Bangalore District Court
M/S.Orix Auto Infrastructure vs M/S.M.R.Enterprises on 1 September, 2016
IN THE COURT OF THE VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
CCCH. 11
Dated this the 1st day of September, 2016
PRESENT: Sri.K.M.Rajashekar, B.Sc., LL.B.,
VI Addl. City Civil & Sessions Judge,
Bengaluru City.
A.S.NO:90/2014
PLAINTIFF/ : M/S.ORIX AUTO INFRASTRUCTURE
APPELLANT SERVICE LTD.,
Plot No.94, Andheri Kurla Road,
Marol Co-Op Industrial Estate,
Andheri (E) Mumbai.
Reptd.by its Authorized Officer-
Mrs.Suparna Mitra,
D/o.Mr.Swapan Gosh,
Office at Plot No.94,
Andheri Kurla Road,
Marol Co-Op Industrial Estate,
Andheri (E) Mumbai.
Also at
No.1, Bandappa Colony,
Opposite to Montfort College,
Near Byyappanahalli,
Indranagar, Bengaluru-38.
(By Pleader Sri.H.Shanthi Bhushan)
/Vs/
2 A.S.No:90/2014
DEFENDANT/ : M/S.M.R.ENTERPRISES,
RESPONDENT "A Ramesh Building"
No.5, 2nd Floor,
Basavanagar Main Road,
Hoodi, Mahadevapura Post,
Bengaluru-560 048.
Reptd.by its Proprietor -
Sri.P.Manohar.
(By Pleader Sri.A.J.Srinivasan)
---
JUDGMENT
The Plaintiff got filed this Arbitration Suit under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the arbitral award passed on 25.04.2014 in awarding the counter claim of the Defendant to pay damages of Rs.60,75,756/-.
2) Brief facts of the Plaintiff's case is that, Plaintiff Company is an automobile leasing and financing company into the business of auto leasing, equipment financing and rentals, commercial vehicle finance and provides complete solution to all infrastructure 3 A.S.No:90/2014 equipments. The Defendant Company is engaged in the business of supplying manpower at construction site for operating machines and vehicles for transport and lying of concrete mixtures.
Plaintiff had placed a Letter of Intent ("LOI") with the Defendant for supply of manpower for SPML Infrastructure, ASIP Davangere Plant, L&T Gulburga Plant, Nagappa Wadda-Koppal, CCCL Mangalore Plant with effect from 1st July, 2011. Plaintiff alleges that the service provided by the Defendant was very poor, despite several complaints, the Defendant did not bother to rectify the same, hence, the Plaintiff terminated the service of Defendant, issued notice to the Defendant, directed them to withdraw their men supplied under LOI. Due to poor service of the Defendant, Plaintiff suffered huge loss with its clients, loss of reputation, goodwill and future business and lost major contracts. The Defendant not even returned the transit mixer and caused huge loss. The Defendant 4 A.S.No:90/2014 even after having received the amount for the bill received, defaulted in making payment to the laborers employed at the Plaintiff's sites, resulted laborers working at the site resorted to strike. Hence, Plaintiff himself cleared the dues and got completed the work, etc. Hence, challenged the arbitration award on the following grounds amongst others.
The award is contrary to Section 34(2)(v) of the Arbitration and Conciliation Act and is an error of law apparent on the face of record, as he failed to note that Arbitrator was already nominated under LOI. The Arbitrator erred in looking into the documents in a prejudiced way with a precogitated mind set, which resulted in improper evaluation of the evidence and documents. The learned Arbitrator not understood the scope of appointment of Arbitrator under LOI, failed to understand the arbitral agreement described under Section 7 of the Arbitration and Conciliation Act and held that the Letter of Intent is only an indent for awarding a 5 A.S.No:90/2014 Contract, it is neither a contract nor an agreement which was proposed to be signed. The learned Arbitrator erred in concluding the arbitration merely based on exparte order of Hon'ble High Court ignoring the LOI. The Arbitrator failed to note that the LOI is an agreement, at best could have been considered as an exchange of correspondence or an offer or an intention of parties; further, the LOI itself clearly stipulates that an agreement was to be signed by the parties. The agreement itself did not see the day light, inspite of that the learned arbitrator had arrived to the conclusion that there exists privity of contract. The Arbitrator blindly accepted the claim of the Defendant, failed to appreciate the bills which were raised by the Defendant even after the LOI was cancelled, extended sympathy to the Defendant, no opportunity afforded to verify the authenticity of the claim. The Arbitrator exceeded his jurisdiction by awarding 12% interest. The award is 6 A.S.No:90/2014 patently erroneous, prejudiced and sought for setting aside the award.
3) The Defendant marked their appearance and entered their defense by filing written objection, the defendants denied the plaint allegations in general and para-wise. The Defendant do admits the relationship and transactions entered into between the Plaintiff and Defendant under letter of intent, but denied the allegations regarding poor performance on their part. On the other hand, the Defendant alleges that the Plaintiff Company defaulted in making payment and paid only part amount, however, the Defendant rendered their service even without full payment of wages as per letter of intent. In spite of that, the Defendant continued to provide manpower till 31.12.2011 and also sent bills related, the Plaintiff refused to receive the same and withhold the payment illegally. When the balance was demanded, Plaintiff abruptly without notice 7 A.S.No:90/2014 unilaterally terminated the LOI which was valid till 30.06.2012. In spite of that, Plaintiff continued to utilize the employees and their Supervisors supplied by the Defendant and paid wages directly to them. The Plaintiff is guilt of breach of contract and also played fraud and misused the trust. The Defendant suffered huge irreparable loss, embarrassment, loss of reputation in the business. Before the Hon'ble High Court, in CMP.No.184/2015 the Plaintiff had been represented by the counsel, in spite of that, when the matter was listed on the date of order, the plaintiff remained absent, hence, the Hon'ble High Court recorded the same and proceeded to pass orders. Hence, there is no illegality in appointment of Arbitrator. The learned Arbitrator also entertained the objections, recorded evidence, verified the documents and passed the impugned award which is just and reasonable, hence, sought for dismissal of the suit.
8 A.S.No:90/2014
4) Heard. Perused the records.
5) The points that arise for my consideration are :-
(1) Whether Plaintiff proves that the award of the learned Arbitrator is an error of law apparent on the face of the record, arbitrary and without jurisdiction as alleged in the plaint?
(2) Whether Plaintiff makes out any of the grounds envisaged under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the award?
(3) What order or decree?
6) My answer to the above points are :-
Point No.1 - In the Negative;
Point No.2 - In the Negative;
Point No.3 - As per final order, for the following :
REASONS
7) Point No.1 and 2 : Since both these points are inter related to each other, they are taken up 9 A.S.No:90/2014 together to avoid repetition of facts and for convenience of the court.
The present Arbitration Suit is filed by the Plaintiff to set aside the arbitral award passed on 25.04.2014 by learned sole arbitrator Sri.N.S.Sankolli in CMP 184/2012, wherein, learned arbitrator had awarded the counter claim of the Defendant and directed the Plaintiff to pay damages of Rs.60,75,756/-. The nutshell of the plaintiff's case indicates that Plaintiff Company is an automobile leasing and financing company into the business of auto leasing, equipment financing and rentals, commercial vehicle finance and provides complete solution to all infrastructure equipments, Plaintiff had placed a Letter of Intent with the Defendant Company for supply of manpower with effect from 1st July, 2011 who are engaged in the business of supplying manpower at construction site for operating machines and vehicles for transport and lying of concrete mixtures. The allegation of the plaintiff is 10 A.S.No:90/2014 that the service provided by the Defendant was very poor, despite several complaints, the Defendant did not bother to rectify the same, hence, the Plaintiff terminated the service of Defendant, issued notice to the Defendant, directed them to withdraw their men supplied under LOI; due to poor service of the Defendant, Plaintiff suffered huge loss with its clients, etc. The main grounds urged by the plaintiff in challenging this arbitration award is that, the award is contrary to Section 34(2)(v) of the Arbitration and Conciliation Act and is an error of law apparent on the face of record, as he failed to note that the Arbitrator was already nominated under LOI, the learned Arbitrator not understood the scope of appointment of Arbitrator under LOI.
The second ground is that, the Arbitrator failed to understand the arbitral agreement described under 11 A.S.No:90/2014 Section 7 of the Arbitration and Conciliation Act and held that the Letter of Intent is only an indent for awarding a Contract, it is neither a contract nor an agreement which was proposed to be signed. The Arbitrator failed to note that the LOI is an agreement, at best could have been considered as an exchange of correspondence or an offer or an intention of parties; further, the LOI itself clearly stipulates that an agreement was to be signed by the parties, the agreement itself did not see the day light, arrived to the conclusion that their exists privity of contract; the Arbitrator blindly accepted the claim of the Defendant, failed to appreciate the bills which were raised by the Defendant even after the LOI was cancelled, The third ground is that, the learned Arbitrator erred in concluding the arbitration merely based on exparte order of Hon'ble High Court ignoring the LOI, the Arbitrator failed to note that the LOI is an agreement, at best it could have been considered as an 12 A.S.No:90/2014 exchange of correspondence or an offer or an intention of parties; no opportunity afforded to verify the authenticity of the claim, the Arbitrator exceeded his jurisdiction by awarding 12% interest, the award is patently erroneous, prejudiced, etc.
8) Before taking the case on merits, it is significant to note that the parties to the arbitration proceedings have very limited scope to challenge the arbitration award. The Arbitration and Conciliation Act, 1996, provides very limited scope for setting aside the arbitral award. The aggrieved parties can challenge the arbitral award only under Section 34 of the Arbitration and Conciliation Act, 1996. For the sake of convenience, the provisions of Section 34 of the Arbitration and Conciliation Act, 1996, is reproduced herewith :
" 34. Application for setting aside arbitral award.- (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3).13 A.S.No:90/2014
(2) An arbitral award my be set aside by the Court only if -
(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 provisions of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or 14 A.S.No:90/2014
(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 corruption or was in violation of Section 75 or Section 81."
The Arbitration and Conciliation (Amendment) Act, 2015 provides :
"18. In Section 34 of the Principal Act.-
(I) In sub-section (2), in clause (b), for the Explanation, the following Explanations shall be substituted, namely :-
(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 15 A.S.No:90/2014 the fundamental policy of Indian law shall not entail a review on the merits of the dispute.", (II) after sub-section (2), the following sub- section shall be inserted, namely :-
"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."
9) To add to this, in a land mark judgment rendered by the Hon'ble Supreme Court of India in Civil Appeal No.10531/2014 reported in AIR 2015 SC 620 between Associate Builders Vs. Delhi Development Authority dated 25.11.2014 extends a wider scope to Section 34 of the Arbitration and Conciliation Act, 1996. Their Lordships have clearly mandated that :
"an extent of judicial intervention notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall 16 A.S.No:90/2014 intervene except where so provided in this Part. (Section 5) It is important to note that, the 1996 Act was enacted to replace the 1940 Arbitration Act in order to provide for an arbitral procedure which is fair, efficient and capable of meeting the needs of Arbitration; also to provide that the tribunal gives reasons for an arbitral award; to ensure that the tribunal remains within the limits of its jurisdiction; and to minimize the supervisory roles of courts in the arbitral process.
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 is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term "public policy" in Renusagar case 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 illegality 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 17 A.S.No:90/2014 unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void.
103. Such patent illegality, however, must go to the root of the matter. The public policy, indisputably, should be unfair and unreasonable so as to shock the conscience of the court. Where the Arbitrator, however, has gone contrary to or beyond the expressed law of the contract or granted relief in the matter not in dispute would come within the purview of Section 34 of the Act.
35. 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 as "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. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in 18 A.S.No:90/2014 that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge.
The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where-
1. a finding is based on no evidence, or
2. an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or
3. ignores vital evidence in arriving at its decision.
such decision would necessarily be perverse.
A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.
It must clearly be understood that when a court is applying the "public policy" test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the Arbitrator on facts has necessarily to pass muster as the Arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on 19 A.S.No:90/2014 little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score.
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.
The third ground of public policy is, if an award is against justice or morality. These are two different concepts in law. An award can be said to be against justice only when it shocks the conscience of the court. An illustration of this can be given. A claimant is content with restricting his claim, let us say to Rs.30 lakhs in a statement of claim before the Arbitrator and at no point does he seek to claim anything more. The arbitral award ultimately awards him 45 lakhs without an acceptable reason or justification. Obviously, this would shock the conscience of the court and the arbitral award would be liable to be set aside on the ground that it is contrary to "justice".
If the Arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction. But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error. Extrinsic evidence is admissible in such cases because the dispute is not something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such a jurisdictional error needs to be proved by evidence extrinsic to the award. 20 A.S.No:90/2014
The court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the Arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding."
10) If we analyze the case on hand in the backdrop of the above said ratios laid down by the Hon'ble Apex Court as well as the provisions of Section 34 of the Arbitration and Conciliation Act, it is to be noted that, herein the case the grouse of the Plaintiff is that, the learned Arbitrator has no jurisdiction when the Letter of Intent itself provides the AVP at ORIX is the sole Arbitrator and his decision will be final, appointment of Arbitrator by the Hon'ble High Court cannot empowers the learned Arbitrator to pass award. The second ground is that, the learned Arbitrator is prejudiced and analyzed the case with pre-cogitated mind and without referring the case on hand and the documents available on record, he has passed the 21 A.S.No:90/2014 impugned award. Even though the Plaintiff in his plaint has mentioned several grounds, most of the grounds were relating to merits of the case i.e. nothing but the allegations against the Arbitrator for not favoring the Plaintiff. It appears that the Plaintiff is challenging the Award under Section 34(2)(iii) and (v) of the Arbitration and Conciliation Act, 1996.
11) The learned counsel for the Plaintiff vehemently argued that the learned Arbitrator had passed the award without jurisdiction and not considered the documents properly, rather based on the invoices alone; he had arrived at the conclusion without appropriating evidence etc. On the other hand, the learned counsel for the Defendant vehemently argued that the learned Arbitrator had considered all the materials available on record in detail and arrived at just and fair conclusion. Even though all the counter claim made by the Defendant was not 22 A.S.No:90/2014 allowed by the Arbitrator, the Defendant did not challenge the Arbitration because of his monitory incapacity etc.
12) Upon going through the materials available on record, it is seen that the learned Arbitrator has rendered a detailed award running up to 34 pages. The contents of the award clearly indicates that undisputedly the Plaintiff had engaged the service of Defendant from 16.11.2001 as per Letter of Intent from time to time for supply of manpower at the construction site for operating machines and vehicles for the transport and lying of concrete mixtures etc. It is also an undisputed fact that the Defendant herein had supplied manpower at the request of the Plaintiff. However, there are allegations and counter allegations regarding improper services and non-payment of wages etc., by reciprocal parties. It is also an undisputed fact that Plaintiff herein has terminated the Letter of Intent, in spite of that continued to hire the services of Defendant and made payments for that service. 23 A.S.No:90/2014 Based on the claim put-forth by both the parties, the learned Arbitrator has framed as many as nine issues,
13) Amongst other issues, the learned Arbitrator concentrated on answering three main issues. At page-23 of the award, the learned Arbitrator mentioned that based on the admission in evidence of R.W.1-Nageshwar Reddy, he arrived at the conclusion that " R.W.1-Nageshwar Reddy admits that C2 to C7 are the LOIs between them and both parties have signed on them and these documents contains terms and conditions about the work to be executed and admits that there is an arbitration clause also. He further states in the examination in chief itself that LOIs is a merely a letter of indent and contemplates execution of binding agreements. In this case it is admitted that except LOIs there is no agreement in writing in this regard. Xx xx xx xx xx xx xx xx But here it must be noted that there is sufficient and admissible and admitted evidence that on the basis of these LOIs both parties have acted for months together so to say. Ex.C2 to C7 are LOIs dated 23.8.2011 in connection with the supply of manpower at different work place of respondent. R.W.1 admits that these contracts were valid upto 30.6.2012."
Hence, the ground raised by the plaintiff herein that Letter of Intent is only an indent for awarding a Contract, it 24 A.S.No:90/2014 is neither a contract nor an agreement which was proposed to be signed. The Arbitrator failed to note that the LOI is an agreement, at best could have been considered as an exchange of correspondence or an offer or an intention of parties; further, the LOI itself clearly stipulates that an agreement was to be signed by the parties, the agreement itself did not see the day light, holds no water as it is effectively answered by the learned Arbitrator.
14) Added to that, at page-27 of the award, another admission of R.W.1-Nageshwar Reddy, who is the representative of the Plaintiff herein is mentioned, wherein, R.W.1 categorically admitted that "the workers who were engaged by them were supplied by the Defendant only. Hence, the learned Arbitrator opined that "xxxxx so they had done so at their risk and the respondent cannot ignore the claimant who supplied workers and with whom respondent had issued LOIs and the alleged termination is an afterthought and I am not wrong if I hold that even after these EXR 4(a) to 4(e) also claimant supplied manpower to respondent etc. xx xx xx xx xx 25 A.S.No:90/2014 xx xx xx xx xx. Thus, considered from any angle from the say of C.W.1 and R.W.1 and connected documents, it can be held that in spite of issue of Ex.R.4(a) to (e), the supply of manpower was continued and claimant continued to supply workers to the Respondent at its various place. Xx xx xx xx xx xx xx xx xx xx xx xx xx xx For the reasons stated above, I answer Issue No.1 to 3 in the affirmative and Issue No.5 holding that none of the parties terminated the LOIs in the case."
15) Upon perusal of the reasons rendered by the learned Arbitrator, it is very clear that the learned Arbitrator has gone through all the materials available on record, especially the oral evidence of the parties and the documentary evidence got placed by the parties in detail and arrived at just and fair conclusion.
16) The next point raised by the Plaintiff is regarding jurisdiction of the Arbitrator. The Plaintiff's contention is that, there is a specific clause in the agreement for appointment of Arbitrator, in spite of that, the Hon'ble High 26 A.S.No:90/2014 Court of Karnataka without providing an opportunity to him appointed the present Arbitrator, who has no jurisdiction etc. For this point, the observation of the learned Arbitrator itself is self explanatory. At page-32 of the award the learned Arbitrator held that "
" Prima facia if we peruses the causes for non appearance of respondent before the High Court are not just and reasonable and to add to this saying that the Hon'ble High Court has passed the order at the back of the respondent is ununderstandable and not justifiable under any circumstances and to add to this the respondent would have challenged the order on the ground that it was passed at the back of the respondent. xx xxx xx xxx xx xx. Before closing it is necessary that the learned Hon'ble Justice has at para-4 of the order has stated clearly that "4 The respondents have not filed their objection statements. In any event having noticed the sequence as indicated above and since there exists a Arbitration clause and the respondents have exercised their option of appointing the Arbitrator as indicated in the said clause and more particularly, since the petitioner has already indicated to the respondents that a different Arbitrator requires to be appointed, such Arbitrator is to be appointed by this court" and it further ordered "That the sole Arbitrator to adjudicate the dispute between the parties there in".27 A.S.No:90/2014
17) Added to that, the provisions of Section 11 of the Arbitration and Conciliation Act empowers that any aggrieved party to Arbitration Agreement is at liberty to approach the Hon'ble High Court for appointment of Arbitrator. However, if the Plaintiff is really aggrieved by the order of the Hon'ble High Court he could have invoked the provisions of Section 12 or 13 of the Arbitration and Conciliation Act. Rather, the Plaintiff herein actively participated in the arbitration proceedings effectively without resorting to the provisions of Section 12 or 13 of the Act, hence at this stage he cannot question the very appointment of the Arbitrator. Once the arbitration award is passed, the remedy lies to the parties is only under Section 34 of the Act. Upon careful perusal of the materials available on record and the grounds urged by the Plaintiff for setting aside the arbitral award, I am of the opinion that, absolutely no grounds are made out by the Plaintiff to establish any of the grounds mentioned in the plaint or any of the grounds available in Section 34(b) of 28 A.S.No:90/2014 the Arbitration and Conciliation Act, 1996. The judgment referred supra rendered by the Hon'ble Supreme Court in Associate Builders Vs. Delhi Development Corporation makes it very clear that this court cannot sit on an appellate jurisdiction and the arbitral award cannot be set aside on trivial grounds. The Hon'ble Supreme Court consistently mandated that, if the Arbitrator wonders outside the work and deals with the matter not allotted to him, then only it can be termed as judicial error. Herein is the case, the learned Arbitrator has dealt the matter squarely within the four corners of the matter allotted to him. Added to that, no act is done by the learned Arbitrator which could be termed the award as perverse or unfair and unreasonable so as to shock the conscience of the court. The Plaintiff has utterly failed to establish that the learned Arbitrator has gone contrary to or beyond the expressed law of the contract or granted relief in the matter not in dispute. Under these circumstances, I hold that the Plaintiff has utterly failed in establishing that the award passed by 29 A.S.No:90/2014 the learned Arbitrator falls within any of the clauses of Section 34 of the Arbitration and Conciliation Act, 1996, much less, any of the grounds mentioned in the plaint is established. Accordingly, I answer the above points in the negative.
18) Point No.3 : For the foregoing reasons and answer to Point No.1 and 2, the present Arbitration suit fails. In the result, I proceed to pass the following :
ORDER The Arbitration suit filed by the Plaintiff under Section 34 of the Arbitration and Conciliation Act, 1996, for setting aside the arbitral award dated 25.04.2014; is hereby dismissed with costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open Court, dated this the 1st September, 2016.) (K.M.RAJASHEKAR) VI Addl.City Civil & Sessions Judge Bengaluru City.30 A.S.No:90/2014