Delhi District Court
Union Of India vs Kiran Infra Engineers Limited on 30 April, 2022
In the Court of Shri Sanjiv Jain, District Judge,
(Commercial Court-03), Patiala House Courts New Delhi
ARBTN No. 5204/2018
Union of India,
CAO (Construction)
Northern Railway,
Kashmere Gate, Delhi-11006 .... Petitioner
versus
Kiran Infra Engineers Limited,
B-141, Road No. 9-D,
V. K. I. Area, Jaipur-302013
Also at: 35-A, LIG DDA Flats,
Motikhan, Pharganj, New Delhi ....... Respondent
Date of institution : 17.09.2018 Date of reserving judgment : 05.04.2022 Date of decision : 30.04.2022 JUDGME NT
1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter called the 'Act') challenges the award dated 21.06.2018 passed by the Arbitral Tribunal comprising of Sh. R. P. Mishra, Smt. Shobhna Jain and Sh. R. Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.1 of 23 B. Gupta, whereby, petitioner was directed to pay Rs. 29,07,944.83 or an amount after calculation of PVC bills with an upper limit of Rs. 29,07,944.83. It was held that if the payment is not made within 45 days of the publication of award, interest @ 12% per annum shall be payable on the sum awarded from the date of publication of award till the date of payment.
Brief facts:
2. The facts giving rise to this petition are that the petitioner had invited tender for the work 'PI/RRI at Motichur, Raiwala, Kansro, Doiwala & Harrawala, including Block working with adjacent Station in c/w 18 coaching facility in Haridwar -
Dehradun section of Northern Railway'. The respondent participated in the tender and was awarded the work vide letter of award / letter of acceptance dated 29.10.2010. The parties signed the contract agreement on 12.11.2010. It was subject to the applicability of General Conditions of Contract (GCC) 1999. The work was to be completed in a period of six months from the date of award i.e. upto 28.04.2011. The work could not be completed within the time stipulated and the petitioner allowed 11 extensions upto 28.12.2016 without any liquidated damage reserving its right in terms of clause 17 A
(iii) of GCC with no increase in the rates on any account. During the contract, the respondent had requested the petitioner Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.2 of 23 to short close the contract vide letters dated 13.03.2013, 08.06.2013, 10.06.2014, 16.07.2014 and 02.10.2014, which requests were declined by the petitioner. The respondent had also written a letter dated 24.07.2015 stating that it will bear the vitiation amount, if any, after the completion of Raiwala Station. On this, the petitioner foreclosed the contract subject to the condition that the respondent would complete the work at Raiwala Station and bear the expenses on vitiation amount, if any, without financial repercussions on either side.
3. According to the petitioner, PVC was applicable in the civil contracts only and not in the Signal & Telecommunication (S & T) contracts; this work was awarded to the respondent by the Signal and Telecommunication Department but due to oversight, at a time of preparation of the contract document, PVC clause was incorporated in the contract document, which no one noticed during the execution of work. It was stated that prior to 29.10.2010 or thereafter, PVC was never incorporated till date in the works of Signal & Telecommunication. The extensions were granted upon the specific requests of the respondent and it never raised the issue of PVC either in the running bills or the final bill nor any protest was lodged at the time of initiation of addendum / corrigendum, which was approved with the consent of the respondent. The respondent had also given 'NOC' with regard to the quantities and rates in Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.3 of 23 the addendum / corrigendum, which were approved on 26.08.2016. The final measurements with regard to work done were accepted by the petitioner on 09.11.2016. It had also given 'No Claim Certificate' on two occasions.
4. It is stated that PVC clause is not applicable in the present contract, since, it was not approved by the Railway Board. Although, the respondent was not within its right to claim PVC but the Arbitral Tribunal did not consider this fact nor considered the factual position and passed the impugned award, which is against the public policy and is patently illegal. It is stated that the respondent had raised the issue of PVC for the first time on 01.08.2017 and thereafter on 26.09.2017 and 28.11.2017 and invoked the arbitration clause claiming PVC amount of Rs. 29,46,574.56 as detailed in para 9 of the petition. It is stated that on the acceptance of the final measurements, the final bill was paid to the respondent on 10.02.2017, which it had accepted without any protest. It is stated that the arbitration clause was invoked after a gap of six months, though, as per clause 45 (a) of GCC, measurements could be challenged within 7 days from the date of its recording. It is stated that as per clause 64 (1) (iv) of GCC, if the contractor does not make final claim in writing within a period of 90 days after receiving an intimation from the Railways that final bill is ready for payment, it would amount to waiver of claim and the Railway Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.4 of 23 shall be discharged of all its liabilities under the contract in respect of the claim. It is stated that as per Article 137 of the Limitation Act, 1963, which is also applicable in the arbitration matters, the limitation for seeking a declaration of a particular document / action is three years, which starts running on the date when the right to sue first accrues, not on the subsequent dates. It is stated that neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court. It is stated that in the present case, the first cause of action accrued on 26.12.2011, so the respondent could raise the issue upto 25.12.2014 and thus the claim / demand raised by the respondent is barred by limitation. It is stated that this fact was not considered by the Arbitral Tribunal and thus, the award is against the public policy of India. Reference is made of the case ONGC Ltd Vs. Saw Pipes Ltd, AIR 2003 SC 2629.
5. It is stated that PVC clause could not inadvertently / due to oversight be deleted from the contract agreement while making the copy from the standard form of contract, in which, PVC clause was existing. It is stated that the General Principles of Construction of a Government contract is that a large number of documentation is required to be done by the officers not conversant with the nuances of drafting. By use of standard form with several choices, sometimes, irrelevant clauses are included in the documents. It is stated that having regard to the Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.5 of 23 nature of transaction and intention of the parties, such redundant / inapplicable clauses should have been ignored in making the sense of the document. Since, PVC clause for signal & telecommunication contract was not approved by the Railway Board, so it should have been considered as redundant / inapplicable.
6. As regard interest, it is stated that the Arbitral Tribunal has directed the petitioner to pay the awarded amount within 45 days of publication of award, failing to pay interest @ 12% per annum. It is stated that the aggrieved party has every legal right to challenge the award within 90 days, so the above direction is against the provision of law. Reference is made of the case State of Orissa & Ors Vs. L & T Limited, AIR 2005 (2005) Orissa 180.
7. On getting notice of the petition, the respondent filed its reply denying the averments made in the petition and stated that the objections raised by the petitioner are false & frivolous. The Tribunal has passed a reasoned award, which does not call for interference.
8. I have heard Ld. Counsel Sh. V. K. Rai for the petitioner and Ld. Counsel Sh. Deepak Viswas for the respondent.
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9. Ld. Counsel for the petitioner reiterated what has been stated in the petition. He contended that the contract was foreclosed on the request of the respondent. Final measurements and final bill were accepted by the respondent without any protest. The issue of PVC was raised by the respondent for the first time on 01.08.2017, though, as per the General Conditions of Contract, objection, if any, could have been raised within 90 days from the date, the final bill was passed and paid. Ld. Counsel stated that the bills submitted by the respondent in support of PVC claim were the computer generated bills without any acknowledgment, which were not even filed with the petition before invoking the arbitration. Ld. Counsel raised the issue of limitation to contend that the claim was barred by limitation. Ld. Counsel stated that PVC was not applicable for the Signal & Telecommunication works but due to inadvertence and oversight in the contract document, PVC clause was not deleted / omitted. Ld. Counsel referred the case of Economic Transport Organization, Delhi Vs. Charan Spinning Mills Pvt Ltd & Anr, (2010) 4 SCC 114 to contend that since the contract was prepared using the standardized form of GCC Contract, such redundant or inapplicable clauses be ignored while trying / examining the document and making sense out of it. Ld. Counsel also referred the cases Satender Kumar Vs. MCD & Anr, 168 (2010) DLT 15, Sukhbiri Devi & Ors Vs. Union of India & Ors, 162 (2009) DLT 720, Khatri Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.7 of 23 Hotels Pvt Lted & Anr Vs. UOI & Anr, 182 (2011) DLT 597, Satender Kumar Vs. MCD, ARB P No. 263/2009, decided on 04.02.2010, Sealand Shipping & Export Pvt Ltd Vs. Kin-ship Services (Ind) Pvt Ltd, Arbt No. 178/2007, disposed off on 06.06.2011, Eider PW1 Paging Ltd Vs. UOI & Ors, OMP No. 78/2003, decided on 03.02.2010 and Economic Transport Organization Delhi Vs. Charan Spinning Mills Pvt Ltd, (2010) 4 SCC 114 to contend that the award is against the fundamental policy of India being patently illegal and is liable to be set aside.
10. Ld. Counsel for the respondent per contra argued that in a petition under Section 34 of the Act, the Court has not appreciate / re-appreciate the evidence. In the award, the Arbitrator has considered all the letters and thereafter passed the award. Ld. Counsel stated that there was no inadvertent act of the petitioner and PVC clause is equally applicable in the contracts relating to Signal & Telecommunication works. Ld. Counsel stated that the bills earlier paid were the running account bills. The final bill was raised in 2017. The period of limitation would be reckoned from the day, the final bill was passed. Ld. Counsel stated that parties are bound by the contract. Ld. Counsel stated that there is no infirmity in the impugned award and the petition deserves to be dismissed.
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11. I have given my thoughtful consideration to the rival contentions and perused the award, the documents and case laws supra.
12. Section 34 the Arbitration and Conciliation Act provides the grounds for setting aside the arbitral award. It reads as un- der:
"34.Application for setting aside arbitral award- (1)Re- course to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3).
(2)An arbitral award may be set aside by the court only if-
(a) the party making the application furnishes proof that-
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbi-
tration, or it contains decisions on matters beyond the scope of the submission to arbitration;
Provided that, if the decisions on matters submitted to arbi- tration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral pro- cedure was not in accordance with the agreement of the par- ties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the court finds that-
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(i) the subject-matter of the dispute is not capable of settle- ment 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- I For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India only if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Sec- tion 81."
ii) It is in contravention with the fundamental policy of In- dian law;
iii) It is in conflict with the most basic notions of morality or justice.
Explanation-II- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
[2 (A) 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.
13. Normally, the general principles are that the decision of the Arbitrator unless there is an error apparent on the face of the award which makes it unsustainable, is not to be set aside even if the court as a court of law would come to a different conclusion on the same facts. The court cannot reappraise the evidence and it is not open to the court to sit in appeal over the conclusion of the arbitrator. It is not open to the court to set aside a finding of fact arrived at by the arbitrator and only grounds on which the award can be cancelled are those Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.10 of 23 mentioned in the Arbitration Act. Where the arbitrator assigns cogent grounds and sufficient reasons and no error of law or misconduct is cited, the award will not call for interference by the court in exercise of the power vested in it.
14. In the case of Associate Builders Vs. DDA, (2015) 3 SCC 49, it was held that the interference with an arbitral award is permissible only when the findings of the Arbitrator are arbi- trary, capricious or perverse or when the conscience of the Court is shocked or when patent illegality is not trivial but goes to the root of the matter. In the case of Ssangyong Engineering & Construction Co. Ltd Vs. NHAI, 2019 SCC Online SC 677, it was held that under Section 34 (2A) of the Act, a decision, which is perverse while no longer being a ground for challenge under "public policy of India" would certainly amount to a patent illegality appearing on the face of the award.
15. A perusal of the arbitral record reveals that the parties had entered into an agreement for the above-mentioned work. The estimated cost of the work was Rs. 4,35,10,870/-. It was to be completed in a period of six months i.e. upto 28.04.2011 but on account of delays for many reasons, the petitioner granted several extensions under clause 17 A (iii) of GCC. The final ex- tension was upto 28.08.2015. The final bill was prepared on 15.11.2016. Though, the petitioner has alleged that the respon-
Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.11 of 23 dent had accepted the final bill without any protest but on pe- rusal, I find that when the respondent signed the final bill, it had signed with the condition that its claim for price variation be passed. It had submitted the bill for PVC in terms of clause 45 of GCC on 04.05.2016 and again on 29.09.2017 but when the petitioner did not pay the bills, it requested for the appointment of an Arbitral Tribunal to resolve the dispute vide letter dated 01.08.2017. The petitioner in response thereof vide letter dated 26.09.2017 had asked the respondent to submit PVC bills to process the appointment of the Tribunal. The Tribunal was ap- pointed on 29.01.2018, which comprised of the Retired CAO / RIOF (Delhi), Retired DG / Nair / Indian Railways and Retired AM / Works / Railway Board to adjudicate upon the claims. The Tribunal had given opportunities to the parties to file the claims / counter claims / reply. The parties also advanced the ar- guments and thereafter, the Tribunal passed the impugned award.
16. In the award, the Tribunal has referred clause 45.1 of GCC, which interalia provides that the rates quoted by the ten- derer and accepted by Railway shall hold good till the comple- tion of work and no additional claim will be admissible on ac- count of lactation in the market rates, increase in taxes, any other levies / tolls etc. It contained a formula for price variation calculation showing percentage of labour, material and fuel Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.12 of 23 components in the works. The contract agreement clearly pro- vided that the price variation percentages applicable to other work contracts would apply in the present contract. The Tri- bunal has also referred clause 45.5 a (1), Note 1 & Note 2 of the contract, which provided that the price variation clause shall be applicable for the tenders of the value more than Rs. 50.0 lakhs irrespective of the contract completion period and it is payable / recoverable during the extended period of the contract provided the price variation clause (PVC) is the part of the original con- tract and the extension is granted on administrative ground i.e. under clause 17 A (i) (ii) & (iii) of GCC. In this case, as many as 11 extensions were given by the petitioner under clause 17 A
(iii) of GCC on administrative ground. Further, the value of the contract was more than Rs. 50.0 lakhs for the applicability of PVC.
17. In the present case, the petitioner had raised all the objec-
tions before the Tribunal, which have been taken in the present petition i.e.
(a) The formula adopted by claimant (respondent herein) does not pertain to S & T works as the formula is applicable for civil works only.
(b) Date of completion was given on the condition that no in- crease in rates on any account will be payable to the contrac- tor.
(c) The claimant (respondent herein) has already taken all due payments including performance guarantee, security de- posit etc. hence the demand is baseless.
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(d) Railway Finance department has circulated that PVC clause should not be included in tender until Railway Board works out a suitable formula.
18. The Tribunal after considering the submissions has observed that the price variation under clause 45 covers the other work contracts including Signal and Telecommunication works, which clauses are applicable in the present contract agreement. It held that the contract document / agreement is binding on the parties, so clause no. 45 being part and parcel of the contract agreement is binding on the parties and the petitioner cannot be permitted to claim now that the price variation clause was included by mistake in the contract agreement. It has observed that a tenderer quotes its rate taking into consideration the provisions of the tender, which cannot be unilaterally changed to the disadvantageous to the other party and therefore, the respondent is entitled to receive PVC payment to be calculated as per the formula given in clause 45.5 A-1.
19. It is relevant to mention that in an another petition OMP (Comm) No. 64/2019 titled Northern Railway Vs. Kiran Infra Engineers Ltd, similar objection / plea was taken. That contract was executed on 30.06.2010. It related to Signaling & Telecommunication and contained clause 45, which related to payment of PVC. The mistake / omission can be said Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.14 of 23 inadvertent / due to oversight, if it is committed once. If a person that too a department, which has a team of experts and legal persons repeatedly commits that act, it cannot be said to be an inadvertent mistake / oversight. It is to note that signal & telecommunication contracts also involve components of labour, material and fuel for which, PVC is applicable as per the formula provided under clause 45.5 of the contract. In the case of Economic Transport Corporation (supra) referred by the petitioner, it was held that a document should be transaction specific. At least an effort should be made to delete or exclude inapplicable or irrelevant clauses. But where a large number of documentation is required to be done by officers not conversant with the nuances of drafting, use of standard forms with several choices or alternative provisions is found necessary. The result is that the document executed in standard forms will have several irrelevant clauses and such such redundant clauses should be ignored while trying / examining the document and making sense out of it.
20. There is nothing on record to show that the person / officer making the tender document was not conversant with the nuances of drafting. The tender is a well drafted document incorporating GCC and it cannot be said that inadvertently clause 45 was included in the tender. The petitioner has failed to assign any reason why clause 45 should be excluded from Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.15 of 23 this very contract relating to signal & telecommunication works. I may mention that the said work also involves labour, material & fuel component. Had there been any standing order / direction from the Railway Board qua not including PVC in the contracts relating to signaling, the same should have been clearly stated in the contract document. It was rightly observed by the Tribunal that the tenderer quotes its rate taking into consideration the various provisions of the tender and these cannot be unilaterally changed to the disadvantageous of the one party. For the sake of arguments, even if it is presumed that inadvertently, the clause 45 was included in the contract document but applying the principle of Contra Proferentem, which provides that if a clause in a contract appears to be ambiguous, it should be interpreted against the interests of the person who has inserted/included that the clause, the benefit should go to the respondent. The party who draws the agreement and is responsible for the draft cannot take advantage of the ambiguity.
21. It has been rightly observed by the Tribunal that all the extensions given in the present contract were in terms of clause 17 (iii) of GCC i.e. on account of delays on the part of the petitioner. Thus, as per the contract condition, the respondent was entitled to PVC during the extended period. The Tribunal has also dealt with the objection that the extension letter stated Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.16 of 23 that the extension is subject to the condition that no increase in rate on any account will be payable, which the petitioner has used for denying the payment of PVC bills and it held that the contract conditions clearly provide that if the extension is to be given on account of administrative failure, PVC will be applicable during the extended period and it does not give any power to the petitioner to put any other condition. Further, the petitioner has not given any reason for stipulating this condition since the contract does not provide empowering the petitioner to put such a condition. The Tribunal has reproduced clause 17 A (iii) and held that the said clause does not empower the respondent to put condition such as 'no payment of PVC during the extended period' as it would amount to altering the character of the contract, which cannot be permitted.
22. The Tribunal has referred the details of all the running bills for price variation raised by the respondent, discussed the formula given in clause 45 of the contract and held that in this case, the calculation using the formula submitted by the respondent with the statement of claims has not been challenged by the petitioner nor the petitioner has submitted any rebuttal about the inputs used and the calculations / RBI indices for the periods from July 2010 to April 2016. In this case, one of the member of the Arbitral Tribunal namely Sh. R. P. Mishra has verified the calculations and found them correct.
Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.17 of 23 As an abundant precaution, the Presiding Arbitrator had asked the petitioner vide letter dated 02.06.2018 seeking its comment on the calculation submitted by the respondent vide 15.06.2018 but the petitioner did not make any comment. Even otherwise, the Tribunal while passing the award has given right to the parties to make request to the Tribunal to correct any computation error, which could make the corrections, if found justified.
23. In this case, the Tribunal has also considered the applicability of interest and rightly held that the interest is not payable to the respondent in terms of clause 64.5 of GCC, which interalia provides that where the arbitral amount is for payment of money, no interest shall be payable on whole or any part of the money for any period till the date on which the award is made. It also disallowed the claim of the respondent qua costs referring clause 64.6 of GCC, which clearly provided that the cost of the arbitration shall be borne by the respective parties. It also rejected the counter claim of the petitioner holding that since claim no. 1 of the respondent was justified, it cannot be said that the respondent has wasted the time of the petitioner though, the contract was already closed and all the payments were made.
24. Now coming to limitation, as per the contract agreement, Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.18 of 23 the work was awarded on 29.10.2010. It was to be completed upto 28.04.2011. Owing to the delays on the part of the petitioner, on the request of the respondent, the petitioner granted 11 extensions upto 28.12.2016 without any liquidated damage under clause 17-A (iii) of GCC. It also foreclosed the contract on 09.11.2015 on receipt of letter from the petitioner vide dated 24.07.2015. The final measurements were recorded / accepted by the respondent on 09.11.2016 and the final bill was paid / accepted on 10.02.2017. Record reveals that earlier the payments were made against the running bills and by the time i.e. 09.11.2016 / 10.02.2017, final measurements / payments had not been recorded / made. In this case, the respondent had never raised the issue that the measurements have not been recorded correctly. The respondent had sent a letter dated 17.05.2016 demanding for arbitration against non payment of price variation bills alleging that long time has elapsed since, they had submitted their price variation bills but they have not received any response. Admittedly, request for appointment of independent Arbitrator was made on 01.08.2017 but the correspondences show that even before the final bill, the respondent had claimed PVC and requested for referring the matter to Arbitration in terms of arbitration clause provided in GCC, so, it cannot be said that the respondent had not raised the objections as to the non payment of PVC within the period of 90 days as provided in clause 64 of GCC. I am of the view that Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.19 of 23 the claims before the Arbitrator were maintainable and were within limitation, which had been filed within the period of three years from the day the cause of action accrued in favour of the respondent when the petitioner finally declined in the final bill to pay the PVC. The cases on the point of limitation referred by the counsel for the petitioner are distinguishable on facts and not applicable in the facts & circumstances of the present case.
25. As regards letter dated 22.05.2015 sent by the respondent confirming that it would not claim anything over & above the final quantities beyond the mutual agreed quantities, requesting to short close the work and there will not be any financial repercussion or either side except price variation bills submitted till date and it will not claim any price variation except for the bills already submitted but from this very letter, it is clear that the respondent never closed the issue of claiming price variation. It had only stated that it will not claim for any price variation except for the bills already submitted meaning thereby that in the earlier bills submitted by the respondent, it had claimed price variation but since, the petitioner had made the payments through running bills, the petitioner had not insisted for the payment of price variation in the running bills. When the price variation was finally declined in the final bill, it raised the issue.
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26. As regards objection that the Tribunal had given 45 days time to pay the arbitral award amount, failing to pay interest @ 12% per annum, admittedly, the petitioner had time to file the objections within the period of three months and further period of 30 days, which statutory right cannot be withdrawn by directing it to pay the amount within 45 days in view of the law laid down in the case of State of Orissa Vs. L & T Limited (supra) but since in the instant case, the petitioner did not pay the amount and filed the objections, so the interest would be payable by the petitioner from the day the award is passed in favour of the respondent till the payment / its realization.
Conclusion:
27. Now to sum up, in the instant case, most of the grounds raised by the petitioner to challenge the award have been al- ready considered and adjudicated in the impugned award. It is outside the scope of Section 34 of the Act to reappreciate the entire evidence and come to conclusion because such an ap- proach would defeat the purpose of arbitration proceedings. It has been consistently held that when a court is applying the public policy test to an arbitration award, it does not act as a court of appeal and consequently, errors of facts cannot be cor- rected. A possible view by the Tribunal on facts has necessarily to pass muster as the Tribunal is the ultimate master of the qual-
Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.21 of 23 ity and quantity of evidence to be relied upon when it delivers its arbitral award. Once, it is found that the Tribunal's approach is not arbitrary or capricious, then it is the last word on facts. (P.R Shah, Shares & Stock Brokers (P) Ltd v. B.H.H Securities (P) Ltd. [(2012) 1 SCC 594).
28. Having examined the various contentions of the petitioner on the touchstone of the parameters of interference as explicitly laid down by the Supreme Court in several judgments referred to above, I am of the view that the impugned Award does not suffer from any infirmity or error apparent on the face of record. It is not for this Court to sit in appraisal of the evidence led before the Arbitral Tribunal and this Court will not open itself to the task of being a judge on the evidence placed before the Tribunal which was subject matter of dispute. In the present case, the Tribunal has deliberated on the issues under reference which were within its competence and as per the agreement entered into between the parties. The Tribunal has duly explained the reasons for arriving at its decisions. There is nothing to indicate that award is in conflict with the basic notions of justice and the fair play and fundamental policy of Indian law or in contravention of the terms of the agreement or it lacks reasoning as pleaded in the petition.
29. For the aforesaid reasons, the impugned award is Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.22 of 23 maintained and the petition is dismissed with no order as to costs.
30. File be consigned to record room.
Announced in open court today i.e. 30th of April 2022 (Sanjiv Jain) District Judge (Commercial) - 03 Patiala House Courts, New Delhi Arbt No. 5204/2018 UOI Vs. Kiran Infra Engineers Limited. Page No.23 of 23