Delhi District Court
Fiitjee Ltd vs Siddharth Sharma And Anr on 3 August, 2024
IN THE COURT OF SH. AJAY PANDEY
DISTRICT JUDGE (COMMERCIAL COURT-10) CENTRAL,
TIS HAZARI COURTS, DELHI
OMP Comm 162/2023
Fiitjee Ltd
29-A, Kalu Sarai, Sarvapriya Vihar
New Delhi-110016
Through its AR Petitioner
Vs
1. Siddharth Sharma
House No. 26, 3rd Floor,
Govind Park, Jagat Puri,
Delhi-110051
2. Sh. B.S. Chumbak
Ld. Arbitrator
8A, Sanjay Nagar,
Gulabi Bagh,
New Delhi-11007 Respondents
Date of Institution : 09.10.2023
Date of Arguments : 23.07.2024
Date of Judgment : 03.08.2024
JUDGMENT:-
OBJECTIONS UNDER SECTION 34 OF THE ARBITRATION AND CONCILIATION ACT 1996 AGAINST THE AWARD DATED 13.02.2023 PASSED IN Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 1 of 23 OMP Comm 162/2023 ARBITRATION P. NO. 25/2021 TITLED AS SIDDHARTH SHARMA VS FIITJEE LTD
1. This order shall decide application under section 34 (3) of The Arbitration and Conciliation Act 1996 (hereinafter referred as The Act), application under section 36 (2) of The Act and objections under section 34 of The Act against the award dated 13.02.2023 passed in Arbitration P. No. 25/2021 titled as Siddharth Sharma Vs Fiitjee Ltd.
2. It is stated in the application under section 34 (3) of The Act that impugned award dated 13.02.2023 was passed against the petitioner/applicant but the petitioner did not receive copy of the award from the learned Arbitrator. Petitioner sent an email dated 03.08.2023 to the learned Arbitrator requesting for supply of the copy of award. A reminder to that effect was sent on 21.08.2023. In reply thereof, learned Arbitrator on 25.08.2023 forwarded an email dated 13.02.2023, purportedly sent by him to the counsel for parties. It is stated that the applicant/petitioner did not receive copy of the signed award in physical form. The attachment to email was an unsigned copy of award. It is further stated that vide email dated 25.08.2023 learned Arbitrator again forwarded the same email to the petitioner and did not attach signed copy of the award. It is thereafter stated that though there is no delay in filing the present Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 2 of 23 OMP Comm 162/2023 objections from the date of receipt of the impugned award but the present application is filed as an abundant precaution. It is therefore prayed that this court may please to condone the delay in filing the objections under section 34 of The Act.
3. Reply to application was filed by respondent stating inter-alia that the Arbitral award was sent to the counsel of the petitioner on 13.02.2023 by the learned sole Arbitrator via email of the even date. It is further stated that there is delay of 146 days in filing the objections, which cannot be condoned.
4. As per section 31 (5) of The Act, after the Arbitral award is made, a signed copy is required to be delivered to each party. In the present case there is nothing on record to suggest that the signed copy of award was delivered to the petitioner. In the facts and circumstances, application under section 34(3) of The Act is allowed.
5. Arguments on objection under section 34 of The Act were heard in detail from the parties.
6. It is inter-alia stated in the objection petition that petitioner is a company registered as an educational institution imparting coaching to the aspirant of IIT-JEE and other highly competitive exams. Petitioner is stated to be a self-financing institution without any governmental support.
7. It is further stated that respondent was employed Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 3 of 23 OMP Comm 162/2023 as Sr. Executive by the petitioner on 07.06.2015 with a cost to company (CTC) of Rs.4,70,340/- per annum. CTC includes variables which are not fixed but always conditional like reimbursements which are only granted when the same is claimed along with supportive documents.
8. It is further stated that as per policy of petitioner, its employees are granted appraisal as per performance of the particular center. It is also stated that appraisal of an employee is discretion of petitioner and the appraisal includes both scaling up and scaling down of the salary as per the financial position of the petitioner/employer and performance of the employee.
9. It is further stated that CTC of respondent was revised w.e.f. 18.06.2017 to Rs.7,07,023/-. Appraisal letter in regular course was also issued by petitioner.
10. It is further stated that respondent failed to keep up his performance upto the mark, therefore, there had been deduction in salary of the respondent. Respondent never objected to such deduction as he was well aware about his below par performance. CTC of respondent was scaled down to Rs.620380/- per annum, which was accepted by the respondent without any reservations and objections. However, vide his email dated 19.06.2019, the respondent resigned from the service. In his resignation respondent did not express any concern with regard to scaling down of his CTC or deduction made in Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 4 of 23 OMP Comm 162/2023 the salary on previous occasions but in his claim petition respondent alleged to have not accepted the revised CTC as per letter dated 05.06.2019.
11. It is further stated that respondent invoked the Arbitration clause to cover up his misdeeds and filed an Arbitration Claim before the learned Arbitrator.
12. It is further stated that petitioner filed its statement of defence before the learned Arbitrator. Respondent filed the rejoinder to statement of defence. Parties examined their witnesses before the learned Arbitrator and the impugned award dated 13.02.2023 was passed.
13. The award is stated to be liable to set-aside on the ground that same is bad in law and is perverse. It is also stated that the award is without cause of action and learned Arbitrator committed grave error of law while passing the impugned award. It is also stated that the learned Arbitrator partly looked into the documents and failed to appreciate that document can be read as a whole and cannot be partly relied upon by any party to the dispute. It is stated that respondent himself taken a stand in his statement of claim, that he disputed the letter dated 05.06.2019, thus learned Arbitrator passed the impugned award, which is not based upon any documents.
14. It is further stated that impugned award is liable to be set-aside because learned Arbitrator failed to appreciate that appraisal does not always mean scaling Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 5 of 23 OMP Comm 162/2023 up the CTC and that it is prerogative of the employer to offer the CTC and respondent accepted the deduction in salary without any reservation. The impugned award is therefore liable to be quashed being erroneous and based upon no evidence.
15. It is further stated that award is passed by learned Arbitrator by observing that petitioner has failed to prove something, thus the same is based upon no evidence. It is also stated that the Arbitrator committed grave error of law and based its award upon assumptions that scaling down of CTC is unreasonable. It is also stated that contrary pleas are taken by learned Arbitrator, on the one hand learned Arbitrator is relying upon the letter dated 05.06.2019, and on the other hand he is denying the same by relying upon section 16 of The Indian Contract Act.
16. The award is further stated to be liable to be set-
aside being perverse as the same is passed by going outside the terms of contract and neglecting the contract. The same is stated to be passed without any evidence. It is stated that Arbitrator committed grave error of law and failed to appreciate that it was for the claimant/respondent to prove its case by leading positive evidence, however the impugned award is based upon the assumption that the petitioner did not prove the negative.
17. Award is stated to be not legally sustainable Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 6 of 23 OMP Comm 162/2023 because learned Arbitrator failed to appreciate that respondent has left the service in contravention of service rules, that too without serving the notice period. It is also stated that the respondent left the service of the petitioner for his personal reasons and not on account of deduction in the salary.
18. The award is stated to be bad in law and in contravention of the judgments and law propounded by the Hon'ble Supreme Court and Hon'ble High Court. It is thus prayed that the Arbitral record of the award passed by the learned sole Arbitrator Sh. B.S. Chumbak, ADJ (Retd.) be called and impugned award be set-aside.
19. Respondent/claimant filed his reply to the objections taking preliminary objection that an award can be set-aside on limited grounds as mentioned under section 34 of The Arbitration and Conciliation Act and none of the grounds mentioned under the said section is satisfied. It is stated that the petitioner seeks to re-argue and re-agitate its entire case before this court and has made additional arguments/submissions which were not even taken before the Arbitral Tribunal. It is stated that application under section 34 of The Act has the limited scope and cannot be treated as an appeal where a complete reconsideration of case and the evidence submitted by the parties during the arbitration can be undertaken.
20. It is stated that the learned sole Arbitrator has Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 7 of 23 OMP Comm 162/2023 passed a well reasoned award based on correct appreciation of pleadings, evidence and documents placed before him by the parties. The dispute was adjudicated by the learned Arbitrator Tribunal based on the service agreement between the parties, available record, appreciation of evidence and conduct of parties. Section 34 of The Act is quoted and it is stated that the petition does not disclose a single ground that falls within the ambit or scope of section 34 of The Act and whole application is canvassed only on re-appreciation of evidence and review on merits of the dispute which is prohibited under section 34 of The Act. The petitioner is stated to have not assailed any finding being arbitrary, capricious or perverse or such that it shocks the conscience of the court. The petitioner is stated to be seeking judicial interference merely on the ground that another view is possible. Contents of application are stated to be bald, evasive, lacking material particulars failing to pin point any arbitrariness, perversity or illegality in the findings rendered by the learned sole Arbitrator. Dismissal of objections is prayed.
21. Learned Sh. Mukesh Goel appearing for the petitioner argued in the lines of his petition and submitted that the award is liable to be set-aside as the same is against public policy of India and the learned Arbitrator did not appreciate the evidence properly and relied upon the document i.e. the letter dated 05.06.2019, Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 8 of 23 OMP Comm 162/2023 though the same was disputed by the petitioner himself. He also argued that on the one hand learned Arbitrator relied upon the letter dated 05.06.2019 and on the other hand referred it to be accepted by the respondent/claimant under undue influence under section 16 of The Contract Act. Learned Sh. Mukesh therefore prayed for setting aside the impugned award.
22. Learned counsel for respondent on the other hand prayed for dismissal of objections. The respondent also filed its written submissions.
23. Court has considered arguments advanced by learned counsels for parties and has carefully perused the arbitral record.
24. As per the record of arbitration, sufficient opportunities were granted by learned Arbitrator to the parties for completing their pleadings, leading evidence and arguments. A detailed award dated 13.02.2023 was thereafter passed.
25. It is settled law that the objections to the Arbitral Award are required to be strictly confined to the grounds under section 34 (2) and 2A of The Act.
26. Said provision is reproduced herein below:-
34.Application for setting aside arbitral award (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 9 of 23 OMP Comm 162/2023 accordance with sub-section (2) and sub-
section (3).
(2) An arbitral award may be set aside by the Court only if--
2(a) the party making the application 1[establishes on the basis of the record of the arbitral tribunal that]--
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, underthe law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 10 of 23 OMP Comm 162/2023 that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, wasnot in accordance with this Part; or
(b) the Court finds that--
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force,or
(ii) the arbitral award is in conflict with the public policy of India.
[Explanation 1.--For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,--
(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 11 of 23 OMP Comm 162/2023 notions of morality or justice.
Explanation 2.--For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] [(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
PROVIDED that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.] ...........
27. There is only limited scope of interference by the court in the petitions under section 34 of the Arbitration and Conciliation Act 1996. In the case of Associate Builders Vs Delhi Development Authority (2015) 3 SCC 49, wherein it was held by Hon'ble Supreme Court "the interference with an arbitral award is permissible only when the findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the Court is shocked or when illegality is not trivial but goes to the Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 12 of 23 OMP Comm 162/2023 root of the matter. It is held that once it is found that the arbitrator's approach is neither arbitrary nor capricious, no interference is called for on facts. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbitral award. Patent illegality must go to the root of the matter and cannot be trivial nature."
28. In the case of Navodaya Mass Entertainment Ltd VS J.M. Combines MANU/SC/0735/2014, it was held :-
"scope of interference of the Court is very limited. Court would not be justified in reappraising the material on record and substituting its own view in place of the Arbitrator's view. Where there is an error apparent on the face of the record or the Arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the Court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the Arbitrator would prevail. (See: Bharat Coking Coal Ltd. Vs. L.K. Ahuja, (2004) 5 SCC 109; Ravindra & Associates Vs. Union of India, (2010) 1 SCC 80; Madnani Construction Corporation Private Limited Vs. Union of India & Ors., (2010) 1 SCC 549; Associated Construction Vs. Pawanhans Helicopters Limited, (2008) 16 SCC 128; and Satna Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 13 of 23 OMP Comm 162/2023 Stone & Lime Company Ltd. Vs. Union of India & Anr., (2008) 14 SCC".
29. In the case of M/s Arosan Enterprises Ltd Vs Union of India & Anr MANU/SC/0595/1999, it was held:-
"that reappraisal of evidence by the court is not permissible and as a matter of fact exercise of power by the Court to reappraise the evidence is unknown to a proceeding under Section 30 of the Arbitration Act. In the event of there being no reasons in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, the interference would still be not available within the jurisdiction of the Court unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law: In the event however two views are possible on a question of law as well, the Court would not be justified in interfering with the award. The common phraseology `error apparent on the face of the record' does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record: The court as a matter of fact, cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning contained therein cannot be examined. In this context, reference may be made to one of the recent decision of this Court in the case of State of Rajasthan v. Puri Construction Co. Ltd. (1994 (6) SCC Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 14 of 23 OMP Comm 162/2023
485) wherein this court relying upon the decision of Sudarsan Trading Co.'s case case (Sudarsan Trading Co. v. Government of Kerala and Anr. (1989 (2) SCC 38) observed in paragraph 31 of the Report as below:- "A court of competent jurisdiction has both right and duty to decide the lis presented before it for adjudication according to the best understanding of law and facts involved in the lis by the judge presiding over the court.
Such decision even if erroneous either in factual determination or application of law correctly, is a valid one and binding inter parts. It does not, therefore, stand to reason that the arbitrator's award will be per se invalid and inoperative for the simple reason that the arbitrator has failed to appreciate the facts and has committed error in appreciating correct legal principle in basing the award. An erroneous decision of a court of law is open to judicial review by way of appeal or revision in accordance with the provisions of law. Similarly, an award rendered by an arbitrator is open to challenge within the parameters of several provisions of the Arbitration Act. Since the arbitrator is a judge by choice of the parties and more often than not a person with little or no legal background, the adjudication of disputes by an arbitration by way of an award can be challenged only within the limited scope of several provisions of the Arbitration Act and the legislature in its wisdom has limited the scope and ambit of challenge to an award in the Arbitration Act. Over the decades, judicial decisions have indicated the parameters of such challenge consistent with the provisions of the Arbitration Act. By and large the courts have disfavoured interference with arbitration award on Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 15 of 23 OMP Comm 162/2023 account of error of law and fact on the score of misappreciation and misreading of the materials on record and have shown definite inclination to preserve the award as far as possible. As reference to arbitration of disputes in commercial and other transactions involving substantial amount has increased in recent times, the courts were impelled to have fresh look on the ambit of challenge to an award by the arbitrator so that the award does not get undesirable immunity. In recent times, error in law and fact in basing an award has not been given the wide immunity as enjoyed earlier, by expanding the import and implication of "legal misconduct" of an arbitrator so that award by the arbitrator does not perpetrate gross miscarriage of justice and the same is not reduced to mockery of a fair decision of the lis between the parties to arbitration. Precisely for the aforesaid reasons, the erroneous application of law constituting the very basis of the award and improper and incorrect findings of fact, which without closer and intrinsic scrutiny, are demonstrable on the face of the materials on record, have been held, very rightly, as legal misconduct rendering the award as invalid. It is necessary, however, to put a note of caution that in the anxiety to render justice to the party to arbitration, the court should not reappraise the evidences intrinsically with a close scrutiny for finding out that the conclusion drawn from some facts, by the arbitrator is, according to the understanding of the court, erroneous. Such exercise of power which can be exercised by an appellate court with power to reverse the finding of fact, is alien to the scope and ambit of challenge of an award under the Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 16 of 23 OMP Comm 162/2023 Arbitration Act. Where the error of finding of facts having a bearing on the award is patent and is easily demonstrable without the necessity of carefully weighing the various possible viewpoints, the interference with award based on erroneous finding of fact is permissible. Similarly, if an award is based by applying a principle of law which is patently erroneous, and but for such erroneous application of legal principle, the award could not have been made, such award is liable to be set aise by holding that there has been a legal misconduct on the part of the arbitrator. In ultimate analysis it is a question of delicate balancing between the permissible limit of error of law and fact and patently erroneous finding easily demonstrable from the materials on record and application of principle of law forming the basis of the award which is patently erroneous. It may be indicated here that however objectively the problem may be viewed, the subjective element inherent in the judge deciding the problem, is bound to creep in and influence the decision. By long training in the art of dispassionate analysis, such subjective element is, however, reduced to minimum. Keeping the aforesaid principle in mind, the challenge to the validity of the impugned award is to be considered with reference to judicial decisions on the subject."
30. It is thus clearly established by catena of judgments of Hon'ble Supreme Court and Hon'ble High Court that the interference with an arbitral award is permissible only when the findings of the Arbitrator are arbitrary, capricious or perverse or when conscience of Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 17 of 23 OMP Comm 162/2023 the court is shocked or when illegality is not trivial but goes to the root of the matter. The Arbitrator is master of the quality and quantity of the evidence. The court would not be justified in re-appraising the material on arbitral record and substitute its own view in place of the view of learned Arbitrator. Once the Arbitrator has applied his mind to the matter before him, the court cannot re- appraise the matter as if it was an appeal and even if two views are possible, the view taken by Arbitrator would prevail. No interference in the award is required unless there is existence of total perversity in the award or the judgment is passed on wrong proposition of law. Even when the Arbitrator makes a mistake either in law or in fact but such mistake does not appear on the face of award, the award is good not withstanding the mistake and would not be remitted or set-aside.
31. It is further rightly submitted by learned counsel for respondent that court would not construe the nature of claim by adopting too technical an approach or by indulging into hair-splitting, otherwise the whole purpose behind holding the arbitration proceedings as an alternative to Civil Courts forum would stand defeated as was held by Apex Court in the case of Sangamner Bhag Sahakari Karkhana Ltd Vs Krupp Industries Ltd, AIR 2002 SC 2221. Further in the case of P.R. Shah, Shares & Stock Brokers Pvt Ltd Vs B.H.H. Securities Pvt Ltd & Ors, (2012) 1 SCC 594, it was held by Hon'ble Supreme Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 18 of 23 OMP Comm 162/2023 Court that in order to provide the balance and to avoid excessive intervention, the arbitration award is not to be set-aside merely on the ground of erroneous application of law or by re-appreciating evidence.
32. In the case of NTPC Ltd Vs Maratho Electric Motors India Ltd, 2012 SCC Online Del 3995, it was held that appreciation of evidence by the Arbitrator is never a matter which the court considers in the proceedings under section 34 of The Act as the court is not sitting in appeal over the adjudication of the Arbitrator and the court do not act as court of appeal. An error relatable to interpretation of the contract by an Arbitrator is an error within his jurisdiction and such error is not amenable to the correction by courts as such error is not an error on the face of the award.
33. In the recent judgment of Delhi Airport Metro Express Pvt. Ltd Vs Delhi Metro Rail Corporation Ltd., Civil Appeal No. 5627 of 2021, AIR ONLINE 2021 SC 708, Hon'ble Apex Court, keeping in view the amendment of the Arbitration and Conciliation laws by the Arbitration & Conciliation Act 1996 decided the Contours of the court's power to review arbitral awards. Relevant principles can be summarized amongst others, as follows:-
- One of the principal objectives of the 1996 Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 19 of 23 OMP Comm 162/2023 Act is to minimize the supervisory role of courts in the arbitral process.
- An application for setting aside an arbitral award can only be made in accordance with provisions of Section 34 of the 1996 Act.
- While deciding applications filed under Section 34 of The Act, courts are mandated to strictly act in accordance with and within the confines of Section 34, refraining from appreciation or re-appreciation of matters of fact as well as law.
- As it is only such arbitral awards that shock the conscience of the court that can be set aside on grounds under section 34.
- 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.
- 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.
- The construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair- minded or reasonable person would; in short, that the arbitrator's view is not even a possible view to take.
- A finding based on no evidence at all or an Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 20 of 23 OMP Comm 162/2023 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.
- There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases. 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. Several judicial pronouncements of the 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.
- Every error of law committed by the Arbitral Tribunal would not fall within the expression 'patent illegality'. In addition, contravention of law not linked to public policy or public interest is beyond the scope of the expression 'patent illegality'.
- 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.
34. In the award dated 13.02.2023 learned Arbitrator has discussed the facts stated in the statement of claim, statement of defence and rejoinder.
Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 21 of 23 OMP Comm 162/2023
35. Based on the facts, learned Arbitrator framed 11 relevant issues. Thereafter, evidence adduced by the parties was discussed and appreciated. Findings on issues are based on the facts and admitted documents. There is nothing in the entire petition to suggest that any fact or argument raised by the petitioner was not discussed by learned Arbitrator. The award is passed on the letters of appointment issued by the petitioner to respondent and appraisal letters issued thereafter. The petitioner now intends to agitate appraisal letter dated 05.06.2019 submitting that same was itself disputed by respondent. It is pertinent to mention here that said document was admitted by petitioner in the arbitral proceedings. Hence, petitioner cannot agitate in these proceedings that letter dated 05.06.2019 was wrongly relied upon. Mere reference by learned Arbitrator that the said letter could have been obtained by undue influence, do not render the award invalid. The argument that the award is passed on no evidence, do not hold ground. Learned Arbitrator had not placed any negative burden of proof upon the petitioner. Learned Arbitrator, after discussing the facts and evidence has observed that the respondent/claimant successfully proved its case and petitioner herein failed to produce any contrary evidence. Reference by learned Arbitrator that the petitioner failed to adduce any evidence contrary to the facts proved on the basis of documents and admissions of petitioner, do Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 22 of 23 OMP Comm 162/2023 not amount to placing reverse burden of proof upon the petitioner. A reasoned award is passed which do not contain any error on the face of it. It is rightly submitted on behalf of respondent that interfering in the award on the basis of present petition would amount nothing but to re-appreciation of evidence and reviewing the logical and possible view given by learned Arbitrator. Same is not permissible under section 34 of The Act and in view of the judgments discussed herein above.
36. On perusal of arbitration proceedings, court do not see any violation of the rules of natural justice.
37. In view of the aforesaid discussion of the court, this court is of the humble opinion that no ground mentioned under section 34(2) of the Arbitration & Conciliation Act 1996 is made out for interfering in the arbitral award dated 13.02.2023. The objections filed by the applicant/objector are accordingly dismissed. Application under section 36(2) of The Act for stay of operation of impugned award is also dismissed. Award file along with copy of this order, be sent back to learned Arbitrator.
38. File be consigned to record room.
Announced in the open court AJAY Digitally signed by AJAY PANDEY on the 03rd day of August, 2024 PANDEY Date: 2024.08.03 14:36:20 +0530 (Ajay Pandey) District Judge (Commercial Court-10) Central, Tis Hazari Courts, Delhi. Fiitjee Ltd Vs Siddharth Sharma and Anr. Page no. 23 of 23 OMP Comm 162/2023