fact of the arbitrator to place the entire burden on the claimant, without adverting itself to the nature of the defence raised and the duties which was otherwise to be discharged by the Respondent is against the very concept of appreciation of evidence as contemplated as per general laws of evidence and therefore, it is against the public policy.
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21. a In fact, this ground is in the nature and tenor of appeal. The position in law is well settled that this court while exercising power under Section 34 of the Arbitration & Conciliation Act does not sit as a court of appeal. The nature of proceedings under Section 34 of the Act is summary in nature as held in the decision reported in (2019) - S.C.C. Online - S.C. - 1244 = (2019) 9 - S.C.C. - 462 (Canara Nidhi Limited vs. M. Shashikala).
21. b. It is to be noted that the Clause No. 3.2 referred to in this ground, relates to the obligations of the Service Provider/ Contractor/ the Petitioner herein. The Clause No. 6.3 referred to in this ground, is that in case the designated locations are changed resulting in a longer distance to be traveled, the Respondent shall pay compensatory payment of Rs. 10 per km for extra kilometer traveled over 50 kms considering the onward and return of 25 kms each, traveled in the trip to the service provider/ contractor/ Petitioner herein which shall be calculated in the manner detailed in the said Clause. From the contentions of the parties and on perusal of the Arbitral records, in the present case, there was a tender, thereafter a Pre-Bid Meeting, thereafter the Bid was accepted, thereafter an Agreement was entered into between the parties on 15.03.2007 and finally a work order was issued. In order to understand all the contentions of parties all these documents have to be read 19 Com.A.S.No.42/2018 in together. On a combined reading of all these documents with the Impugned Award, at the outset, there is no illegality in the finding of the learned Arbitrator in the present Award. The learned Arbitrator has clearly held that the said Pre-Bid Meeting was held in the presence of all the contractors before their bids were accepted, that several queries had been raised by the contractors in the said Pre-Bid Meeting and entire proceedings came to be recorded, that about non-availability of the designated land fill indicated in the tender documents, no querry was raised, that as per the said document the bidder was accepted to inspect the dumping yard before furnishing quotation by referring Column No. 5 Part 6 of the tender document. The grievance of the Petitioner is that the BBMP had granted the lead charges earlier and subsequently deducted the same without any reasons, that in view of obstructions by the villagers they had to transport the same to some other place, which is at a distance of more than the distance aggrieved by the parties and hence as per Clause 6.3 they are entitled for the said lead charges.
21. c. The learned Arbitrator after making elaborate discussion of the evidence and materials produced before the Tribunal has held that the Claimant/Petitioner is not entitled for any benefit under the head of lead charges. Section 34 of the Arbitration & Conciliation Act, 1996 does not empower the 20 Com.A.S.No.42/2018 Courts to re- appreciate and re-evaluate the evidence produced before the Arbitral Tribunal and thereafter to judge if the findings of the Arbitral Tribunal are correct or wrong. The Superior Courts have repeatedly held that it is not permissible to a Court to examine the correctness of the findings of the arbitrator, as if it were sitting in appeal over his findings. The findings of fact by the Arbitral Tribunal, if based on evidence, even where a different opinion can be held on the basis of that evidence, the findings given by the Arbitrator has to be accepted and the Courts cannot substitute its opinion. The power to interpret the contract also lies with the Arbitrator. If the Arbitrator interpreted the terms of contract in a particular way based on the material before him and the evidence adduced before him, even if another view is possible to be taken on the same materials and evidence, the Court cannot interfere the said findings of the learned Arbitrator, as held by the Hon'ble Supreme Court in the decision reported in 2009(6)
- S.C.C. - 414 (G.Ramachandra Reddy & Company vs. Union of India & another), wherein it is held that the interpretation of a contract will fall within the realm of arbitrator, that the Court while dealing with an award would not re-appreciate the evidence, that an award containing reasons may not be interfered unless they are found to be perverse or based on a wrong proposition of law. In another decision 21 Com.A.S.No.42/2018 reported in 2009 (10) - S.C.C. - 63 (Steel Authority of India Limited vs. Gupta Brothers Steel Tubes Limited), it is held that once the arbitrator has constructed Clause 7.2 of the contract of the said case, in a particular manner and such construction is not absurd and appears to be plausible, it is not open to the Count to interfere with the award of the arbitrator.
21. d. For the same principle, I wish to refer another decision reported in 2019 (7) - S.C.C. - 236 (Parsa Kenta Collieries Limited vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited). Once the courts reach to the conclusion that the Arbitrator has acted within its jurisdiction, even if the courts are of the view that the opinion of the arbitrator is wrong the same cannot be disturbed unless it is against the public policy.
21. e. Therefore, an award warrants interference by the Court under Section 34 of the Arbitration and Conciliation Act only when it contravenes a substantive provision of law or is patently illegal or shocks the conscious of the Court and that a plausible/reasonable view taken by an Arbitrator, even if the same is based on insufficient evidence, is not to be substituted by the Court. Hence, this ground is not available for the Petitioner under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act. Thus, the 22 Com.A.S.No.42/2018 challenge flanked by the Petitioner calling for the setting aside of Arbitral Award on this count is thwarted and rejected.
22. The Second ground is that the Learned Arbitrator goes on tangent and since the claimant had admitted maintenance of log books and that the same had not been produced, adverse inference has to be drawn under Section 114 (g) of the Indian Evidence Act, that there is a rule of best evidence which requires that if any evidence is not brought on record, the custody of which is admitted and having is irrelevant, it is permissible to draw adverse inference but the condition precedent is that such person could firstly be called upon to produce that evidence and unless there is notice issued to the other party calling upon to produce evidence, it is not permissible to draw adverse inference, that adverse inference comes into play where there is mandate to prove the contract or else evidence to produce certain materials, that when the Petitioner specifically stated that the invoices are reflective of the correct status of affairs as to the transportation of the solid waste from Point A to Point B for which invoices are raised, to assume that a document which will be maintained by the Petitioner will be maintained differently is very absurd and it is not possible, that these are whimsical grounds of adverse inference as there are many occasions for the purpose of 23 Com.A.S.No.42/2018 drawing adverse inference was absent and has been the basis on which the Petitioner had directed the transportation of garbage from point A to point B result in either deduction of refusal to pay lead charges if absurd, that is demonstrated it is not in the claim of Evidence Act that there will be as assessment made by the Arbitrator but the Arbitrator should be governed by General Principles of Evidence, the concept of evidence such as adverse inference is something which cannot be imported stricto senso by the arbitration proceedings, Section 28 of the Arbitration and Conciliation Act, 1996 provides that the Code of Civil Procedure and Evidence Act is not applicable to the arbitration proceedings, that the Hon'ble Supreme Court has held in the case of ONGC vs. Saw Pipes that the general law of evidence is applicable and non-adherence to certain general law of evidence which has got the tendency of denying equal opportunity of contradicting the facts leading the principles of natural justice not being complied alone, has to be followed and that results in violation of public policy but the strict rule of evidence such as adverse inference cannot be made applicable to the arbitration proceedings, this is the basis on which the entire claim appears to have rejected and therefore, it is against the public policy.
22.a The learned Arbitrator has observed that the Claimant had deposed that his supervisors used to accompany the 24 Com.A.S.No.42/2018 drivers and loaders every day and sometimes even few BBMP officials used to accompany his drivers, that he had maintained log book of each truck on a day to day basis without fail and such log books would contain the details of places of works, that such log books which had been maintained by him or material documents have not been produced and hence an adverse inference has to be drawn under Section 114 (g) of the Evidence Act holding that either the contractor had not maintained such log books or even if such log books had been maintained, they are purposefully withheld since they would be unfavourable to him. The learned Advocate for the Petitioner has vehemently argued by drawing my attention to various Clauses and terms of agreement, wherein there is a scope for inspection and setting up of monitoring committee and a Medical Health Officer or his nominee should accompany the lorries and that without considering the said terms of the contract, the learned Arbitrator has rejected the claim of the Petitioner based on the adverse inference as stated above and that the Arbitrator being the creature of the contract, cannot go beyond the terms of the contract and hence his said findings are contrary to Section 28 (3) of the Arbitration and Conciliation Act.
22. b. The learned Advocate for the Petitioner has drawn my attention to the portion of the award wherein the learned 25 Com.A.S.No.42/2018 Arbitrator that while discussing about escalation charges, has held that if really escalation charges had been claimed by the Claimant/ Petitioner in the monthly bills submitted and if the same had been granted to the Claimant/ Petitioner by the Respondent, the monthly bills so passed would indicate the same, that the Respondent is the custodian of all the monthly bills submitted by the Claimant/ Petitioner and if really the claim made by the Claimant/ Petitioner is false or duplicity in nature, nothing would have come in the way of the Respondent to produce the bills so submitted by the Claimant/ Petitioner and by relying the said portion the learned Advocate for the Petitioner has argued that the Respondent has also guilty of non-production of the said bills and hence without taking any adverse inference against the Respondent, the learned Arbitrator has not given equal treatment to both parties and that he has used different yard sticks to evaluate the materials and contentions in respect of both parties. I cannot accept the said arguments, because in view of non-production of said bills, the learned Arbitrator has held that the Respondent is liable to pay the escalation charges to the Claimant/ Petitioner. In the same way for rejection of claim of the Claimant/ Petitioner about the lead charges he had drawn the adverse inference for non-production of log books. According to me he has used the same yard stick for both parties.
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22. c. Further, the learned Advocate for the Petitioner has relied on a decision reported in 2019 (19) - S.C.C. - 9 (Adani Power (Mundra) Limited vs. Gujarat Electricity Regulatory Commission and Others) and has argued that at Para No. 21 of the said decision the Hon'ble Supreme Court has held about how a Commercial Contract is to be determined and that since the learned Arbitrator has not determined in accordance with said decision and he has drawn adverse inference for non-production of log books, which is contrary to the terms of the contract. I have gone through the said decision. The said decision relates to an order passed by the Appellate Tribunal for Electricity and Order passed by the Gujarat Electricity Regulatory Commission. There is no discussion about the award passed by any Arbitrator appointed under the provisions of the Arbitration and Conciliation Act. When such being the case, as discussed by me above, if the Arbitrator has interpreted the contract in a particular manner, even if another view is possible, this court cannot interfere with said finding. Further, as held in 2014 (1) - S.C.C. - 113 (Delta Distilleries Limited vs. United Spirits Limited and Another), the Hon'ble Supreme Court at Para No. 23 has held that the Arbitral Tribunal has a power to draw an adverse inference, if necessary documents are not produced. Similar view is taken by the Hon'ble High Court of Delhi in 2014 -
27Com.A.S.No.42/2018 S.C.C. Online - DEL - 3407 (Silor Associates SA vs. Bharath Heavy Electrical Limited). Therefore, the said finding of the learned Arbitrator cannot be considered as perverse or illegal. Moreover, this ground is in the nature and tenor of appeal. The position in law is well settled that this court while exercising power under Section 34 of the Arbitration & Conciliation Act does not sit as a court of appeal. The nature of proceedings under Section 34 of the Act is summary in nature as held in the decision reported in (2019) - S.C.C. Online - S.C. - 1244 = (2019) 9 - S.C.C. - 462 (Canara Nidhi Limited vs. M. Shashikala). Hence, this ground is not available for the Petitioner under Sub-Section (2) and Sub- Section (2-A) of Section 34 of the Arbitration & Conciliation Act. Thus, the challenge flanked by the Petitioner calling for the setting aside of Arbitral Award on this count is thwarted and rejected.
23. The Third ground is that so far as the claim of the Petitioner about the escalation is concerned, it was demonstrated by production of the circulars/ letters which clearly indicated that there was a direction issued from time to time for escalation of certain charges which could be charged by the contractors who are handling solid waste, that these are in the nature of policy decisions and these are the fees of the 28 Com.A.S.No.42/2018 rates which has agreed to be paid by the authority, that it is not the case of the BBMP that these circulars were agreed upon but these were the specific decision taken in order to ensure that raising 2% collection and disposal of the solid waste management and growing expenditures undertaken by the contractors is balanced in a way that this work does not get distorted in any manner due to these constraints, that on account of increase in the fuel price, spare parts of the vehicles, quantum of seeing having increased, the monthly fee by the usual increase or there was escalation granted on adhoc arrangement basis, that none of these contentions were considered in the context of evidence of the evidence adduced by the PW1 and 2 and the documents produced thereof, that the evidence of the Respondent was that he was a Medical Health Officer and it was not within the scope of the jurisdiction to make any verification and that he was not aware as to whether any verifications were carried out by predecessors-in- interest, that no documents were produced to counter the claim for escalation as per the circulars issued, that in the absence of any materials to the contrary, it was virtually because of no evidence on the part of the Respondent to deny the escalation charges, that therefore the refusal to an extent of escalation charges is absolutely illegal and the non-consideration is 29 Com.A.S.No.42/2018 without reference to any materials available on record and as such, the same is against the public policy.
23. a It is to be noted that the learned Arbitrator has allowed the Claim for granting escalation charges. He has not rejected or refused the escalation charges as contended by the Petitioner in this ground. This ground is highly misconceived. The learned Arbitrator has referred to Clause No. 32 of the tender document and also referred to the resolutions passed by the BBMP on four occasions and by taking into consideration of non-production of monthly bills by the Respondent, the learned Arbitrator has granted the escalation charges. Therefore, without considering the said aspect, the Petitioner has challenged the award on the said ground also, which is highly misconceived. Hence, this ground is not available for the Petitioner under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act. Thus, the challenge flanked by the Petitioner calling for the setting aside of Arbitral Award on this court is thwarted and rejected.
24. The Fourth ground urged is that the there was three other heads under which the claims were made, that firstly the variable dearness allowance with the statutory contributions to the ESI and PF, along with penal interest, secondly the weighment charges and thirdly the paid charges to cleaners 30 Com.A.S.No.42/2018 and drivers who are working on the Mandoor site shift, that these claims as though had been considered, has been rejected stating that since weigh bridge bills was not furnished, it was not sufficient for the fees to be paid, that it was not in dispute that there were directions given for weighment and though there was a denial and there was no specific cross-examination on this point, that since the weighment charges were itself made as part and parcel of the invoices raised from time to time and at the relevant point of time, there was no existence on the weighment bills or exhibits for refusal of payments, at a stage when the dispute is pending which was not permissible for the BBMP to desist the payment of weighment charges on the ground that the bills are not produced, that the grounds on which they have refused to pay the bills alone can be the ground which can be entertained by the Arbitrator, that since this was not the ground on which BBMP had initially refused to pay weighment bills, such defense ought not to have been entertained by the arbitrator and this goes against the general principles of pleadings and evidence and as such contrary to the public policy.
24.a It is to be noted that the learned Arbitrator after thoroughly examining the contract document, that too Schedule 7 mentioned at Para No. 29 of the Pre-bid document has held 31 Com.A.S.No.42/2018 that the Claimant is not entitled for said claims and rejected the same. He has also observed about the subsequent Office Order issued by Respondent on 04.01.2017 in regard to the payment of difference in wages as per statutory notification and has held that the said office order and notification cannot be made retrospectively applicable. He has further held that when Respondent could consider the issues of paying escalation charges at 5% even for the extended period during which adhoc arrangement was made, nothing came in the way of the contractors to have persuaded the Respondent council to consider their claim for payment of VDA also, that if the Respondent wants to pay the enhanced wages even for the period earlier to 04.08.2016, it is for the Respondent to take an appropriate decision and this award would not come in its way. When such being the case, the Claimant/Petitioner has not at all aggrieved by the said finding of the learned Arbitrator. Hence this ground is highly misconceived. Moreover, this ground is in the nature and tenor of appeal. The position in law is well settled that this court while exercising power under Section 34 of the Arbitration & Conciliation Act does not sit as a court of appeal. The nature of proceedings under Section 34 of the Act is summary in nature as held in the decision reported in (2019) - S.C.C. Online - S.C. - 1244 = (2019) 9 - S.C.C. - 462 (Canara Nidhi Limited vs. M. Shashikala). Hence, this 32 Com.A.S.No.42/2018 ground is not available for the Petitioner under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act. Thus, the challenge flanked by the Petitioner calling for the setting aside of Arbitral Award on this court is thwarted and rejected.
25. The Fifth ground urged is that so far as the Bata charges are concerned, reliance was placed on the Order passed by the Joint Commissioner of Health and solid waste management, BBMP bearing No. SWM/PR/F/361/156 and this Bata charges was claimed from the period 01.10.2012 to 30.09.2013, that it was not in dispute that as per Ex.P.36 dated 30.06.2015, there was a specific reference for payment of Bata charges of Rs.200/- and it was specifically stated that this was an understanding with which the lorries were being plied during the night which was eventually given effect to by Ex.P.35, that the Arbitrator has held that it should not be given effect to retrospectively when the Respondent itself did not take the stand, that they had denied that they were liable to pay any Bata charges, that the said finding is contrary to the materials produced and the records and appreciation of these facts is contrary to the basic principles of consideration and as such, the learned arbitrator has committed illegality in passing the impugned award while rejecting the claims.
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25.a As could be seen from the award, the learned Arbitrator has held that the best witnesses to prove the aspect of transportation of garbage to dumping yard during night time would have been the drivers and the cleaners and non- examination said materials witnesses is an adverse circumstance to Claimant/Petitioner and hence rejected the said claim. Further, the learned Arbitrator has discussed that there is only oral assurance to that effect as per the contentions of the Petitioner, but the same was denied by RW.1 and there is no document to prove the said contentions of the Petitioner. The said finding of the learned Arbitrator based on the oral and documentary evidence placed before the Tribunal. This Court cannot make re-appreciation of the said evidence in a proceeding under Section 34 of the Arbitration and Conciliation Act. Moreover, this ground is in the nature and tenor of appeal. The position in law is well settled that this court while exercising power under Section 34 of the Arbitration & Conciliation Act does not sit as a court of appeal. The nature of proceedings under Section 34 of the Act is summary in nature as held in the decision reported in (2019) - S.C.C. Online - S.C. - 1244 = (2019) 9 - S.C.C. - 462 (Canara Nidhi Limited vs. M. Shashikala). Hence, this ground is not available for the Petitioner under Sub-Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act. Thus, the 34 Com.A.S.No.42/2018 challenge flanked by the Petitioner calling for the setting aside of Arbitral Award on this court.
26. The Sixth ground urged is that though the arbitrator has come to the conclusion that from out of the total amount claimed, a sum of Rs. 2,44,64,345/- including Rs. 55,85,760/- as interest has to be paid from 17.03.2015 till the date of the award, has not given cogent reasons for rejection of the remaining part of the claim and the consideration of the matter by the arbitrator is in a very cavalier fashion and there has been a callous approach to the facts and circumstances of the case, that without appreciating the materials which was placed, the reading of the entire award will indicate that there is no specific reference to each one of the exhibits produced by the Petitioner and the Respondent and its relevance to the nature of the issue and it is merely general observations are made without reference to any specific documents and the evidence which itself indicates that there is a denial of the principles of natural justice in as much as the non-assigning of cogent reasons with reference to the materials on record itself deface an order as violating the principles of natural justice, that such Order would not disclose the approach and obligation to the materials and the person who would have benefit or aggrieved by the Order will never have the benefit of the order is passed, with 35 Com.A.S.No.42/2018 reference to the materials placed nor will Appellate Court have effect to, that under the circumstances, the reasons as to why the arbitrator reached to such conclusion notwithstanding the overwhelming documents and materials placed by the claimant, that therefore the entire award is more callous observations made without reference to exhibits and the appreciation of evidence adduced, that therefore the entire award as such requires to be set-aside, as there is a total defiance to the principles of natural justice and the public policy.
26. a In fact, the learned Arbitrator has considered the relevant documents marked by the parties and also the portion the oral evidence adduced by the parties while giving finding in the Impugned Award. At the end of the award, he has referred all the documents marked by both parties in the Annexure. For the attack of the Petitioner on this ground, I wish to refer a decision reported in A.I.R. - 1988 - S.C. - 1340 (Indian Oil Corporation vs. Indian Carbon Ltd) wherein, at Para No.8, it is held as follows:-
"It is one thing to say that reasons should be stated and another thing to state that a detailed judgment is to be given in support of an award. Even if it be held it is obligatory to state the reason, it is not obligatory to give a detailed judgment".36
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26.b. A similar view was also taken by the Hon'ble Supreme Court in the decision reported in A.I.R. - 1989 - S.C.
- 973 (Gujarat Water Supply vs. Unique Erectors), and A.I.R. - 1991 - S.C. - 2089 (Goa, Daman & Diu Housing Board vs. Ramakant V.P, Darvotkar).
26.c. In another decision reported in A.I.R. - 1990 - S.C. - 1426 (Raipur Development Authority etc. vs. M/s. Chokhamal contractors) wherein, the Hon'ble Apex Court at Para No. 37 has held as follows:-
"There is, however, one aspect of non-speaking awards in non-statutory arbitrator to which Government and Governmental authorities are parties that compel attention......, the legitimate criticism that Government failed to provide against possible prejudice to public interest."
26.d. In another decision reported in (2014) 9 - S.C.C. - 212 (Anand Brothers Private Limited vs. Union of India and Others), the Hon'ble Supreme Court has considered and decided the phrase 'finding' at Para No. 12 and defined the phrase "conclusion" at Para No. 13. The Hon'ble Supreme Court has further held about speaking order at Para No. 14, which is as follows:-
"It is trite that a finding can be both; a finding of fact or a finding of law........This is the rule also in the 37 Com.A.S.No.42/2018 case of finding of fact where too the process of reasoning must be disclosed in order that it is accepted as a finding in the sense the expression is used in Clause 70".
26.e. Therefore, in view of the aforesaid Judgments, it has to be examined by perusing of the award wherein the learned Arbitrator dealt with each and every claim separately and recorded the reasoning for allowing or disallowing the claim. Hence, this ground is not available for the Petitioner under Sub- Section (2) and Sub-Section (2-A) of Section 34 of the Arbitration & Conciliation Act. Thus, the challenge flanked by the Petitioner calling for the setting aside of Arbitral Award on this court is thwarted and rejected.
27. The scope of interference is only where the finding of the Tribunal is either contrary to the terms of the contract between the parties, or, ex facie, perverse, that interference, by this court, is absolutely necessary. The Arbitrator is the final arbiter on facts as well as in law, and even errors, factual or legal, which stops short of perversity, does not merit interference under Section 34 of the Arbitration & Conciliation Act, 1996. Courts can no longer reappraise evidence or set aside awards merely because the Arbitral Tribunal has made errors when dealing with the same. In the decision reported in (2017) 13 - SCALE - 91 (SC) (Venture Global Engineering LLC and Ors 38 Com.A.S.No.42/2018 vs. Tech Mahindra Ltd. and Ors), the Hon'ble Supreme court has held as follows:-
"The Award of an Arbitral Tribunal can be set aside only on the grounds specified in Section 34 of the Arbitration & Conciliation Act and on no other ground. The Court cannot act as an Appellate Court to examine the legality of Award, nor it can examine the merits of claim by entering in factual arena like an Appellate Court."
28. A similar view is also taken in the decision reported in (2017) 14 - SCALE - 240 (SC) (Sutlej Construction vs. The Union Territory of Chandigarh).
29. In the decision reported in 2019 (15) - S.C.C. - 131 (Ssangyong Engineering & Construction Co. Ltd. vs. National Highways Authority of India Ltd.), the Hon'ble Supreme Court has once again reiterated the law related to the examination by a Court of an Award under Section 34 of the Arbitration & Conciliation Act, 1996 and has held as under:-
"34. What is clear, therefore, is that the expression public policy of India, whether contained in Section 34 or in Section 48, would now mean the fundamental policy of Indian law as explained in paragraphs 18 and 27 of Associate Builders (supra), i.e., the fundamental policy of Indian law would be relegated to the "Renusagar" understanding of this expression. This 39 Com.A.S.No.42/2018 would necessarily mean that the Western Geco (supra) expansion has been done away with. In short, Western Geco (supra), as explained in paragraphs 28 and 29 of Associate Builders (supra), would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court's intervention would be on the merits of the award, which cannot be permitted post amendment. However, in so far as principles of natural justice are concerned, as contained in Sections 18 and 34(2) (a) (iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in paragraph 30 of Associate Builders (supra).
35. It is important to notice that the ground for interference in so far as it concerns "interest of India"
has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be understood as a conflict with the "most basic notions of morality or justice". This again would be in line with paragraphs 36 to 39 of Associate Builders (supra), as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground.
36. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paragraphs 18 and 27 of Associate Builders (supra), or secondly, that such award is against basic notions of justice or morality as understood in paragraphs 36 to 39 of Associate Builders (supra). Explanation 2 to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act 40 Com.A.S.No.42/2018 only so that Western Geco (supra), as understood in Associate Builders (supra), and paragraphs 28 and 29 in particular, is now done away with.
37. Insofar as domestic awards made in India are concerned, an additional ground is now available under subsection (2A), added by the Amendment Act, 2015, to Section 34.Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within the fundamental policy of Indian law, namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the back door when it comes to setting aside an award on the ground of patent illegality.
38. Secondly, it is also made clear that re-
appreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award.
39. To elucidate, paragraph 42.1 of Associate Builders (supra), namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Paragraph 42.2 of Associate Builders (supra), however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award.
40. The change made in Section 28(3) by the 41 Com.A.S.No.42/2018 Amendment Act really follows what is stated in paragraphs 42.3 to 45 in Associate Builders (supra), namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair minded or reasonable person would; in short, that the arbitrator's view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2A).
41. What is important to note is that a decision which is perverse, as understood in paragraphs 31 and 32 of Associate Builders (supra), while no longer being aground for challenge under public policy of India, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterized as perverse."
30. In the decision reported in 2019 (16) - SCALE - 823 (Hindustan Construction Company Limited & Anr. vs. Union of India & Ors.), the Hon'ble Apex Court has held as under:-
"49. Further, this Court has repeatedly held that an application under Section 34 of the Arbitration Act, 1996 42 Com.A.S.No.42/2018 is a summary proceeding not in the nature of a regular suit - see Canara Nidhi Ltd. v. M. Shashikala 2019 SCC Online SC 1244 at paragraph 20. As a result, a court reviewing an arbitral award under Section 34 does not sit in appeal over the award, and if the view taken by the arbitrator is possible, no interference is called for - see Associated Construction v. Pawanhans Helicopters Limited. (2008)16 SCC 128 at paragraph 17.
50. Also, as has been held in the recent decision Ssangyong Engineering & Construction Co. Ltd. vs. NHAI 2019 SCC Online SC 677, after the 2015 Amendment Act, this Court cannot interfere with an arbitral award on merits."
31. The Hon'ble Supreme Court in the decision reported in 2020 - SCC Online - S.C. - 466 (Patel Engineering Ltd. vs. North Eastern Power Corporation Ltd) has once again exposited the 'patent illegality' ground, appearing in Section 34 (2A) of the Arbitration and Conciliation Act, 1996. The most significant part of this judgment is the recognition and re- affirmation given to the test of patent illegality, as set out in Paragraph (42.3) of the Associate Builders case and which was reiterated in Paragraph (40) of Ssangyong Engineering case. The aforementioned test of 'patent illegality' lays down that any contravention of Section 28 (3) of the Arbitration & Conciliation Act, 1996 is deemed to be a sub-head of patent illegality. According to it, an Arbitral Tribunal must decide in accordance with the terms of the contract, but if an Arbitrator construes a term of the contract in such a way that it could be said to be 43 Com.A.S.No.42/2018 something that no fair minded or reasonable person could do, the same will render the award 'patently illegal'.
32. By keeping in mind about the said legal aspects, I am of the opinion that the Arbitral Award is not marred by any patent illegality, as there is no contravention of the substantive law of India, which would result in the death knell of an Arbitral Award. It is also observed that there is no patent illegality in the Arbitral Award, which must go to the root of the matter. The Arbitral Award is also a well reasoned and a speaking award. The Arbitral Award is also held to not be in contravention of Section 28(3) of the Arbitration & Conciliation Act, which pertains to the terms of the contract, trade usages applicable to the nature of contract and substance of dispute.
33. On a parting note, I would like to add, that the challenge to the various clauses of contract by the Petitioner under the present petition is not tenable. It is accordingly, held that the Arbitral Award is neither against the fundamental policy of India nor in contravention of law. Therefore, I find no perversity in the Arbitral Award and the same is upheld.
34. Having given my careful consideration to the submissions urged and the complete case record in the preceding 44 Com.A.S.No.42/2018 paragraphs of this judgment, I am of the view that is not a fit and proper case for exercise the jurisdiction of this court under Section 34 of the Arbitration & Conciliation Act and interfere with the Arbitral Award and the same is upheld.
35. Further as per Rule 4 (c) of the High Court of Karnataka Arbitration (Proceedings before the Courts) Rules, 2001 the Arbitrator should be joined as Respondent in this proceedings. Since the Petitioner has not made the learned Arbitrator as a party to the proceedings, this Petition is liable to be dismissed on the said ground also. Therefore, I answer this Point in the 'Negative.'
36. Point No. 2:- Therefore, I proceed to pass the following Order.
ORDER The Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, is dismissed.
The Arbitral Award dated 07.03.2017 is hereby confirmed.
The Petitioner shall pay the cost of this proceeding to the Respondent.
45Com.A.S.No.42/2018 Office is directed to return the Arbitral records to the Arbitration Centre after the Appeal period is over.
The Office is directed to send copy of this judgment to both parties to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
(Dictated to the Stenographer, typed by her directly on the computer, verified and pronounced by me in open Court on this the 13th day of December 2021).
(DEVARAJA BHAT.M), LXXXII Addl. City Civil & Sessions Judge, Bengaluru.
46 Com.A.S.No.42/2018 The Judgment is pronounced in Open Court. The operative portion of the said Judgment is as follows:-
ORDER The Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, is dismissed.
The Arbitral Award dated 07.03.2017 is hereby confirmed.
The Petitioner shall pay the cost of this proceeding to the Respondent.
Office is directed to return the Arbitral records to the Arbitration Centre after the Appeal period is over.
The Office is directed to send copy of this judgment to both parties to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
(vide my separate detailed
Judgment dated 13.12.2021).
(Typed to my dictation)
47
Com.A.S.No.42/2018
LXXXII ACC&SJ, B'LURU.
48
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