Bangalore District Court
Paid A Sum Of Rs.12 vs To Discharge The Said Loan on 9 July, 2021
1
Com.AS.No.40/2019
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,AT BENGALURU (CCH.83)
THIS THE 9th DAY OF JULY 2021.
PRESENT:
SRI.DEVARAJA BHAT.M.,B.COM,LL.B.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.A.S.No.40/2019
BETWEEN:
M/s Rajarajesware
Buildcon Pvt.Ltd., a
Company incorporated
under Companies Act,
1956, having its
registered Office at:
No.67/1, "Sree Ranga",
Nettkallappa Circle,
Basavanagudi,
Bengaluru - 560 004,
represented by its
Director Mr. Ramanlal M.
Sha.
: PLAINTIFF
(Plaintif is represented
by M/s B.M. Associates -
Advocates)
AND
Sri. B.N. Vishwanath,
Son of Late Sri. T.V.
2
Com.AS.No.40/2019
Narayanaswamy, aged
about 62 years, residing
at No.12, 28th Cross, 2nd
Main, 7th Block,
Jayanagar West,
Bengaluru - 560 082.
: DEFENDANT
(Defendant is
Represented by Sri.
B.N.Jayadeva-Advocate)
Date of Institution of the 07.03.2019
suit
Nature of the suit (suit on
pronote, suit for Petition for setting aside
declaration & Possession, Arbitral Award
Suit for injunction etc.)
Date of commencement of
recording of evidence - Nil -
Date on which judgment 09.07.2021
was pronounced
Date of First Case - Not held -
Management Hearing
Time taken for disposal 10 days
from the date of
conclusion of arguments
Total Duration Year/s Month/s Day/s
02 04 02
(DEVARAJA BHAT.M),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
3
Com.AS.No.40/2019
JUDGMENT
This is a Petition filed under Section 34 of the Arbitration & Conciliation Act, 1996 for setting aside the Arbitral Award dated 30.11.2018 passed by the learned Arbitrator.
2. The Plaintiff "M/s Rajarajeshware Buildcon Pvt.Ltd." had invoked the Arbitration Agreement and preferred certain Claims against Sri. B.N.Vishwanath, the Defendant. In response to the Statement of Claim preferred by M/s Rajarajeshware Buildcon Pvt.Ltd., said Sri. B.N.Vishwanath filed his statement of objections and also Counter-Claim.
3. The Brief facts leading to the case are as follows:-
The Defendant has executed a Joint Development Agreement dated 07.08.2013 in favour of the Plaintiff for the development of Property bearing New No.39, PID No.58-35-39, situated 23rd Main Road, 4th "T" Block, Jayanagar, Bengaluru, for construction of a multi-storied residential complex in the said Property, that the Defendant has also executed a registered General Power of Attorney in favour of the Plaintiff/its Director, that the said Joint Development Agreement was subject to charge created by the Defendant in favour of M/s Religare Finance Limited and the Defendant represented the Plaintiff that 4 Com.AS.No.40/2019 the total outstanding to M/s Religare was Rs.6,50,00,000/-, that the Defendant had to obtain Sale Deed for the Property bearing No.991 which is part of the said Property from the Bengaluru Development Authority, promised to obtain such Sale Deed within three months from the date of the Joint Development Agreement, that the Defendant on his part to secure compliance from the Plaintiff, insisted upon inclusion Clause- 60.3 stipulating that the Plaintiff can execute Sale Deed for the Developer's Share only after the Defendant was placed in possession of his share of built-up apartments, that they agreed that the Plaintiff shall pay a total sum of Rs.75,00,000/- as refundable Security Deposit and the Plaintiff as on the date of the Joint Development Agreement, paid a sum of Rs.38 Lakhs to the Defendant and assured to pay the remaining Rs.37 Lakhs on the date of Defendant putting the Plaintiff in vacant possession of the said Property, that the Plaintiff obtained sanction/license from the BBMP on 31.12.2013 for construction of residential apartments building and commenced construction, that the Plaintiff paid a sum of Rs.12,50,000/- to the Defendant at his request as additional refundable interest free deposit, that they agreed the ratio in which the built-up area of the apartment was to be decided amongst them and there was no specific allocation in terms thereof, that they entered into Supplemental Agreement on 27.01.2014 allocating the apartments between 5 Com.AS.No.40/2019 them in terms of the agreed ratio, that the Defendant had neither obtained NOC from M/s Religare nor initiated any proceedings for closure of the loan, that on the assurance of the Defendant to discharge the said loan, the Plaintiff continued with construction, that the Plaintiff entered into Sale Agreements with third party purchasers, that on January 2015, the Defendant represented to the Plaintiff that he did not have the expertise to market and clear the outstanding to M/s Religare, wanted the Plaintiff to mark it, even the share of the Defendant so that the Defendant could obtain NOC and also clear the loans, that the Defendant as per Memorandum of Understanding dated 19.02.2015, authorized the Plaintiff to mark it 8000 sq.ft. Of built up area from his share so that a total sum of Rs.5,60,00,000/- could be mobilized to clear the dues to M/s Religare, that the Plaintiff completed construction in the month of March, 2015, delivered possession of the share of the Defendant including Apartment No.202 and 203, that the Plaintiff who had entered Sale Agreement in so far as its share of apartments, executed Sale Deed in favour of such purchasers, that the Plaintiff conveyed nine apartments and the apartment ear-marked for marketing have not been conveyed, that the Plaintiff pursued with the Defendant for refund of the Security Deposit, payment of the amounts due and for execution of the rectification/amendments or dates, that the 6 Com.AS.No.40/2019 Plaintiff on 07.02.2016 unilaterally revoked the Power of Attorney and hence, dispute arose between the parties and referred to the Arbitration and ultimately the learned Arbitrator has passed the Impugned Award.
4. Being Aggrieved by the said Arbitral Award, the Plaintiff has challenged the same on several grounds, which will be discussed later in the body of the Judgment.
5. Along with the Main Petition, the Plaintiff has filed I.A.No.I for stay of the Impugned Award and I.A.No.II for condonation of delay in filing this Petition. Since this Petition is called along with the connected case i.e., Com.A.S.No.241/2018, no specific orders have been passed on I.A.No.I & II.
6. I have heard the arguments of the Advocate for the Plaintiff and Advocate for Defendant on main merits and on all other pending I.As, along with the arguments in the connected case, i.e., Com.AS.No.241/2018.
7. Based on the above contentions of both parties, following Points arise for my consideration:-
1. Whether there are grounds to condone the delay in filing this Petition as prayed in I.A.No.II ?7
Com.AS.No.40/2019
2. Whether there are grounds to set aside the Impugned Award under Section 34 of the Arbitration & Conciliation Act?
3. What Order?
8. My findings on the above points are as follows:-
Point No.1 :- In the Affirmative Point No.2 :- In the Negative Point No.3 :- As per the final Order for the following reasons.
REASONS
9. Point No.1 :- The contentions of the Plaintiff in the accompanying Affidavit annexed to I.A.No.II so as to condone the delay is concerned, are that after the Award, he had applied for Certified Copies of the same and the same was received only on 03.12.2018, that subsequently on the advise of the Advocate he had to secure certain additional documents that were necessary to finalize the present Petition, that obtaining the same took some time because he was continuously traveling on account of his work, that he was unable to finalize the present Petition within a period of 90 days from the date of Certified Copy of the Award, that the Defendant has also instituted a Suit to set aside the said Award and he has to obtain the necessary documents from the said proceedings to 8 Com.AS.No.40/2019 effectively prosecute this proceedings and hence, he prays to condone the delay in filing the present Petition.
10. It is undisputed that under Section 34 of the Arbitration & Conciliation Act, the Petition for setting aside the Award can be filed by the aggrieved party within 90 days of receipt of Award and this period can be extended by the Court on showing reasonable causes, by another period of 30 days and not beyond.
11. It is stated by the Petitioner that the impugned award was passed by the Arbitrator on 30.11.2018. The Petition under Section 34 of the Act was filed in the Court on 07.03.2019 about 7 days after expiry of 90 days.
12. In the instant application, the exact days of delay is not mentioned. However, considering the said dates, the condonation of delay has been sought in respect of 07 days beyond the period of 90 days. It is stated that this Court is within its jurisdiction to condone the delay. The condonation of delay is sought on the ground that after the Award was passed, the Plaintiff has been traveling on his work.
13. I wish to refer a decision reported in 2010(12)-S.C.C.- 210 (State of Himachal Pradesh and Another vs. 9 Com.AS.No.40/2019 Himachal Techno Engineers and another). As per the said decision, for purpose of calculating the three months period, the date on which the Award was received is to be excluded. I wish to refer another Judgment of the Hon'ble High Court of Karnataka passed in MFA No.9329/2012(AA)(Government of Karnataka vs. Sri. K. Lakshminarayana Reddy) dated 27.08.2014. The relevant portion of the said Judgment is as follows:-
"The learned Judge has come to the conclusion that the delay of 34 days was beyond 30 days as contemplated in the proviso to Sub-section(3) of Section 34 of the Arbitration Act. The learned District Judge has adopted wrong approach to the real state of affairs and the award itself is of 28.10.2005 and was sent to the appellant through registered post on the same day. Even if it is accepted that it was received on the very next day i.e., on 29.10.2005 two days had remained in the month of October and three months would come to an end on 29.01.2006. Petition was filed on 27.02.2006 and therefore it was within 30 days after expiry of three months."
14. In the present case, the Arbitral Award was passed on 30.11.2018 and the Certified Copy of the said Order was obtained by the Plaintiff on 03.12.2018 as contended by the Plaintiff. As per the ratio of the above-mentioned decisions, the date of receipt of Award is to be excluded. The three months from the date of Award was completed on 28.02.2019.
10Com.AS.No.40/2019 Therefore, there is only delay of 07 days after three months. Hence, the Petition for setting aside Award is filed though beyond 90 days but within the period of 120 days. Hence, the ratio of the above-mentioned decisions is clearly applicable to the facts of the present case. It is settled law that, it is not each day's delay, which is to be explained but the Plaintiff must show a reasonable cause in filing the Petition beyond 90 days but within 120 days. The Plaintiff has successfully explained the cause. The Plaintiff is not supposed to explain the delay of 90 days of period, the Plaintiff is only to explain the delay in filing the Petition for setting aside the Award beyond 90 days, which has been explained. Therefore, I answer this Point in the 'Affirmative'.
15. Point No.2 : - The Plaintiff has preferred a Claim Petition before the Learned Arbitrator for the following reliefs:-
(a). Directing the Respondent (i.e., the present Defendant) to pay a sum of Rs.2,39,00,401/- with pendente lite and future interest at the rate of 18% P.A. till the date of realization.
(b). Declare that the Registered Revocation Deed dated 17.02.2016, by the Respondent (i.e., the present Defendant) 11 Com.AS.No.40/2019 revoking the General Power of Attorney dated 07.08.2013, as illegal and non-est.
(c). Directing the Sale of Schedule-B Apartments in favour of purchasers nominated by the Claimant (i.e., the present Plaintiff) and to apply the proceeds from such sale to repay the loan outstanding to M/s. Religare Finance Limited as against the security of the Schedule-A Property and to deliver the vacant possession of the Schedule-B Apartments to such third party purchasers; alternatively, direct the Respondent (i.e., the present Defendant) to clear the upstanding with Religare Finance Limited from the sale of the Schedule-B Apartments or any other of its assets.
(d). Directing the Respondent (i.e., the present Defendant) to obtain, at his cost, the Sale Deed for the property bearing No.991, measuring East to West 40 feet and North to South 28 feet, and Marginal land attached to Site No.991, measuring East to West 40 feet and North to South 28 feet, Part of BBMP Khata No.39, situated at 23 rd Main, 4th Block, Jayanagar, Bengaluru (which is part of the Schedule-A Property) from the BDA.
16. The Defendant has preferred several claims by way of Counter Claim before the Learned Arbitrator.
12Com.AS.No.40/2019
17. The Learned Arbitrator has partly allowed the claims of the Claimant and also partly allowed the Counter Claim of the Respondent in the Impugned Award.
18. The Plaintiff has challenged the said Impugned Award in this proceedings. The Hon'ble High Court in the Judgment dated 17.04.2021 in Com.A.P.No.25/2021 (Union of India vs. M/s Warsaw Engineers) has laid down certain guidelines/principles about the writing of Judgments in a Petition filed under Section 34 of the Arbitration & Conciliation Act. Keeping in my mind the said guidelines, I now propose to examine each and every ground urged by the Plaintiff specifically with reference to the submissions made by both Advocates.
19. The first ground is that the Impugned Award in so far as it relates to rejection of the Claims made by the Plaintiff is contrary to the facts and circumstances and opposed to settled principles of law and vitiated by patent illegality appearing on the face of the Award.
20. This is a general ground and the same will be discussed along with other specific grounds to know whether the Award is vitiated by patent illegality as contended by the Plaintiff.
13Com.AS.No.40/2019
21. The second ground is that the Arbitrator has rejected the claim of the Plaintiff for refund of Security Deposit of Rs.75 Lakhs from the Defendant on the ground that the said claim is premature and is not in accordance with clause-43(iii) of the Joint Development Agreement, which is patently erroneous and contrary to the terms of the Joint Development Agreement.
22. As per the arguments of the learned Advocate for the Plaintiff, the learned Arbitrator has failed to consider Clause- 43(iii) read with Clause-11 of the Ex.P.1 Joint Development Agreement and as per the said Clauses, the Defendant is liable to refund the Security Deposit simultaneously with taking possession of his share of apartments, that in terms of Ex.P.1/Joint Development Agreement, if the Defendant fails to refund the Security Deposit at the time of taking possession of his share of flats, he is only entitled to take additional two months time to refund the same, but with interest at 18% per annum. The learned Advocate for the Plaintiff has argued that the Defendant has admitted that he has taken possession of his share of flats in the month of February 2015 and he has executed Ex.P.36/Sale Deed in respect of Flat No.103 and put the Purchaser in possession of the same and he has put his tenants in possession of the remaining Flats as per the answer 14 Com.AS.No.40/2019 to the Question Nos.32 to 39 in the cross-examination of RW.1. It shows that the Plaintiff insists this Court to re-appreciate the oral and documentary evidence adduced before the learned Arbitrator, which is not permissible in a proceedings under Section 34 of the Arbitration Act. Without re-appreciation of the said evidence, this Court is not in a position to consider this ground. This Court cannot sit as an Appellate Court. Hence, this ground is not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act.
23. The third ground is that the learned Arbitrator ought to have seen that as per Clause 43(iii) read with Clause 11 of the Joint Development Agreement, the Defendant is liable to refund the Security Deposit simultaneously with taking possession of his share of apartments and as per the said clauses, if the Defendant fails to refund the Security Deposit at the time of taking possession of his share of flats, he is entitled to take additional 2 months time to refund the Security Deposit along with the interest at 18% per annum. That the Defendant has admitted that he has taken possession of his share of flats in the month of February, 2015 and he has executed Sale Deed for one of the said flats and put the Purchaser in possession of the same and when such being the case, the finding of the learned 15 Com.AS.No.40/2019 Arbitrator that the claim made by the Plaintiff is premature is not only erroneous, but is also patently illegal.
24. This ground is nothing but the repetition of the second ground. Hence, for the same reasons as mentioned while considering second ground, this ground is also not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act.
25. The fourth ground urged is that the Arbitrator in one breath held that the Defendant is not liable to refund the Security Deposit since there is no compliance of Clause No.11, in the same Award grants a claim for Rs.50,000/- out of the total Additional Refundable Security Deposit of Rs.12,50,000/- and therefore, the Impugned Award suffers from patent illegality.
26. The learned Advocate for the Plaintiff has drawn my attention to Para No.18 of the Objection Statement filed by the Defendant before the learned Arbitrator and has argued that the Defendant has admitted the receipt of Rs.12,50,000/- from the Plaintiff, that he has alleged that he has repaid the said amount of Rs.12,00,000/- to the Plaintiff on 29.06.2015 and during the cross-examination of PW.1, it has been specifically clarified that receipt of Rs.12,00,000/- by the Defendant is only towards the repayment of the said amount paid by the Plaintiff 16 Com.AS.No.40/2019 to M/s Religare on 27.06.2015 at the instance of the Defendant and that the Ex.P.48/Ledger Account issued by the Bank clearly establish that the Plaintiff has paid Rs.12,00,000/- to M/s Religare at the request of the Defendant and that the Defendant has repaid this amount on 29.06.2015. It is to be noted that in order to appreciate whether payment of Rs.12,00,000/- by the Defendant to the Plaintiff is in respect of partial repayment of Security Deposit as contended by the Defendant or it is in respect of repayment of the amount paid to M/s Religare as contended by the Plaintiff, this Court has to go through the oral and documentary evidence adduced before the learned Arbitrator and the said evidence has to be re- appreciated, which is not permissible under Section 34 of the Arbitration & Conciliation Act. This Court cannot sit as an Appellate Court while deciding an application under Section 34 of the said Act. Prima facie, without re-appreciating the evidence, the said finding of the learned Arbitrator appears to be legal and valid and not perverse as alleged by the Plaintiff. Hence, this ground is not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act.
27. The fifth ground urged is that the Arbitrator was pleased to reject the claim made by the Plaintiff for recovery of maintenance charges by the Defendant on the ground that the 17 Com.AS.No.40/2019 Plaintiff has not placed any documentary evidence to substantiate the said claim, which is grossly erroneous in view of Clause 15(iii) of the Joint Development Agreement, which clearly says that 'from the date of delivery of possession of built-up area the owner and the developer maintain their respective portions at their own costs' and hence, the rejection of the said claim is contrary in terms of the Joint Development Agreement.
28. The learned Advocate for the Plaintiff has argued that since the Defendant has taken possession of three flats in the month of February 2015 , he is liable to pay the maintenance in respect of said three flats. In respect of this aspect, I have already considered the said fact while answering grounds No.2 & 3 above. In view of the said discussions, I need not prolong my discussion about this ground also. Further, even if Clause No.15(iii) of Ex.P.1 is to be considered, this Court cannot come to the conclusion contrary to the finding of the learned Arbitrator, just because another view is possible than the view expressed by the learned Arbitrator by constructing or interpreting the terms of the Contract between the parties. Therefore, prima facie the finding of the learned Arbitrator appears to be correct and not perverse. Hence, this ground is 18 Com.AS.No.40/2019 not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act.
29. The sixth ground urged is that the learned Arbitrator has grossly erred in rejecting the claim made by the Plaintiff towards the Service Tax payable for Owner's share/Defendant's Share completely ignoring the Notice issued by the Commissioner of Service Tax, that the document at Ex.P.98 clearly establish that the Plaintiff/Claimant has paid a sum of Rs.17,50,266/- towards the Defendant's share and undertaken to pay the balance amount.
30. In respect of this ground, the learned Advocate for the Plaintiff has drawn my attention to Ex.P.43/Notice issued by the Commissioner of Service Tax dated 27.03.2017 calling upon the Plaintiff to pay Rs.34,23,981/- towards the share of the Defendant and Ex.P.98 and has argued that the Plaintiff has paid a sum of Rs.17,50,266/- towards the share of the Defendant and has undertaken to pay the balance amount.
31. The Defendant has contended that since the Plaintiff has not obtained the Occupancy Certificate, the Defendant is not liable to pay the Service Tax. Repelling the said contention of the Defendant, the Plaintiff has contended that since the Defendant has taken possession of the three flats and has also 19 Com.AS.No.40/2019 sold one Flat in favour of third party Purchaser, he cannot contend that the Plaintiff has not obtained Occupancy Certificate. Further, the learned Advocate for the Plaintiff has referred to Section 66-E of the Service Tax Act and argued that the Ex.P.23/Certificate issued by the Architect regarding completion of the building, would serve the purpose of the said Section and he has also referred to a Circular dated 10.02.2012 in No.151/2/2012-ST issued by Ministry of Finance (Department of Revenue). However, this Court cannot take a contrary view than the view taken by the learned Arbitrator based on the said Circular which is produced at the time of hearing this Petition by the learned Advocate for the Plaintiff. Either by interpreting the terms of the Contract or by reading the said Circular with the terms of the Contract, this Court cannot interfere in the Award passed by the learned Arbitrator just because another view is possible. Therefore, the said ground is not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act.
32. The seventh ground urged is that the learned Arbitrator has rejected the claim made by the Plaintiff for refund of Rs.1,31,00,000/- on the ground that the details in the documents produced by the Plaintiff/Claimant does not fully support the case of the Plaintiff/Claimant to recover the said 20 Com.AS.No.40/2019 amount, that the learned Arbitrator ought to have seen that vide Ex.P.31, M/s Religare Finance Ltd., has called upon the Plaintiff to pay Rs.1,31,00,000/- in monthly installments and the Plaintiff has paid a sum of Rs.1,21,00,000/- to M/s Religare Finance as established by the Letters/Receipts at Exs.P.100 to P.121.
33. The learned Advocate for the Plaintiff has drawn my attention to Clause No.12.1 & 12.2 of Ex.P.1/Joint Development Agreement and has argued that the Defendant has undertaken to get No Objection Certificate from M/s Religare Finvest Ltd. Within three months from the date of commencement of construction and clear the entire loan on or before completion of the construction or execution and that as per Para No.28 of the Objection Statement filed by the Defendant before the learned Arbitrator, the Defendant has admitted the payment of Rs.70 Lakhs by the Plaintiff to M/s Religare on behalf of the Defendant, at the time of execution and registration of the Sale Deeds of Flat Nos.104 and 204, which were allotted to the share of the Plaintiff, that he has also drawn my attention to Ex.P.5, P.6 & P.7/Letters issued by the Defendant wherein the Defendant requested the Plaintiff to make payment to M/s Religare. From the recitals of the said Letters, it is very clear that the Defendant has requested the Plaintiff to make payment 21 Com.AS.No.40/2019 to M/s Religare on behalf of the Defendant. Further, in the evidence also, the Defendant has admitted that he has not repaid the said amount to the Plaintiff. However, the contentions of the Plaintiff that he paid Rs.70 Lakhs to M/s Religare to meet the exigencies of having to complete sale transactions in favour of third party Purchasers, that the Defendant shall repay this amount subject to reconciling with the amounts that the Plaintiff would receive upon the execution of the Sale Deeds for Flat Nos.202 and 203 and that the Plaintiff executed Sale Deeds for the said flats in favour of the daughter and son-in-law of the Defendant, in order to mobilize funds to repay the loan to M/s Religare and as per the recitals in the said Sale Deeds, Rs.80 Lakhs and Rs.40 Lakhs were paid to M/s Religare and that the entire cost of stamp duty and registration charges were incurred by the Plaintiff etc., requires re- consideration of the contentions and evidence of both parties as an Appellate Court and in a Petition under Section 34 of the Arbitration & Conciliation Act, this Court cannot re-appreciate the evidence on record as an Appellate Court. Therefore, the said contentions of the Plaintiff cannot be considered at all. As could be seen from the Written Arguments in order to appreciate this ground, this Court not only has to re-appreciate the evidence, but also to make some guess work or calculation as mentioned at Para No.8 (g) of the Written Arguments. Such 22 Com.AS.No.40/2019 an exercise is not permissible while dealing with a Petition under Section 34 of the Arbitration & Conciliation Act. Hence, this ground is not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act.
34. The eighth ground is that the learned Arbitrator ought to have seen that the Defendant in his cross-examination admitted the payments made by the Plaintiff to M/s Religare Finance Ltd., and admitted there was no obligation on the Plaintiff under the Joint Development Agreement to repay the loans to M/s Religare and the Defendant was liable to pay the entire amount to M/s Religare, that the Plaintiff who has paid a sum of Rs.1,21,00,000/- to M/s Religare Finance on behalf of the Defendant is entitled to recover the said amount.
35. This ground is nothing but the repetition of the seventh ground. Hence, for the same reasons as mentioned while considering seventh ground, this ground is also not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act.
36. The ninth ground is that the Impugned Award in so far as it relates to rejection of Plaintiff's claims is unfair, unreasonable, patently illegal, based on presumptions and assumptions and hence, the same is liable to be set aside.
23Com.AS.No.40/2019
37. In view of my discussions, observations and findings on the above-mentioned all other grounds, the said grounds are not available for the Plaintiff under Section 34(2) & 34(2-A) of the Arbitration & Conciliation Act. When such being the case, I cannot interfere with the findings of the learned Arbitrator on any grounds. Similarly, for the same reasons, the said finding of the learned Arbitrator cannot be considered as unfair, unreasonable, patently illegal, based on presumptions and assumptions as contended by the Plaintiff. Hence, this ground is highly misconceived.
38. In view of my above discussions, observations and findings, I am of the opinion that the Plaintiff has not established any of the grounds and that none of the grounds are available for the Plaintiff under Section 34(2) & 34 (2-A) of the Arbitration & Conciliation Act. Hence, I answer this Point in the "Negative".
39. Point No. 3 :- Therefore, I proceed to pass the following Order.
ORDER The Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, is dismissed.
24Com.AS.No.40/2019 The Arbitral Award dated 30.11.2018 is hereby confirmed.
The Plaintiff shall pay the cost of this proceedings to the Defendant.
Office is directed to return the Arbitral records to the Arbitration Centre after the Appeal period is over.
The Office is directed to send copy of this judgment to both parties to their email ID as required under Order XX Rule 1 of the Civil Procedure Code read with Section 16 of the Commercial Courts Act.
(Dictated to the Judgment Writer typed by her, corrected and then pronounced by me in open Court on this the 9th day of July 2021.).
(DEVARAJA BHAT.M), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
25 Com.AS.No.40/2019