Bangalore District Court
M/S Era Infra Engineering Ltd vs Bharath Heavy Electricals Limited on 4 March, 2022
1 Com.A.S.No.250/2018
IN THE COURT OF THE LXXXVIII ADDL. CITY CIVIL &
SESSIONS JUDGE (EXCLUSIVE COMMERCIAL COURT):
BENGALURU CITY. (CCH-89)
Present: Sri. P.J. SOMASHEKARA, B.A.,LL.M,
LXXXVIII Addl.City Civil & Sessions Judge
Bengaluru City.
Dated this the 4th day of March 2022
Com.A.S.No.250/2018
Petitioner/: M/s Era Infra Engineering Ltd.,
Plaintiff Formerly known as M/s Era Construction
(India) Limited., Having its head office
at C-56/41, Sector 62, Noida,
Uttar Pradesh - 201 303, Rep. by its
Interim Resolution Professional
Mr. Rajiv Chakraborthy, having office
at No.12, Sukhdev Vihar, 1st Floor,
New Delhi - 110 025.
(By Sri. Y.M.S./M.B.A, Advocate)
-vs-
Respondent/: Bharath Heavy Electricals Limited.
Defendant Industrial Systems Group,
Having its office at P.B. No.1249,
Opp: Indian Institute of Science,
Malleshwaram, Bengaluru - 12.
Rep. by its Addl. General Manager(HR),
Mr. H.V.M. Murthy.
(By Sri. M.P., Advocate)
JUDGMENT
This is a suit filed by the plaintiff under Sec.34 of the Arbitration and Conciliation Act against the award dated 28.07.2018 passed by the sole arbitrator and sought for to set 2 Com.A.S.No.250/2018 aside the rejection of its claim No.1, 4, 7, 8, 10 and 11 and to reject the counter claim of the defendant.
2. Nutshell of the plaint are as under:
The plaintiff being the claimant and the defendant being the respondent before the sole arbitrator, feeling aggrieved by the award passed by the sole arbitrator has filed the instant suit on the ground that the defendant awarded the work order in its favour on 27.12.2008 for civil structural and architectural work as well as steel structural works as detailed in the tender document.
As per clause 3 of commercial terms and conditions of the work order dated 27.12.2008 the entire work had to be completed in 20 months from the date of the work order, the total order value was of Rs.49,50,65,466.46/- and the work order contains the arbitration clause and there was a delay in progress of the work, due to the fault which committed by the defendant and who has applied for the extension of time for which the defendant granted extension of time at various stages due to the hindrances at the commencement of the project and as per the amendment of the work order for the contract schedule the work has to be complete within 20 months, but because of hurdle could not complete the work and the delay was attributed solely on the part of the defendant and the defendant in order to hide its mistakes put a 3 Com.A.S.No.250/2018 blame and illegally without any notice terminated the work order vide its letter dated 22.01.2014 and the defendant has given the termination notice only to cover up its illegality as he has faced various hindrances and challenges due to non-compliance of contractual obligation by the defendant and he has also faced hindrances like space allotments during the excavation, leakage of water and bitumen oil from the Earth, material and machinery damage, delay in supply of free issue material like structural and reinforcement steel, supply of steel in coil shape, non-availability of working fronts and good for construction drawings on time, delay due to narrow the heavy traffic approach road and delay in release of due payments which are solely attributable to the defendant. The defendant delayed the payment of RA bills which created huge financial crench, despite of the same had almost completed the project by September 2013 by deploying additional work force and machinery and due to continuous financial crench, failed to fulfill its contractual obligations and unable to pay to the suppliers and vendors, for which the defendant is solely liable and the defendant has not issued drawings in time, but the defendant without any notice has terminated the work order.4 Com.A.S.No.250/2018
3. The plaintiff in its plaint has further alleged during the monsoon period, the work got delayed because of extensive water lagging and there was no suitable approach road to play the vehicles to reach the location site where the work was to be executed, thereby has suffered huge loss and delay has been caused for execution of the work and he has also sustained loss due to hurdleness of heavy rental machinery and man power upon the termination of the work order by the defendant on 22.01.2014, though has submitted RA bills, but the defendant did not clear the RA bills and due to the sole fault of the defendant failed to complete the whole project within a stipulated period. The defendant to cover up part of delay has shifted the burden without appreciating the cause of delay which caused by the defendant. The dispute arose in between them after serious communications sent a legal notice cum demand letter to the defendant and he has served the notice invoking arbitration along with the summary claim to the defendant on 06.09.2016 to settle the dispute in between them and the sole arbitrator has been appointed who passed the award by rejecting its claim No.1, 4, 7, 8, 10 and 11 and partly the allowed the counter claim 1 of the defendant, thereby has filed the instant suit for the following; 5 Com.A.S.No.250/2018
GROUNDS a. The arbitrator in rejecting the claim No.1 and 7 being claims towards declaring the termination made by the defendant vide letter dated 22.01.2014 being arbitrary and illegal and compensation against illegal termination, though there was no prior notice was served before termination which was not taken into consideration by the sole arbitrator.
b. The sole arbitrator erred in rejecting the claim No.4 being the claim towards idling charges of the machinery/ materials beyond the schedule period of contract as once the delay is attributable to the defendant and in the absence of any delay analysis of the project and the sole arbitrator has not appreciating the fact that the fault is on the defendant.
c. The sole arbitrator erred in rejecting its claim No.8 being the claim towards over head expenses during the prolonged period of the contract as once the delay is attributable to the defendant has held that he is entitle for the same, but did not allow the said claim on the ground that escalation has been provided.
d. The sole arbitrator failed to recognize that even if has not derived its claim No.8 that is of over heads on any widely recognized formula through which the head office over head percentage is arrived at by dividing the total over head cost and profit of the contractors organization as a whole by the total turn over or many others and the arbitrator could have based its reasoning in awarding the said claim on the basis of any of the formulas.
6 Com.A.S.No.250/2018e. The sole arbitrator erred in rejecting its claim No.8 being the claim towards release of payment for work done as extra item i.e. beyond the scope of the project and the sole arbitrator erred in allowing partly the counter claim No.1 of the defendant.
f. The finding of the sole arbitrator pertaining to the claim No.1, 4, 7, 8, 10, 11 and counter claim 1 are perverse, patently illegal and contrary to the public policy and fundamental principles and the sole arbitrator erroneously rejected its claims without any cogent reasons.
g. The sole arbitrator has erred in not appreciating the documents on record in a holistic manner and failed to appreciate the evidence and dismissed its claim by allowing counter claim No.1 of the respondent in partly and failed to appreciate the settled legal position of law.
h. The sole arbitrator has erred in rejecting its claim No.10, not awarding the claim for the extra work and the sole arbitrator failed to compensate the same without doing so which is contrary to law of contract and the sole arbitrator rejecting its claim despite of producing various correspondences exchanged in between them.
I. The sole arbitrator erred by rejecting its claim not awarding any monies towards extra work which done during the execution of the work and the sole arbitrator has not properly adjudicated the rejected claim in a prospective manner and the finding on the said claims is illegal and capricious, without considering the same nor considered the termination which made by the defendant in respect of the work order.
7 Com.A.S.No.250/2018j. The sole arbitrator has erred by not awarding any compensation or damages for non discharging of the obligation by the defendant and failed to appreciate the well settled position of law.
k. The sole arbitrator erred by not appreciating the settled law that whenever proved that there is a delay in execution of the project is solely attributable to the employer then the contract is entitled to an additional cost towards over head incurred by its during the prolonged period of the contract which was not taken into consideration by the sole arbitrator.
l. The sole arbitrator failed to appreciate the major portion of the delay which attributable to the defendant though it was proved by placing materials which was not taken into consideration by the sole arbitrator and the sole arbitrator has given an ambiguous, rational while disallowing claim No.7 towards compensation for illegal termination of contract by the defendant, but the sole arbitrator has not taken into consideration about the illegal termination and granting of damages.
m. The sole arbitrator failed to appreciate the claim of damages on account of prolongation of the project under Sec.73 and 74 of the Indian Contract Act and failed to appreciate the contract which taken place in between them and the sole arbitrator has not properly adjudicated its rejected claim.
n. The sole arbitrator has not taken into consideration about its job as per the contract nor work which completed to an extent of 60% before termination of the work order and failed to appreciate its dismissal claim No.10 in a prospective manner which is against to the fundamental policy of Indian law and justice 8 Com.A.S.No.250/2018 and morality and the sole arbitrator has erred in holding that he has not completed the work which awarded, though has completed the work almost 60%.
o. The sole arbitrator without considering the materials on record has illegally rejected its claim without considering illegal termination of the work order which awarded nor considered non disputing document by the defendant and prays for allow the suit and to set aside the rejection of claim No.1, 4, 7, 8, 10 and 11 and reject the counter claim No.1 of the defendant in the impugned arbitral award dated 28.08.2018 passed by the sole arbitrator.
4. In response of the suit summons the defendant has been appeared through its counsel and filed the objection statement in which has alleged that the suit which filed by the plaintiff is not maintainable in law or on facts and no grounds has been made out by the plaintiff for interference of this court nor to set aside the award and the scope of challenge under Sec.34 of the Arbitration and Conciliation Act is restricted and limited and there is a prohibition on the review of merits of the factual and legal issues arising from the arbitral award in a suit filed under Sec.34 of the Arbitration and Conciliation Act and this court is not sit as an appellate court nor re-appreciate the evidence and the sole arbitrator after considering the materials on record and the pleadings of the parties has passed a well reasoned award 9 Com.A.S.No.250/2018 against the plaintiff, as who is a Government of India Undertaking which was incorporated on 13.11.1964 and is an integrated power plant equipment manufacturer and it is the largest company of its kind in India engaged in design, engineering, manufacture, construction, testing, commissioning and servicing of wide range of products and services for the core sectors of the economy such as power transmission, industry, transportation, renewable energy, oil and gas and defence etc. and the work was awarded for setting up a power plaint with a capacity of 1X500 MW UKAI thermal power plant and total value of the project was Rs.1,950.00 crores. The total duration of the contract was 40 months from 06.10.2007 and had issued an open tender through newspapers inviting the tenders for subcontracting a portion of work awarded by GSECL dated 24.10.2008 inviting offers from the prospective bidders for civil, architectural and structural steel works for coal handling plant and ash handling plants. In respect of the said tender, the plaintiff emerged as the successful bidder and the final negotiated price of the plaintiff was Rs.49,50,65,466.46/-. The final price was inclusive of all taxes like works contract tax under VAT Act, duties, charges etc., and service tax extra on actual basis.
10 Com.A.S.No.250/2018
5. The defendant in its objection statement has further alleged that the contract price was firm during the entire period of the project and was on a unit rate basis and agreed by the parties in terms of clause No.2 of Annexure-I of commercial terms and conditions. The contract between them consisting of the work order dated 27.12.2008. In terms of the agreement in between them final scope of work which was entrusted to the plaintiff includes civil architectural works and structural steel works as detailed in the tender. The offer which submitted by the plaintiff had released the work order bearing No.88/8/0026/AKS dated 27.12.2008 with the contract duration being 20 months from the date of the work order with a contract value of Rs.49,50,65,466.46/-. The plaintiff was found wanting in the performance of its obligations and never deployed the requisite man power that was required to complete its obligation within the time frame agreed upon the work order. The plaintiff failed to deploy the required manpower and machinery and was lagging behind the agreed time schedule for completion of the works and the plaintiff had approached for issue of Form V for obtaining a labour license and obtained a labour license for deploying 300 contract labourers. However, the plaintiff in its letter dated 02.05.2009 requested for permission to issue gate passes to 11 Com.A.S.No.250/2018 nearly 74 labourers and submitted a workmen's compensation policy vide its letter dated 19.05.2009 and obtained insurance for nearly 100 workmen and the plaintiff failed to deploy the required manpower for timely completion of the work. Even after lapse of 2 years from the date on which the work was awarded failed to deploy adequate manpower at the site for which the letter dated 20.02.2010, 20.08.2010, 12.01.2011 and 17.05.2011 has been sent to the plaintiff requesting the plaintiff to deploy adequate manpower at the site and once again calling upon the defendant to deploy the required manpower to ensure completion of the project, despite the slow progress of the work owning to inadequate man power deployment issued amendment No.1 dated 09.10.2010 to the work order dated 27.12.2008 at the request of the plaintiff and extended the schedule date of completion of work from 26.08.2010 to 20.06.2011 and despite of the said extension did not improve the progress of the work at the site, thereby letter has been issued on 25.11.2010 and 12.01.2011 and pointed out the delay in progress of the work, because of insufficient man power on the site and the letters have been acknowledged by the representative of the plaintiff and extended the contract schedule 3 times at the request of the plaintiff, even though reasons for delay in execution of the work 12 Com.A.S.No.250/2018 was solely attributable to the plaintiff and the contract schedule was extended vide amendment No.1 to 4 dated 09.10.2010, 28.09.2011, 28.05.2012 and 10.06.2013 and the last amendment number dated 10.06.2013. The contract duration was extended up to 30.06.2013.
6. The defendant in its objection statement has further alleged the work which was supposed to be completed by the plaintiff on or before 26.08.2010 in terms of the work order dated 27.12.2008 extended as last as 30.06.2013, but in spite of the extension, the plaintiff did not evince any interest in completion of the work which entrusted. Thereby once again brought to the notice of the plaintiff for the delay of execution of the work during the meeting which held in between on 23.12.2011 and 24.12.2011 and calling upon the plaintiff to complete the civil works by increasing manpower and delay in execution of the work was solely attributable to the plaintiff and the plaintiff has never demonstrated the required seriousness in the execution of the project and whole project has led to several labour problems at site and 43 labourers of the plaintiff had even approached the labour court at Surat for non payment of wages, for which to engage an advocate to defend its position and non payment of wages by the plaintiff to its labourers was in fact a major issue 13 Com.A.S.No.250/2018 which led to delay in completion of the work and the plaintiff was also in financial crisis, that is also one of the reason for the delay in completion of the work and the plaintiff has failed to perform its obligations and the plaintiff in its letter dated 06.11.2012 expressed difficulty in arranging the finance for paying its sub- vendors and requested to make payment of Rs.5 lakhs to M/s Gayathri Hardware and Plywood Centre and extended the duration of the contract but the plaintiff was not able to fulfill its obligation, thereby issued a warning letter dated 20.09.2012 to complete certain critical work within 7 days from the date of receipt of the letter, despite repeated extension and opportunities, the plaintiff did not complete the project within a stipulated time and failed to fulfill its obligation even during extended period of 54 months as against the original contract period of 20 months and the plaintiff was facing financial crisis resulting in non payment of statutory wages of labours, non payment of dues of its sub-vendors and the plaintiff had defaulted in payment of wages to its labours and 43 labours of the plaintiff had instituted a proceedings before the labour commissioner for seeking immediate payment of their wages and received the notice on 20.08.2018 under Sec.91 of the criminal procedure to 14 Com.A.S.No.250/2018 appear before the CBI and to produce the documents relating to the contract which is the subject matter of the application.
7. The defendant in its objection statement has further alleged that he has expand significant amount of time and recourse to tackle the notice which was sent by the CBI owning to the shortcoming of plaintiff and several cases have financial mishandling, the plaintiff is now facing insolvency proceedings wherein interim resolution of professional has been appointed in respect of the plaintiff, thereby invoked the risk and cost clause of the contract between them and issued a letter dated 22.01.2014 informing the plaintiff that the additional cost incurred in getting the balance work done through alternative supplier/ contractor and the departmental charges therein liquidated damages and other legal expenses arising out of the closure of the contract will be charged to the account of the plaintiff and the plaintiff is liable to pay the same when demanded and as on the date of expiry of the contract, that is on 30.06.2013 the plaintiff had completed the works amounting to Rs.26,62,20,890.50/- against the contract value of Rs.49,50,65,466.46/- and estimated the balance work to be awarded alternative vendors as Rs.5,30,25,000/- which was within the scope of the work of the plaintiff accordingly notice inviting the tender was released wherein M/s Choudhary Infra 15 Com.A.S.No.250/2018 Engineering Projects Pvt. Ltd., has emerged as L1 bidder on whom the work order dated 20.06.2014 was relied with the contract vide of Rs.8,84,16,225/- and the plaintiff fully aware about invoking of arbitration for recovery of all amounts due to it. The plaintiff instead of invoking the arbitration making a frivolous claims in terms of the notice dated 06.09.2016 and the invocation of arbitration by the plaintiff was with an intention to delay the adjudication of its claims and the plaintiff resorted to making imaginary claims with a view to overcome the genuine claims and issued a notice dated 13.10.2016 and appointed the sole arbitrator for adjudication of the disputes between them and the plaintiff had in all made a total 13 claims its against in its counter claim and shifted entire blame contending and he has failure to fulfill its obligation and sought for declaration to that effect on the ground who has breached the work order and illegally terminated the work order and amended claim has been filed by the plaintiff and filed the statement of defence and counter claim, and plaintiff filed the rejoinder and filed the reply to the rejoinder before the sole arbitrator and the sole arbitrator has held that he was not in breach of the work order, in fact it was the plaintiff that was in breach of the work order and failed to fulfill its obligations and rejected all the baseless monetary claim and it 16 Com.A.S.No.250/2018 was its specific case in the statement of defence and the counter claim that the arbitration in between them is one for recovery of the amount illegally due from the plaintiff and the dispute must devolve solely its counter claim and its counter claim has been allowed in part and rejected the large part of the counter claim on erroneous and illegal reasons without giving due weightage to the facts and documents on record and arbitrator erroneously awarded excessive amount to the plaintiff as regards its claim of non payment of running account bills and the sole arbitrator has failed to appreciate the facts on hand and delivered an erroneous award which is not sustainable and is liable to be set aside to the extent which it is challenged and prays for dismiss the suit.
8. Heard the arguments on both sides.
9. The points that arise for consideration of this court are as under:
1) Whether the plaintiff has made out the grounds which are enumerated under Sec.34 of the Arbitration and Conciliation Act to set aside its rejection of the claim No.1, 4, 7, 8, 10 and 11 and to reject the counter claim No.1 of the defendant in the impugned arbitral award dated 28.07.2018 passed by the sole arbitrator?
2) What order?
17 Com.A.S.No.250/2018
10. My answer to the above points are as under:
Point No.1: In the Negative;
Point No.2: As per final order, on the following;
REASONS
11. POINT NO.1: The plaintiff being the claimant and the defendant being the respondent before the sole arbitrator, feeling aggrieved by the award has approached this court on the ground that the sole arbitrator while adjudicating the issues are not properly considering its claim for illegal encashment of bank guarantee of Rs.2,47,03,274/- and non awarding of its claim on account of certified PVC bills along with interest of Rs.12.386 lakhs and also non considering its claim on account of unrecovered over heads due to prolongation of the project and towards interest on over heads and other miscellaneous expenses beyond the contractual period as well as claim towards interest on non payment of work done as extra interest and claim towards loss of interest on bank guarantee margin amount and keeping the bank guarantee extended beyond PCOD, thereby the plaintiff has filed the instant suit on the ground that the grounds which are alleged in the plaint falls within Sec.34 of the Arbitration and Conciliation Act.
18 Com.A.S.No.250/2018
12. The learned counsel for the plaintiff apart from his written arguments has submitted the sole arbitrator has erred in rejecting the claim of the plaintiff shown as claim No.1, 4, 7, 8, 10 and 11 which is against the public policy of India, without considering neither oral nor the documentary evidence which placed before the sole arbitrator. Therefore, the rejection of claim No.1, 4, 7, 8, 10 and 11 are liable to be set aside and to award as sought for, since the sole arbitrator has failed to appreciate the documents which placed before the sole arbitrator and the sole arbitrator has erred in holding that the plaintiff has never completed the work, which entrusted and without considering the work which was completed by the plaintiff disallowed the claim of the plaintiff in respect of the claim No.1, 4, 7, 8, 10 and 11 and the sole arbitrator has not taken into consideration about the contract which taken place in between the plaintiff and the defendant nor the work which completed by the plaintiff or taken into consideration about the illegal termination of the contract which taken place in between the plaintiff and the defendant and the sole arbitrator has not taken into consideration about non releasing of the RA bill amount, nor the circumstances which alleged by the plaintiff for the difficulty about the execution of the work and extension of time which accepted by the defendant and 19 Com.A.S.No.250/2018 the finding which given by the sole arbitrator is contrary to the contract which taken place in between the plaintiff and the defendant and held the termination of the contract which terminated by the defendant as valid which is contrary to the agreement which taken place in between the plaintiff and the defendant, but the sole arbitrator has not taken into consideration about non issuing of notice prior to termination of the contract which is mandatory, but no specific notice was issued prior to termination of the contract and the sole arbitrator has not taken into consideration whether the time is not the essence of the contract and whether termination of contract on 22.01.2014 without making time the essence of the contract after 30.06.2013 is valid and not taken into consideration prior notice before termination of contract which taken place in between them and the finding which recorded by the sole arbitrator is perverse and patently illegal and the findings which recorded are contrary to the agreement which taken place in between them and the arbitral tribunal while deciding the issue of termination has not decided whether the time was not the essence of contract nor termination without making time an essence is not valid and the sole arbitrator has not taken into consideration that no time extension was granted after 30.06.2013 despite of the request 20 Com.A.S.No.250/2018 vide letter dated 23.10.2013 and 14.12.2013 and no date of completion of work was fixed by BHEL, nor time was made essence before terminating the contract on 22.01.2014 and as per settled law, time is not the essence of the contract, when in the agreement condition for time extension and liquidated clause exist in the contract and without deciding the crucial issues by the sole arbitrator, the finding which recorded by the sole arbitrator are not valid and there is no presumption that the issue which deemed to have been decided, though there is an clause in the contract which taken place in between the plaintiff and the defendant and also general condition of the contract for issuing mandatory notice before termination of the contract, but the sole arbitrator has not taken into consideration, but the sole arbitrator in the award held that notice of termination is mandatory, however the notice dependents on the contract providing specific notice which is not in existence. So the findings which recorded by the sole arbitrator is contrary to the specific condition of the contract and the arbitral tribunal failed to appreciate EOT was granted by BHEL due to its own failure to provide fronts, drawings, but it was not taken into consideration by the sole arbitrator, though the sole arbitrator in the award held that the notice prior to the termination has been issued is contrary to the 21 Com.A.S.No.250/2018 fact and the letters which are referred in the very para are not the notices for termination, but those letters are for withdrawal of minor petty works by BHEL, due to urgency at its end and none of the letters referred by the sole arbitrator are notice for termination of the total work nor the same can be conferred. So the sole arbitrator has not taken into consideration about the crucial issuance of notice before termination of the contract. Even otherwise as per the settled law, issuance of notice is mandatory before terminating of the contract and the sole arbitrator has not considered the materials on record and rejected the claim No.1, 4, 7, 8, 10 and 11 of the plaintiff and allowed the counter claim in part, without rejecting the counter claim which made by the defendant and prays for allow the plaint and set aside the rejection of the claim No.1, 4, 7, 8, 10 and 11 of the plaintiff and reject the counter claim No.1 of the defendant.
13. Per contra, the learned counsel for the defendant in his argument has submitted that the suit which filed by the plaintiff under Sec.34 of the Arbitration and Conciliation Act is not maintainable in law or on facts, since the plaintiff has not made out any of the grounds which are enumerated under Sec.34 of the Arbitration and Conciliation Act for interference of this court and interference of this court is very limited and this court cannot sit 22 Com.A.S.No.250/2018 as an appellate court nor re-appreciate the evidence and the sole arbitrator after considering the materials on record and the pleadings of the parties has passed the well reasoned award against the plaintiff, so question of interference of this court does not arise. The defendant has issued a tender through news papers inviting the tenders for sub contracting, accordingly the plaintiff who is a successful bidder and finally negotiated with the plaintiff for Rs.49,50,65,466.46/- in terms of the work order the plaintiff require to complete the work which entrusted on or before 26.08.2010 by virtue of the work order dated 27.12.2008, but the plaintiff did not complete the work in terms of the work order in spite of repeated letters and reminders and at the request of the plaintiff 4 amendment for extension was taken place in spite of extension, the plaintiff did not complete the work and the work has been completed through some other contractor and terminated the work order and initiated the arbitral proceedings and sole arbitrator has been appointed and who passed the reasoned award and feeling aggrieved by the said award, the plaintiff has filed the instant suit and the plaintiff has not made out any of the grounds which are enumerated under Sec.34 of the Arbitration and Conciliation Act and also raised the 23 Com.A.S.No.250/2018 other objections which are stated in the objection statement and prays for dismiss the suit.
14. The learned counsel for the plaintiff while canvassing his arguments has submitted the plaintiff being the claimant before the sole arbitrator has approached the court on the ground that the sole arbitrator without considering its bank guarantee nor considering the PVC bills which on record rejected its claim nor considered the claim No.7 and 8 regarding the claim towards the interest on over heads and other miscellaneous expenses beyond the contractual period and claim on account of unrecovered over heads, due to prolongation of the project and also non considering of the interest on non payment of the work done as extra items and also loss of interest on bank guarantee. So, before considering the arguments which advanced by the both the counsels and the materials on record, let me know the legal aspects first for the proper appreciation.
1. What is arbitration?
2. When court can interfere with arbitral award?
3. What is the scope of Court's power to interfere with the arbitral award?
4. What are the grounds are required to set aside the award?
5. Setting aside of arbitral award when permissible?
24 Com.A.S.No.250/2018Let me decide one by one for proper appreciation of the materials on record. Thus this court drawn its attention on Sec.2(1)(a) of the Arbitration and Conciliation Act, 1996 which reads like this:
2(1)(a). The definition arbitration means any arbitration whether or not administered by permanent arbitral institution.
Arbitration is a private dispute resolution mechanism agreed upon by the parties. Arbitration is a binding voluntary alternative dispute resolution process by a private forum chosen by the parties.
Arbitration is a process of settlement extra curses curiae and the parties are at liberty to choose their judge. "The esse visa nce of arbitration without assistance or intervention of the court is settlement of dispute by a tribunal of the own choosing of the parties." Law of arbitration aids in implementation of arbitration agreement contract between the parties which remains a private adjudication by a forum consequently chosen by the parties and made on consequential reference.
Now let me know when court can interfere with the arbitral award. Thus this court drawn its attention on Sec.34(43) of the Arbitration and Conciliation Act, 1996 which reads like this:
43. Principles of interference with arbitral award:-
The principles of interference with an arbitral award under Sec.34(2) of the Act are as follows:
(1) An award, which is -25 Com.A.S.No.250/2018
(i) contrary to substantive provisions of law; or
(ii) The provisions of Arbitration and Conciliation Act, 1996, or
(ii) 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 Sec.34(2) of the Act.
(2) 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.
(3) The award could also be set aside, if it is so unfair and unreasonable that it shocks the conscience of the court.
(4) It is open to the court to consider whether the award is against the speci visa fic terms of the contract and if so interfere with it on the ground that it is patently illegal and opposed to the public policy of India.
So by virtue of the provision which stated above, the court can interfere with the arbitral award in the grounds which mentioned above.
Now let me know what is the scope of Court's power to interfere with the arbitral award? Thus this court drawn its attention on Sec.34(34) of the Arbitration and Conciliation Act which reads like this;
26 Com.A.S.No.250/2018
Scope of Court's power to interfere with the arbitral award:
The scope of the interference by the court's in regard to arbitral award is limited. Courts do not sit in appeal over the findings and decision of the arbitrator, nor can it reassess or re- appreciate evidence or examine the sufficiency or otherwise of the evidence.
So by virtue of the provision which stated supra, the scope of interference by the court in regard to the arbitral award is limited scope. The scope of interference under Sec.34 of the Act is limited in view of the judgment of the Hon'ble Supreme Court of India which reported in AIR 2003 SC 2629 in between Oil and Natural Gas Corporation Ltd., V/s Shah Pipes Ltd., and in the said judgment, their Lordship held that;
'an award can be set aside if it is contrary to fundamental policy of Indian Law, the interest of India, justice or morality, if it is patently illegal and unfair and unreasonable it shocks the conscience of the court'.
Now let me know what are the grounds are required to set aside the award which passed. Thus this court drawn its attention on Sec.34(18) of the Arbitration and Conciliation Act which reads like this:
18. Grounds to set aside award:- Under the new Act, 1996 misconduct of arbitrator is no ground to set aside an award but court may set aside an award in the following grounds:27 Com.A.S.No.250/2018
(1) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties.
(2) falling such agreement, the composition of arbitral tribunal was not in accordance with the part I of the Act.
(3) if the arbitral proceeding was not in accordance with -
(a) the agreement of the parties.
(b) failing such agreement - the arbitral procedure was not in accordance with part I of the Act. However exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of part I of the Act from which parties cannot derogate;
(c) if the award passed by the arbitral tribunal is in contravention of the provisions of the Act or any other substantive law governing the parties or is against the terms of the contract.
An award can be set aside, if it is against the public policy of India that is to so it is contrary to:
(1) fundamental policy of Indian law, (2) the interest of India, or (3) justice or morality , or (4) if it is patently illegal.
It could be challenged -
(a) as provided under Sec.13(5); and 28 Com.A.S.No.250/2018
(b) Sec. 16(6) of the Arbitration and conciliation Act. So the court can set aside the award, if the grounds found which stated supra.
So if the petitioner is made out the grounds which stated supra, court can set aside the award. Now let me know about the setting aside of arbitral award when permissible. Thus this court drawn its attention on Sec.34(4) of the Arbitration and Conciliation Act, 1996
4. Setting aside of arbitral award when permissible:-
That the court can set aside the arbitral award under Sec.34(2) of the Arbitration and Conciliation Act if the party making the application furnishes the proof that:
(i) a party was under some incapacity
(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 time being in force.
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or otherwise unable to present his case.
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitrator or it contains visa decisions on matters behind the scope of the submission to arbitration.29 Com.A.S.No.250/2018
(2) The court may set aside the award: (I) (a) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties.
(b) falling such agreement, the composition of the arbitral tribunal was not in accordance with part-1 of the Act.
(ii) if the arbitral procedure was not in accordance with:
(a) the agreement of the parties, or
(b) failing such agreement, the arbitral procedure was not in accordance with part-1 of the Act.
However exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict within the provisions of part-1 of the Act from which the parties cannot derogate.
(c) If the award passed by the arbitral tribunal is in contravention of provisions of the Act or any other substantive law governing the parties or is against the terms of the contract. (3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to:
(a) fundamental policy of Indian Law;
(b) the interest of India; or
(c) justice or morality; or
(d) if it is patently illegal.
(4) It could be challenged-
(a) as provided under Sec.13(5); and
(b) Section 16(6) of the Act."30 Com.A.S.No.250/2018
"B. Further held as follows in this case: (1) The impugned award requires to be set aside mainly on the grounds:
(I) There is specific stipulation in the agreement that the time and date of delivery of the goods was the essence of the contract;
(ii) in case of failure to deliver the goods within the period fixed for such delivery in the schedule, ONGC was entitled to recover from the contractor liquidated damages as agreed;
(iii) it was also explicitly understood that the agreed liquidated damages were genuine pre- estimate of damages;
(iv) on the request of the respondent to extend the time limit for supply of goods, ONGC informed specifically that time was extended but stipulated liquidated damages as agreed would be recovered;
(v) liquidated damages for delay in supply of goods were to be recovered by paying authorities from the bills for payment of cost of material supplied by the contractor;
(vii) there is nothing on record to suggest that stipulation for recovering liquidated damages was by way of penalty or that the said sum was in any way unreasonable.
(viii) in certain contracts, it is impossible to asses the damages or prove the same. Such situation is taken care by section 73 and 74 of the Contract Act and in the present case by specific terms of the contract" - Oil and Natural Gas Corporation V Shah Pipes Ltd. (2003)5 SCC 705 : AIR 2003 SC 2629; see also Moona Abousher V M/s. Cholamandalam DBS Finance Ltd. AIR 2019 Mad 233.31 Com.A.S.No.250/2018
15. Apart from above legal aspects, it is just and necessary to consider the admitted facts which admitted by the parties to minimize the dispute and to proper adjudication of the issue which on record, as the defendant was engaged in the design manufacture, construction, testing, commissioning and servicing of a wide range of products and services for core sectors of the economy i.e. power transmission industry, transportation, renewable energy, oil and gas, water and defence. The GSECL had awarded the work for setting up of its power plant with a capacity of 1x500 MW Ukei, thermal power plant and the estimated value of Rs.1332.25 crores and duration of the contract was for a period of 40 months from 06.10.2007, the plaintiff has issued a open tender through newspaper for exercising the work of civil architectural and structural steel works for coal handling plant and ash handling plant. The defendant submitted its bid on 24.11.2008 for the project work and who has been declared as successful bidder and the negotiated price was of Rs.49,50,65,464.46/- and the project work should be completed within 20 months from the date of work order on or before 27.08.2010 and the work order provides for scope of work and it is an admitted fact, after the work order, the defendant No.1 did not completed the work which entrusted, thereby sought for 32 Com.A.S.No.250/2018 extension of time which was granted by the plaintiff time to time as per amendment for four times and the plaintiff has terminated the work order which was entrusted to the 1st defendant, thereby the 1st defendant has initiated arbitral proceedings.
16. Now keeping the provisions and the admitted facts which referred above let me know the findings which recorded by the sole arbitrator falls within the purview of Sec.34 of the Arbitration and Conciliation Act, as the learned counsel for the plaintiff while canvassing his arguments has submitted that the plaintiff has provided the bank guarantee to the defendant and the same was extended time to time by the defendant and the defendant has encashed the same during the pendency of the proceedings and in terms of the work order marked as Ex.P.1 that the bank guarantee was provided a sum of Rs.2,47,93,274/- and the bank guarantee was enhanced on 03.10.2016. Therefore, the sole arbitrator without considering the materials on record has rejected the claim No.1 of Rs.2,47,03,274/-.
17. It is an admitted fact, clause 8 of the commercial terms to provide for 10% of the total order value shall be furnished by the successful tender before starting the work and clause 8 of the Ex.P.1 provides that such deposit shall be refunded to the 33 Com.A.S.No.250/2018 contractor after successful completion of defect liability period and defect liability period would provide responsibility on the contractor for any defect in civil architectural and structural works perform for a period of 15 months commencing immediately upon satisfactory completion of operation of the plant and security is for the proper performance of the work, bank guarantee has been provided at Ex.R.32 in total a sum of Rs.2,47,93,274/- and Ex.R.32 reflects the plaintiff has been agreed to provide a contract performance guarantee for the faithful performance of the entire contract equivalent to 5% of the total value of the contract to the owner and as per the claim statement which filed by the plaintiff reflects that the plaintiff has been completed 60% of the work and he has not completely performed its work in terms of the work order though 4 amendment orders has been issued for extension of time for the performance of its obligation, even though 4 amendment orders were issued from time to time, due to difficulties could not complete the said work, but the defendant terminated the work order by invoking risk and cost clause for the purpose of completion of the project. It is an admitted fact the sole arbitrator while passing the award has granted a sum of Rs.2,47,03,274/- in respect of the claim 1 towards claim of bank guarantee, though 34 Com.A.S.No.250/2018 the plaintiff has sought for set aside the claim No.1 on the ground that the sole arbitrator has not taken into consideration of its claim, but if the claim No.3 is taken into consideration, the sole arbitrator awarded a sum of Rs.2,47,03,274/-. So the plaintiff has failed to prove that the finding which recorded by the sole arbitrator comes within purview of Sec.34 of the Arbitration and Conciliation Act. When the arbitrator has considered the claim No.1 an amounting to Rs.2,47,03,274/- question of considering the same claim by this court does not arise. Therefore, the arguments which advanced by the learned counsel for the plaintiff holds no water.
18. The learned counsel for the plaintiff while canvassing his arguments has submitted the sole arbitrator has not awarded an amount of Rs.12.386 lakhs towards certified PVC bills along with interest likewise not awarded an amount of Rs.429.24 lakhs towards interest on overheads and other miscellaneous expenses beyond the contractual period. It is an admitted fact the materials on record reflects that the 1st PVC bill for the month of July 2013 is of Rs.2.379 lakhs, PVC bills for August 2013 is of Rs.2.543 lakhs and PVC bill for September 2013 is of Rs.2.391 lakhs totaling an amount of Rs.7.313 lakhs. If interest on this amount is taken into consideration at the rate of 18% p.a. it comes to Rs.5.073 lakhs, 35 Com.A.S.No.250/2018 in total comes to Rs.12.386 lakhs but the defendant has denied the entitlement of the plaintiff. According to the defendant there was no PVC bills that too certified bills which are pending for consideration. Therefore, the burden on the plaintiff to place the said materials in pursuance of the work order to substantiate the same as the Ex.C.42 bill No.22 for a sum of Rs.2,391 lakhs and Ex.C.43 is a PVC bill for a sum of Rs.2.543 lakhs as well as Ex.C.13 is a PVC bill for sum of Rs.2.379 lakhs, but the said documents are not reflects about the signature of the defendant. Therefore, the sole arbitrator after considering the PVC bills which produced by the plaintiff without signature of the defendant held that the plaintiff is not entitled the said amount of Rs.12.386 lakhs, but the reasons best known to the plaintiff has not placed any materials on record to show that the finding which given by the sole arbitrator on this aspect falls within purview of Sec.34 of the Arbitration and Conciliation Act. Therefore, the arguments which advanced by the learned counsel for the plaintiff on this aspect holds no water.
19. The learned counsel for the plaintiff has much argued regarding the claim No.7 regarding the claim on account of unrecovered over heads due to prolongation of the project. It is an admitted fact the plaintiff has claimed an amount of Rs.439.29 36 Com.A.S.No.250/2018 lakhs towards uncovered over heads due to prolongation of the project. It is an admitted fact though the work was entrusted to the plaintiff with a condition that he shall complete the said work within 20 months, but the plaintiff did not complete the said work, thereby 4 amendment orders was taken place for extension of time and the materials on record reflects the defendant was complaining about the inadequacy of labour and slow progress and the amendments which are taken place on record reflects the plaintiff did not complete the work, thereby at the request of the plaintiff the time was extended up to 30.06.2013, though the plaintiff has explained in the claim petition regarding the delay in progress of the work and that delay has resulted which compelled the plaintiff to seek extension in terms of letters which was considered by the defendant. It is an admitted fact the contractual term is very much clear that no other claim either compensation or otherwise is admissible, though time was extended at the request of the plaintiff which is permissible under the work order, but no compensation is permissible in terms of the contract conditions. Ex.C.5, C.6, C.49 and 50 are clear that at the request of the plaintiff, the amendment orders was came to be effected. Therefore, both parties bound by the contract which taken place in between them, thereby the sole arbitrator after 37 Com.A.S.No.250/2018 considering the materials on record rejected the claim No.7 and the plaintiff has not made out any of the grounds which enumerated under Sec.34 of the Arbitration and Conciliation Act to set aside the finding which recorded by the sole arbitrator in respect of claim No.7. Thus the arguments which advanced by the learned counsel for the plaintiff on this aspect holds no water.
20. The learned counsel for the plaintiff while canvassing his arguments has much argued regarding the interest on over heads and other miscellaneous expenses. It is an admitted fact the sole arbitrator after considering the materials on record held the plaintiff is not entitled claim No.8, since the plaintiff has utterly failed to prove any hindrance in completion of the project empowers to claim compensation. So any hindrance will not empowers the plaintiff to claim any compensation in terms of the work order and no relief can be granted to the plaintiff as sought in the claim No.8, though the learned counsel for the plaintiff while canvassing his arguments has much argued that the plaintiff has sustained the loss due to hurdleness of heavy rental machinery and man power upon termination of the work order, but the defendant is solely not liable for the so called loss due to idleness of heavy rental machinery and man power, as the materials on record reflects the plaintiff has wrote a letter to 38 Com.A.S.No.250/2018 defendant brought to its notice about non sufficient man power which available on the site. So the sole arbitrator after considering the materials on record has rejected the claim No.8, since the plaintiff has utterly failed to bring the case within the ambit of Sec.34 of the Arbitration and Conciliation Act to set aside the finding which recorded by the sole arbitrator. Therefore the arguments which advanced by learned counsel for the plaintiff on this aspect holds no water.
21. The learned counsel for the plaintiff while canvassing his arguments has much argued that the defendant is liable to pay interest on non payment of work done by the plaintiff as extra items at the rate of 18% p.a. and the defendant is also liable to pay towards loss of interest on bank guarantee margin amount of Rs.44.198 lakhs. It is an admitted fact whenever the party sought for claim, he should produce the materials to substantiate his claim, but if the materials on record are taken into consideration, the plaintiff has not produced any of the materials to show about the extra work which alleged to have been done by the plaintiff on the site. Therefore, the sole arbitrator after taking into consideration not only the oral but also documentary evidence on record and come to the conclusion that the plaintiff is not entitled the claim No.10 towards interest on 39 Com.A.S.No.250/2018 non payment of work done as extra items @ 18% p.a. and the plaintiff has failed to establish its case based on the materials to show the finding which recorded by the sole arbitrator comes within the purview of Sec.34 of the Arbitration and Conciliation Act. Therefore, when the plaintiff has failed to bring the case within the ambit of Sec.34 of Arbitration and Conciliation Act, question of setting aside the claim No.10 as sought does not arise. Thus the arguments which advanced by the learned counsel for the plaintiff on this aspect holds no water.
22. The learned counsel for the plaintiff has much argued on loss of interest on bank guarantee and sought for an amount of Rs.44.198 lakhs. According to the plaintiff that the plaintiff has sustained loss of interest on bank guarantee margin amount and keeping the bank guarantee extended beyond PCOD for a sum of Rs.44.198 lakhs and the materials on record reflects the plaintiff in the claim statement has stated that who is entitled a sum of Rs.44.198 lakhs towards the loss of interest on bank guarantee margin amount and the plaintiff has claimed the said amount for subsequent period I..e from 26.08.2010 for the extended period in terms of the 4 amended orders for extension of time. Admittedly 4 extension orders have taken place at the instance of the plaintiff, without change of other terms of the original work 40 Com.A.S.No.250/2018 order contract which taken place in between the plaintiff and the defendant and when the date of completion of the work order was came to be altered at the request of the plaintiff, the plaintiff cannot complain against the defendant on the ground that he has sustained loss of interest. Since the bank guarantee has been maintained even during the extended period. Therefore, the sole arbitrator after taken into consideration come to the conclusion that the claimant is not entitled the claim No.11, thereby has rejected the said claim, but the reasons best known to the plaintiff has not bring the case as sought for within the ambit of Sec.34 of the Arbitration and Conciliation Act to reject the finding which recorded by the sole arbitrator in respect of claim 1, 4, 7, 8, 10 and 11 and the counter claim 1 of the defendant.
23. The learned counsel for the plaintiff while canvassing his arguments has rightly submitted if the facts which pleaded in the plaint do not fall within the ambit of Sec.34 of the Arbitration and Conciliation Act question of interference of this court does not arise and this court cannot sit as a appellate court either re appreciation of the materials on record nor substitute its view in the place of the finding of the sole arbitrator and the said counsel has drawn the court attention on the following judgments: 41 Com.A.S.No.250/2018
1. Project Director, NH No.45E and 220 NHAI Vs M. Hakeem and Anr. - 2021 SCC OnLIne SC 473.
2. South East Asia Marine Engg. & Constructions Ltd., Vs Oil India Ltd & Anr - (2020) 5 SCC 164
3. Patel Engg. Ltd. Vs North Eastern Electric Power Corp. Ltd., - (2020) 7 SCC 167
4. Medermott International Inc. Vs Burn Standard Co. Ltd., & Ors - (2006) 11 SCC 181
5. Sathyanarayana Brothers P. Ltd. Vs T.N. Water Supply & Drainage Board - (2004) 5 SCC 314
6. K.P. Poulse Vs. State of Kerala & Anr - (1975) 2 SCC 236
7. Bharat Coking Coal Ltd. Vs Annapurna Construction - (2003) 8 SCC 154
8. Union of India Vs. V. Pundarikakshudu & Sons & Anr. - (2003) 8 SCC 168
9. B.R. Arora & Associates P. Ltd. Vs Airport Authority of India - 2015 SCC Online Del. 8155
10. Hindustan Petroleum Corp. Ltd. & Ors. Vs. Super Highway Services & Anr - (2010) 3 SCC 321
11. J.G. Engineers P. Ltd. Vs. UOI - (2011) 5 SCC 758
12. Simplex Concrete Piles (I) Ltd. Vs Union of India - (2010) 115 DRJ 616
13. Som Datt Builders Ltd. Vs State of Kerala - (2009) 10 SCC 259.
14. Bharat Drilling & Foundation Treatment Pvt. Ltd. Vs State of Jharkhand & Ors - (2009) 16 SCC 705
15. Welspun Specialty Solutions Ltd., Vs. Oil and Natural Gas Corp. Ltd. - 2021 SCC OnLine SC 1053.
On careful perusal of the above judgments, in the said judgments, their lordship held that whenever the petitions are filed under Sec.34 of the Arbitration and Conciliation Act by challenging the award and that court is not sitting as an appeal over the award of the arbitral tribunal and power of interference is very limited and the interpretation of the contract was a matter for the arbitrator, even if it gives rise to determination of question of law and court powers is to whether the arbitrator has exceeded his jurisdiction 42 Com.A.S.No.250/2018 or not and the award could not be remitted back and it is obligatory on the part of the arbitral tribunal to state reasons in support of its award and Sec.31(3) of the Arbitration and Conciliation Act mandates that the reasons must be stated by arbitral tribunal upon which the award is based and challenging of the award only on the grounds which provided under Sec.34 of the Arbitration and Conciliation Act. In the instant case,the plaintiff has not made out any of the grounds which are enumerated under Sec.34 of the Arbitration and Conciliation Act nor bring the case within the ambit of Sec.34 of the Arbitration and Conciliation Act. Therefore, I do respect to the judgments which relied, but the facts and circumstances of the present case and the judgments which relied are different.
24. The learned counsel for the plaintiff while canvassing his arguments has submitted that the defendant without prior notice has terminated the work order and the time is not the essence of the contract and there is an reciprocal contract as per the work order, but the defendant itself not discharged its obligation, without doing so shifted its obligation on the plaintiff on the ground that the plaintiff has not discharged its obligation 43 Com.A.S.No.250/2018 and the said counsel has drawn the court attention on the following judgments;
1. South East Asia Marine Engg. & Constructions Ltd., Vs Oil India Ltd & Anr - (2020) 5 SCC 164
2. Hind Construction Contractors Vs. State of Maharashtra - (1979) 2 SCC 70
3. Arosan Enterprises Ltd. Vs Union of India & Anr - (1999) 9 SCC 449
4. Ramachandra Narayan Nayak Vs. Karnataka Neeravari Nigam Ltd - (2013) 15 SCC 140
5. K.N. Sathyapalan Vs. State of Kerala & Anr - (2007) 13 SCC 43 On careful perusal of the above judgments, in the said judgments their lordship held that before considering the time is the essence of the contract to see the intention of the parties from the contract which taken place in between them and the time can be made of the essence of the contract by fixing a further period of completion. Reciprocal obligations of the parties provided in the contract and in case of non fulfillment of the same strict adherence of the time schedule was not possible, where an agreement provides for issuance of show cause notice before termination of the contract compliance with said condition is mandatory and where the failure of one of the parties to fulfill its contractual obligations has a direct bearing on the work to be executed by the other party and the arbitrator can compensate such other party for the extra cost incurred by it consequent to 44 Com.A.S.No.250/2018 such failure of the other party and when the government being the party to the contract cannot decide the disputed questions of breach and damages. In the instant case, the plaintiff has not proved that the award which passed by the sole arbitrator comes within the purview of Sec.34 of the Arbitration and Conciliation Act to set aside the award. That is the reason why in the judgments which referred above their lordship held that the award which passed by the sole arbitrator cannot be set aside unless brings the award within Sec.34 of the Arbitration and Conciliation Act, therefore, I do respect to the judgments which relied, but the facts and circumstances of the present case and the judgments which relied are not applicable to the case on hand. So looking from any angle, the plaintiff has utterly failed to bring the case within the ambit of Sec.34 of the Arbitration and Conciliation Act or made out any of the grounds which are enumerated under Sec.34 of the Arbitration and Conciliation Act to consider the claim of the plaintiff and for rejection of the counter claim of the defendant as sought for. Hence, I am of the opinion that the point No.1 is answered as Negative. 45 Com.A.S.No.250/2018
25. POINT NO.2: In view of my answer to point No.1 as stated above, I proceed to pass the following;
ORDER The petition under Sec.34 of the Arbitration and Conciliation Act filed by the petitioner is hereby dismissed.
No order as to costs.
(Dictated to the Stenographer, transcript thereof corrected by me and then pronounced in the open court on this the 4th day of March, 2022) (P.J. Somashekara) LXXXVIII Addl. City Civil & Sessions Judge, (Exclusive Commercial Court), Bengaluru City