Delhi District Court
Union Of India vs M/S Bansal Industries on 12 November, 2021
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
OMP (Comm.) No. 169/2019
Union of India
Through
Director General, CRPF
Provisioning Dte (Procurement Cell),
Block No. 1, CGO Complex,
Lodhi Road, New Delhi-110003 ...Petitioner
versus
M/s Bansal Industries
478/480, 2nd Floor,
Gali Mata Wali, Teliwara,
Azad Market, Delhi-110006 ...Respondent
Date of Institution : 18/09/2019
Arguments concluded on : 06/10/2021
Decided on : 12/11/2021
Appearances : Sh. Ashish Sharma, Ld. Counsel for petitioner.
Sh. B.S Mathur, Ld. Counsel for respondent.
JUDGMENT
1. Petitioner had filed the present objection petition under Section 34 of The Arbitration and Conciliation Act, 1996 (herein after referred as The Act), impugning the arbitral award dated 29/05/2019 passed by Sh. S.R. Mishra, Additional Secretary, Department of Legal Affairs, Ministry of Law and Justice, Government of India, Ld. Sole Arbitrator in Arb. Case No. AS(SRM)(Arb.1)/2017 titled M/s Bansal Industries vs Union of India. Ld. Sole Arbitrator awarded Rs. 44,84,277/- as reimbursement of levied Liquidated Damages (in short LD), with interest @ 6% per annum from 19/10/2011 till realization and if OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 1 of 31 the award amount is not paid by petitioner within two months from the date of receipt of award then the interest shall be @ 8% per annum in place of 6% per annum.
2. I have heard Sh. Ashish Sharma, Ld. Counsel for petitioner; Sh. B.S Mathur, Ld. Counsel for respondent and perused the record of the case including the reply filed by respondent, the arbitral proceedings record, relied upon precedents, filed brief written arguments on behalf of petitioner as well as on behalf of respondent and given my thoughtful consideration to the rival contentions put forth.
3. Shorn of unnecessary details, brief facts of case of parties are as follows:-
Parties entered into a contract through Tender No. U.II.733/2007-08-Proc-III(11) dated 04/12/2008 for supply of 2,08,571 Nos. of Haversacks Synthetic in New CRPF Disruptive Pattern placed on the claimant/respondent. As per clause 9 of supply order AT No. U.II.733/2007-08-Proc-III(11) dated 04/12/2008, delivery period was fixed by petitioner within six months period i.e., up to 17/07/2009 and on approval of advance sample of claimant/respondent was re-fixed up to 23/11/2009 vide letter dated 17/04/2009 of petitioner. Delivery period was re-fixed up to 23/11/2009 but claimant/respondent had asked for extension of delivery period three times and it was extended as per their needs and requirements with RR and denial clause (LD charges). Due to shortage of raw material, inspection delays and power problem, entire supplies could not be completed within the re-fixed delivery period and claimant/respondent requested for OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 2 of 31 extending delivery period. Claimant/respondent requested for extending delivery period by 90 days vide letter dated 11/12/2009 but petitioner vide amendment letter dated 25/01/2010 extended delivery period only up to 21/02/2010. Vide letter dated 17/02/2010, claimant/respondent protested against the action of petitioner extending delivery period by 28 days stating that it was not possible for them to complete supplies and requested further extension. Petitioner vide amendment letters dated 09/03/2010 and 28/06/2010 extended the delivery period to 22/05/2010 and 17/08/2010 respectively reserving their right to recover liquidated damages from the supplier claimant/ respondent. Claimant/ respondent delivered the last consignment on 28/04/2011 and vide letter dated 20/05/2011 requested petitioner for regularization of delivery period to claim their pending payment. Petitioner regularized the delivery period on 19/10/2011 imposing Rs.44,84,277/- as liquidated damages and recovered the same from pending bills of claimant/respondent. It is the case of petitioner that Liquidated Damages imposed is in consonance with the rules governing the contracts and in accordance with Clause 18 of Tender Enquiry which states that, "In case the firm does not complete the supply within delivery period, liquidated damages will be charged @ 2% of the total cost of items as per para 15.7 of DGS&D Manual and 14.7(i) of DGS&D-68 Revised and if required, action will be taken against the firm to blacklist it and also for forfeiture of its security deposit". Petitioner claimed that LD Clause was accepted by the bidder/claimant/respondent in its offer and reiterated that the offer was sacrosanct. Petitioner also averred that contract was governed by DGS&D-229, DGS&D Manual with up to date OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 3 of 31 addendum and conditions contained in Form DGS&D-68 (Revised) including Clause 24 thereof (Clause 7 of Schedule of Acceptance of Tender), which very clearly stipulates imposition of RR and denial clause (LD charges). It is the averment of petitioner that the subject stores i.e., Haversack Synthetic was to be used by forces personnel of petitioner as kit item. Petitioner is the leading fighting force in maintaining internal security and executing anti-naxal operations. Believing upon the assurance given by claimant/respondent, petitioner had placed its supply order as petitioner was in urgent need of the subject item and time was the essence. Promised supplies were not completed within delivery period as well as within extended delivery periods which were so extended under compulsion by the petitioner. Due to non supply of contracted quantity within stipulated period and caused delay, petitioner had to incur loss which cannot be collated and quantified. To conclude the said contract the Government had to gear up the Government machinery. In the process senior officers and bureaucrats had finalized the contract after rounds of meetings spread across many weeks. Government had invested lot of time and resources to conclude the said contract. Due to non supply of the subject stores within time, it affected petitioner in the operational efficiency and morale of the troops. The Liquidated Damages, as aforesaid, were agreed between the parties to which claimant/ respondent had no objection ever. The calculation of LD charges was Rs. 53,43,750/- but only Rs.44,84,277/- i.e., within the ceiling limit of 10% of contract value was imposed on the respondent as per provisions contained in para 14.7(i) of DGS&D-68 (revised) which were recovered by PAO CRPF from OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 4 of 31 the balance payment of respondent/claimant. Respondent/ claimant sent legal notice dated 26/06/2014 after two years and nine months of the recovery of the LD amount and asked for appointing the Arbitrator. In these circumstances, the matter was placed before Arbitrator for adjudication. The arbitral proceedings culminated in the impugned arbitral award. Petitioner has impugned the arbitral award mainly on the following grounds. Ld. Sole Arbitrator made favour to the claimant/respondent, which reflects on the face of award. Finding of Ld. Sole Arbitrator is absolutely malafide, biased, illegal and against the principle of natural justice. Arbitral award dealt with a matter which is beyond the scope of the contract as agreed between the parties. Ld. Sole Arbitrator failed to appreciate the nature of the contract. Ld. Sole Arbitrator failed to appreciate that petitioner was in urgent need of subject items and time was the essence. On the request of respondent/claimant, respondent was granted extensions subject to Liquidated Damages charges. Aforesaid clauses were applicable as per the terms and conditions of the contract and DGS&D Manual. Respondent/claimant never opposed/objected to the aforesaid Liquidated Damages during the relevant time, before or during or after the contract. Respondent/ claimant was at the most eligible to raise objection on miscalculation/clerical mistake of LD (if any) but respondent/ claimant illegally and contradictory chose to challenge levy of LD which he earlier admitted. Respondent/claimant firm participated in the contract to which they were not capable and competent. Respondent/claimant misguided and falsely assured petitioner vide letter dated 19/09/2008 that they were able to execute order and meet the requirement of the department within OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 5 of 31 six months period. Ld. Sole Arbitrator wrongly and illegally held that petitioner was not entitled to levy the liquidated damages as penalty while in view of facts and circumstances, terms and conditions of contract, it is clear that it was the pre-estimated loss. Section 74 of The Contract Act was applicable in the facts and circumstances of the case. Ld. Sole Arbitrator failed to appreciate the admissions of respondent/ claimant. Ld. Sole Arbitrator passed the award against the contract agreed between the parties.
Ld. Counsel for petitioner relied upon the cases of (1) Schneider Electric India Pvt. Ltd. vs Rentworks India Pvt. Ltd. & Ors., decided on 17/10/2019 by Delhi High Court in CS (OS) 598/2018 and (2) Saptarshi Construction vs Smt Majusree Singh & Ors., C.O No. 179 of 2021 decided on 02/02/2021 by Calcutta High Court and argued that present case was filed on 18/09/2019 as per old procedure/format without Statement of Truth and without signing each page of petition and after coming to know the application 02/02/2021 to take on record Statement of Truth with signed petition was filed and it is not the case of non est filing, no prejudice will be caused to respondent, in the interest of justice parties have to be heard on merits, defect does not go to the root of the case, defects in filing are curable, verification of pleadings is procedural aspect. It is fact of the matter that on 22/03/2021 Ld. Counsel for petitioner withdrew the application dated 02/02/2021 filed on 05/02/2021 for taking Statement of Truth and signed petition on record by giving separate statement to that effect and accordingly aforesaid application dated 02/02/2021 for taking Statement of Truth and OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 6 of 31 signed petition on record was dismissed as withdrawn on 22/03/2021. Ld. Counsel for petitioner also relied upon the cases of (1) Ministry of Defence, Government of India vs Cenrex SP. Z.O.O & Ors., decided on 08/12/2015 by Delhi High Court in O.M.P. No. 408/2007; (2) M/s Tamilnadu Telecommunications Ltd. vs Bharat Sanchar Nigam Ltd., decided on 11/11/2016 by Delhi High Court in O.M.P. (Comm.) No. 430/2016 and (3) Shin Satellite Public Co. Ltd. vs M/s Jain Studios Ltd., decided on 31/01/2006 by Supreme Court in Arbitration Petition 1 of 2005 and argued that Court cannot rewrite agreement or create a new agreement; money cannot compensate the actual loss since money is not the substitute and ultimate solution of the actual loss, whereas in that situation money is only option which is given as mode of the compensation to the sufferer and liquidated damages clause is the example of the same. Ld. Counsel for petitioner though mentioned other precedents in his filed written arguments but later on 06/10/2021 in the filed Index with the copy of the relied upon precedents gave in writing that he is not relying on other precedents mentioned in the written arguments except what precedents he had filed and what are herein before mentioned in detail. Ld. Counsel for petitioner prayed for setting aside the impugned award. Ld. Counsel for petitioner also prayed for condonation of 21 days delay in filing the present objection petition for which a separate application under Section 34(3) of the Act read with Section 5 of Limitation Act was filed. Petitioner through Counsel mentioned in said application that impugned award was passed on 29/05/2019; 90 days period for filing the petition expired on 27/08/2019. As per petitioner through Counsel aforesaid delay of 21 days occurred as there is a OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 7 of 31 procedure in the department which needs to be followed. After receipt of award dated 29/05/2019 by Directorate of CRPF, it was examined and proposal to challenge the award was processed for opinion/views of law branch. After clarifications and legal opinions, it was decided by the department that the objection petition needs to be filed in the matter and therefore the file was required to be sent to the Ministry of Law and Justice through Ministry of Home Affairs and therefore the same was sent to the MHA and proposal was received back after approval. Then Ministry of Law sent the case file to Litigation Cell for appointment of Counsel and Counsel was appointed and intimated on 03/09/2019. Ld. Counsel took the matter on most urgent basis, immediately started drafting and preparing the appeal and same was filed in this Court and 21 days delay occurred. It was prayed for condonation of aforesaid 21 days delay period.
4. Respondent through Counsel in filed reply and arguments averred and argued as follows. Present petition is not maintainable for non filing of Statement of Truth. Petition is barred by limitation, whereas application for condonation of delay is bereft of fact of petitioner being prevented by sufficient cause from making the application within the statutory period of 3 months from the date of receipt of copy of the award. The reasons for the delay mentioned being procedure to be followed in the department i.e., movement of file from one desk to another do not constitute sufficient cause. Ld. Counsel for respondent relied upon the cases of (1) Bharat Sanchar Nigam Ltd. vs M/s Vindhya Telelinks Pvt Ltd., decided by High Court of Delhi on OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 8 of 31 02/12/2019 in O.M.P (Comm) 503/2019; (2) Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr., MANU/SC/0132/2012; (3) The State of Madhya Pradesh & Ors. vs. Bherulal, decided on 15/10/2020 by Supreme Court in SLP (C) Diary No. 9217 of 2020. Ld. Counsel for respondent argued that petition does not satisfy any of the condition laid down under Section 34(2) of the Act. The award was given by Ld. Arbitrator who was sitting Additional Secretary in Ministry of Law, whereas the award is detailed and well reasoned one. Petition does not satisfy any of the conditions laid down under Section 34(2) of the Act to merit consideration. Ld. Counsel for respondent also relied upon the cases of (1) Swan Gold Mining Ltd. vs Hindustan Copper Ltd., MANU/SC/0849/2014; (2) Navodaya Mass Entertainment Ltd. vs J.M. Combines, MANU/SC/0735/2014; (3) P.R Shah Shares and Stock Brokers (P) Ltd. vs B.H.H. Securities (P) Ltd & Ors., MANU/ SC/1248/2011 and (4) MCD vs Harcharan Dass Gupta Construction Pvt. Ltd., MANU/DE/4010/2018. Ld. Counsel for respondent argued that fact of the matter reflects that there was no urgency on the part of petitioner since demand in the subject item was raised on 10/01/2007 and petitioner consumed one full year for placement of contract, whereas in the subject contract petitioner levied LD of Rs. 44,84,277/- for delay in supplies citing urgency of requirement. It was argued that petitioner is trying to gain sympathy by bald averments mentioning that forces suffered due to delay in supplies, whereas item of the contract was stock and and supply item where advance provisioning was done for similar items. In extension letters of contract it was mentioned that purchaser has the right to recover OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 9 of 31 from the contractor...liquidated damages. Ld. Counsel for respondent argued that it was thus clear that it was not genuine pre-estimate of damages but was only an enabling clause, whereas purchaser did not have unbridled right to recover LD without proving the losses. Petitioner did not lead any evidence to show that they suffered any losses due to alleged delay in supplies. Ld. Sole Arbitrator had discussed in detail with supporting case laws while summarizing in para 4 of the impugned award. Ld. Counsel for respondent also relied upon the cases of (1) Vishal Engineers & Builders vs Indian Oil Corporation Ltd., decided by High Court on 30/11/2011 in FAO (OS) 204 of 2010; (2) Mahanagar Telephone Nigam Ltd. vs Finolex Cables Limited, MANU/ DE/2818/2017; (3) Kailash Nath Associates vs Delhi Development Authority, MANU/SC/0019/2015. Ld. Counsel for respondent argued that the time ceases to be essence of the contract once the delivery period is extended, whereas in the present matter the delivery period was extended as under:-
(a) 23.11.2009 (original)
(b) Extended up to 21.02.2010 on 25.01.2010
(c) Extended up to 22.05.2010 on 09.03.2010
(d) Extended up to 17.08.2010 on 28.06.2010 Ld. Counsel for respondent also argued that it is not disputed that various consignments were accepted by the consignees after expiry of relevant delivery period. It was also argued by Ld. Counsel for respondent that the crucial date for levying liquidated damages is the date of acceptance of the stores. Section 55 of The Indian Contract Act 1872 lays down OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 10 of 31 that if the promisee accepts performance of such promise at any time other than agreed, the promisee cannot claim compensation for any loss occasioned by non performance unless at the time of such acceptance he gives notice to the promiser of his intention to do so. It was argued by Ld. Counsel for respondent that even para 14.18.5.1 of DGS&D Manual clearly laid down that "in cases where the stores are inspected and dispatched after the expiry of delivery period it will be possible to claim liquidated damages provided an extension letter granting extension in delivery period is issued by the purchase officer before consignee actually accepts the stores dispatched". Ld. Counsel for respondent argued that petitioner thus had no legal right to levy LD on lots accepted after expiry of delivery period, whereas petitioner had levied LD on entire quantity supplied after original delivery period. Ld. Counsel for respondent prayed for dismissal of the petition with costs.
5. An arbitral award can be set aside on the grounds set out in Section 34 (2) (a), Section 34 (2) (b) and Section 34 (2A) of the Act in view of Section 5 of the Act and if an application for setting aside such award is made by party not later than 3 months from the date from which the party making such application had received the signed copy of the arbitral award or if a request had been made under Section 33 of the Act, from the date on which that request had been disposed of by the Arbitral Tribunal. If the Court is satisfied that the applicant was prevented by sufficient cause from the making the application within the said period of three months it may entertain the application within further period of 30 days, but not thereafter.
OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 11 of 316. Supreme Court in case of Union of India vs. Popular Constructions, (2001) 8 SCC 470 and in case of Consolidated Engineering Enterprises vs. Irrigation Department, (2008) 7 SCC 169 has held that section 5 of the Limitation Act is not applicable to section 34 (3) of the Arbitration and Conciliation Act, 1996 in view of express inclusion within the meaning of section 29(2) of the Limitation Act, 1963. It is held that court cannot condone delay beyond a period of 30 days and that also only if sufficient cause is shown as to how the applicant was prevented from making application within the period of three months and not thereafter.
7. Supreme Court in the case of Simplex Infrastructure Ltd. vs Union of India, (2019) 2 SCC 455 has held that Section 5 of the Limitation Act, 1963 has no application to an application challenging an arbitral award under Section 34 of the Arbitration Act.
8. Supreme Court in the case of P. Radha Bai & Ors. Vs. P. Ashok Kumar & Anr., (2019) 13 SCC 445 has held that once the respondents received the award, the time under Section 34(3) commenced and any subsequent disability was immaterial. Even if the appellant had committed some fraud, it would not affect the right of the respondents to challenge the award if the facts entitling the filing of a Section 34 application were within their knowledge.
9. Supreme Court in the case of Assam Urban Water Supply and Sewerage Board vs. Subash Projects and Marketing OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 12 of 31 Limited, (2012) 2 SCC 624 has held that "prescribed period" of limitation for making an application for setting aside the arbitral award is 3 months and not 3 months and 30 days. The period of 30 days is beyond the period of 3 months. Benefit of Section 4 of the Limitation Act, 1963 will not be available if 30th day expires on a day when the Court is closed. Since the arbitration petition was filed on next working day after expiry of 30 days after 3 months period, the arbitration petition was dismissed as time barred and upheld by Supreme Court.
10. Bombay High Court in the case of Bharat Sanchar Nigam Limited vs. Unity Telecom Infrastructure Ltd., 2019 SCC OnLine Bom 1675 has considered a situation where the signed copy of the award was personally collected by the authorized representative of the party from the arbitral tribunal and thus time taken in obtaining instructions from the higher authority or on opinion from a lawyer would not extend the period of limitation. The Court has no power to condone delay beyond 30 days after expiry of the period of limitation i.e. from the date of service of signed copy of the award by the arbitral tribunal upon the party.
11. Supreme Court in case of Dakshin Haryana Bijli Vitran Nigam Ltd. vs M/s Navigant Technologies Pvt. Ltd, 2021 SCC OnLine SC 157 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 OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 13 of 31 as provided by Section 32(1) of the Act; (c) the period of limitation for filing objections to the award under Section 34 commences."
12. Supreme Court in case of State of Maharashtra & Ors vs ARK Builders Private Ltd., (2011) 4 SCC 616, has held that the period of limitation prescribed under section 34(3) of The Act would start running only from the date when a signed copy of award is delivered to/received by a party making the application for setting aside the award under section 34(1) of The Act. Reliance was placed on the case of Union of India vs Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239, wherein also was so held by Supreme Court.
13. Supreme Court in case of Benarsi Krishna Committee & Ors. vs Karmyogi Shelters Pvt. Ltd, (2012) 9 SCC 496 has held that limitation of three months under section 34(3) of The Act is to be reckoned from date on which party itself received signed copy of the award and not its advocate or agent. Bombay High Court in case of E-square Leisure Pvt. Ltd. vs. K.K. Jani Consultants and Engineering Company, (2013) 2 Bom. C.R. 689, has held that the limitation for making an application under section 34(3) of The Act for setting aside an arbitral award would commence only after a signed copy of the award is received by a party from the arbitral tribunal under section 31(5) of The Act.
14. Petitioner through Counsel attributed 21 days delay in filing the present objection petition, in application under Section 34(3) of the Act read with Section 5 of Limitation Act to the following OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 14 of 31 facts:-
Impugned award was passed on 29/05/2019; 90 days period for filing the petition expired on 27/08/2019. As per petitioner through Counsel aforesaid delay of 21 days occurred as there is a procedure in the department which needs to be followed. After receipt of award dated 29/05/2019 by Directorate of CRPF, it was examined and proposal to challenge the award was processed for opinion/views of law branch. After clarifications and legal opinions, it was decided by the department that the objection petition needs to be filed in the matter and therefore the file was required to be sent to the Ministry of Law and Justice through Ministry of Home Affairs and therefore the same was sent to the MHA and proposal was received back after approval. Then Ministry of Law sent the case file to Litigation Cell for appointment of Counsel and Counsel was appointed and intimated on 03/09/2019. Ld. Counsel took the matter on most urgent basis, immediately started drafting and preparing the appeal and same was filed in this Court and 21 days delay occurred.
15. Supreme Court in the case of State of Uttar Pradesh & Ors. vs Sabha Narain & Ors., SLP (Civil) Diary No (s) 25743/2020 decided on 22/01/2021 reiterated the current legal position with respect to the facet of condonation of delay elucidated by judgments of Supreme Court in the cases (i) Office of the Chief Post Master General & Ors. v Living Media India Ltd. & Anr., (2012) 3 SCC 563; (ii) State of Madhya Pradesh & Ors. v. Bheru Lal. [SLP (C) Diary No. 9217/2020 decided on 15.10.2020] and (iii) State of Odisha & Ors. v. Sunanda Mahakuda, [SLP (C) Diary No. 22605/2020 decided on 11/01/2021] and held that Apex Court had repeatedly discouraged State Governments and public authorities in adopting an approach for ignoring the period of limitation prescribed by the statutes, as if the Limitation statute does not apply to them. Also was held therein that the leeway which was given to the Government/public authorities on account of innate inefficiencies was the result of certain orders of Supreme Court OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 15 of 31 which came at a time when technology had not advanced and thus, greater indulgence was shown, whereas said position is no more prevalent. Supreme Court also categorized such kind of cases as "certificate cases" filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. Supreme Court deprecated such practice and process and held that it was time when concerned officers responsible for the same, bear the consequences. Supreme Court expressed the anguish and held "The irony, emphasized by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens."
16. Delhi High Court in the case of Bharat Sanchar Nigam Ltd. vs M/s Vindhya Telelinks Pvt Ltd. (supra) inter alia held that administrative difficulties would not be a valid reason to condone delay above the statutory period prescribed under Section 34 of the Act and with these observations Delhi High Court refused to condone delay of 26 days beyond three months. Afore elicited reasoning put forth by petitioner to show the delay of 21 days in filing the petition after expiry of three months statutory time period from the date of receipt of copy of the award when examined in the light of pronouncements of Supreme Court aforesaid and Delhi High Court aforesaid, it is borne out that such reasons put forth by petitioner do not come within the ambit of the fact that petitioner was prevented by OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 16 of 31 sufficient cause from making the petition within the said period of three months so as to be entitled to file it within further period of 30 days. Accordingly, per se the delay on the part of petitioner being not within the ambit of sufficient cause aforesaid, is not condonable.
17. Be that as it may, fact remains that since the arguments were addressed in detailed on merits as well on the petition, I proceed further also to examine the petition on its merits.
18. Following are the findings and adjudication of Ld. Sole Arbitrator on the following issue:-
"ISSUE: Whether the claimant is liable to pay liquidated damages for delay, if any?
The law with regard to Liquidated Damages was stated in Maula Bux vs. Union of India 1970 (1) SCR 928 as under:
"...It is true that in every case of breach of contract the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree, and the Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of contract. But the expression "whether or not actual damage or loss is proved to have been caused thereby"
is intended to cover different classes of contracts which come before the Courts. In case of breach of some contracts it may be impossible for the Court to assess compensation arising from breach, while in other cases compensation can be calculated in accordance with established rules. Where the Court is unable to assess the compensation, the sum named by the parties if it be regarded as a genuine pre-estimate may be taken into consideration as the measure of reasonable compensation, but not if the sum named is in the nature of a penalty. Where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by him."
However, in ONGC Ltd., vs. Saw Pipes Ltd., (2003) 5 SCC 705, it was held that:
"68 From the aforesaid discussions, it can be held that:
(1) Terms of the contract are required to be taken into OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 17 of 31 consideration before arriving at the conclusion whether the party claiming damages is entitled to the same. (2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/ compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such (3) compensation and that is what is provided in Section 73 of the Contract Act.
(4) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract.
(5) In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same. (6) If it is genuine pre-estimate by the parties as the measure of reasonable compensation."
The Hon'ble High Court of Delhi in Vishal Engineers & Builders vs. Indian Oil Corporation Limited 2012 (2) R.A.J. 390 (Del) was of the view that:
"22. Now turning to some of the latter judgments of the Supreme Court including the judgment in ONGC Vs. Saw Pipes Ltd. case (supra) relied upon by the learned single Judge. All that was said was that the competent to award a reasonable compensation in case of breach even if no actual damage is proved to have suffered in consequence of the breach of contract as in some contracts it would be impossible for the court to assess compensation arising from the breach. If the compensation contemplated is not by way of penalty or unreasonable the court can award the sum if it is a genuine pre-
estimate of the loss to be suffered by a party as a measurement of reasonable compensation.
23. In our view these observations have to be read in the context of the pronouncement of the Constitution Bench pronouncement in Fatech Chand case (supra). If it is so, all that it implies is that where it is impossible to assess the compensation arising from breach and that factor is coupled with the parties having agreed to a pre-determined compensation amount not by way of penalty or unreasonable compensation then that amount can be awarded as a genuine pre-estimate of the loss suffered by a party. It cannot be read to mean that even if no loss whatsoever is caused to party it OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 18 of 31 can still recover amounts merely by reason of the opposite party being in breach.
26. We have, thus, no hesitation in concluding that if there was absence of any loss whatsoever, an aggrieved party cannot claim that it is still entitled to liquidated damages without, at least, proving a semblance of loss.
37. ...Merely because there is a clause of liquidated damages does not mean that the amount of liquidated damages has to be recovered even when no loss has been caused. The respondent had to establish that loss was caused."
4. The Respondents, in the case at hand, have failed to prove that any damages were suffered by them. Assuming that there was indeed delay in supplies, the Respondents have shown no evidence, no document, no figure to corroborate that they suffered any damages because of the said delay. In this view of the matter, I hold that the Claimant is not liable to pay liquidated damages for delay to the Respondent. I, therefore, hold that the Respondent was not entitled to levy penalty of liquidated damages of Rs.44,84,277/- up on the claimant. The Claimant is, therefore, entitled to get reimbursement of the said amount. I, therefore, decide this issue in favour of the Claimant and against the Respondent."
19. Section 34 (1) (2), (2A) and (3) of The Arbitration and Conciliation Act, 1996 read as under:-
"34. Application for setting aside arbitral award- (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3).
(2) An arbitral award may be set aside by the court only if-
(a) the party making the application furnishes proof that-
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 19 of 31
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation 1 - For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-- (i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.-- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 20 of 31 merely on the ground of an erroneous application of the law or by reappreciation of evidence.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
20. Supreme Court in case of Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49 has held that the interference with an arbitral award is permissible only when the findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the Court is shocked or when illegality is not trivial but goes to the root of the matter. It is held that once it is found that the arbitrator's approach is neither arbitrary nor capricious, no interference is called for on facts. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbitral award. Patent illegality must go to the root of the matter and cannot be of trivial nature.
Also was held therein that:
"33. "...when a court is applying the 'public policy' test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award....
Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts.."
21. Supreme Court in case of Ssangyong Engineering & Construction Co. Ltd. vs. National Highways Authority of India, 2019 SCC OnLine SC 677 has held that under Section 34 (2A) of the Act, a decision which is perverse while no longer OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 21 of 31 being a ground for challenge under "public policy of India", would certainly amount to a patent illegality appearing on the face of the award. A finding based on the 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. It is held that 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.
22. Supreme Court in the case of Patel Engineering Ltd. vs North Eastern Electric Power Corporation Ltd., MANU/SC/ 0447/2020 inter alia held that wherein the findings of Ld. Arbitrator are arrived at by taking into account irrelevant facts and by ignoring the vital clauses, the same suffers from the vice of irrationality and perversity and that the award will be liable to be set aside when while interpreting the terms of the contract, no reasonable person could have arrived at such a conclusion and the award passed by the arbitrator suffers from the vice of irrationality and perversity.
23. In the case of M/s Tamilnadu Telecommunication Ltd vs Bharat Sanchar Nigam Ltd., OMP (Comm.) 430/16, decided on 11/11/2016 by High Court of Delhi in para 17, following pronouncements of the case of ONGC Ltd. Vs Saw Pipes Ltd., (2003) 5 SCC705 were elicited:
64. ....Under Section 73, when a contract has been broken, the party who suffers by such breach is entitled to receive compensation for any loss caused to him which parties knew when they made the contract to be likely to result from the OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 22 of 31 breach of it. This Section is to be read with Section 74, which deals with penalty stipulated in the contract, inter alia (relevant for the present case) provides that when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, the party complaining of breach is entitled, whether or not actual loss is proved to have been caused, thereby to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named. Section 74 emphasizes that in case of breach of contract, the party complaining of the breach is entitled to receive reasonable compensation whether or not actual loss is proved to have been caused by such breach. Therefore, the emphasis is on reasonable compensation. If the compensation named in the contract is by way of penalty, consideration would be different and the party is only entitled to reasonable compensation for the loss suffered. But if the compensation named in the contract for such breach is genuine pre-estimate of loss which the parties knew when they made the contract to be likely to result from the breach of it, there is no question of proving such loss or such party is not required to lead evidence to prove actual loss suffered by him.....
67.....In our view, in such a contract, it would be difficult to prove exact loss or damage which the parties suffer because of the breach thereof. In such a situation, if the parties have pre-
estimated such loss after clear understanding, it would be totally unjustified to arrive at the conclusion that party who has committed breach of the contract is not liable to pay compensation. It would be against the specific provisions of Section 73 and 74 of the Indian Contract Act. There was nothing on record that compensation contemplated by the parties was in any way unreasonable. It has been specifically mentioned that it was an agreed genuine pre-estimate of damages duly agreed by the parties. It was also mentioned that the liquidated damages are not by way of penalty. It was also provided in the contract that such damages are to be recovered by the purchaser from the bills for payment of the cost of material submitted by the contractor. No evidence is led by the claimant to establish that stipulated condition was by way of penalty or the compensation contemplated was, in any way, unreasonable. There was no reason for the tribunal not to rely upon the clear and unambiguous terms of agreement stipulating pre-estimate damages because of delay in supply of goods ......"
24. In the case of Ministry of Defence, Govt. of India vs CENREX SPZ.O.O & Ors., (2015) SCC Online Del. 13944, relying upon the law laid in the case of Oil & Natural Gas OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 23 of 31 Corporation Ltd. Vs Saw Pipes Ltd., (2003) 5 SCC 705 (supra), it was inter alia held that once the nature of contract is such that losses cannot be easily calculated, the amount claimed as liquidated damages can be claimed as per Section 74 of the Indian Contract Act, 1872 without proving and showing how much loss has been caused. The subject matter of the contract therein was supply of parachutes and was of the type where how much loss caused to the petitioner/Ministry of Defence, Government of India for delay for its supplies cannot be calculated because how the Army of this country would have been affected by non delivery of parachutes on time and what would have been the alternative arrangements made due to delay deliveries and expenses accordingly which had to be incurred on account of non availability of parachutes on time, was impossible to calculate.
25. In the case of Swan Gold Mining Ltd. vs Hindustan Copper Ltd., MANU/SC/0849/2014, the law laid in the case of Oil & Natural Gas Corporation Ltd. vs Saw Pipes Ltd., (2003) 5 SCC 705 was discussed and inter alia held that when the parties have entered into concluded contract, agreeing terms and conditions of the said contract, they cannot back out and challenge the award on the ground that the same is against the public policy and the Court was precluded from re-appreciating the evidence and to arrive at different conclusion by holding that the arbitral award is against the public policy.
26. In the case of M/s Arosan Enterprises Ltd vs Union of India & Anr., MANU/SC/0595/1999, it was inter alia held that OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 24 of 31 reappraisal of evidence by the Court is not permissible in the proceeding under the Arbitration Act. In the event of there being no reason in the award, question of interference of the court would not arise at all. In the event, however there are reasons, the interference would still be not available within the jurisdiction of the Court unless of course, there exist a total perversity in the award or the judgment is based on wrong proposition of law. In the event, however, two views are possible on a question of law as well, the Court would not be justified in interfering with the award. Also was held that the Court as matter of fact, cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of arbitrator is a possible view the award or the reasoning contained therein cannot be examined. The decisions in the cases of State of Rajasthan vs Puri Construction Co. Ltd, MANU/SC/0865/1994 and Sudersan Trading Company vs Government of Kerala & Anr., MANU/SC/0361/1989 were relied. Also was held therein that where an Arbitrator makes a mistake either in law or in fact in determining the matters referred, but such mistake does not appear on the face of the award, the award is good notwithstanding the mistake, and will not be remitted or set aside.
27. In the case of MCD vs Harcharan Dass Gupta Construction Pvt Ltd., MANU/DE/4010/2018, the pronouncements in the case of Associated Builders vs Delhi Development Authority, (2015) 3 SCC 49 were relied upon. In aforesaid case of Associated Builders, it was inter alia held that:
"xxxx xxxx xxxx OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 25 of 31
33. It must clearly be understood that when a court is applying the "public policy" test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts. In P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H.Securities (P) Ltd., [(2012) 1 SCC 594: (2012) 1 SCC (Civ) 342: 2011 LAWPACK(SC) 50505:
2011(6) R.A.J. 27], this Court held: (SCC pp. 601-02, para 21) "21. A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or reappreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. The Arbitral Tribunal has examined the facts and held that both the second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye-law 248, in a claim against a non-
member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of the second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.
xxxx xxxx xxxx"
28. In the case of Vishal Engineers & Builders vs Indian Oil Corporation Ltd. (supra), it was inter alia held by Delhi High Court that it was duty of the Court not to enforce penalty clause but only to award a reasonable compensation, which had been held to be statutorily imposed upon Courts by Section 74 of the Contract Act and Court had to adjudge in every case, reasonable compensation for breach of contract having regard to conditions which existed on date of breach.
It was held therein that if there was absence of any loss, OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 26 of 31 whatsoever, an aggrieved party could not claim that it was still entitled to liquidated damages without, at least, proving a semblance of loss.
29. Supreme Court in the case of Kailash Nath Associates vs Delhi Development Authority (supra) had elicited the law on compensation for breach of contract under Section 74 as follows:-
"43. On a conspectus of the above authorities, the law on compensation for breach of contract Under Section 74 can be stated to be as follows:
1. Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation.
2. Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act.
3. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section.
4. The Section applies whether a person is a Plaintiff or a Defendant in a suit.
5. The sum spoken of may already be paid or be payable in future.
6. The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 27 of 31 pre-estimate of damage or loss, can be awarded.
7. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application."
30. Ld. Sole Arbitrator recorded finding of the fact that present petitioner failed to prove that any damages were suffered by them. Ld. Sole Arbitrator also held that assuming that there was indeed delay in supplies, the present petitioner had shown no evidence, no document, no figure to corroborate that they suffered any damages because of the said delay. Accordingly, it is on the record of arbitral proceedings that no loss was suffered by petitioner on account of delayed delivery of goods. It is trite law that liquidated damages are no different from un-liquidated damages. In both cases, the aggrieved party is required to prove injury or damage. The only difference being, where parties agree to liquidated damages, which are a genuine pre-estimate of the damages likely to be caused, the aggrieved party is entitled to recover the same to the extent they are reasonable subject to the maximum amount agreed to between the parties. Where quantification is possible, an aggrieved party is required to quantify the same even where liquidated damages are provided for in the contract between the parties. Reliance placed upon the cases of (1) Kailash Nath Associates vs Delhi Development Authority (supra); (2) Union of India vs Raman Iron Foundry, (1974) 2 SCC 231; (3) Fateh Chand vs Balkishan Dass, AIR 1963 SC 1405; (4) Ministry of Defence, Government of India vs Cenrex SP. Z.O.O & Ors. (supra); (5) ONGC Ltd. vs Saw Pipes Ltd. and (6) Maula Bux vs. Union of India (supra) and (6) Union of India vs M/s V.S. Sethia and Co., OMP 1085/2013, OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 28 of 31 decided on 30/10/2013 by Delhi High Court.
31. I am in agreement with the contention of Ld. Counsel for respondent that the subject contract was with respect to the stock and supply items where advance provisioning was done for similar items. Nothing from the arbitral proceedings record was pointed out that in the reply to Statement of Claim before Ld. Sole Arbitrator, petitioner even averred of having suffered any loss due to stated delay in supplies. It is also the contention of respondent that petitioner consumed one full year for placement of contract and three months for approval of advance samples, which reflected no urgency on their part.
32. It is also the fact of the matter that petition of the petitioner is not so verified by the statement of truth namely the affidavit set out in the Appendix I under First Schedule in terms of Order VI Rule 15A and Order XI Rule 3 read with Section 141 of CPC for commercial dispute of a specified value and for doing the same is the mandate of legislature; whereas there is sub Rule (5) of Order VI Rule 15 A read with Section 141 of CPC for striking out a pleading which is not so verified as above said. Petition is not signed on each and every page by Authorized Representative of petitioner. As above said, on 22/03/2021, Ld. Counsel for petitioner withdrew the application dated 02/02/2021 filed on 05/02/2021 for taking on record Statement of Truth and signed petition on record.
33. Even letter dated 19/10/2011 of petitioner sent to respondent regularizing delivery period of subject AT up to 28/04/2011 with OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 29 of 31 liquidated damage charges of Rs. 44,84,277/- finds no mention of any fact that petitioner had suffered any loss on account of delayed delivery of the stores/goods in question. Relying upon the law laid in the cases of (i) Associate Builders (supra); (ii) Ssangyong Engineering & Constructions Co. Ltd. (supra); (iii) M/s Tamilnadu Telecommunication Ltd (supra); (iv) Ministry of Defence, Govt. of India (supra); (v) Swan Gold Mining Ltd. vs Hindustan Copper Ltd.(supra); (vi) Oil & Natural Gas Corporation Ltd. vs Saw Pipes Ltd., (supra); (vii) M/s Arosan Enterprises Ltd (supra); (viii) MCD vs Harcharan Dass Gupta Construction Pvt Ltd. (supra); (ix) Patel Engineering Ltd. (supra); (x) G. Ramachandra Reddy & Company vs Union of India and Anr., 2009 (6) SCC 414; (xi) Sutlej Construction vs Union Territory of Chandigarh, 2018 1 SCC 718; (xii) M/s National Building Construction Corporation Ltd. vs New Delhi Municipal Council & Anr., (2016) 154 DRJ 42; (xiii) Veda Research Laboratories Ltd vs Survi Projects, 2013 (2) Arb. LR 16 (Delhi); (xiv) MMTC Ltd. vs Vedanta Ltd., (2019) 4 SCC 163 and (xv) Anglo American Metallurgical Coal Pty. Ltd. vs MMTC Ltd., MANU/SC/0953/2020, it can be said that not only the reasonings of the Ld. Sole Arbitrator are logical, but all the material and evidence were taken note of by the Ld. Sole Arbitrator and this Court cannot substitute own evaluation of conclusion of law or fact to come to the conclusion other than that of the Ld. Sole Arbitrator. Cogent grounds, sufficient reasons have been assigned by Ld. Sole Arbitrator in reaching the just conclusion and no error of law or misconduct is apparent on the face of the record. This Court cannot re-appraise the evidence and it is not open to this Court to sit in the appeal over the OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 30 of 31 conclusion/findings of facts arrived at by Ld. Sole Arbitrator, an experienced Additional Secretary, Department of Legal Affairs, Ministry of Law and Justice, Government of India, who has been appointed by petitioner itself and was competent to make assessment while taking into consideration the facet of the matter. Re-appraisal of the matter cannot be done by this Court. No error is apparent in respect of the impugned award. I do not find any contradiction in the observations and findings given by Learned Sole Arbitrator. The impugned award does not suffer from vice of irrationality and perversity. The conclusion of the arbitrator is based on a possible view of the matter, so the Court is not expected to interfere with the award. Even impugned award passed by Learned Sole Arbitrator cannot be set aside on the ground that it was erroneous. The award is not against any public policy nor against the terms of contract of the parties. No ground for interference is made out. None of the grounds raised by the petitioner attract Section 34 of the Act.
34. For the foregoing reasons, the petition is hereby dismissed.
35. The parties are left to bear their own costs.
36. File be consigned to record room.
Digitally signed by GURVINDER PAL GURVINDER SINGH
PAL SINGH Date: 2021.11.12
12:38:12 +0530
ANNOUNCED IN (GURVINDER PAL SINGH)
OPEN COURT District Judge (Commercial Court)-02
th
On 12 November, 2021. Patiala House Court, New Delhi.
(DK) OMP (Comm.) No. 169/2019 Union of India vs. M/s Bansal Industries Page 31 of 31