Jharkhand High Court
State Board Of Technical Education vs Marverick Consultancy Pvt. Limited on 16 September, 2019
Author: H.C. Mishra
Bench: Deepak Roshan, H.C. Mishra
Commercial Appeal (D.B) No.08 of 2018
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Commercial Appeal (D.B) No.08 of 2018
With
I.A No.7521 of 2018
State Board of Technical Education,
under the Department of Higher Education,
Government of Jharkhand, Ranchi,
represented through its Secretary. ... ... Appellant
-Versus-
Marverick Consultancy Pvt. Limited, Ranchi,
represented through its Managing Director. ... ... Respondent
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Ajit Kumar, A.G.
Mr. Mrinal Kanti Roy, Advocate
For the Respondent : Mr. Sujoy Kumar, Advocate
Mr. Arindam Ghose, Advocate
Mr. Ramit Satender, Advocate
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C.A.V. on: - 22/08/2019 Pronounced on: - 16/09/2019
H.C. Mishra, A.C.J.:- Heard learned Advocate General for the appellant State Board of Technical Education (hereinafter referred to as the 'Board'), and the learned counsel for the respondent Company.
2. The appellant Board is aggrieved by the impugned Judgment dated 20.04.2018 passed by the learned Presiding Officer, Commercial Court, Ranchi, in Commercial (Revocation) Case No.44 of 2017, whereby, the application filed under Section 34 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as the 'Act'), challenging the Arbitral Award dated 23.09.2017, passed by the sole Arbitrator, has been dismissed by the Commercial Court.
3. The appellant Board had invited tender in the year 2011 for providing secured mark-sheets, certificates, answer-sheets, smart cards along with web portal, on-line application and verification server, in which, the respondent Company, herein, had submitted its bid. The respondent's bid was declared successful and MOU was signed between the appellant Board and the respondent Company on 02.03.2012. Some work was carried out by the respondent Company, but there was some dispute between the parties, and claiming non-payment of the dues as per the contract, the contract was Commercial Appeal (D.B) No.08 of 2018 2 terminated by the respondent Company w.e.f. 21.06.2016, vide notice dated 22.04.2016.
4. A commercial dispute was raised, claiming that for the contractual obligations performed by the respondent Company till the termination of the contract, they were entitled to get Rs. 8,72,66,041/-, whereas the appellant Board had paid them only Rs.5,81,99,296/-. The dispute was referred to the sole Arbitrator, in Arbitration Case No.15 of 2016, before whom, the respondent Company in its claim petition raised the claim of Rs.2,90,66,745/- towards unpaid invoices, Rs.86,64,878/- towards interest on unpaid invoices, and Rs.2,07,219/- towards statutory penalty, besides the other claims, which were disallowed by the sole Arbitrator. The appellant Board had filed the counter claim, in which, the appellant also made their claim, apart from stating that even in the amount of Rs.5,81,99,296/-, which was paid to the respondent Company, Rs.1,79,13,126/- was the extra payment made to the respondent Company due to the collusion between the employees of the appellant Board and the respondent Company, who had passed the invoices of the respondent Company illegally, and in collusion with the Company, for which, the departmental action was being taken by the Board against those employees.
5. On the basis of the pleadings of the parties, the sole Arbitrator framed the following issues :-
i) Whether any of the parties to the proceeding has committed breach of the terms of the contract ?
ii) Whether the respondent is liable to pay Rs.6016835/- only in respect of unpaid invoices raised by the claimant up-to 16.10.2015, as claimed by the claimant?
iii) Whether the respondent is liable to pay Rs.6308135/- only in respect of unpaid invoices raised by the claimant subsequent to 16.10.2015, as claimed by the claimant?
iv) Whether the claimant is entitled to recover a sum of Rs.2,90,66,745/- towards the unpaid invoices, as claimed?
a) "Whether the claimant is entitled to recover the amount more fully detailed in paragraph-37 of the statement of claim".
v) Whether the Respondent is entitled to amounts claimed in the counter claim, as claimed by the respondent?
vi) Whether the respondent has made any excess payment to the claimant by the respondent in their pleading? If yes, to what extent?
Commercial Appeal (D.B) No.08 of 2018 3
vii) Whether the claim of the excess payment claim by the respondents is barred by law of limitation.
viii) Whether the parties are entitled to any compensation / damages, if any?
ix) Whether the parties are entitled to interest and cost as claimed by them in the statement of claim / counter claim. If yes, on what rate?
x) To what any other relief or reliefs the parties are entitled to?
6. The evidences were adduced by both the sides and upon consideration of the evidences, the sole Arbitrator by his Arbitral Award dated 23.09.2017, passed in Arbitration Case No.15 of 2016, allowed the three claims of the respondent Company, viz., claims of Rs.2,90,66,745/- towards unpaid invoices, Rs.86,64,878/- towards interest on unpaid invoices, and Rs.2,07,219/- towards statutory penalty, whereas the other claims of the respondent Company were disallowed. As regards the appellant Board, their entire claims were disallowed.
7. Aggrieved by the aforesaid Arbitral Award, the appellant Board filed objection under Section 34 of the Act, before the Commercial Court, Ranchi, in Commercial (Revocation) Case No.44 of 2017, challenging the Award, mainly on the ground that the Arbitral Award was in conflict with the "public policy of India", which is a ground for challenging the Arbitral Award under Section 34 (2) (b) (ii) of the Act. The Commercial Court below, by its impugned Judgment dated 20.04.2018, dismissed the case, on the ground that the conjoint reading of Section 34 (5) and (6) of the Act mandatorily requires that a notice had to be given by the party, preferring the objection to the other party, and the objection had to be decided within the period of one year from the date of service of notice to the other party, and since this mandatory provision was not complied by the appellant Board, the case was liable to be dismissed on that score alone. The other ground, on which the objection case was dismissed, was on the merits of the objection, stating that no case was made out for any interference in the Arbitral Award, as the learned Arbitrator had arrived at his findings after dealing with the matter in detail, and the Award nowhere reflected that it was against the public policy, or that there was any bias, or that the Arbitrator had decided the dispute beyond his jurisdiction. The Court below has held that since the Commercial Appeal (D.B) No.08 of 2018 4 Arbitrator had passed the reasoned Award, the Court was not required to appreciate and re-evaluate the findings of the learned Arbitrator, as the Court was not sitting in appeal against the impugned Award passed by the learned Arbitrator, and the Court was not required to re-appreciate or re-evaluate the evidence led before the Arbitrator. For coming to this conclusion, the Court below has relied upon the decision of the Hon'ble Apex Court in Associate Builders Vs. Delhi Development Authority, reported in (2015) 3 SCC 49.
8. Learned Advocate General, challenging the impugned Judgment passed by the Commercial Court, has submitted that the Court below has committed a grave error of law in holding that Section 34 (5) and (6) of the Act mandatorily requires the notice to be given to the other party. Learned Advocate General has submitted that the Provision under Section 34 (5) of the Act is not mandatory in nature, rather it is only directory, inasmuch as, there is no consequence provided under the Act for non-compliance of this requirement. In support of his contention, learned Advocate General has placed reliance upon the decision of the Hon'ble Apex Court in State of Bihar and Ors. Vs. Bihar Rajya Bhumi Vikas Bank Samiti, reported in (2018) 9 SCC 472, wherein, the law has been laid down as follows :-
"19. It will thus be seen that Section 34(5) does not deal with the power of the Court to condone the non-compliance thereof. It is imperative to note that the provision is procedural, the ob ject behind which is to dispose of applications under Section 34 expeditiously. One must remember the wise observation con tained in Kailash, where the object of such a provision is only to expedite the hearing and not to scuttle the same. All rules of procedure are the handmaids of justice and if, in advancing the cause of justice, it is made clear that such provision should be construed as directory, then so be it.
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21. Section 80, though a procedural provision, has been held to be mandatory as it is conceived in public interest, the public purpose underlying it being the advancement of justice by giv ing the Government the opportunity to scrutinise and take im mediate action to settle a just claim without driving the person who has issued a notice having to institute a suit involving con siderable expenditure and delay. This is to be contrasted with Section 34(5), also a procedural provision, the infraction of which leads to no consequence. To construe such Commercial Appeal (D.B) No.08 of 2018 5 a provision as being mandatory would defeat the advancement of justice as it would provide the consequence of dismissing an application filed without adhering to the requirements of Sec tion 34(5), thereby scuttling the process of justice by burying the element of fairness." (Emphasis supplied).
Placing reliance on this decision, learned Advocate General has submitted that the findings given by the Court below that on this score alone, the objection case was fit to be dismissed, cannot be sustained in the eyes of law.
9. Learned Advocate General has further challenged the findings given on merits in the impugned Arbitral Award dated 23.09.2017, passed by the Sole Arbitrator, as also the impugned Judgment dated 20.04.2018 passed by the Court below. The challenge made by the learned Advocate General is solely based on Section 34 (2) (b) (ii) of the Act, challenging the Arbitral Award to be in conflict with the public policy of India.
10. Learned Advocate General has submitted, pointing out from the issues framed in the Arbitral Award, that even though, the issues have been framed by the learned Arbitrator, but those issues have not been properly decided. In particular, the learned Advocate General has pointed out that Issue No.(vi) related to whether the respondent had made any excess payment to the claimant, but the said issue was not at all decided by the learned Arbitrator. It is also submitted by the learned Advocate General that even the other issues have been decided by the learned Arbitrator illegally, and against the public policy of India. Learned Advocate General has submitted that it was the definite case of the appellant Board that their Officers had collided with the respondent Company and they passed the invoices in collusion, for which, the departmental action was taken against such officers. In that view of the matter, the sole Arbitrator was required to decide whether in fact, any excess payment was made to the respondent Company or not, and had the Arbitrator found that the excess payment was made to the respondent Company, the said claim ought to have been allowed in favour of the appellant Board. It is submitted that without looking into the evidence adduced by the appellant Board, the Arbitrator has only stated that the appellant Board was wholly unjustified in adjusting the said amount on the ground of alleged excess payment, and if at all any Commercial Appeal (D.B) No.08 of 2018 6 excess payment was made, it was owing to the fault or negligence of the employees of the Board, which could be recovered only from the erring officers, if the allegations against them were found to be correct. Learned Advocate General has submitted that such findings are against the public policy of India, and absolutely shocking to the conscience and as such, cannot be sustained in the eyes of law.
11. In support of this contention, learned Advocate General has placed reliance upon the decision of the Hon'ble Apex Court in Associate Builders' case (supra), wherein the law has been laid down as follows :-
"19. When it came to construing the expression "the public policy of India" contained in Section 34(2)(b)(ii) of the Arbi tration Act, 1996, this Court in ONGC Ltd. v. Saw Pipes Ltd. held:
"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 ad ministration of justice. Hence, in our view in addition to narrower meaning given to the term 'public policy' in Renusagar case 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.
Illegality must go to the root of the matter and if the il legality 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 con science of the court. Such award is opposed to public policy and is required to be adjudged void.
Commercial Appeal (D.B) No.08 of 2018 7 *** *** ***
28. In a recent judgment, ONGC Ltd. v. Western Geco International Ltd., 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:
"35. What then would constitute the 'fundamental poli cy of Indian law' is the question. The decision in ONGC does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental prin ciples 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 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. -------.
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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 Commercial Appeal (D.B) No.08 of 2018 8 a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. --------------.
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 irra tionality of decisions is tested on the touchstone of Wednesbury 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 drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudi cation even when made by an Arbitral Tribunal that en joys considerable latitude and play at the joints in mak ing 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."
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31. The third juristic principle is that a decision which is per verse or so irrational that no reasonable person would have ar rived at the same is important and requires some degree of ex planation. It is settled law that where:
(i) a finding is based on no evidence, or
(ii) an Arbitral Tribunal takes into account something irrele vant to the decision which it arrives at; or
(iii) ignores vital evidence in arriving at its decision, such decision would necessarily be perverse."
(Emphasis supplied).
12. Learned Advocate General has further placed reliance upon the decision of the Hon'ble Apex Court in Anand Brothers Pvt. Ltd. Vs. Union of India and Ors., reported in (2014) 9 SCC 212, wherein it has been held that the Arbitral Award must indicate the findings of the Commercial Appeal (D.B) No.08 of 2018 9 Arbitrator and if that is not done, the Award shall be subject to the judicial review under the caption "Public Policy" appearing in Section 34 of the Act.
13. Placing reliance on these decisions, learned Advocate General submitted that the impugned Award passed by the sole Arbitrator cannot be sustained in the eyes of law, as it does not pass the test of public policy as provided under Section 34 (2) (b) (ii) of the Act.
14. Learned counsel for the respondent Company, on the other hand, has opposed the prayer and has submitted that Section 34 of the Arbitration and Conciliation Act, 1996 has undergone a change by the Amendment Act, 3 of 2016. Learned counsel has pointed out that this amendment has taken place with retrospective effect from 23.10.2015, whereby, the explanation to Section 34 (2) (b) (ii) of the Act has been substituted. Prior to the amendment, the explanation read as follows :-
"Explanation - Without prejudice to the generality of sub-clause (ii) of clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81."
After the amendment, the explanation has been substituted and Section 2-A has also been added, which read as follows :-
"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 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. (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 re-appreciation of evidence."
Commercial Appeal (D.B) No.08 of 2018 10
15. It is further pointed out by the learned counsel that the decision in Associate Builders' case (supra), relied upon by the learned Advocate General was rendered by the Hon'ble Apex Court on 25th November 2014, that is, it was prior to the aforesaid amendment in Section 34 of the Act.
16. Learned counsel has submitted that the position has been clarified by the Hon'ble Apex Court, after the aforesaid amendment in the Act, in HRD Corporation (Marcus Oil and Chemical Division) Vs. Gail (India) Ltd., reported in (2018) 12 SCC 471, wherein taking into consideration the amendments in Section 34 of the Act, the law has been laid down by the Hon'ble Apex Court, as follows :-
"18. Shri Divan is right in drawing our attention to the fact that the 246th Law Commission Report brought in amendments to the Act narrowing the grounds of challenge coterminous with seeing that independent, impartial and neutral arbitrators are appointed and that, therefore, we must be careful in pre serving such independence, impartiality and neutrality of arbi trators. In fact, the same Law Commission Report has amended Sections 28 and 34 so as to narrow grounds of challenge avail able under the Act. The judgment in ONGC Ltd. v. Saw Pipes Ltd. has been expressly done away with. So has the judgment in ONGC Ltd. v. Western Geco International Ltd. Both Sections 34 and 48 have been brought back to the position of law con tained in Renusagar Power Co. Ltd. v. General Electric Co. where "public policy" will now include only two of the three things set out therein viz. "fundamental policy of Indian law"
and "justice or morality". The ground relating to "the interest of India" no longer obtains. "Fundamental policy of Indian law" is now to be understood as laid down in Renusagar. "Jus tice or morality" has been tightened and is now to be under stood as meaning only basic notions of justice and morality i.e. such notions as would shock the conscience of the Court as un derstood in Associate Builders v. DDA. Section 28(3) has also been amended to bring it in line with the judgment of this Court in Associate Builders, making it clear that the construction of the terms of the contract is primarily for the arbitrator to de cide unless it is found that such a construction is not a possible one.
19. Thus, an award rendered in an international commercial arbitration--whether in India or abroad--is subject to the same tests qua setting aside under Section 34 or enforcement under Commercial Appeal (D.B) No.08 of 2018 11 Section 48, as the case may be. The only difference is that in an arbitral award governed by Part I, arising out of an arbitration other than an international commercial arbitration, one more ground of challenge is available viz. patent illegality appearing on the face of the award. The ground of patent illegality would not be established, if there is merely an erroneous application of the law or a reappreciation of evidence."
17. Learned counsel for the respondent Company has further placed reliance upon the decision of the Hon'ble Apex Court in Sutlej Construction Ltd. Vs. Union Territory of Chandigarh, reported in (2018) 1 SCC 718, wherein the scope of exercising power under Section 34 of the Act has been explained as follows :-
"11. It has been opined by this Court that when it comes to setting aside of an award under the public policy ground, it would mean that the award should shock the conscience of the Court and would not include what the Court thinks is unjust on the facts of the case seeking to substitute its view for that of the arbitrator to do what it considers to be "justice". (Associate Builders v. DDA)
12. The approach adopted by the learned Additional District Judge, Chandigarh was, thus, correct in not getting into the act of reappreciating the evidence as the first appellate court from a trial court decree. An arbitrator is a chosen Judge by the par ties and it is on limited parameters can the award be interfered with.
13. The learned Single Judge ought to have restrained himself from getting into the meanderings of evidence appreciation and acting like a second appellate court. In fact, even in second ap peals, only questions of law are to be determined while the first appellate court is the final court on facts. In the present case, the learned Single Judge has, thus, acted in the first appeal against objections dismissed as if it was the first appellate court against a decree passed by the trial court."
18. Learned counsel for the respondent Company has submitted that by adding sub-section (2-A) in Section 34 of the Act, it has been made abundantly clear that the Arbitral Award though can be held to be vitiated by the patent illegality appearing on the face of the Award, but it cannot be set aside merely on the ground of an erroneous application of law or by re-appreciation of evidence. Learned counsel has submitted that in the Commercial Appeal (D.B) No.08 of 2018 12 present case, whatever challenge is made to the Award is based on the evidence on record, which is not allowed to be looked into. Learned counsel has also submitted that though the Award is sought to be challenged on the ground of public policy, but what is that public policy, that has been violated, is also not explained by the appellant Board, and whatever instances have been cited by the learned Advocate General, are only based on the evidence on record, or may be by an erroneous application of law or by re-appreciation of evidence, which are no more open to be looked into in an objection under Section 34 of the Act, after its amendment by Amendment Act, 3 of 2016.
19. Learned counsel has also drawn our attention towards Arbitral Award and has pointed out that the first issue framed by the learned Arbitrator was whether any of the parties to the proceedings had committed breach of the terms of the contract, and has given a clear-cut finding, that it can safely be held that it is the appellant Board, who had committed the breach of the terms and conditions of the MOU. As regards the findings of Issue No.(vi), whether the Board had made any excess payment to the claimant, learned counsel has drawn our attention towards the discussions in the Award, in which, it has come that it was not the case of the Board that the authorities, who checked and verified the invoices, were not competent to check and verify the invoices and hence, they cannot be allowed to contend that inflated bills were passed, and they are stopped from challenging the legality and validity of passing the aforesaid invoices for payment. Accordingly, the learned Arbitrator has come to the finding that the Board was wholly unjustified in adjusting the amount on the ground of alleged excess payment made, as the invoices were checked, verified and passed by the competent authority of Board. Learned counsel also submitted that such findings given by the learned sole Arbitrator cannot in any way be said to be shocking to the conscience, or against the public policy of India, and accordingly, the same was not liable to be challenged under Section 34 of the Act. Learned counsel accordingly, submitted that there is no merit in this appeal and the same is fit to be dismissed.
20. Having heard the learned counsels for both the sides and upon going through the record, we find that the first reasoning given by the Commercial Appeal (D.B) No.08 of 2018 13 learned Court below in dismissing the objection case that from the conjoint reading of Section 34 (5) and (6) of the Act, it appeared that the notice had to be given by the party preferring the objection to the other party and the objection had to be decided within a period of one year from the date of service of notice, and since this requirement had not been complied with, the case was liable to be dismissed on this score alone, cannot be sustained in the eyes of law for two reasons. Firstly, as held by the Hon'ble Apex Court in State of Bihar and Ors. Vs. Bihar Rajya Bhumi Vikas Bank Samiti, (supra), the said notice cannot be said to be mandatory, in view of the fact that there is no consequence provided under the Act for non-compliance of this Provision. Secondly, the Court below has wrongly read the provision of Section 34 (5) and (6) of the Act to come to the conclusion that the notice had to be given by the party preferring the objection to the other party and the objection had to be decided within a period of one year from the date of service of notice, and since this requirement had not been complied with, the case was liable to be dismissed on this score alone, as this shows that the Court below was under the impression that the objection had to be decided within a period of one year by the party getting the notice. This impression, if any, of the Court below was absolutely misconceived, as Section 34 (6) of the Act clearly speaks about the disposal of the objection case by the Court within a period of one year, and not by the party getting the notice.
21. However, this is not the sole ground for dismissing the objection case by the Court below, rather the Court below has also entered into the merits and has come to the cogent finding that the Court was not required to re-appreciate or re-evaluate the evidence led before the Arbitrator and the Objector, i.e., the respondent Board had failed to show that how the Award was against the public policy.
22. We also find from the materials on record that the learned Arbitrator had framed the appropriate issues and has decided the issues on the basis of the evidence on record. The challenge to the Arbitral Award is confined to the objection that may be taken under Section 34 of the Act, and the only challenge raised by the learned Advocate General for the appellant Board is that the arbitral Award is in conflict with the public policy of India. The scope of public policy, which was much wider prior to the amendment Commercial Appeal (D.B) No.08 of 2018 14 in the Act, was after the amendment, by the Amendment Act, 3 of 2016, was made much narrower, as has been laid down by the Hon'ble Apex Court in HRD Corporation's case (supra), and we find that there is nothing in the Arbitral Award, which may be said to be shocking to the conscience of the Court, as understood in Associate Builders' case (supra), or that it suffers from any patent illegality, apart from merely an erroneous application of law or re-appreciation of evidence, as held by the Hon'ble Apex Court in HRD Corporation's case (supra), and brought in the Act by newly added sub-Section (2-A) in Section 34 of the Act. There is no dispute to the fact that the Arbitral Award was passed after the Amendment Act, 3 of 2016, came in force, inasmuch as the Arbitral Award was passed on 23rd September, 2017, and the amendment to the Act came in force with effect from 23.10.2015 itself.
23. For the foregoing reasons, we do not find any illegality in the impugned Judgment dated 20.04.2018, passed by the learned Presiding Officer, Commercial Court, Ranchi, in Commercial (Revocation) Case No.44 of 2017, holding that the Court was not required to re-appreciate and re-evaluate the findings of the learned Arbitrator, as the Court was not sitting in appeal against the impugned Award passed by the learned Arbitrator.
24. There is no merit in this appeal and the same is accordingly, dismissed. Consequently, the pending interlocutory application also stands disposed of.
(H.C. Mishra, A.C.J.) Deepak Roshan, J.-
(Deepak Roshan, J.) Jharkhand High Court, Ranchi.
Dated the 16th of September, 2019.
N.A.F.R/ BS/-