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[Cites 13, Cited by 0]

Delhi District Court

Direct News Pvt. Ltd vs Associated Corporate Consulting India on 13 September, 2021

     IN THE COURT OF SH. LALIT KUMAR,
 ADDITIONAL DISTRICT JUDGE­04, SOUTH­EAST,
         SAKET COURTS, NEW DELHI




Presiding Officer: Sh. Lalit Kumar, ADJ­04


In the matter of :

ARBTN 21609/16

Direct News Pvt. Ltd.
(formerly known as INX News Pvt. Ltd.)
Though its Company Secretary,
B­116, Ground Floor,
Phase­1, Okhla Industrial Area,
New Delhi - 110020                 ......... Petitioner


     versus


Associated Corporate Consulting India
Pvt. Ltd.
8, Balaji Estate,
Guru Ravidass Marg, Kalkaji,
New Delhi - 110019                ......... Respondent




                                      ORDER

13.09.2021

1. By this order, I shall dispose off the petition under ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.1 of 25 Section 34 of the Arbitration & Conciliation Act, 1996 (Act for short impugned the Award dated 03.06.2016 passed by the Ld. Sole Arbitrator Sh. R. Rajagopalan with the following prayers.

(a) allow the present petition and set aside / quash the impugned award dated 03.06.2016 passed by the Ld. Arbitrator,
(b) direct the respondent to pay costs to the petitioner of the arbitration proceedings as well as for the present litigation,
(c) pass any such other or further (s) as the Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

DECISION OF THE CASE:

Petition / objection dismissed.
BRIEF SUMMARY OF THE CASE:

2. The brief facts relevant for the purpose of deciding this petition are that the petitioner is a company registered under the Companies Act, 1956 by the name of Direct News Pvt. Ltd. The petitioner was formerly known as INX News Pvt. Ltd. The petitioner having its registered office at B­116, Ground Floor, Phase­1, Okhla Industrial Area, New Delhi and the respondent is a company registered under the Companies Act, 1956 by the name of Associated Corporate ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.2 of 25 Consulting India Pvt. Ltd and having its registered office at 204­206, Tolstoy House, 15 Tolstoy Marg, New Delhi.

3. The petitioner hired the respondent in 2009 for providing creating advertising services for its news channel 'NEWS X' and an agreement dated 16.03.2009 had been executed between them whereby the respondent was assigned to assist in formulating brand strategy, develop advertising campaign, supervise and supply printed material for the petitioner's campaigns, prepare creative work and all material required for advertising, and supervise film production. As per the said agreement, the respondent had specifically committed to deliver a new corporate / brand positioning campaign and identity development, programme communication design and template and an anchor build up campaign (hereinafter collectively referred as, 'said deliverables') for the petitioner within a period of one year. The respondent was hired by the petitioner to inter­alia manage and organize advertisement and publicity in all form of media. On reading the said agreement as a whole it can be ascertained that the agreement lacks the characteristics of a retainer agreement as the respondent does not qualify to be an independent contractor. The following clauses clarify that the said agreement was not a retainer agreement:

i. The services for which the respondent had been employed by the petitioner was defined in clause­2 of the ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.3 of 25 said agreement.
ii. It was stated in clause­5 of the said agreement that the work with respect to any campaign would proceed only after obtaining approval of the petitioner. The respondent might, whenever necessary, seek approval of the petitioner for copy, layouts, artworks, storyboards, rough, sound and video recordings, scripts and cost estimates relating to production. Moreover, the petitioner had the right to change, stop or cancel any plan, schedule and work in progress. This clause states clearly that the respondent was required to work under control and supervision of the petitioner.
iii. Through clause­6 the said agreement the petitioner had agreed to indemnify the respondent against any loss that the respondent might incur as a result of any claim or proceeding brought against it based upon any advertisement prepared for the petitioner by the respondent and approved by the petitioner. Therefore, the petitioner was bound by the act of the respondent.
iv. It is stated in clause­7 of the said agreement that the petitioner would become the owner of the advertisements which were produced by the respondent on behalf of the petitioner. It clears that the respondent will not work for the petitioner but on behalf of the petitioner. All the work done under the said agreement will be the property of the petitioner and the respondent will not have any right over ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.4 of 25 them.

4. It is submitted that to the dismay of the petitioner, the respondent did not act with reasonable diligence to fulfill its obligations under the said agreement. Even though the respondent was aware that the most important of the said deliverables was to create a new corporate or brand positioning campaign and identity development for the petitioner, the respondent produced the weakest output in this regard. The petitioner conveyed its resentment with the options provided by the respondent with regard to brand formation and logo designing but instead of working on it, the respondent abandoned the task leaving the petitioner with no choice but to do the job internally. Moreover, the respondent did not even initiate the work on anchor build up campaign for the petitioner. This professional misconduct of the respondent has directly hampered the marketing and popularity of the petitioner. The petitioner on October 21, 2009 sent a review of the work done by the respondent thorough which it conveyed its displeasure with the pace and quality of the work done by the respondent. The last campaign presentation was made by the respondent on August 5, 2009. Thereafter, the petitioner did not receive any word from the respondent which indicated that there was no progress in the work assigned to the respondent. The campaigns which were presented till then were not ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.5 of 25 satisfactory as none of them reflected the brand messaging. Further, the brand name and logo had to be internally developed by the petitioner as the respondent did not pay attention to the requirement of the petitioner. The petitioner's brand required a lot of attention at that time and as per the record of respondent it was clear that the respondent would not be able to nurture the petitioner's brand in the required manner. Therefore, the petitioner suggested to terminate the said agreement.

GROUNDS

5. The petitioner has taken the following material grounds which are as under:

i. That the impugned award has wrongly defined a specific retainer contract. As per clause 5 of the said agreement the respondent was required to work under control and supervision of the petitioner. Therefore, the said agreement cannot come within the category of a retainer agreement.
ii. That Ld. Arbitrator has overlooked that through clause 6 the said agreement the petitioner has agreed to indemnify the respondent against any loss that the respondent may incur as a result of ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.6 of 25 any claim or proceeding brought against it based upon any advertising prepared for the petitioner by the respondent and approved by the petitioner. This clause clarifies that the petitioner is bound by the act of the respondent which cannot be done in the case of a retainer agreement.
iii. That Ld. Arbitrator has termed the said agreement as a retainer agreement without considering the said agreement as a whole. It is stated in clause 7 of the said agreement that the petitioner will become the owner of the advertisements which are produced by the respondent on behalf of the petitioner. This clause confirms that the said agreement is not a retainer agreement as the entity for which the work done cannot become the owner of the work under a retainer agreement.
iv. That the impugned award has erroneously ignored the fact that it is stated in clause 3 of the said agreement that the creative and strategy fee has to be billed and earned by the respondent. Payment of the creative and strategy fee is contingent upon the satisfactory performance of the services which were to be provided by the respondent.
ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.7 of 25 v. That Ld. Arbitrator has ignored the fact that under clause 3 of the said agreement the petitioner was responsible to make payment on the said deliverables. However, none of the said deliverables have been provided to the petitioner. Therefore, the respondent does not have any right to receive fee on a pro­rata monthly basis but only deserved to receive payment for the services provided by it. vi. That even though the Ld. Arbitrator has rejected the argument of the respondent that the payment had to be made irrespective of performance, the impugned award has failed to record the deficiencies in services provided by the respondent to the petitioner.
vii. That the impugned award states that "Claimant is entitled to payment, if any only, in right earnest it had commenced its performance and consistently showed and shows that it was willing and is willing to perform its obligations such that upon approach of the deadline the performance would get completed". This fact had to be considered that the employees of the petitioner were not well versed with the marketing and advertising sector and the respondent was already engaged by the ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.8 of 25 petitioner for this job but the services of the respondent were so poor that the brand name and logo had to be internally created by the petitioner. The first one among the said deliverables was to create a new brand campaign and identity development. Until work on the first deliverable was completed, work on the other two deliverables could not be initiated. When in a period of around 10 months, the respondent could not hand over a new campaign to the petitioner, no prudent man could expect the respondent to provide the said deliverables in the remaining two months. viii. That Ld. Arbitrator has wrongly stated that it was not the case of the petitioner that the respondent had not performed at all. It is submitted that there was total non­performance of the said agreement after 05.08.2009. The petitioner did not receive any response of the respondent on implementation of the feedback given by them, therefore, the petitioner had to work on the logo and brand name internally. The respondent gave another presentation on 27.10.2009 just for the namesake to stop the petitioner from terminating the said agreement as conveyed by the petitioner through the email ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.9 of 25 dated 21.10.2009. Thereafter, no progress on the work was ever reported by the respondent.

It could be inferred that the respondent was looking for payment of fees without providing any output for the petitioner.

ix. That Ld. Arbitrator has overlooked the gap of around three months between the last two presentations. It is also relevant that the respondent had never followed up with the petitioner and never communicated if any progress was being made with regard to the work. The feedback provided by the petitioner was never implemented by the petitioner. x. That Ld. Arbitrator has ignored the fact that the work was not in progress on the part of the respondent. The respondent had abandoned the said agreement. Had the work been in the progress, at least a new brand campaign would have been created by the respondent in a period of approximately ten months.

xi. That Ld. Arbitrator has overlooked the cost which the petitioner has paid due to failure of the respondent to fulfill its obligation under the said agreement. The petitioner had engaged the respondent for providing creative services but due to the poor services provided by the ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.10 of 25 respondent, the petitioner had to look for alternate arrangement. Looking for an alternate arrangement is both time and money consuming. The petitioner relied on the respondent for a long time but did not even get a new campaign. The engagement of the petitioner with the respondent was fruitless for the petitioner.

xii. That Ld. Arbitrator ignored the fact that there was no clause in the said agreement by which the respondent was restrained to provide its services to parties other than the petitioner. The manpower and other resources of the respondent were not maintained exclusively for the petitioner. Therefore, when no resource was utilized for providing services to the petitioner, the petitioner is not liable to pay for the resources maintained by the respondent for other purposes.

xiii. That Ld. Arbitrator ignored the fact the said agreement was expressly terminated by the petitioner through the said notice but it was impliedly terminated by the respondent on 05.08.2010 when the penultimate presentation was made by the respondent. The work had come to a stand­still after the presentation. The ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.11 of 25 respondent failed to implement the feedbacks received by the petitioner after the presentation. No communication was initiated or output received from the respondent. Even after sending a detailed review of the work done by the respondent, the respondent failed to make any progress in the work assigned to it.

xiv. That the subject matter of the present petition is subject matter of Section 2(1)(c) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 as the dispute has been arisen out of the said agreement which has been executed between the parties laying down the provision of service.

xv.That the subject matter of the present matter is below Rs.One Crore. Therefore, the present petition comes within the pecuniary jurisdiction of this court.

xvi. That for the purpose of jurisdiction, it is submitted that the impugned award was passed at Sarita Vihar, Delhi and therefore this court has jurisdiction to entertain and adjudicate the present petition.

xvii. It is therefore prayed that this court may be pleased to (a) allow the present petition and ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.12 of 25 set aside / quash the impugned award dated 03.06.2016 passed by the Ld. Arbitrator and (b) direct the respondent to pay costs to the petitioner of the arbitration proceedings as well as for the present litigation.

REPLY TO THE PETITION / OBJECTION

6. Reply to the petition has been filed on behalf of respondent stating that the petitioner has been trying the raise factual issues in garb of present objection petition and the entire objections to the award are based on the interpretation of various clauses of the agreement on which the Ld. Arbitrator has given his own findings.

i. The objection petition filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996, does not fall within the categories of the objections permitted and prescribed by Section 34 of the Arbitration and Conciliation Act, 1996 that could be taken against an Arbitral Award.

7. I have heard the arguments and gone through the material on record as well as Arbitration Award passed by Ld. Sole Arbitrator. Ld. Counsel for the petitioner has argued entirely on the similar line as mentioned in the ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.13 of 25 petition whereas Ld. Counsel for respondent has also argued on the similar line as per reply and he has also relied upon certain case laws.

8. Before proceeding further and to appreciate the arguments, it is necessary to discuss about the provisions of Section 34 of Arbitration and Conciliation Act, 1996 which is 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 subsection (2) and subsection (3).
2. An arbitral award may be set aside by the Court only if a: the party making the application furnishes proof that (1) 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
(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 ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.14 of 25 of the arbitral award which contains decisions on matter not submitted, only that part of the arbitral award which contains decisions on matter 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 1) 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. 1[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 fundamental policy of Indian Law; or (iii) it is in conflict with the most basic notions of morality or justice.] 1[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.] 2[(2A) an arbital 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:

ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.15 of 25 Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.]....

9. In M.P. Power Generation Co. Ltd. Vs. Ansaldo Energia SPA & Anr. 2018(4) JT 371, Hon'ble Supreme Court of India was pleased to discuss the scope of Section 34 of Arbitration and Conciliation Act, 1996 and was pleased to hold:

"It is necessary to refer to the settled law on the scope of Sections 34 of the Act. In this case we are concerned with the point as to whether an arbitral award can be set aside for being in conflict with the public policy of India. An arbitral award can be set aside if it is contrary to (a) fundamental policy of Indian Law, or (b) the interest of India, or (c) justice or morality. (Renusagar Power Co. Ltd. Vs. General Electric Co., (1994) Supp.1 SCC 644) Patent illegality was added to the above three grounds in ONGC Vs. Saw Pipes Ltd., (2003) 5SCC 705. Illegality must go to the root of the matter and in case the illegality is of trival nature it cannot be held that the award is against the public police. It was further observed in the said judgment (ONGC Vs Saw Pipes Ltd. (supra) that an award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court. In Delhi Development Authority Vs M/s R.S. Sharma & Co., (2008) 13 SCC 80 it was held that an award can be interfered with by the Court under Section 34 of the Act when it is contrary to:
(a) Substantive provisions of law; or ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.16 of 25
(b) provisions of the 1996 Act; or
(c) against the terms of the respective contract; or
(d) patently illegal; or
(e) prejudicial to the rights of the parties.

The fundamental policy of India was explained in ONGC Vs. Western Geco International Co. Ltd., (2014) 9 SCC 263 as including all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. It was held interalia, that a duty is cast on every tribunal or authority exercising powers that affect the rights or obligations of the parties to show a 'judicial approach'. It was further held that judicial approach ensures that an authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and its decision is not actuated by any extraneous considerations.

It was also held that the requirement of application of mind on the part of the adjudicatory authority is so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law. This Court further observed that the award of the Arbitral Tribunal is open to challenge when the arbitrators fail to draw an inference which ought to be drawn or if they had drawn an inference which on the face of it is untenable resulting in miscarriage of justice. The court has the power to modify the offending part of the award in case it is severable from the rest according to the said judgment (Western Geco Ltd. (supra).

10. The limit of exercise of power by Courts under Section 34 of the Act has been comprehensively dealt with by Justice R.F. Nariman in the case of Associate Builders ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.17 of 25 Vs. Delhi Development Authority, (2015) 3 SCC 49. Lack of judicial approach, violation of Principal of natural justice, perversity and patent illegality have been identified as grounds for interference with an award of the Arbitrator. The restrictions placed on the exercise of power of a Court under Section 34 of the Act have been analyzed an denumerated in Associated Builders (supra) which are as follows:

(a) The Court under Section 34(2) of the Act, does not act as a Court of appeal while applying the ground of "public policy" to an arbitral award and consequently errors of fact cannot be corrected.
(b) A possible view by the arbitrator on facts has necessarily to pass muster as the Arbitrator is the sole judge of the quantity and quality of the evidence.
(c) Insufficiency of evidence cannot be a ground for interference by the Court. Reexamination of the facts to find out whether a different decision can be arrived at is impermissible under Section 34(2) of the Act.
(d) An award can be set aside only if it shocks the conscience of the Court.
(e) Illegality must go to the root of the mater and cannot be of a trival nature for interference by a Court. A reasonable construction of the terms of the contract by the arbitrator cannot be interfered with by the Court. Error of construction is within the jurisdiction of the Arbitrator. Hence, no interference is warranted.
(f) If there are two possible interpretations of the terms of the contract, the arbitrator's interpretation has to be accepted and the Court under Section 34 ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.18 of 25 cannot substitute its opinion over the Arbitrator's view.

11. In Oil & Natural Gas Corporation Ltd. Vs. Western Geco International Ltd. 2014(9) SCC 263, Hon'ble Supreme Court has been pleased to:

"Equally important and indeed fundamental to the policy of Indian law is the principle that a Court and so also a quasi­judicial authority must, while determining the rights and obligations of parties before, it, do so in accordance with the principles of natural justice. Besides the celebrated 'audi' alteram partem' rule one of the facets of the principles of natural justice is that the Court / authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Nonapplication of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the Court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian Law.
No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury's principle of ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.19 of 25 reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes where ever the same area available.
It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest".

12. In Fiza Developers & InterTrade P. Ltd. Vs. AMCI (I) Pvt. Ltd. 2009(17) SCC 796 of Hon'ble Supreme Court has been pleased to hold.

"The scheme and provisions of the Act disclose two significant aspects relating to courts visavis arbitration. The first is that there should be minimal interference by courts in matters relating to arbitration. Second is the sense of urgency shown with reference to arbitration matters brought to court, requiring promptness in disposal. Section 5 of the Act provides that notwithstanding anything contained in any other ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.20 of 25 law for the time being in force, in matters governed by part I of the Act, no judicial authority shall intervene except where so provided in the Act. Section 34 of the Act makes it clear than an Arbitral award can be set aside on the grounds enumerated in sub section (2) of section 34 and on no other ground........ We may therefore examine the question for consideration, by bearing three factors in mind. The first is that the Act is a special enactment and section 34 provides for a special remedy. The second is that an arbitration award can be set aside only upon one of the grounds mentioned in subsection (2) of Section 34 exists. The third is that proceedings under Section 34 requires to be dealt with expeditiously.

13. It is pertinent to mention that the petitioner in his rejoinder to the reply by the respondent first time pleaded that the said award dated 03.06.2016 is liable to set aside as it is patently illegal and against the public policy of India without mentioning the reason why the said award is against the public policy in India in his rejoinder.

14. It may be seen that grounds of objections have been framed like grounds of appeal and do not fall within the four categories of the objections that could be maintained against the Arbitral Award. In the objection petition, the petitioner has not pleaded any issue which has not been considered by the Ld. ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.21 of 25 Arbitrator. The petitioner is merely attempting to seek the re­appreciation of the facts leading to the Award on the same set of evidence of facts. In P.R. Shah, Shares & Stock Brokers (P) Ltd. Vs. B.H.H. Securities (P) Ltd. [(2012) 1 SCC 594: (2012) 1 SCC (Civ) 342], the Court held: (SCC pp. 601­02, para21) "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 non­member, 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 re­examine the facts to find out whether a different decision can be arrived at."

Therefore the findings of the Ld. Arbitrator are reasonable and based on facts on record. Hence, no case for ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.22 of 25 review or even re­appreciation of the Arbitral Award has been made out.

15. Now it is settled proposition of law that award of the arbitrator cannot be likely interfered with unless the errors in the award are unconscionable and shakes the conscious of the court. Through the present petition the entire case of petition revolves around the nature of agreements and the reading and interpretations of its various clauses and the award of Ld. Arbitrator to be treated as final with regard to reading and interpretation of award and even such reading of interpretation are erroneous in law, the court would not interfere with an award only on the ground that other view is possible in the reading of the terms of the contract.

16. Even, if it is presumed that the Ld. Arbitrator has erred in construing the contract as creating a relation of retainership between the petitioner and the respondent. In view of the aforesaid settled proposition of law that an error in the constructions of the contract would still fall within the jurisdiction of Ld. Arbitrator and objections against such exercise of jurisdiction would not lie unless the objections had alleged that the Ld. Arbitrator had gone beyond the terms of the contract. Moreover if such an ambiguity if any, of the award would have been resolved by leading evidence to the contrary but, the objector failed to submit any such ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.23 of 25 evidence before Arbitral Tribunal. I am supported with the case law cited as MSK Projects (I) JV Ltd Vs State of Rajasthan (2011) 10 SCC 572; Renusagar Power project Ltd. Vs. General Electricity Co. (1984) 4 SCC 679.

17. It is seen that in the case in hand nothing contrary has been brought on record by the petitioner and objections filed by the petitioner are beyond the scope of Section 34 of the Act and do not fall within the categories of Section 34 of the Act as held by Hon'ble Supreme Court in Associate Builders Vs. Delhi Development Authority (supra). Hence, I do not find any force in the submissions of petitioner. It is further seen that Ld. Arbitrator has passed the award of all the claims of the parties by taking into account the facts leading to the case and contentions raised by the parties during the course of proceedings.

18. In view of the above backdrop and applying the principle of settled law, I am of the considered opinion that in the award passed by Ld. Sole Arbitrator nothing immaterial has been found. The award passed by Ld. Sole Arbitrator is based only on the claim filed by the respondent herein which is in consonance with the agreement executed between the petitioner herein and the respondent. Hence, in my view the award does not warrant any interference from ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.24 of 25 the court, therefore, the petition/objection filed by petitioner is liable to be dismissed. Accordingly, the petition/objection dismissed.

File be consigned to record room.

Pronounced in the open Court (LALIT KUMAR) on this 13th September, 2021. Addl. District Judge­04, South­East, Saket Court, New Delhi.

ARB 21609/16 Direct News P. Ltd. Vs. Associated Corp. Consulting dt.13.09.2021 page no.25 of 25