Delhi District Court
Vide This Order I Shall Dispose Off The ... vs National Highways on 29 November, 2022
In the Court of Ms. Gurmohina Kaur:
Additional District Judge (South District)
Saket Courts Complex, New Delhi
DLST010055062017
ARBTN NO. 391/17
In the matter of :-
M/s BHARAT SANCHAR NIGAM LTD
Office at: DGM TP (NCR), E-2,
Ara Centre, Mezanine Floor,
Jhadewalan Extension, New Delhi-110055 .......Objector.
Versus
1. M/s S. Kumar Constructions Co.
Office at: A-1, Khanpur,
Devli Road, New Delhi-110062. ....Respondent No. 1
2. Ms. Geeta Sharma, Advocate
C-129, First Floor,
Sarvodaya Enclave,
New Delhi-110017. ....Respondent No. 2
Date of institution : 27.07.2017
Arguments heard on : 02.06.2022
Date of decision : 29.11.2022
ARBT No. 391/2017 Page 1 of 19
ORDER
1. Vide this order I shall dispose off the objections filed under Section 34 of the Arbitration and Conciliation Act, on behalf of the Respondent seeking setting aside of the Award dated 17.04.2017 passed by the Ld. Sole Arbitrator Ms. Geeta Sharma between M/s. S. Kumar Constructions and M/s. Bharat Sanchar Nigam.
2. It is averred that in the present petition that the Objector herein M/s. Bharat Sanchar Nigam Limited floated a tender No. TP/NCR/OFC-Work/T-036/06-07 for OFC lying in Section 9 (from Hissar TE to Milestone 175 Hissar) for Hissar-Barwal-Jind was quoted by the Respondents herein and was approved by the Petitioner herein on 16.05.2017, it is stated that the estimated cost of work was Rs. 12,40,453/- (excluding service tax) and agreement dated 02.01.2008 was executed between the parties and the work order was issued on 05.01.2008 to the Respondent herein within three months. It is stated that dispute arose between the parties and Respondent filed an Arbitration Petition before Hon'ble High Court of Delhi and the Hon'ble High Court vide order dated 04.04.2016 appointed Ms.Geeta Sharma as the Sole Arbitrator for adjudication of dispute. It is stated that the Ld. Sole Arbitrator passed the impugned Award on 17.04.2017 which was received by counsel for petitioner vide letter dated 26.04.2017, however, the award received from the Ld. Arbitrator was not complete and some pages were missing and the Ld. Arbitrator was accordingly informed. It is stated that the ARBT No. 391/2017 Page 2 of 19 impugned award dated 17.04.2017 was arbitrary, illegal on the ground that the Ld. Arbitrator failed to consider various documents namely Annexures R1 to R 24 filed by the Petitioner herein with its reply while deciding the dispute between the parties and had passed the erroneous Award ignoring the averments and documents placed on record by the Petitioner. It is stated that Ld. Arbitrator erroneously relied upon the documents filed by the Respondent despite the fact that the Petitioner had specifically stated that the bill dated 09.01.2009 was never received in the office of the petitioner and was never raised by the Respondent and was therefore a forged document. It is submitted that the Ld. Arbitrator failed to appreciate that as per the tendered documents the Respondent herein could not have issued the said bill dated 09.01.2009 as before issuing of bill, the Respondent was required to complete certain processes as per the terms of the contract. It is stated that without proof of service of the bill dated 01.09.2009 upon the petitioner herein and without proof of the genuineness of the bill the Ld. Arbitrator relied upon the same. It is stated that the Ld. Arbitrator erroneously decided that the claims of the respondent were within limitation and the Counter Claim of the Respondent were time barred. It is stated that the Ld. Arbitrator failed to deal with the Counter claim of the petitioner and failed to deal with Counter Claim No. B i.e. claim for penalties while passing the Award and erroneously rejected the Counter Claim No. A for return of excess store lying with the Respondent herein. It is stated that the Ld. Arbitrator failed to appreciate that each of the letters issued by the Respondent herein i.e. letters dated ARBT No. 391/2017 Page 3 of 19 12.07.2008, 30.07.2008, 21.08.2008, 30.06.2009, 25.08.2009, 12.03.2010 and 06.06.2010, the Respondent has stated that they were still to issue its bill and therefore it cannot be presumed that the bill was issued by the Respondent on 09.01.2009. It is further stated that in none of the letters, the Respondent herein had stated that the action was required for restoration which clearly showed that the work was never completed by the Respondent herein. It is further averred that the Ld. Arbitrator failed to appreciate that in the terms of agreement between the parties, time was the essence of the contract and the petitioner was right in imposing penalty. It is stated that Respondent had not filed a single peace of document in support of his claim that it had performed the repair work of multiple work and the Ld. Arbitrator further failed to appreciate that the principal claimed amount Rs. 17,69,500/- was not as per the SOR approved in the tender. It is stated that the in none of the communications made by the Respondent herein, the Respondent referred to the submissions regarding the aforesaid amount in the bill dated 09.01.2009. It is stated that the Ld. Arbitrator failed to appreciate that the security amount would only be refunded after the successful execution of work and the work was never completed by the Respondent herein. It is stated that the Ld. Arbitrator further failed to appreciate that the Respondent was required to fill the store Reconciliation Statement monthly in terms of special condition of contract and the Respondent has not any document in support of this mandatory requirement that it had to file monthly store reconciliation statement or it has filed the reconciliation statement against the ledger bill. It is stated that no ARBT No. 391/2017 Page 4 of 19 bills were ever received from the respondent herein and amongst other grounds it has been alleged that the Ld. Arbitrator also failed to appreciate that the Respondent had not given any specific date as to when it was received the BT Bill from the different agency or when it gave the same to the petitioner herein. It is averred that the Ld. Arbitrator failed to appreciate that the Respondent left the site without any notice and did not complete the work during the work order period. It is further claimed that the Ld. Arbitrator failed to appreciate that the Respondent herein had never complied with the provisions of Section 5 of Clause 11 of the tendered documents and in the absence of the same the bill could not be submitted for payment. It is prayed that the Arbitration award be set aside. It is further prayed that the counter claim of the Objector be allowed and the claims of the Respondent herein be rejected.
3. The objections were opposed by the Respondents herein who filed their objections, wherein it has been stated that the objections filed on behalf of the Petitioner herein were without any merits and legally were not tenable and they did not fall within the purview and scope of Section 34 of the Arbitration Act, 1996. It is stated that the prayer sought were beyond the scope of Section 34 of the Arbitration and Conciliation Act, 1996. It is further stated that there is no error of law on the face of the record nor was the Arbitration Award perverse. It is stated that it was not open to the court if the objections under Section 34 of the Arbitration and Conciliation Act, 1996 to probe the mental process of the Ld. Sole Arbitrator and speculate as to ARBT No. 391/2017 Page 5 of 19 what must have compelled Ld. Arbitrator to reach to a particular conclusion. It is averred that it is a settled position of law that as a general rule the reasonableness or reasons given in the Award cannot be challenged. It is stated that the objectors have with malafide and dishonest intention given a distorted version of the facts of the case in order to mislead the Court. It is stated that a Ld. Arbitrator has given a well reasoned Award and has taken into consideration each and every aspect of the matter pertaining to the claims and counter claims of the parties in the entire Arbitral proceedings and had finally passed the award dated 17.04.2017. It is averred that simply because the outcome of the Arbitral Award did not go in favour of the objector, the impugned award cannot be said to be illegal and against law. It is stated that the scope of interference of the court under Section 34 of the Arbitration and Conciliation Act, 1996 is very limited and the objector has failed to raised objection on any of the well recognized principal for interfering an Award. It is further averred that there is no apparent error on the face of the record and if the view of the Ld. Arbitrator is a possible view, the Award or reasoned contained therein cannot be examined. It is stated that the Respondent had participated in the tender and had declared a successful bidder and the estimated cost of work was Rs. 12,40,453/- which was approved by BSNL. It is stated in the reply that it was a rate contract therefore the amount may have varied from the estimated cost depending of the execution of the work at the work site and the agreement dated 02.01.2008 was executed between the parties. It is stated that the Petitioner awarded the work order to the Respondents herein on ARBT No. 391/2017 Page 6 of 19 05.01.2008 and after Award of Work Order the Respondents started the work but faced various issues due to lack of ROW permission which was required to be issued by various departments including PWD and forest Department for which payment has to be made by the BSNL in the name of the concerned department. It is stated that the Ld. Sole Arbitrator has considered Clause 11.1.1.1 of the tendered documents while adjudicating the matter. It is stated that the ROW permission were taken by the Respondent herein from the concerned authorities but the same was subject to payment made by BSNL to the concerned authorities and the authority letter were issued by the Petitioner herein in favour of the Respondents. It is stated that the BSNL delayed the payment and issuance of authority letter in favour of the Respondent herein. It is further stated that the document relied by the objection had already been relied by the Ld. Arbitrator while passing the award and the problems faced by the Respondent herein at the site were due to various lacks on the part of the petitioner herein and therefore, the respondents vide letter dated 12.07.2008 requested BSNL for ROW permission enabling the Respondent herein to complete the work which was replied by the Petitioner herein .i.e. BSNL. It is stated that the Respondent herein had done all the liason work with the department, however, the Petitioner herein failed to fulfill its part of the contract by not making the payment in time and therefore the work was delayed and the petitioner herein for the first time on 21.08.2008 deposited the amount with the authorities, which had already been admitted by the petitioner in his cross-examination. He is stated that the ARBT No. 391/2017 Page 7 of 19 petitioner itself admitted that the BT bill was paid only on 18.08.2008 which clearly showed the delayed on the part of the petitioner herein. It is stated that the work was completed and the Respondent herein raised bill and requested the Petitioner to record the measurement and finalize the bill. It is stated further in the reply that a cable was cut by the third party at several places and the Respondent was requested by the Plaintiff for restoration of the cables and promised that the payment shall be made. It is further stated that when the respondent approached the site of restoration, the work was stopped by the concerned Forest Department and tools were confiscated for want of ROW permission and this fact was brought to the notice of Petitioner herein on 25.08.2009. It is stated that the Petitioner vide telegram dated 19.08.2008 made allegations regarding non- completion of the work which was duly refuted by the Respondent herein and denied. It is stated that the Respondents started work of rectification of damage lines and cured the same but the Petitioner herein did not take any action to finalize the measurement and make payment. It is stated that the Respondent vide letter dated 30.06.2009, informed the Petitioner herein that the work was completed way back and they received a letter dated 03.12.2012, where the petitioner made an allegation for non completion of work and non deposition of store which was duly replied on 08.01.2013. It is stated that Ld. Arbitrator after considering the entire documents had passed the Impugned Arbitration Award 17.04.2017 and therefore the present application is liable to be dismissed. It is stated that the detailed findings and explanation had been given by the Ld. Sole ARBT No. 391/2017 Page 8 of 19 Arbitrator in the Award and there was no illegality in the award passed by the Ld. Sole Arbitrator. It is stated that the issues of bills have been duly dealt by Ld. Sole Arbitrator and the findings cannot be questioned under Section 34 of the Arbitration and Conciliation Act, 1996. It is further stated that the issue of limitation was also duly considered by the Ld. Sole Arbitrator and the Ld. Sole Arbitrator had rightly rejected the Counter Claim of the Petitioner herein and the impugned Award was passed after considering all the documents, evidence and oral submissions made by all the parties. It is averred that in the garb of petition under Section 34 of the Arbitration and Conciliation Act, 1996, the Petitioner is trying to appeal against the award passed by the L.d sole Arbitrator on flimsy and frivolous grounds, which are in itself a distorted version that the Respondent completed the work as well as did the restoration work of faulty line time to time in view that the bill raised by the Respondent herein would be cleared by the Petitioner herein, but the Petitioner misused his position and further disputed and denied the work on 03.12.2012 and forced the Respondent to initiate mechanism for resolution of disputes. It is prayed that the objections filed by the petitioner herein be dismissed as the same was not maintainable as per law.
4. I have arguments advanced by Ld. Counsel for parties and gone through the record.
5. At the outset, it is significant to mention Section 34 of the Arbitration and Conciliation Act for ready reference:-
ARBT No. 391/2017 Page 9 of 1934 Application for setting aside arbitral award. --
(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in 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 arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v)the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b)the Court finds that--
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation. --Without prejudice to the generality of sub-clause (ii) 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 ARBT No. 391/2017 Page 10 of 19 corruption or was in violation of section 75 or section 81.
(3)An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
6. It is significant to mention that in DDA v. R.S. Sharma and Co., (2008) 13 SCC 80, the Court summarized the law thus:
"21. From the above decisions, the following principles emerge: (a) An award, which is (i) contrary to substantive provisions of law; or (ii) the provisions of the Arbitration and Conciliation Act, 1996; or (iii) against the terms of the respective contract; or (iv) patently illegal; or (v) prejudicial to the rights of the parties; is open to interference by the court under Section 34(2) of the Act. (b) The 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. (c) The award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. (d) It is open to the court to consider whether the award is against the specific terms of contract and if so, interfere with it on the ground that it is patently illegal and opposed to the public policy of India. With these principles and statutory provisions, particularly, ARBT No. 391/2017 Page 11 of 19 Section 34(2) of the Act, let us consider whether the arbitrator as well as the Division Bench of the High Court were justified in granting the award in respect of Claims 1 to 3 and Additional Claims 1 to 3 of the claimant or the appellant DDA has made out a case for setting aside the award in respect of 19 Page 20 those claims with reference to the terms of the agreement duly executed by both parties."
7. Further the Hon'ble Apex Court in J.G. Engineers (P) Ltd. v. Union of India, (2011) 5 SCC 758, held:
"27. Interpreting the said provisions, this Court in ONGC Ltd. v. Saw Pipes Ltd.[(2003) 5 SCC 705] held that a court can set aside an award under Section 34(2)(b)(ii) of the Act, as being in conflict with the public policy of India, if it is (a) contrary to the fundamental policy of Indian law; or (b) contrary to the interests of India; or (c) contrary to justice or morality; or (d) patently illegal. This Court explained that to hold an award to be opposed to public policy, the patent illegality should go to the very root of the matter and not a trivial illegality. It is also observed that an award could be set aside if it is so unfair and unreasonable that it shocks the conscience of the court, as then it would be opposed to public policy."
8. Adverting to the grounds raised in the present petition, one of the contention taken by the Petitioner that the claims of the Respondent was barred by the limitation. On the reading of the findings of the Ld. Sole Arbitrator, it discloses that all the points agitated by the Petitioner herein were duly considered and dealt with in accordance with law. The perusal of the Arbitration Award reflects that issue no. 1 of the same dealt with the issue of limitation, wherein the Ld. Arbitrator, considered the period of limitation for filing of statement of claims and after considering ARBT No. 391/2017 Page 12 of 19 the material on record and all the documents filed along with arbitration petition by both the parties thereto and in view of the settled position of law, came to the conclusion that the Respondent had invoked arbitration on 31.08.2015 within three years of the arising of the cause of the action and filed the claim of the Respondent was within limitation.
9. This Court does not find any infirmity with the findings of Ld. Arbitrator as the same has been adjudicated after considering all the materials and pleadings placed before her by both the parties. With respect to the other contentions, it is relevant to discuss that the scope of Section 34 of the Arbtiration and Conciliation Act, 1996 is limited to the stipulation as contained in Section 34 (2) of the Act of 1996. The word Section 34 (2) that "an arbitral award may be set aside by the court, only if" are imperative and take away the jurisdiction of the court to set aside an award or any of the grounds specified in the section. The court is not expected to sit in appeal over the finding of the Arbitral Tribunal to re-appreciate evidence as an Appellant Court. In the case of P.R. Shah, Shares and Stock Brokers Pvt. Ltd. v. B.H.H. Securities Pvt. Ltd., (2012) 1 SCC 594 is apposite in this regard and the relevant portion, contained in para 21 of the said judgment is reproduced as under:-
"21. A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or re- appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34 (2) of the Act. Therefore, in the absence of any grounder under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at".ARBT No. 391/2017 Page 13 of 19
10. Further, it is settled law that award is not open to challenge on the ground that the Arbitral Tribunal has reached a wrong conclusion or that the interpretation given by the Arbitral Tribunal to the provisions of the contract is not correct.
11. Reliance is also placed on the judgment of Ssangyong Engineering and Construction Co. Ltd Vs. National Highways Authority of India, (2019) 15 SCC 131 it is held that "after the 2015 amendments to the Act, the interpretation of the term 'public policy' has been narrowed down. The court clarified that under no circumstance can any court interfere with an arbitral award on the ground that justice has not been done in the opinion of that court. This would be an entry into the merits of the dispute, which is contrary to the ethos of Section 34 of the 1996 Act.
12. It is further held in the judgment of Associate Builders V. Delhi Development Authority (2015) 3 SCC 49, that under Section 34, the Courts should not set aside the arbitral award merely because they do not agree with interpretations of the agreement given by the arbitrator. Instead the courts have to show that the tribunals decision was based on no evidence or irrelevant evidence. Also in this case, the court laid down the grounds of 'public policy' as 'Fundamental police of India; which will include (a) to take no notice of the orders of the superior courts (b) judicial approach (c) principles of natural justice (d) choice of arbitrator cannot be unreasonable to the extent that no ARBT No. 391/2017 Page 14 of 19 sensible individual would arrive at a similar resolution.
13. In the present petition, the Petitioner is heavily agitating on the ground that the Ld. Arbitrator has erroneously relied upon the documents filed by the Respondent herein despite the fact that they were never received in the office of the Arbitrator and was the forged document.
14. At this stage, it is relevant to mention that similar grounds as averred in the present petition were agitated by the Petitioner herein during Arbitration Proceedings and the same have been duly considered and dealt with by the Ld. Arbitrator, while passing of the Arbitral Award dated 17.04.2017. The bare perusal of the impugned award dated 17.04.2017 shows that the Ld. Arbitrator has meticulously dealt with the aforesaid grounds while adjudicating and passing the Arbitral Award. The relevant extract of the Arbitration Award is reproduced for the sake of brevity and ready reference:-
"Para no. 22 - It is an admitted position that the agreement was for a period of 12 months and the same expired on 01.01.2009. It was admitted by RW-1 that neither extension of contractual period was sought by the Claimant nor extended by the Respondent. The Respondent did not write any letter to the Claimant immediately before the expiry of contractual period nor after the expiry of contractual period calling upon the Claimant to compete the work. Further, the Respondent had on option to terminate the contract if the work was not completed within contractual period or impose penalty/liquidated damages. It was argued by respondent that the Claimant was called upon vide telegram dated 12.08.2009, letters dated 27.04.2011, 19.05.2011 & 02.06.2011 to execute the balance work. This gives rise to the question ARBT No. 391/2017 Page 15 of 19 under which capacity, the Respondent had asked the Claimant to come and complete the work when the period of contract expired and was not extended further by Respondent. This position was clarified by the Claimant. It was argued by the Claimant that after completion of work, cable was damaged and cut twice. On both the occasions the Respondent had asked the claimant to fix it. The claimant states that the occasions the Respondent had asked the Claimant to fix it. The claimant states that RoW permission was granted for one year, which was expired on 01.01.2009 after expiry of contract and the same was again required for restoration work. The ROW permission which is referred to in letter dated 13.08.2009 relates to restoration work and the Respondent again secured the authority by way of bank guarantee dated 25.09.2009. Letters dated 27.04.2011, 19.05.2011 & 02.06.2011 were pertaining to cutting of cable by Tata Tele Services Ltd. Admittedly, the cable was cut by Tata Tele Services Ltd., reference of which is mentioned in letter dated 05.05.2011. The Respondent has not filed any document showing that the damaged/cut of cable was restored by the department or any third party although the same was restored which further strength the submission of the claimant that the restoration work was done by the Claimant at different point of time as requested by the respondent. It was argued by Respondent that the bill dated 08.01.2009 is forged and fabricated as the same was unsigned. It was further stated that no bill was ever submitted by the Claimant. The respondent during cross- examination of CW-1 was asked that;
"Q. I put it to you that the bill dated 8th January 2009 is not signed by the Claimant. What do you want to say?
Ans. This is print out taken from soft copy
available in my computer."
In general practice original bill is always given to the Department for processing payment. The contractor is left with 2nd copy which may be signed or may be unsigned. Thus, just because the bill is unsigned, it cannot be said that it is a forged document.ARBT No. 391/2017 Page 16 of 19
15. It is further relevant to mention that with respect to the grounds by the Plaintiff raised that the Ld. Arbitrator failed to appreciate that the restoration of the any cable cut was not within the purview of the contract, it is pertinent to mention that perusal of the Arbitral Award dated 17.04.2017 reflects that the same has been duly considered by the Ld. Arbitrator and it was observed that the "Respondent therein has not filed any document showing that the damaged/cut of cable was restored by the Department or any third part, although, the same was restored which further strengthen the submissions of the claimant therein that the restoration work was done by the claimant therein at different point of time as requested by the Respondent therein".
16. Therefore, the plea that the Arbitral Award was passed without any considering points agitated by the Plaintiff are not corroborated on the Plaint and meaningful reading of the Arbitration Award. It is significant to mention that the other grounds raised by the Petitioner herein regarding the Arbitrator failing to appreciate that the security amount can only be refunded after successful execution of work or that the Respondent was required to file the Store Conciliation Statement in terms of the contract do not find any merit as perusal of the impugned Arbitration Award reflects that the Ld. Arbitrator has dealt in detailed in para no. 23 to 25 all the issues raised by the Petitioner herein and has passed the Arbitration Award after going through the material available on record and appreciation of evidence. Furthermore, the perusal of the impugned Arbitration Award further reflects that it has been observed by ARBT No. 391/2017 Page 17 of 19 the Ld. Arbitrator in para no. 6 that the Claimant (Respondent herein) therein had no default and the Respondent therein had Petitioner herein and meaningful reading of the Arbitration Award without any reason withheld the acceptance certificate and release of payment of final bill.
17. It is settled law and not necessary to repeat that the court is not expected to sit in appeal over the findings of learned Arbitrator or to re-appreciate evidence as an appellate court. Section 34(2) of Arbitration and Conciliation Act provides grounds for challenging the award. It has been held that a court cannot sit in appeal over the conclusion of Arbitrator and re- examine or re-appraise evidence which had been already considered by the Arbitrator.
18. In Venture Global Engineering LLC v. Tech.
Mahindra Ltd., (2017) 13 SCALE 91 (SC), it was held that:-
"an award of an arbitral Tribunal can be set aside only on the grounds specified in Section 34 of the Arbitration and Conciliation Act and no other ground. The Court cannot act as an Appellate Court to examine the loyalty of Award, nor it can examine the merit of claim by entering in factual arena like an Appellate Court.
19. In the present case, there is no error in the interpretation of the contract clauses by the learned Arbitrator. The endeavor of the petitioner in the present case seems to convert the challenge to the Arbitral Tribunal into an appellate proceedings involving a total rehearing of matter and re- appreciation of evidence, which is impermissible in law. It is ARBT No. 391/2017 Page 18 of 19 also significant to mention that the impugned arbitration award has also duly considered all the averments and issues raised in the Counter Claim by the Petitioner herein.
20. In view of above-stated reasons, the findings as already discussed above in the considered opinion of learned Arbitrator are on the basis of facts and interpretation of various clauses of the contract. Furthermore, they are in consonance with the contract between the parties. The objections of the petitioner are thus without any merit and are dismissed No order as to costs.
File be consigned to record room.
Pronounced in the Open Court on 29.11.2022 (Gurmohina Kaur) Additional District Judge South District: Saket Courts/ New Delhi ARBT No. 391/2017 Page 19 of 19