Madras High Court
Union Of India vs M/S.Arun Kumar Deedwania on 2 November, 2020
Author: M.Sundar
Bench: M.Sundar
O.P.Nos.121 & 311 of 2020
Union of India Vs.M/s.Arun Kumar Deedwania
Engineers & Builders
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.11.2020
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
O.P.Nos.121 & 311 of 2020
and
A.Nos.1234 & 719 of 2020
in
O.P.Nos.121 & 311 of 2020
Union of India
Rep. by Chief Engineer
Chennai Zone, Island Grounds
Chennai-600 009. ... Petitioner in both OPs
vs.
M/s.Arun Kumar Deedwania
Engineers & Builders
Arunodaya, 21, Balaji Park
Behind Annand Park, Baner
Pune-4. ... Respondents in both OPs
Original Petition No.121 of 2020 filed under Section 34 of the
Arbitration and Conciliation Act, 1996, to set aside the award made and
published on 14.03.2017 received on 23.03.2017 passed by the Sole
Arbitrator-SHRI.SURESH KUMAR GUPTA, Addl. Director General
(Contracts) in Arbitration proceedings ref. PERTAINING TO CONTRACT
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O.P.Nos.121 & 311 of 2020
Union of India Vs.M/s.Arun Kumar Deedwania
Engineers & Builders
AGREEMENT NO.CECZ/BAN-25 of 2011-2012 : PROVISION OF
BAFFLE RANGE AT PARA RC BANGALORE (SPECIAL WORK) with
respect to the total award for Rs.40,70,147/- (plus interest) in favour of the
respondent and consequently, to modify the award by allowing the
petitioner's claim of UOI for extra expenditure amounting to
Rs.1,86,21,299.02 (Rupees One Crore Eighty Six Lakhs Twenty One
Thousand, Two Hundred and Ninety Nine and Paise Two Only) incurred by
Union of India for completing the balance works at the respondent's risk and
cost after cancellation of the Contract Agreement on 09.01.2014 with effect
from 10.01.2014.
Original Petition No.311 of 2020 filed under Section 34 of the
Arbitration and Conciliation Act, 1996, to set aside the award made and
published on 20.05.2017 (received on 29.05.2017) First Award was
amended on 13.06.2017 (received on 19.06.2017) and Second Award was
amended on 17.06.2017 and received on 23.06.2017 passed by the Sole
Arbitrator-SHRI.SURESH KUMAR GUPTA, Addl. Director General
(Contracts) in Arbitration proceedings ref. CA.NO.CECZ/BAN-18 OF
2011-12 PRVN OF 400 MEN OTM ACCN (3rd TRG COY) TB-1, MEG &
CENTRE BANGALORE respect to the total award for Rs.55,86,102/- in
favour of the respondent and consequently, to modify the award by allowing
the petitioner's claim of UOI for extra expenditure amounting to
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O.P.Nos.121 & 311 of 2020
Union of India Vs.M/s.Arun Kumar Deedwania
Engineers & Builders
Rs.4,22,78,932.18 (Rupees Four Crore Twenty Two Lakhs Seventy Eight
Thousand Nine Hundred Thirty Two and Paise Eighteen Only) incurred by
Union of India for completing the balance works at the respondent's risk and
cost after cancellation of the Contract Agreement on 09.01.2014 with effect
from 10.01.2014.
For petitioner in both OPs : Mr.R.Sankara Narayanan
Additional Solicitor General of India
instructed by
Mr.Venkataswamy Babu
Senior Panel Counsel
for Central Government
For Respondent in both OPs: Mr.V.P.Raman
C O M M ON O R D E R
Captioned 'Original Petitions' ('OPs' in plural and 'OP' in singular for the sake of brevity and convenience) are applications under Section 34 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of convenience and clarity.
2. In this order, from hereon 'O.P.No.121 of 2020' shall be referred to as 'Senior OP' and 'O.P.No.311 of 2020' shall be referred to as 'Junior OP' Page No.3/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders based on the sequence in which numbers have been assigned. This is for the sake of convenience.
3. Senior and Junior OPs have been filed assailing two separate Arbitral Awards dated 14.03.2017 and 20.05.2017 respectively.
4. Captioned OPs pertain to contracts between petitioner and the same contractor (respondent), but for two different works in Bangalore.
There is no disputation or disagreement that two contracts contain arbitration clauses, which serve as arbitration agreement between the parties within the meaning of Section 2(1)(b) read with Section 7 of A and C Act.
As there is no disputation or disagreement with regard to arbitrality of disputes, sole Arbitrator was appointed and sole Arbitrator entered upon reference. It will suffice to say that the same sole Arbitrator, who is 'Additional Director General (Contracts) of the petitioner' (hereinafter 'State' for the sake of brevity) was appointed as sole Arbitrator in both matters and this sole Arbitrator constituted 'Arbitral Tribunal' ('AT' for the sake of Page No.4/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders brevity).
5. AT held separate sittings with regard to arbitral disputes which arose out of two contracts and made the aforementioned two arbitral awards.
As petitioner is being referred to as 'State' for convenience, the respondent in both the captioned OPs shall be referred to as 'contractor' for the sake of convenience.
6. Senior OP arises out of a contract for construction of baffle range and this Court is informed that baffle range is nothing but a firing/shooting range. Junior OP arises out of a contract for construction of accommodation for staff of State and this accommodation is referred to as OTM accommodation. This Court is informed 'OTM' stands for 'Other than married'. This Court is also informed that this is in the nature of barracks.
7. In captioned OPs, learned Solicitor i.e., Additional Solicitor General of India Mr.R.Sankara Narayanan instructed by Mr.Venkataswamy Page No.5/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Babu, learned Senior Panel Counsel for Central Government and Mr.V.P.Raman, learned counsel for contractor assisted by Mr.Seshadri were before me. Learned counsel on both sides consented for captioned OPs being taken up for final disposal in this virtual hearing on a video conferencing platform and for being heard out.
8. Therefore, captioned OPs were taken up for final disposal, heard out and now, this common order is being passed in captioned OPs.
9. In the light of the submissions that were made and in the light of discussion and dispositive reasoning that is to follow, this Court deems it appropriate to record that senior OP was presented in this Court on 17.07.2017 and junior OP was presented in this Court on 12.10.2017. This means that both captioned OPs will now be governed by A and C Act as obtaining in the post 23.10.2015 regime of A and C Act. In other words, both captioned OPs will be governed by A and C Act as amended by Act 3 of 2016, which kicked in with retrospective effect on and from 23.10.2015.
Page No.6/45http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders This is owing to Ssangyong principle. By Ssangyong principle, this Court is referring to the principle laid down by Hon'ble Supreme Court in Ssangyong Engineering and Construction Company Limited Vs. National Highways Authority of India reported in (2019) SCC Online SCC 677 equivalent to (2019) 15 SCC 131. It is also necessary to notice that oft-
quoted judgement of Hon'ble Supreme Court being Associate Builders case i.e., Associate Builders Vs. Delhi Development Authority reported in (2015) 3 SCC 49 was rendered by Hon'ble Supreme Court on 25.11.2014.
The significance is, Associate Builders was rendered prior to amendment of A and C Act on and from 23.10.2015 and in Ssangyong case law, Hon'ble Supreme Court has elucidatively and instructively set out the impact of amendment qua principles laid down in Associate Builders case. There would be some discussion on this, in this order infra. Therefore, this has been set out.
10. In both captioned OPs, factual matrix turns on a very narrow compass. This being Section 34 proceedings i.e., one issue summary Page No.7/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders proceedings, it will suffice to say that contracts were terminated under Clause 54(a) of what is referred to as 'General Conditions of Contract' ('GCC'). To be noted, there is no disputation that GCC is to be read as an integral part of both contracts. It is also to be noted that there are 'Special Conditions of Contract' ('SCC'), which also forms part of the contracts.
GCC and SCC are in the nature of templates and they are to be read as integral part and parcel of said contracts.
11. The crux and gravamen of lis before AT is, according to the contractor, termination is bad as delay qua work was owing to inaction on the part of State. In other words, to put it differently, according to contractor, delay was caused by State and therefore, the contractor is entitled to certain sums of money for the work done, besides other heads such as loss and profits. State made a counter claim, saying that they had to complete the work by engaging another contractor and this has resulted in additional expenditure being incurred.
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12. This Court had set out supra that it will suffice to give short facts shorn of elaboration as captioned OPs are under Section 34 of A and C Act.
This is in tune and tandem with principle laid down by Hon'ble Supreme Court in Fiza Developers case [Fiza Developers and Inter-Trade Private Limited Vs. AMCI (India) Private Limited reported in (2009) 17 SCC 796].
This Fiza Developers principle was subsequently reiterated by Hon'ble Supreme Court in Emkay Global case [Emkay Global Financial Services Ltd. v. Girdhar Sondhi reported in (2018) 9 SCC 49] as a step in the right direction and very recently in Canara Nidhi Limited case [M/S. Canara Nidhi Limited vs M. Shashikala reported in 2019 SCC Online SC 1244].
Fiza Developers principle is to the effect that Section 34 proceedings are summary proceedings. Fiza Developers case also makes it clear that proceedings under Section 34 are not only summary proceedings, but are one issue summary proceedings. By saying one issue summary proceedings, it has been made clear by Hon'ble Supreme Court that impugned arbitral award being put to challenge within the legal land scape of Section 34 of A and C Act itself is the issue and that would be the lone Page No.9/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders issue. In other words, it has been made clear that one issue summary procedure does not mean that the lis itself should turn on one issue. In a Section 34 application, arbitral award being put to challenge itself becomes an issue. With regard to Canara Nidhi principle, it is to the effect that no documents, which were not part of the records before AT, can be introduced in a Section 34 application. Suffice to say that these case laws have been referred to, to make it clear as to why this Court is saying that short facts shorn of elaboration will suffice.
13. With regard to Senior OP, contractor made claims under 8 heads, which as culled out from the case file read as follows:
'Claim No.1: Balance payments for the works done at site including deviations to contract and escalation Amount of Claim: Rs.41,90,507.00 Revisied amount : Rs.17,34,844.00 Claim No.2: Material belonging to contractor lying at sit an taken over by Respondent Amount of Claim: Rs.42,63,808.00 Revisied amount : Rs.46,11,194.42 Claim No.3: T & P and shuttering materials at site belonging to an outside agency confiscated by department Page No.10/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Amount of Claim: Rs.12,45,900.00 Claim No.4: Delayed/Under/Non payment of RARs Amount of Claim: Rs.6,03,020.00 Claim No.5: Loss of Profit Amount of Claim: Rs.42,10,453.00 Claim No.6: Consequences of contractual breaches by the Respondent Amount of Claim: Rs.17,91,662.00 Claim No.7: Cost of arbitration and other related expenses Amount of Claim: Rs.6,20.000.00 Claim No.8: Interest for pat, pendentelite and future periods Amount of Claim: Interest at 20% p.a.'
14. State made counter claim under 2 heads, which as culled out from case file read as follows:
'Claim No.1: Additional expenditure incurred in getting the incomplete work executed through other agency. Amount of Claim: Rs.1,42,37,644.28 Revised Amount: Rs.1,86,21,299.02 Claim No.2: Cost of Reference Amount of Claim: Rs.2,00,000.00'
15. In and by the impugned award, AT allowed certain heads of claim in favour of contractor and negatived the counter claim of State in its entirety. In junior OP, contractor made claims under 9 heads, which as culled out from case file are as follows :
'Claim No.1:- Balance Payments for works done at site Page No.11/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders including deviations to contract and escalation. Amount of Claim : Rs.70,25,183.00 Revised amount : Rs.23,67,614.00 Claim No.2:- Material belonging to contractor lying at site and taken over by Respondent Amount of Claim: Rs.70,02,635.00 Claim No.3:- T & P and shuttering materials at site belonging to an outside agency confiscated by department Amount of Claim : Rs.30,07,800 Claim No.4:- Delayed/Under/Non payment of RARs Amount of Claim : Rs.5,03,112.00 Claim No.5:- Loss of Profit Amount of Claim : Rs.61,06,815.00 Claim No.6:- Consequences of contractual breaches by the Respondent Amount of Claim : Rs.22,80,139.00 Claim No.7:- Cost of arbitration and other related expenses Amount of Claim : Rs.6,20,000.00 Claim No.8:- Interest for past, pendentelite and future periods @ 20% per annum Claim No.9:- Release of Bank Guarantees held by the Department'
16. State made counter claim under 3 heads, which as culled out from case file are as follows :
'Claim No.1:- Additional expenditure incurred in getting the incomplete work executed through other agency.
Amount of Claim: Rs,3,72,42,614.12 Revised amount : Rs.4,22,78,932.18 Claim No.2:- Interest Claim No.3:- Cost of Reference Amount of Claim: Rs.2,00,000.00' Page No.12/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders
17. As in the impugned award in Senior OP, in the impugned award in Junior OP also, AT acceded to certain heads of claim in favour of contractor and negatived the counter claim of State in its entirety.
18. The entire lis before AT centers around whether delay in execution of work was owing to State or it was owing to the contractor. It in effect also turns on whether termination/cancellation of the contracts under 54(a) of GCC was valid. AT vide the impugned awards came to the conclusion that delay in execution of work was attributable to State (not the contractor) and as a sequitur, came to the conclusion that cancellation of the contract under 54(a) of GCC is clearly not tenable. This is the basis on which that AT acceded to some heads of claim of the contractor and negatived the counter claim of State in its entirety.
19. Learned Solicitor appearing for State, notwithstanding very many contentions in the OP, made it clear that his challenge to the impugned Page No.13/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders awards is two pronged and according to learned Solicitor, two pronged attack is (a) no discussion on evidence resulting in lack of judicial approach,
(b) Impugned awards to not pass the test of Wednesbury principle of reasonableness.
20. In response to the above submission, learned counsel for contractor submitted that AT has, in fact, discussed evidence and it cannot be gainsaid that evidence has not been looked into. It was also argued by learned counsel for contractor that cancellation is under Clause 54(a) of GCC and it is not under other clauses which provide for cancellation. It was pointed out by learned counsel for contractor that before AT, State had the option of taking the plea that cancellation was under 54 (c) or 54(d), but this did not happen, State predicated its entire argument before AT on the assertion that cancellation of contracts is only under 54(a). In this regard, it was asserted that AT is first and final authority qua examination of facts. In this regard, it is necessary to extract and reproduce Clause 54 of GCC, this Court does so and the same reads as follows:
Page No.14/45http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders '54. Cancellation of Contract in part or in full for Contractor's Default.- If the Contractor -
(a) makes default in commencing the Works within a reasonable time from the date of the handing over the site, and continues in that state after a reasonable notice from G.E. or
(b) in the opinion of the G.E at any time, whether before or after the date or extended date for completion, makes default in proceeding with the Works, with due diligence and continues in that state after a reasonable notice from G.E. or
(c) fails to comply with any of the terms and conditions of the Contract, or after reasonable notice in writing with orders properly issued thereunder, or
(d) fails to complete the Works, Work order and items of Works, with individual dates for completion and clear the Site on or before the date of completion.
The Accepting Officer may, without prejudice to any other right or remedy which shall have accrued or shall accrue thereafter to Government, cancel the Contract as a whole or only such Work Page No.15/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Order(s) or items of Work in default from the Contract. Whenever the Accepting Officer exercises his authority to cancel the Contract as a whole or in part under this Condition he may complete the Work by any means at Contractor's risk and cost, provided always that in the event of cost of completion or after alternative arrangements have been finalised by the Government to get the Works completed, estimated cost of completion (as certified by G.E.) being less than the Contract cost, the advantage shall accrue to the Government. If the cost of completion or after alternative arrangements have been finalised by the Government to get the Works, completed, estimated cost of completion (as certified by G.E.) exceeds the moneys due to Contractor under this Contract, the Contractor shall either pay the excess amount ordered by G.E. or the same shall be recovered from the Contractor by other means. The Government shall also be at liberty to hold and retain in their hands materials, tackle, machinery and stores of all kinds on Site, as they may think proper and may at any time sell any of the said materials, tackle, machinery and stores and apply the proceeds of sale in or towards the satisfaction of any loss which may arise from the cancellation of the Contract as aforesaid. The Government shall also be at liberty to use the materials, tackle, machinery and other stores on Site of the Contractor as they think proper in completing the work and the Contractor will be allowed the necessary credit. The value of the materials and Page No.16/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders stores and the amount of credit to be allowed for tackle and machinery belonging to the Contractor and used by the Government in completing the work shall be assessed by the G.E. and the amount so assessed shall be final and binding. In case the Government completes or decides to complete the Works or any part thereof under the provision of this Condition, the cost of such completion to be taken into account in determining the excess cost to be charged to the Contractor under this Condition shall consist of the cost or estimated cost (as certified by G.E.) of materials purchased or required to be purchased and/or the labour provided or required to be provided by the Government as also the cost of the Contractor's materials used with an addition of such percentage to cover superintendence and establishment charges as may be decided by the C.W.E., whose decision shall be final and binding.'
21. This Court now proceeds to embark upon the exercise of discussion and giving its dispositive reasoning for the purpose of arriving at a conclusion in both captioned OPs.
22. At the outset, it is to be noted that there is no disputation or disagreement between both parties that no oral evidence was let in before Page No.17/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders AT. Only documentary evidence was produced and the same were obviously marked as Exhibits. In senior OP, Ex.C1 to Ex.C109 were marked on the side of contractor, who was claimant and on the side of State, which was respondent, Ex.1 to Ex.66 were marked. In junior OP, on side of contractor (claimant before AT) Ex.C1 to Ex.C95 were marked and on behalf of State (respondent before AT), 70 Exhibits were marked.
23. As alluded to supra, it is the case of State that AT has not considered the evidence before it. This means that documentary evidence has not been considered. This has been alluded to supra and it is necessary to delineate this with specificity. It is the case of State that following exhibits have not been considered:
03.04.2012 Extension of completion date for Phase I by 4 months sought by Respondent.
04.07.2012 Reminder to Extension of completion date for Phase I by 4 months sought by Respondent.
Further extension upto 31.10.2020 for completion of Phase I sought 04.07.2012 Letter through which contractor agrees that Page No.18/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders all trees have been cut.
24.07.2012 Letter stating as on that date only one tree was left to be cut as the area around it had been dug by the Contractor 21.11.2012 Letter reg. cutting of trees, add back DOs and extension of time 12.03.2013 Reply regarding permission for extension given.
25.03.2013 Letter from CWA regarding non production of samples and failure in progress of work by Contractor.
10.04.2013 Show cause issued to explain why the firm should be recommended for further issue of tender.
05.07.2013 Letter reg. allotment of time by the department for updation of CPM chart and reconciling pending issued.
14.09.2013 Letter from Department showing that as on August 2013, only 37.5% of total work had been completed.
Date of completion of Phase I being 17.04.2012.
16.11.2013 Final Notice 09.01.2014 Contract Cancelled on account of default on the part of Contractor.
18.01.2014 Order convening Board of Officers for making inventory.
06.02.2014 Letter from Dept. stating that the Contractor's representative was absent when the Board visited the site and therefore inventory was Page No.19/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders completed in their absence.
12.05.2014 Letter regarding final bills raised.
24. In response to above, learned counsel for contractor drew the attention of this Court to Paragraph Nos.51 and 61 of the award in Senior OP, which read as follows:
'51. In the matter of its performance under Condition 6 of GCC, Union of India stated that the relevant 'Add-back Dos' were issued commencing 30 Aug 2012 and continued till to 25 Jul 2013. It was also admitted that 'Add-back Dos' for Parts IV and VIII of Schedule 'A' were not issued but blamed the Contractor for the same. Union of India also stated that delay of 4 months in deciding the reduced levels (in terms of Condition 38 of GCC) could not have affected a 25 month overall period of completion. Union of India further blamed the Contractor even for this delay.'
61. I have examined all the written submissions, the evidence led by the parties by way of exhibits and the case laws relied upon by them during the course of arguments very minutely. I had patiently heard both the parties. In so far as cancellation of contract by Union of India is concerned, Union of India has placed reliance on slow progress by the Contractor on the works at site.Page No.20/45
http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders However, Union of India has made no substantive analysis of the entire set of reasons that had actually led to slow progress or on the delays in performance of its own prior obligation. The letters placed on record by Union of India mainly relate to the slow progress notices or the performance of its obligations which were delayed when seen in the light of contract conditions that had been agreed to between the parties. I have gone through the same as also the specific replies to the same in Contractor's rejoinder. The Contractor had led extensive evidence on the delay factors on various fronts regarding execution of this contract. I find that Union of India has not been able to defend its action in the matter of delays caused at its hands in performance of its obligations. The delays in handing over of clear unobstructed site during the initial commencement of contract stand established by the factual evidence which had not been countered by the Union of India. In fact, Union of India had meekly admitted of delays in this regard. Therefore, it would be obvious to conclude that this contract did not get the desired start nor did it move with desired pace. There was admitted evidence of delays caused due to cutting of trees and in deciding the levels. Delay in finalization of levels till Apr 2012 is also admitted by Union of India. When such delays occur and if the same are not quickly resolved, the contract cannot be said to be moving/sailing smoothly. It is also proven that works at site had also got delayed due to decision in delays particularly in the work of compound wall Page No.21/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders construction caused on various issues that had cropped up during the course of execution of work. Therefore, Union of India cannot absolve itself and has to take the responsibility for such delays, whatever the effect of these be.'
25. It is submitted that 'Add-back Dos' refers to values being tentative and only on firm values being given, the entire operation kicks in.
Be that as it may, these paragraphs were pointed out to say that documents/exhibits have in fact been looked into.
26. This Court proceeds to set out the next line of attack namely, Wednesbury principle of reasonableness test. This Course is being adopted as both these points would be dealt with together infra in dispositive reasoning. On Wednesbury principle of reasonableness being breached, learned counsel for Solicitor placed reliance on Associate Builders case law.
27. In response to this Wednesbury principle of reasonableness test , it was submitted by learned counsel for contractor that a perusal of Page No.22/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Paragraph No.50 of the award in the Senior OP would reveal that Wednesbury principle of reasonableness has not been breached or given a go by. More importantly, Paragraph No.61, which has already been extracted and reproduced supra, was read through to demonstrate that State itself has neatly admitted the delay. This has been captured by AT in the impugned award. It was submitted that in this backdrop i.e., in the back drop of delay in giving the values qua Add-back Dos and State itself admitting delay, it cannot be gainsaid that Wednesbury principle of reasonableness has been given a go by.
28. This Court now embarks upon the exercise of setting out its discussion and giving its dispositive reasoning. In the oft-quoted Associate Builders case, being Associate Builders Vs. Delhi Development Authority reported in (2015) 3 SCC 49, Hon'ble Supreme Court reiterated the principles laid down in Western Geco being the judgement of Hon'ble Supreme Court in ONGC Ltd. v. Western Geco International Ltd., reported in (2003) 5 SCC 705. To be noted Western Geco was rendered by Hon'ble Page No.23/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Supreme Court on 04.09.2014. It will suffice to say that in Western Geco with regard to challenge to an arbitral award under Section 34, Hon'ble Supreme Court culled out three distinct juristic principles/doctrines and also laid down three distinct tests for each of judicial principle/doctrine. The three distinct juristic principles/doctrines culled out by Hon'ble Supreme Court are
a) Judicial approach;
b) Violation of 'Natural Justice Principles' ('NJP' for brevity); and
c) Irrationality/perversity.
29. The three distinct tests laid down Hon'ble Supreme Court are
a) fidelity of judicial approach;
b) time honoured audi alteram partem and
c) Wednesbury principle of reasonableness respectively.
30. As already alluded to supra, post Western Geco and Associate Builders, amendment to A and C Act kicked in on 23.10.2015. Hon'ble Page No.24/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Supreme Court has elucidatively and instructively laid down the impact of the amendment qua Western Geco / Associate Builders principles in Ssangyong Engineering case [Ssangyong Engineering and Construction Company Limited Vs. National Highways Authority of India reported in (2019) 15 SCC 131], which was rendered by Hon'ble Supreme Court on 08.05.2019. For the purpose of clarity and convenience, this Court deems it appropriate set out the impact of the amendment. In paragraphs 28 and 29 of Associate Builders case, Paragraphs 35 and 38 to 40 of Western Geco were extracted and reiterated. In Ssangyong Engineering case, Supreme Court has now made it clear that these principles will now not be applicable in the post 23.10.2015 regime owing to Explanation 2 to Section 34(2)(b)(ii) of A and C Act and Supreme court has also explained that post 23.10.2015, Section 34 exercise does not entail a review on the merits of the dispute. This is vide Paragraph Nos. 34 to 36 of Ssangyong Engineering case. Relevant paragraphs read as follows:
Page No.25/45http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Paragraph Nos.28 and 29 of Associate Builders case law:
'28. In a recent judgment, ONGC Ltd. v. Western Geco International Ltd. [(2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] , this Court added three other distinct and fundamental juristic principles which must be understood as a part and parcel of the fundamental policy of Indian law. The Court held: (SCC pp. 278- 80, paras 35 & 38-40) “35. What then would constitute the ‘fundamental policy of Indian law’ is the question. The decision in ONGC [(2003) 5 SCC 705 : AIR 2003 SC 2629] does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression ‘fundamental policy of Indian law’, we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the fundamental policy of Indian law. The first and foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called a ‘judicial approach’ in the matter. The duty to adopt a judicial approach arises from the very nature of the power Page No.26/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders exercised by the court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of a judicial approach in judicial and quasi-judicial determination lies in the fact that so long as the court, tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge.
***
38. Equally important and indeed fundamental to the policy of Indian law is the principle that a court and so also a quasi-
judicial 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. Non-application of mind is a defect that is fatal to Page No.27/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders 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.
39. 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 [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ jurisdiction of the superior courts but no less in statutory processes wherever the same are available.
40. 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 Page No.28/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders 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.” (emphasis in original)
29.It is clear that the juristic principle of a “judicial approach” demands that a decision be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective.' Paragraph Nos. 34 to 36 of Ssangyong case law:
'34. What is clear, therefore, is that the expression “public policy of India”, whether contained in Section 34 or in Section 48, would now mean the “fundamental policy of Indian law” as explained in paras 18 and 27 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] i.e. the fundamental policy of Indian law would be relegated to “Renusagar” understanding of this expression. This would necessarily mean that Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] expansion has been done away with. In short, Western Geco Page No.29/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 :
(2014) 5 SCC (Civ) 12] , as explained in paras 28 and 29 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court's intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in para 30 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] .
35. It is important to notice that the ground for interference insofar as it concerns “interest of India” has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be understood as a conflict with the “most basic notions of morality or justice”. This again would be in line with paras 36 to 39 ofAssociate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground.
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36.Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paras 18 and 27 of Associate Builders[Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , or secondly, that such award is against basic notions of justice or morality as understood in paras 36 to 39 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] . Explanation 2 to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] , as understood in Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , and paras 28 and 29 in particular, is now done away with.'
31. To be noted, with regard to the second juristic doctrine i.e., violation of NJP, which has been set out in Paragraph 30 of Associate Builders case, Supreme Court has held in Ssangyong Engineering case that the same continues to apply post 23.10.2015 also. This is set out in paragraph 34 of Ssangyong Engineering case or in other words, this is clearly understood as a sequitur that flows from Paragraph 34 of Page No.31/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Ssangyong Engineering case which has been extracted and reproduced supra.
32. This takes us to another important facet of the impact, which is of significance qua the case on hand and that pertains to the third juristic doctrine, namely perversity/irrationality. This is dealt with in Paragraphs 31 and 32 of Associate Builders case. In Ssangyong Engineering case i.e., in paragraph 41 of Ssangyong Engineering case, Hon'ble Supreme Court has made it clear that perversity is no longer available as a ground as set out in Paragraphs 31 and 32 of Associate Builders case but post 23.10.2015 it will still be available as a ground of patent illegality under sub-section (2A) of Section 34. To be noted, patent illegality was available as a ground of challenge to an arbitral award even prior to 23.10.2015, but that was not by way of a statutory provision, but by way of judge made law being law laid down by Hon'ble Supreme Court in Oil and Natural Gas Corporation Ltd.
Vs. Saw Pipes Ltd., reported in (2003) 5 SCC 705 and the relevant paragraph is Paragraph 31 at Page 728 of saw pipes. Relevant paragraphs Page No.32/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders are as follows:
Paragraph 31 of Saw Pipes case law '31. Therefore, in our view, the phrase “public policy of India” used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term “public policy” in Renusagar case [1994 Supp (1) SCC 644] it is required to be held that the award could be set aside if it is patently illegal. The result would be — award could 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, or
(d) in addition, if it is patently illegal.Page No.33/45
http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.' Paragraph Nos.31 & 32 of Associate Builders case '31.The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where:
(i) a finding is based on no evidence, or
(ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or
(iii) ignores vital evidence in arriving at its decision, such decision would necessarily be perverse.
32.A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312] , it was held: (SCC p. 317, para 7) “7. … It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or Page No.34/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.” In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429] , it was held: (SCC p. 14, para 10) “10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.”' Paragraph 41 of Ssangyong case law:
'41.What is important to note is that a decision which is perverse, as understood in paras 31 and 32 of Associate Builders [Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , while no longer being a ground for challenge under “public policy of India”, would certainly amount to a patent Page No.35/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be characterised as perverse.'
33. With regard to sub-section (2A) of Section 34 which now provides for patent illegality, it is clearly circumscribed by a proviso, which is two limbed. The proviso is two limbed because one limb of proviso makes it clear that a mere erroneous application of law cannot be a ground to set aside an award on the ground of patent illegality and the second limb of the proviso makes it clear that re-appreciation of evidence is forbidden.
As it was pointed out that appreciation of evidence and re-appreciation of evidence is not adequately explained, this Court embarked upon the exercise of doing so in 14 Reels Entertainment Private Limited Vs.Eros Page No.36/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders International Media Limited being order dated 04.09.2020 in O.P.No.298 of 2020. Relevant paragraph is paragraph 27 and the same reads as follows:
'27. Solely for the sake of illustration, let us take a case where the issue to be tested is whether jural relationship between two parties is that of lessor and lessee or licensor and licensee. Let us assume that a document i.e., contract between parties which is inter alia an adumberation of covenants and clauses between the contracting parties is available before the Adjudicating Authority and that both sides have let-in oral evidence. The witnesses are inter alia the contracting parties and that deposition of these parties to the document turn on jural relationship between the parties. Proceeding with this illustration, one has to bear in mind that a mere caption to a document on hand will not conclusively decide the jural relationship between the parties. Likewise, one should also bear in mind that the contents of the document by themselves do not prove a fact. In this backdrop, the Adjudicating Authority, which has the task of decoding and deciphering this document in the light of the document itself, which is an exhibit before it in conjunction with oral evidence, which is the deposition inter-alia of contracting parties to the document, examines at the question of whether there has been transfer of possession of demised portion from one party to the other, as this would be one of the extremely critical questions to decide whether the jural relationship is one of lease or licence. Let us assume that the Page No.37/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders deposition is to the effect that the demised portion is part of a larger property and that the question as to who controls the ingress and egress to the demised property also forms part of deposition. Let us also assume that there are some other exhibits in the form of sketches / photographs besides a topography sketch, which describe these aspects of the matter and that witnesses, who are inter alia contracting parties to the contentious document, speak about all this. If the Adjudicating Authority deploys a clinical, forensic approach, sifts through, analyses / scrutinizes all these oral/documentary evidence and comes to the conclusion that the ingress and egress to the immovable property (of which the demised portion is a part) is controlled by one party and that there is no transfer of possession by this party to the other party qua demised portion, the Adjudicating Authority may come to the conclusion that the jural relationship between the contracting parties is a license and not a lease. If sifting and scrutiny of oral/documentary evidence leaves the Adjudicating Authority with a contrary conclusion, the Adjudicating Authority may hold that the jural relationship between the parties is that of a lease. In this illustration, when the matter is carried in appeal, it may well be possible for the protagonist of the appeal to point out certain inconsistencies in the oral evidence and contradictions qua evidence before the Adjudicating Authority. While sifting and scrutinizing of oral and documentary evidence by the original Adjudicating Authority to come to a conclusion about jural relationship between Page No.38/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders the contracting parties can be described as 'appreciation of evidence', the exercise of Appellate Authority going into the inconsistencies and contradictions in evidence pointed out by the appellant and having a clinical, forensic relook at the oral/documentary evidence before original Adjudicating Authority can be described as 're-appreciation of evidence'. This is a second bite at the cherry by the protagonist.'
34. This takes us as to how the aforementioned march of law applies in the case on hand. From the discussion thus far, it comes to light that perversity or patent illegality should be such that a vital document which would directly impact the outcome of the arbitration proceedings should have been given a complete go by. To put it differently, vital evidence should have been ignored.
35. In the instant case, with regard to the exhibits, which according to State, have not been discussed in the arbitral award, this Court is of the considered view that there is nothing to demonstrate that all those exhibits would directly impact the outcome of the impugned awards made by the AT.Page No.39/45
http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders Likewise, from the discussion and the dispositive reasoning thus far, it will also be clear that it cannot be gainsaid that AT has not referred to any of the exhibits. It would also be clear that mass of exhibits were before the AT and the AT has referred to those exhibits which in its wisdom are relevant and there is nothing to demonstrate that this is implausible.
36. Be that as it may, it is necessary to notice that learned Solicitor also referred to Sections 54 and 67 of the Indian Contract Act, 1872 which read as follows:
'54.Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises.-When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract.' Page No.40/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders '67.Effect of neglect of promisee to afford promisor reasonable facilities for performance.-If any promisee neglects or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused by such neglect or refusal as to any non-performance caused thereby.'
37. It was submitted that with regard to delay aspect of the matter, it is not as if obligations of State and the contractor are dependant, but are only reciprocal. In the considered view of this Court without entering into the arena of merits of the matter, AT having come to the conclusion that the removal of trees by State was absolutely imperative for the contractor to commence the work does not fall foul of a reasonable plausible view.
Therefore, this Court is of the considered view that it would not be appropriate to embark upon the exercise of examining the plea predicated on Sections 54 and 67 of the Contract Act as first limb of the proviso qua patent illegality ground now available under sub-section (2A) of Section 34 makes it clear that a mere erroneous application of law cannot be a ground to dislodge an arbitral award on the ground of patent illegality. If this Court Page No.41/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders embarks upon the exercise of looking into the exhibits, details of which have been adumbrated supra, that would amount to either re-appreciation of evidence or appreciation of evidence, both of which are forbidden under Section 34 proceedings, more particularly in a legal drill of testing patent illegality plea under sub-section (2A) of Section 34. To be noted, this Court has already made it clear that there is nothing demonstrable or nothing to demonstrate that most vital evidence, which would have clinched the matter one way or the other by the AT, has been given a go by, by the AT and this is in the context of the fact scenario or fact setting that most of the documents which add up to about 150 were before AT in both the arbitral proceedings.
38. An order dated 28.07.2020 in O.P.No.47 of 2020 was pressed into service by the contractor. In this order, this Court had taken the view that though the minority view of one of the Hon'ble Arbitrators in a three member Arbitral Tribunal was more appealing, this Court but did not sustain that view as it cannot be gainsaid that the majority view is a Page No.42/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders implausible view. It is made clear that this Court is not going into the issue of minority or dissenting view in a three member Arbitral Tribunal in this order. This case requires consideration of only plausible view concept and only for this limited purpose this order can be looked into. The limited issue is, a protagonist of a OP assailing an arbitral award should be able to demonstrate with clarity and specificity that the view taken by the AT is a implausible view. As long as it is a possible or a plausible view, this Court will be very very slow to judicially intervene in an arbitral award. This is the spirit and objective of the statute wherein finality of the arbitral award principle is ingrained under Section 35 of A and C Act and minimum judicial intervention principle is ingrained in Section 5 of A and C Act.
This court has repeatedly held that Section 34 by itself is a very delicate balance between the sanctity of finality of arbitral award / minimum judicial intervention ingrained in Section 35 and Section 5 respectively of A and C Act on one side and time honoured judicial review in substantive due process of law era. Before concluding, notwithstanding the language in which the prayer is couched, it was made clear that in both the captioned Page No.43/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders OPs it will suffice if the prayer is treated as one for setting aside the respective impugned awards. This is made clear to avoid any ambiguity in the decretal order. Let decretal order be drafted accordingly.
39. In the light of narrative thus far, discussion and dispositive reasoning, this Court comes to the conclusion that there is no ground to interfere qua the impugned award in the captioned OPs. Therefore, captioned OPs fail and the same are dismissed. There shall be no order as to costs. Consequently captioned applications are also stand dismissed.
02.11.2020 (1/2) Speaking/Non-speaking order Index : Yes / No Internet : Yes / No gpa/mk Page No.44/45 http://www.judis.nic.in O.P.Nos.121 & 311 of 2020 Union of India Vs.M/s.Arun Kumar Deedwania Engineers & Builders M.SUNDAR.J., gpa/mk O.P.Nos.121 of 2020 and O.P.No.311 of 2020 02.11.2020 Page No.45/45 http://www.judis.nic.in