Delhi High Court
Arg Outlier Media Private Limited vs Ht Media Limited on 4 July, 2023
Author: Navin Chawla
Bench: Navin Chawla
:
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:27.04.2023
Date of decision: 04.07.2023
+ O.M.P. (COMM) 161/2023 & IA 8019/2023
ARG OUTLIER MEDIA PRIVATE LIMITED
..... Petitioner
Through: Mr.Sandeep Sethi, Sr. Adv. &
Ms.Malvika Trivedi, Sr. Adv.
with Mr.Bani Dikshit,
Mr.Uddhav Khanna, Ms.Diya
Dutta, Ms.Sujal Gupta,
Mr.Shailendra Slaria,
Ms.Shreya Sethi, Mr.Vikram
Singh Dalal & Ms.Tanvi
Tewari, Advs.
versus
HT MEDIA LIMITED
..... Respondent
Through: Mr.Ashok Kumar Singh, Sr.
Adv. with Mr.Sonal Kr. Singh,
Mr.Shivang Singh, Mr.Obhirup
Ghosh, Ms.Meghna Butolia,
Mr.Gagan Kr. Sharma,
Mr.Kunal Nema & Ms.Saloni
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. This petition has been filed by the petitioner under Section 34
of the Arbitration and Conciliation Act, 1996 (hereinafter referred to
as the 'Act'), challenging the Arbitral Award dated 17.02.2023
(hereinafter referred to as the 'Impugned Award') passed by the
learned Sole Arbitrator adjudicating the disputes that had arisen
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 1 of 32
:
between the parties in relation to the 'Agreement of Barter' dated
19.04.2017 (hereinafter referred to as the 'Agreement') executed
between the parties.
2. The learned Sole Arbitrator by way of the Impugned Award has
directed the petitioner to pay to the respondent a sum of Rs.5 crores
along with pendente lite interest at the rate of 5% per annum from
08.03.2019 till the passing of the Award and at the rate of 10% per
annum from the date of the Award. The learned Arbitrator has also
directed the petitioner to pay as costs, 50% of the Arbitral fee paid by
the respondent, that is, Rs.5 lacs to the respondent.
SUMMARY OF CHALLENGE
3. The petitioner challenges the Impugned Award on the following
three grounds:-
(a) That the Agreement containing the Arbitration Clause, being
improperly stamped, should have been impounded by the
learned Arbitrator and, until it was properly stamped and
penalty was paid thereon, as determined by the Collector of
Stamps, should not have been acted upon;
(b) In terms of the Agreement, the petitioner is merely to
compensate/indemnify the respondent for the amount of
excess 'Inventory' utilized by the petitioner. The petitioner
has, therefore, wrongly been saddled with the amount of
Rs.5 crores relying upon the Articles 2.4 and 6.1 of the
Agreement;
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 2 of 32
:
(c) The respondent had not produced any evidence of loss
suffered by the respondent and, therefore, the award of the
amount by the learned Arbitrator in favour of the respondent
is contrary to Section 74 of the Indian Contract Act, 1872,
and the principles enunciated by the judgment of the
Supreme Court in M/s Kailash Nath Associates v. Delhi
Development Authority & Anr., (2015) 4 SCC 136.
SUBMISSIONS OF THE LEARNED SENIOR COUNSELS FOR
THE PETITIONER
4. On the issue of the Agreement not being properly stamped, the
learned senior counsels for the petitioner submit that it was not in
dispute that the respondent appended its signatures on the Agreement
at New Delhi and thereafter transmitted the same to Mumbai for the
signatures of the petitioner. The petitioner appended its signatures on
the Agreement at Mumbai and, therefore, in terms of Section 3(a) of
the Maharashtra Stamp Act, 1958 (hereinafter referred to as the
'Maharashtra Stamp Act'), the Agreement was chargeable to the
Stamp Duty in accordance with the Maharashtra Stamp Act only. The
Maharashtra Stamp Act requires the document to be stamped on an ad
valorem fee. In support, the learned senior counsels for the petitioner
placed reliance on the judgment of this Court in Religare Finvest
Limited v. Asian Satellite Broadcast Private Limited and Others,
2022 SCC OnLine Del 221.
5. They submit that mere mention of the document having been
executed at New Delhi or being stamped in accordance with the
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 3 of 32
:
Indian Stamp Act, 1899 (hereinafter referred to as the 'Indian Stamp
Act') as applicable to the State of NCT of Delhi, would not make the
Agreement sufficiently stamped. The Agreement was, therefore,
insufficiently stamped and should have been impounded by the
learned Sole Arbitrator during the course of the Arbitral Proceedings.
They submit that in view of the judgment of the Supreme Court in M/s
N.N. Global Mercantile Private Limited v. M/s Indo Unique Flame
Ltd. & Ors., 2023 SCC OnLine SC 495, the Agreement being
insufficiently/improperly stamped, could not have been acted upon by
the learned Sole Arbitrator.
6. They submit that the learned Sole Arbitrator has also wrongly
stated that no submissions on this issue were made at the stage of the
final arguments. Relying upon the written submissions filed before the
learned Sole Arbitrator, they submit that this issue was raised before
the learned Sole Arbitrator even at the stage of the final arguments.
7. On the question of the direction in the Impugned Award for the
petitioner to pay a sum of Rs. 5 crores to the respondent, the learned
senior counsels for the petitioner, placing reliance on Articles 2.3, 2.4,
6.1 and 8.2 of the Agreement, submit that the Agreement was, as is
evident from the title itself, a Barter Agreement. In terms of the said
Agreement, the parties were to promote each other's business interests
through their respective business mediums. It was agreed that the total
value of the Agreement in terms of spots/advertising space shall be
Rs.10 crores, however, Article 6.1 of the Agreement clarified that this
amount in no way indicates minimum guarantee or commitment of
any nature and was only indicative in nature. In terms of Article 8.2,
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 4 of 32
:
on termination of the Agreement, the accounts were to be squared off,
meaning thereby that whatever excess usage that the petitioner had
over the respondent, in terms of the Agreement, the petitioner would
pay for the same. They submit that, therefore, at best the petitioner
could have been made liable to pay Rs.2.01 crores, which was the
amount for which the spots were used by the petitioner on the
respondents' platform. They submit that the learned Sole Arbitrator
has ignored the second part of Article 6.1 of the Agreement, and the
interpretation placed by the learned Sole Arbitrator on the terms of the
Agreement is perverse and cannot be sustained.
8. They further submit that the respondent had not placed any
evidence on record to show any loss being caused to the respondent on
account of the respondent not placing any inventory on the platform of
the petitioner. They submit that in the absence of any proof of loss, the
learned Sole Arbitrator has clearly erred in awarding the damages to
the respondent.
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR
THE RESPONDENT
9. On the other hand, the learned senior counsel for the respondent
submits that the Agreement in question was, in fact, executed at New
Delhi as is evident from the various terms of the Agreement itself,
including its recital, which states that it was executed at New Delhi.
10. The learned senior counsel for the respondent submits that the
learned Sole Arbitrator has considered the exchange of the e-mails
between the parties to reach at the conclusion that, with the consent of
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 5 of 32
:
the parties, the Agreement has been executed at New Delhi. In this
regard, he draws my reference to the order dated 13.02.2020 passed by
the learned Sole Arbitrator on the application filed by the petitioner
under Section 16 of the Act, relevant portions of which have been
reproduced by the learned Sole Arbitrator even in the Impugned
Award.
11. He further submits that the petitioner, during the course of its
Oral Submissions, did not raise this issue again, as has been rightly
recorded by the learned Sole Arbitrator in paragraph 28 of the
Impugned Award. He submits that a mere clandestine insertion of the
ground in the written submissions cannot, now, be used as a ground to
challenge the Impugned Award.
12. He further submits that, in fact, no such objection was taken by
the petitioner prior to the filing of the application under Section 16 of
the Act. In the exchange of notices between the parties, specifically, in
the reply(s) dated 18.03.2019, 09.05.2019, and 17.05.2019, or even in
answer to the petition filed by the respondent under Section 11 of the
Act seeking the appointment of the learned Sole Arbitrator, being
ARB.P. 392/2019, the petitioner never raised a plea that the
Agreement was executed at Mumbai or that the Agreement is
insufficiently stamped and should be stamped as per the Maharashtra
Stamp Act. He submits that, in fact, this Court in the order dated
31.05.2019 passed in above referred petition, recorded that the
petitioner herein did not dispute the existence of the Arbitration
Agreement or the invocation thereof, meaning thereby that the
petitioner did not also dispute that the Agreement was properly
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 6 of 32
:
stamped. Even the witness of the petitioner in his cross-examination
did not dispute the fact that no such objection had been taken by the
petitioner before the commencement of the Arbitration Proceedings.
The plea was later taken, only with a mala fide intent of somehow
denying the bona fide claims of the respondent.
13. On the interpretation of the Agreement, placing reliance on the
various terms of the Agreement, he submits that the interpretation
placed by the learned Sole Arbitrator on the terms of the Agreement is
correct. He submits that it was the term of the Agreement that any
inventory that is not used by the respondent would be paid for by the
petitioner at the end of the Agreement period. He submits that, in fact,
the respondent is entitled to claim Rs.10 crores, as was rightly claimed
by the respondent in the Arbitration Proceedings, however, the learned
Sole Arbitrator has confined the claim of the respondent to only Rs.5
crores. He submits that the respondent has agreed to the Impugned
Award, however, the interpretation now being placed by the petitioner
is completely incorrect.
14. On the issue of damages being awarded without any evidence,
he submits that the amount was payable in terms of Article 2.4 of the
Agreement itself. The respondent was not to separately prove any
damages being suffered by the respondent.
15. He submits that, therefore, no infirmity can be found in the
Impugned Award passed by the learned Sole Arbitrator.
ANALYSIS AND FINDINGS
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 7 of 32
:
16. I have considered the submissions made by the learned senior
counsels for the parties.
Stamping of the Agreement:
17. On the issue of insufficient/improper stamping of the
Agreement, the Agreement itself records that the same has been
executed at New Delhi. The petitioner does not dispute that the
Agreement has been stamped in accordance with the rates as
applicable to the NCT of Delhi. The dispute raised is that the said
Agreement was signed by the respondent at New Delhi and thereafter
sent to the petitioner for its signatures at Mumbai. The petitioner
contends that the Agreement, therefore, should have been stamped in
accordance with the Maharashtra Stamp Act, and having not been
done so, was to be impounded by the learned Sole Arbitrator.
18. The learned Sole Arbitrator in the Impugned Award has
rejected the above submission of the petitioner, relying upon his
earlier order dated 13.02.2020 passed on an application filed by the
petitioner under Section 16 of the Act. I shall reproduce hereinbelow
the extract from the said order, which has also been extracted by the
learned Sole Arbitrator in the Impugned Award:-
"26. Insofar as facts leading to entering into
the Barter Agreement are concerned, there is
hardly any dispute. In fact, the submission of
learned Counsel for the Claimant that
Contract was concluded in Delhi was not
refuted by the learned Counsel for the
Respondent. As mentioned above, response of
the Respondent was that it is not the place
where the Contract is concluded, which would
be relevant, but the place where the Contract
is executed is material for the purpose of
attracting the stamp duty. When it is not in
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 8 of 32
:
dispute that in the given facts, the place of
conclusion of Agreement is Delhi, various
judgments cited by the learned Counsel for the
Claimant in support of his submission that
Contract was concluded in Delhi need not be
discussed.
27. Let me now examine the case keeping in
view the provisions of Section 3(a) of the Act.
This clause makes an instrument chargeable
with duty under the Stamp Act if it is executed
in the State of Maharashtra and is not
previously executed by 'any person'. In the
first blush, having regard to the proposition
advanced by the learned Counsel for the
Respondent, one may say that since the
document was signed by the Respondent in
Mumbai, which was the last act, the place
where the document is executed is Mumbai. If
one applies this principle, document would
attract the duty as per the Maharashtra Stamp
Act as well. At the same time, there are certain
very peculiar features in this case which may
desist me from arriving at the conclusion that
the document should have been stamped in
accordance with Maharashtra Stamp Act. In
the instant case, the document was prepared in
Delhi on the stamp papers purchased as per
the Stamp Act applicable in Delhi. Admittedly,
stamp duty as per applicable in Delhi has been
affixed on the instrument i.e., the Barter
Agreement. It is also signed in Delhi by the
Claimant.
28. Thus, the admitted facts are that Claimant
is based in Delhi whereas office of the
Respondent is located in Mumbai. It is also an
admitted fact that prior to the execution of the
Barter Agreement, terms and conditions of the
Agreement were negotiated between the
parties which were revised from time to time.
It appears that a draft Agreement was
prepared, ultimately some changes were made
by the Respondent, which was sent to the
Claimant. On 25.04.2017, Claimant sent e-
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 9 of 32
:
mail to the Respondent stating that the
Claimant was fine with the changes made and
attached the execution version of the
Agreement. In this mail, it was also stated that
Claimant shall be sharing its scanned copy
and sending the original via courier. To this,
Respondent had replied by e-mail of
25.04.2017 that it was fine with the
Respondent and Respondent gave its nod to
the Claimant for going ahead. Thereafter,
stamp paper was purchased by the Claimant in
Delhi and the Agreement was typed in Delhi at
the level of the Claimant. This Agreement is on
non-judicial stamp paper of the value of INR
100/-. Opening para of the Agreement states
that it is "entered into at New Delhi, India on
19th day of April 2017". Pertinently, therefore,
the parties have agreed that the place of
entering into this Agreement is Delhi. For this
reason, and as per the agreed understanding
between the parties, the stamp papers were
purchased in Delhi. There is no dispute that as
per duty applicable in Delhi, it is adequately
stamped.
29. Para 9.7 of the Agreement pertains to
settlement of disputes and governing laws. It,
inter alia, mentions that if any disputes or
differences arise between the parties, the
parties shall make an attempt for a period of
30 days from the receipt of the notice of the
existence of disputes to settle such disputes by
mutual discussion between the parties, failing
which parties agreed to refer the matter to a
mutually agreed Arbitrator. This clause
further states that arbitration proceedings
shall be held under the provisions of the
Arbitration & Conciliation Act. Here again, it
needs to be emphasised that the venue of
arbitration proceedings is agreed to be New
Delhi only. It is also agreed that the
courts/tribunals at New Delhi shall have the
exclusive jurisdiction over any dispute relating
to the subject matter of this Agreement.
Therefore, insofar as this Arbitration
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 10 of 32
:
Agreement is concerned, the seat of
Arbitration is Delhi and it bears proper stamp
duty as per law applicable in Delhi.
30. Thus, we are faced with a situation where
recital of the Agreement states that it is
executed in Delhi, and by signing this
Agreement, the Respondent has accepted this
part of the recital. That by itself may not be
determinative. However, what is important is
that, after conclusion of the Contract in Delhi
and on the understanding that the Agreement
was executed in Delhi, it was prepared in
Delhi for which non-judicial stamp papers as
per the prevailing law in Delhi were
purchased. More importantly, even the place
of contract, for which it is executed, is Delhi
which has been specifically agreed to by the
parties. Above all, as per para 9.7, the sole
jurisdiction of Court/Tribunals is rested at
New Delhi to the exclusion of jurisdiction of
any other place. Seat of arbitration is also
Delhi. Therefore, for all practical purposes,
the Agreement is to be worked out in Delhi. In.
a situation like this, it would be difficult to
accept the position that stamp duty as
applicable under the Maharashtra Stamp Act
should also have been affixed. After all, one
needs to give purposive interpretation to the
provisions of the Maharashtra Stamp Act. In a
situation when everything happens in Delhi
and the document is even signed in Delhi by
one of the parties, and insofar as Arbitration
Agreement is concerned, it is subject to
jurisdiction in Delhi, affixing the stamp duty as
per Maharashtra Stamp Act appears to be
somewhat incongruous.
31. Even if we proceed on the basis that
document is executed in Mumbai when it was
signed by the Respondent, then in law, it was
the obligation of the Respondent to put the
requisite stamp duty as per the Maharashtra
Stamp Act. For the sake of clarify, it needs to
be repetitive by observing that insofar as
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 11 of 32
:
Claimant is concerned, it had completed all
the requisite formalities. Document was
prepared in Delhi, recital of the document
mentions that it is executed in Delhi; stamp
papers as per applicable law in Delhi were
purchased and the document is prepared on
the said stamp papers; and is signed by the
Claimant in Delhi. When such a document is
sent to the Respondent in Mumbai and
Respondent takes a position that it is deemed
executed in Mumbai only, the Respondent, on
receiving the document and before signing the
same, should have put required stamp duty as
per the provisions of Maharashtra Stamp Act.
Conscience of this difficulty which may come
in the way of Respondent, it has tried to make
out a case in the Application under Section 16
of the Act (para 2.10) that it was always the
understanding between the parties that stamp
duty and other applicable charges would be
borne by the Claimant. This is specifically
denied by the Claimant. In any case, stamp
duty as applicable in Delhi was paid by the
Claimant. Even if it is accepted for the sake of
argument that stamp duty under the
Maharashtra Stamp Act was also payable by
the Claimant, the Respondent, before signing
the Agreement, should have called upon the
Claimant to pay that duty. In that eventuality,
it is the Respondent who would be liable for
this lapse."
19. At the outset, it is to be emphasized that the above finding is a
mixed question of facts and law. The learned Sole Arbitrator has
found the Agreement to be properly stamped, observing that under the
Agreement it was agreed that the same has been executed in New
Delhi; everything under the Agreement was to happen in New Delhi;
and the document is even signed in New Delhi by one of the parties. It
is settled law that the Court exercising jurisdiction under Section 34 of
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 12 of 32
:
the Act does not sit as a Court of Appeal against the findings of the
learned Arbitral Tribunal. Its jurisdiction under Section 34 of the Act
is rather limited and even a contravention of a statute, that is not
linked to a public policy or public interest, cannot be a ground for
setting aside an Arbitral Award under Section 34 of the Act. In
Ssangyong Engineering and Construction Company Limited v.
National Highways Authority of India (NHAI), (2019) 15 SCC 131,
the Supreme Court has held as under:-
"37. Insofar as domestic awards made in
India are concerned, an additional ground is
now available under sub-section (2A), added
by the Amendment Act, 2015, to Section 34.
Here, there must be patent illegality appearing
on the face of the award, which refers to such
illegality as goes to the root of the matter but
which does not amount to mere erroneous
application of the law. In short, what is not
subsumed within "the fundamental policy of
Indian law", namely, the contravention of a
statute not linked to public policy or public
interest, cannot be brought in by the
backdoor when it comes to setting aside an
award on the ground of patent illegality.
38. Secondly, it is also made clear that
reappreciation of evidence, which is what an
appellate court is permitted to do, cannot be
permitted under the ground of patent illegality
appearing on the face of the award.
39. To elucidate, para 42.1 of Associate
Builders, namely, a mere contravention of the
substantive law of India, by itself, is no longer
a ground available to set aside an arbitral
award. Para 42.2 of Associate Builders,
however, would remain, for if an arbitrator
gives no reasons for an award and
contravenes Section 31(3) of the 1996 Act, that
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 13 of 32
:
would certainly amount to a patent illegality
on the face of the award."
(Emphasis supplied)
20. In Delhi Airport Metro Express Private Limited v. Delhi Metro
Rail Corporation Limited, (2022) 1 SCC 131, the Supreme Court
again emphasised as under:
"29. Patent illegality should be illegality
which goes to the root of the matter. In other
words, every error of law committed by the
Arbitral Tribunal would not fall within the
expression "patent illegality". Likewise,
erroneous application of law cannot be
categorized as patent illegality. In addition,
contravention of law not linked to public
policy or public interest is beyond the scope of
the expression "patent illegality....".
(Emphasis Supplied)
21. Therefore, even assuming that the learned Sole Arbitrator made
a mistake in the interpretation of the Maharashtra Stamp Act, in my
view, it cannot be a ground to interfere with the Arbitral Award in the
exercise of the limited jurisdiction under Section 34 of the Act.
22. What is also relevant in the facts of the present case is that no
such challenge on the ground of the Agreement not being properly
stamped was raised by the petitioner herein in its reply to the legal
notices or in the reply to the petition filed by the respondent under
Section 11 of the Act. Even in the affidavit of admission/denial of the
documents of the respondent, filed by the petitioner herein on
12.10.2019 in the Arbitration Proceedings, the Agreement was
admitted and no such objection to its admissibility in evidence was
taken by the petitioner.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 14 of 32
:
23. As noted hereinabove, the petitioner also filed an application
under Section 16 of the Act before the learned Sole Arbitrator,
challenging the admissibility of the Agreement on the ground of it not
being properly stamped. The said challenge was rejected by the
learned Sole Arbitrator in his order dated 13.02.2020, albeit later
framing an issue on the admissibility of the said document.
24. The learned Sole Arbitrator explained the reasons for framing
the issue with respect to the admissibility of the Agreement, vide his
Order dated 27.05.2020, as under:-
"6. I have, otherwise, considered the
submissions of both the parties on the question
as to whether issue about the admissibility of
the document in question should be framed or
not. No doubt, certain observations have come
in the Order dated 13.02.2020 about the
admissibility of the document. At the same
time, I agree with the Respondent that the said
Order is under Section 16 of the Act. He is
also right in his submission that while
formulating the points of differences in the
main proceedings, points should be formulated
independent of the order passed in Section 16
of the Act. Therefore, I am inclined to
formulate this point of difference as well. I,
however, make it clear that while deciding this
point of difference, it will be open to the
Claimant to argue that the admissibility of the
Agreement was challenged only on the ground
that the document is not sufficiently stamped
and that issue stands decided. At this stage, I
do not make any observation on this aspect. I
make it clear that this point of difference is
formulated without prejudice to the rights and
contentions of both the parties on the merits
thereon and all the arguments which would be
permissible/admissible in law will be taken
into in consideration at the final stage while
deciding this point of determination."
Signature Not Verified (Emphasis supplied)
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 15 of 32
:
25. The learned Sole Arbitrator in the Impugned Award has further
recorded that no 'new' submission was made by the learned senior
counsel for the petitioner herein at the time of the final arguments and,
therefore, the learned Sole Arbitrator felt no reason to deviate from its
earlier opinion recorded in the order dated 13.02.2020. I may quote
from the aforesaid observation of the learned Sole Arbitrator in the
Impugned Award, as under:-
"28. It may be mentioned that at the time of
final arguments, the learned senior counsel for
the Respondent did not raise any further/
additional arguments when the arguments
which were advanced while arguing the
Application under Section 16 of the Act and
rested his case at that. Since no new argument
is raised and the arguments raised earlier
have already been considered and rejected by
the Tribunal in its Order dated 13.02.2020, the
Tribunal does not find any reason to deviate
from the same. This issue [POD (iii)] is
accordingly answered in the affirmative
holding that the Agreement dated 19.04.2017
is admissible in law."
(Emphasis supplied)
26. The learned Sole Arbitrator, therefore, rejected the objection of
the petitioner on the admissibility of the Agreement for being not
properly stamped, and admitted the Agreement in evidence.
27. Section 36 of the Indian Stamp Act states that where an
instrument has been admitted in evidence, such admission shall not,
except as provided in Section 61 of the Indian Stamp Act, be called in
question at any stage of the same suit or proceeding or on the ground
that the instrument has not been duly stamped.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 16 of 32
:
28. Section 61 of the Indian Stamp Act provides that when any
Court, in the exercise of its civil or revenue jurisdiction or any
Criminal Court in any proceeding under Chapter XII or Chapter
XXXVI of the Code of Criminal Procedure, 1898, makes any order
admitting any instrument in evidence as duly stamped, the Court to
which appeals lie from, or references are made by, such a Court, of its
own motion or on the application of the Collector, take such order into
consideration. In our case, the court is of the opinion that such an
instrument should not have been admitted in evidence without the
payment of duty and penalty under Section 35 of the Indian Stamp
Act, it may record a declaration to that effect and determine the
amount of duty with which such an instrument is chargeable and may
impound such instrument. Proviso (b) to sub-Section 4 of Section 61
of the Indian Stamp Act further provides that except for the purposes
of such prosecution by the Collector, any declaration made under
Section 61 of the Indian Stamp Act, shall not affect the validity of any
order admitting any instrument in evidence.
29. Sections 36 and 61 of the Indian Stamp Act are reproduced
hereinbelow:-
36. Admission of instrument where not to be
questioned. --Where an instrument has been
admitted in evidence, such admission shall not,
except as provided in section 61, be called in
question at any stage of the same suit or
proceeding on the ground that the instrument
has not duly stamped.
xxxxx
61. Revision of certain decisions of Courts
regarding the sufficiency of stamps. --(1) When
any Court in the exercise of its civil or revenue
jurisdiction of any Criminal Court in any
Signature Not Verified proceeding under Chapter XII or Chapter XXXVI
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 17 of 32
:
of the Code of Criminal Procedure, 1898 (V of
1898), makes any order admitting any instrument
in evidence as duly stamped or as not requiring a
stamp, or upon payment of duty and a penalty
under section 35, the Court to which appeals lie
form, or references are made by, such first-
mentioned Court may, of its own motion or on the
application of the Collector, take such order into
consideration.
(2) If such Court, after such consideration, is of
opinion that such instrument should not have been
admitted in evidence without the payment of duty
and penalty under section 35, or without the
payment of a higher duty and penalty than those
paid, it may record a declaration to that effect, and
determine the amount of duty with which such
instrument is chargeable, and may require any
person in whose possession or power such
instrument then is, to produce the same, and may
impound the same when produced.
(3) When any declaration has been recorded under
sub-section (2), the Court recording the same shall
send a copy thereof to the Collector, and, where
the instrument to which it relates has been
impounded or is otherwise in the possession of
such Court, shall also send him such instrument.
(4) The Collector may thereupon, notwithstanding
anything contained in the order admitting such
instrument in evidence, or in any certificate
granted under section 42, or in section 43,
prosecute any person for any offence against the
Stamp-law which the Collector considers him to
have committed in respect of such instrument:
Provided that--
(a) no such prosecution shall be instituted where
the amount (including duty and penalty) which,
according to the determination of such Court, was
payable in respect of the instrument under section
35, is paid to the Collector, unless he thinks that
the offence was committed with an intention of
evading payment of the proper duty;
(b) except for the purposes of such prosecution, no
declaration made under this section shall affect the
validity of any order admitting any instrument in
evidence, or of any certificate granted under
section 42."
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 18 of 32
:
30. In Javer Chand and Others v. Pukhraj Surana, (1962) 2 SCR
333, the Supreme Court, relying upon Section 36 of the Indian Stamp
Act, held that when a document has once been admitted in evidence,
such admission cannot be called into question at any stage of the suit
or the proceedings on the ground that the instrument had not been duly
stamped. The only exception recognized by the Section 36 is the class
of cases contemplated by Section 61. Section 36 does not admit of any
other exceptions. Once the Court, rightly or wrongly, decides to admit
the document in evidence, so far as the parties are concerned, the
matter is closed; it is not open either to the Trial Court itself or a Court
of Appeal or Revision Court to go behind the order admitting such an
instrument in evidence; such an order is not one of those judicial
orders which are liable to be reviewed or revised by the same Court or
even by a Court of superior jurisdiction.
31. The above view has been followed by the Supreme Court in its
judgment in Shyamal Kumar Roy v. Sushil Kumar Agarwal, (2006)
11 SCC 331; and the order dated 14.11.2022 passed by the Supreme
Court in Sirikonda Madhava Rao v. N. Hemalatha, SLP (C) No.
14882 and 14883/2022. The above proposition has been specifically
applied to reject a challenge to an Arbitral Award on account of a
document not being properly stamped in Rung Lal Kalooram v.
Kedar Nath Kesriwal, vide the judgment dated 11.07.1921, Volume
27 the Calcutta Weekly Notes 513, observing as under:-
"In any event it seems to me clear that the
submission in this case was a document which
had to be put in evidence before the
arbitrators. It was their duty to see that it was
properly stamped. It was not stamped. If an
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 19 of 32
:
objection had been taken at the time then the
proviso to sec. 35 would have come into force,
and upon payment, of the stamp duty and the
penalty the instrument would have been
admitted in evidence in accordance with the
proviso. That was not done. It is necessary
therefore to refer to another section. Sec. 36-
which provides, "where an instrument has
been admitted in evidence, such admission
shall not, except as provided in sec. 61, be
called in question at any stage of the same suit
or proceeding on the ground that the
instrument has not been duly stamped." The
provisions of sec. 61 are not material to the
question which arises in this case. The
submission was, in my judgment, admitted in
evidence by the arbitrators, and having been
admitted in evidence by the arbitrators, it was
not open to either of the parties to call in
question such admission in the arbitration
proceedings on the ground that the submission
had not been duly stamped. The award,
therefore, which was made upon the
submission, was in my judgment a valid
award. It was filed in accordance with the
provisions of the Arbitration Act. In my
judgment it is not now open to the Plaintiffs
who are parties to the submission, and who
thereby agreed to the matter being referred to
the arbitration of the two arbitrators and who
raised no objection to the agreement,
containing the submission, being admitted in
evidence to rely upon the fact that the
submission bore no stamp, for the purpose of
showing that the award was invalid. It has to
be remembered that the provisions in the
Stamp Act were passed for the purpose of
protecting the revenue and, in my judgment,
the words, which have been relied upon by the
learned Advocate-General of sec. 35, under
the circumstances of this case and having
regard to the proviso of sec. 35 and the terms
of sec. 36 of the Stamp Act, have not the effect
of rendering the award invalid."
(Emphasis supplied)
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 20 of 32
:
32. Recently, a Coordinate Bench of this Court also rejected a
similar challenge to an Arbitral Award in SNG Developers Limited v.
Vardhman Buildtech Private Limited, 2021:DHC:4100, observing as
under:-
"20. Section 36 of the Indian Stamp Act,
1899, clearly prohibits calling into question
the admission of any document in any suit or
proceeding once the document has been
admitted in evidence, on the ground that it has
not been duly stamped. In arbitral
proceedings, it is well-settled that strict rules
of the Code of Civil Procedure, 1908, would
not apply and that the learned Arbitral
Tribunal is entitled to chalk out its own
procedure. In doing so, the governing
consideration has to be an expeditious
resolution of the disputes between the parties,
without subjecting the arbitration to the
lengthy and cumbersome rigours of procedure
as otherwise contained in the CPC, 1908.
Once the parties agree to the procedure as
formulated by the learned Arbitral Tribunal,
the parties are bound by such procedure. The
Court sitting in judicial review over the
decision of the learned Arbitral Tribunal,
cannot, therefore, ordinarily interfere with the
order on the ground that it does not follow,
strictly the procedure envisaged by the CPC.
xxxxxx
26. Even otherwise, as I have already noted
hereinabove, the rigours of procedure which
attach to civil proceedings under the CPC and
the Evidence Act, would not apply, proprio
vigore, to arbitral proceedings. The
proceeding before the learned Arbitral
Tribunal was governed by para 7.8 of the
order dated 9th May, 2019, which was
accepted by both parties. That being so, if the
learned Arbitral Tribunal, took the view that
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 21 of 32
:
the petitioner, having admitted the copy of the
Agreement to Sell dated 4th April, 2011, as
filed by the respondent, at the stage of
admission and denial of documents, without
reservation, could not be allowed to raise the
ground of insufficient stamping at a later
stage, that view does not call for interference
by this Court in exercise of its jurisdiction
under Section 34 of the 1996 Act."
33. The submission of the learned senior counsels for the petitioner
that the learned Sole Arbitrator has wrongly recorded that no
submission on the question of the Agreement not being properly
stamped was raised in the course of the final arguments, also cannot
be accepted. Though the written submissions filed by the petitioner
raised the issue of the document not being properly stamped, it also
stated as under:-
"2. Before adverting to the objections to the
claim, at the very outset, it is pertinent to state
that the present arbitration proceedings are
non-est in so far this Hon'ble Tribunal does
not have the jurisdiction to adjudicate the
disputes between the parties since the Barter
Agreement containing the arbitration
agreement is not stamped as per the provisions
of the Maharashtra Stamp Act, 1958
("Maharashtra Stamp Act"), and thus, cannot
be acted upon unless the proper stamp duty
and penalty, if any, is paid on it as per the
Maharashtra Stamp Act. Therefore, the same
needs to be impounded and adjudicated under
the Maharashtra Stamp Act before the claims
of the Claimant, if any, are adjudicated by this
Hon'ble Tribunal. This objection was taken by
the Respondent in their application under
Section 16 of the Arbitration and Conciliation
Act, 1996. However, vide order dated
13.02.2020, the Respondent's application
under Section 16 was not allowed by this
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 22 of 32
:
Hon'ble Tribunal. The Respondent reserves the
right to challenge the order as per law."
(Emphasis supplied)
34. That apart, the learned Sole Arbitrator has held that 'no new'
submission was made by the learned counsel for the petitioner herein
at the stage of final arguments and all submissions that were made had
already been dealt with by the learned Sole Arbitrator while passing
the order dated 13.02.2020.
35. I find merit in the submission of the learned senior counsel for
the respondent that the judgment in Religare Finvest Limited (Supra)
was not referred to in the written submissions of the petitioner herein,
even though it forms a part of a compilation of judgments filed by the
petitioner. The petitioner having already stated that this plea would be
later challenged by it in accordance with law, cannot now, in view of
discussion hereinabove, be allowed to challenge the Award on the
above ground. The Arbitrator had given an opportunity to the
petitioner to re-agitate the issue of the Agreement not being properly
stamped, however, the petitioner chose not to avail of such
opportunity. Now, by operation of law, the petitioner is debarred from
challenging the Award based on such Agreement.
36. Before concluding this issue, it must be emphasised that though
in terms of the judgment of the Supreme Court in N.N. Global
(supra), the Agreement, not being properly stamped, could not have
been admitted in evidence, however, once having been admitted in
evidence by the Arbitrator, the Award passed by relying thereon
cannot be faulted on this ground. This Court does not act as a court of
appeal against the Award and therefore, may not even have the powers
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 23 of 32
:
vested in Section 61 of the Indian Stamp Act. Even assuming that
Section 61 of the Indian Stamp Act applies, in view of the Proviso (b)
to Section 61 of the Indian Stamp Act, the Court would only impound
the document (in the present case by calling upon the petitioner to
produce the original of the same) and refer it to the Collector of
Stamps for adjudication on the proper stamp duty and penalty (in the
present case to be paid by the petitioner), however, the same shall not,
in any manner, effect the enforcement or the validity of the Arbitral
Award.
37. The Impugned Arbitral Award, therefore, cannot be faulted on
this ground.
Interpretation placed to the terms of the Agreement:
38. As noted hereinabove, the learned senior counsels for the
petitioner submits that the learned Sole Arbitrator has erred in
interpreting the terms of the Agreement to conclude that even where
the respondent did not consume the inventory and it remained unsold,
the petitioner herein was under an obligation to pay back for such
unconsumed/unsold inventory to the respondent and the respondent
would become entitled to receive payment for the said
unconsumed/unsold inventory.
39. They have submitted that the Agreement in question being a
Barter Agreement, at best, the petitioner would have been liable to pay
only for the inventory that it used in excess of the inventory that was
used by the respondent. As the respondent did not consume any
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 24 of 32
:
inventory of the petitioner, the petitioner would at best be liable pay
only a sum of Rs.2.01 crores to the respondent.
40. I am unable to agree to the above submission of the learned
senior counsels for the petitioner.
41. At the outset, I would again remind myself of the limited
jurisdiction that this Court is vested with under Section 34 of the Act,
especially on the interpretation placed by the Arbitrator on the terms
of the Agreement.
42. In Ssangyong Engineering and Construction Company
Limited (Supra), the Supreme Court has reiterated that the
construction of the terms of the Contract is primarily for an Arbitrator
to decide and unless the Arbitrator construes a Contract in a manner
that no fair-minded or reasonable person would, that is, where the
Arbitrator's view is not even a plausible view to take or where the
Arbitrator wanders outside the Contract and deals with the matter not
allotted to him, only then a ground of challenge to the Award under
Section 34 would be available to the party.
43. This view was reiterated by the Supreme Court in Delhi Airport
Metro Express Private Limited (supra) by cautioning the courts as
under:-
"28. This Court has in several other
judgments interpreted Section 34 of the 1996
Act to stress on the restraint to be shown by
Courts while examining the validity of the
arbitral awards. The limited grounds available
to Courts for annulment of arbitral awards are
well known to legally trained minds. However,
the difficulty arises in applying the well-
established principles for interference to the
facts of each case that come up before the
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 25 of 32
:
Courts. There is a disturbing tendency of
Courts setting aside arbitral awards, after
dissecting and reassessing factual aspects of
the cases to come to a conclusion that the
award needs intervention and thereafter,
dubbing the award to be vitiated by either
perversity or patent illegality, apart from the
other grounds available for annulment of the
award. This approach would lead to corrosion
of the object of the 1996 Act and the
endeavours made to preserve this object,
which is minimal judicial interference with
arbitral awards. That apart, several judicial
pronouncements of this Court would become a
dead letter if arbitral awards are set aside by
categorising them as perverse or patently
illegal without appreciating the contours of the
said expressions.
29. Patent illegality should be illegality
which goes to the root of the matter. In other
words, every error of law committed by the
Arbitral Tribunal would not fall within the
expression "patent illegality". Likewise,
erroneous application of law cannot be
categorised as patent illegality. In addition,
contravention of law not linked to public
policy or public interest is beyond the scope of
the expression "patent illegality". What is
prohibited is for Courts to reappreciate
evidence to conclude that the award suffers
from patent illegality appearing on the face of
the award, as Courts do not sit in appeal
against the arbitral award. The permissible
grounds for interference with a domestic
award under Section 34(2-A) on the ground of
patent illegality is when the arbitrator takes a
view which is not even a possible one, or
interprets a clause in the contract in such a
manner which no fair-minded or reasonable
person would, or if the arbitrator commits an
error of jurisdiction by wandering outside the
contract and dealing with matters not allotted
to them. An arbitral award stating no reasons
for its findings would make itself susceptible to
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 26 of 32
:
challenge on this account. The conclusions of
the arbitrator which are based on no evidence
or have been arrived at by ignoring vital
evidence are perverse and can be set aside on
the ground of patent illegality. Also,
consideration of documents which are not
supplied to the other party is a facet of
perversity falling within the expression
"patent illegality"."
44. Articles 2.3, 2.4, 6.1, 7.5 and 8.2 of the Agreement, on which
reliance has been placed by the learned senior counsels for the
petitioner, are reproduced hereinbelow:-
"2.3 The Parties agree that they shall consume
and fulfill their respective commitments under
the Agreement, within the Term of the
Agreement and in the manner set out in
Articles 5 and 7 below.
2.4 That ARG also accepts and agrees that
HT shall have the right to use (including, to
sell without restriction) the said inventory of
ARG upto 1 (one) year from the
Commencement Date. Post completion of 6
month from the Commencement Date, it shall
be obligatory on ARG to assist HT in selling
unconsumed/unsold inventory within the
remaining term of the Agreement. The parties
also agree that if HT and ARG are not, either
jointly or severally, able to sell any part of the
unconsumed/unsold inventory of ARG within
the term of the Agreement, then ARG shall be
under an obligation to buy-back such
unconsumed/unsold inventory from HT within
a period of 180 (one hundred eighty) Days
following expiry of the Term or within 30
(thirty) days following the date of termination
of the Agreement, whichever is earlier. In such
an event, HT shall receive payment for the
Total value of consideration stated in Article
6.1 below as reduced by the acknowledged
value of inventory of AGR used or sold by HT
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 27 of 32
:
and/or ARG under this Agreement. Both the
Parties agree that this understanding is fully
binding on the Second Party and shall never
be disputed at any point of time,
notwithstanding anything to the contrary
stated in Article 2.3 or any other tenet of the
Agreement entered into between the Parties.
xxxxx
6.1 The Total value of this Agreement in terms
of spots/ advertising space consumed by both
the Parties on or before the end of Term shall
be Rs. 10,00,00,000 (Rupees Ten Crores only).
It is however clarified that this amount in no
way indicates minimum guarantee or
commitment of any nature and is only
indicative in nature.
xxxxx
7.5 Both Parties will reconcile their barter
statement on a monthly/ basis.
xxxxx
8.2 In the event there is a shortfall in such
consumption by either Party, such Party shall
ensure that, and shall be obliged to so
consume and fulfill its proportionate part of
the Agreement, so outstanding on the date of
the termination notice, on or before
completion of the stipulated notice period of
30 days. The obligation of ARG under clause
2.4 shall apply mutatis mutandis to this clause.
In such an event, upon completion of this
notice period and proportionate consumption
of the contract value, the accounts shall be
squared off and both Parties shall be absolved
from their respective responsibilities and
neither Party shall have any rights, title,
claims or interest against the other, of any
nature whatsoever, at any point of time."
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 28 of 32
:
45. A reading of the above Articles would show that in case there
was unconsumed/unsold inventory of the respondent on completion of
six months from the Commencement Date, the petitioner was to assist
the respondent in selling the same within the remaining terms of the
Agreement. It was specifically agreed that in case the petitioner and
the respondent are not, either jointly or severally, able to sell a part of
the unconsumed/unsold inventory of the respondent within the term of
the Agreement, then the petitioner shall be under an obligation to buy
back such unconsumed/unsold inventory from the respondent within a
period of 180 days following the expiry of the term of the Agreement.
It was further agreed that in such an event, the respondent was to
receive a payment of the total value of consideration stated in Article
6.1 of the Agreement as reduced by the acknowledged value of
inventory of the petitioner used or sold by the respondent and/or the
petitioner under the Agreement.
46. In the present case, the respondent had not used any inventory
of the petitioner and the same also remained unsold. The respondent
was, therefore, entitled to receive the full value of the inventory in
terms of Article 2.4 of the Agreement.
47. The learned Sole Arbitrator has also found the same by
observing in the Impugned Award, as under:-
"60. Whereas no consequence is stipulated in
the event Respondent did not consume
its part of the inventory, reverse is not
true inasmuch as the Claimant has been
given certain rights under Article 2.4. In
case the Claimant did not consume the
inventory and it remained unsold, its
share of inventory was INR 5.00 crore
Signature Not Verified which remained unconsumed/unsold. In
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 29 of 32
:
that event, the Respondent was under
obligation to 'bay back such
unconsumed/unsold inventory' from the
Claimant and the Claimant became
entitled to receive payment for the said
unconsumed/unsold inventory. The
Respondent had made a conscious
choice for such an arrangement. It knew
that part of its inventory vested with the
Claimant remains unconsumed/unsold,
the Respondent will have to pay for that.
Therefore, the Respondent would be
liable to pay a sum of INR 5.00 crore to
the Claimant.
61. It is a fact that though the Respondent
could consume inventory in the sum of
INR 5.00 crore of the Claimant and as
against that, it has consumed Claimant's
inventory of INR 2.01 crore. However,
as pointed out above, in the event the
Respondent is not able to use the entire
inventory of the Claimant, no
implication thereof is stated.
Notwithstanding that the Respondent
chose not to utilise the inventory of the
Claimant to the fullest extent i.e., INR
5.00 crore, even after it knew fully well
that the unconsumed inventory will not
yield any results. It simply lapsed. Thus,
the Respondent cannot say that it should
be made to pay only INR 2.01 crore
which is the inventory consumed by the
Respondent.
xxxxx
63. It needs to be emphasised that the
Agreement in question is of commercial
nature between two business entities.
Therefore, it can be safely inferred that
the parties knew the implications
flowing from the Agreement,
particularly Article 2.4 thereof.......
xxxxx
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 30 of 32
:
64. The Tribunal is conscious of the fact
that under the given circumstances,
when the Respondent has utilised
inventory only for an amount of INR
2.01 crore, it is called upon to pay a
sum of INR 5.00 crore. That is what the
Agreement provides for. The Tribunal is
supposed to decide the matter having
regard to the provisions of the Contract
and cannot apply the principles of
equity, as per the clear mandate of
Section 28(2) of the Arbitration and
Conciliation Act 1996."
48. I find no fault/infirmity in the interpretation placed by the
learned Sole Arbitrator to the Agreement. Consequently, I find no
merit in the challenge to the Award on this account.
Application of Section 74 of the Contract Act:
49. As noted hereinabove, the learned senior counsels for the
petitioner have also contended that in the absence of any proof of
damage being suffered by the respondent, the learned Sole Arbitrator
has erred in law in passing the Impugned Award in favour of the
respondent. I find no merit in the said submission.
50. In the present case, the claim of the respondent is not based on
any alleged breach of the Agreement by the petitioner. What the
respondent herein claims is the consideration payable under the
Agreement itself. The question of proof of damage, therefore, is not at
all relevant to the said claim of the respondent. As the learned
Arbitrator has rightly observed, this is a Commercial Agreement and
the parties have decided on the consideration payable under the same.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:05.07.2023
19:37:29 O.M.P. (COMM) 161/2023 Page 31 of 32
:
Inadequacy of consideration is not a ground that vitiates the
Agreement. It is also not open to the Arbitrator or for this Court to
rewrite the Agreement to what may appear to it to be more just and
fair.
51. I therefore, find no merit in this challenge of the petitioner as
well.
CONCLUSION:
52. In view of the above, I find no merit in the present petition. The
petition and the pending application are dismissed. There shall be no
order as to costs.
NAVIN CHAWLA, J.
JULY 04, 2023/rv/RP/AN Signature Not Verified Digitally Signed By:SUNIL Signing Date:05.07.2023 19:37:29 O.M.P. (COMM) 161/2023 Page 32 of 32