Delhi District Court
Ms Groupe Seb India Pvt Ltd vs Vimal Moulders on 21 February, 2024
IN THE COURT OF MS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL-03),
PATIALA HOUSE, NEW DELHI
ARBTN No. 5041 of 2018
CNR No. DLND01-010217-2018
In the matter of:
Group SEB Indian Private Limited,
(earlier known as M/s Maharaja Whiteline
Industries Private Limited), a company
incorporated under the provisions of the
Companies Act, 1956
having its registered office at
A-25, Mohan Co-operative Industrial
Area, New Delhi-110044
........ Petitioner
Versus
M/s Vimal Moulders (India) Pvt Ltd,
FA-44, Shivaji Enclave, New Delhi-110027
Also at: B-104/3, Naraina Industrial Area,
Phase 1, New Delhi-110028
......Defendant
Date of institution of suit : 10.09.2018
Judgment reserved on : 03.02.2024
Date of Judgment : 21.02.2024
Appearance : Sh. Abhay Gupta & Sh. Sanjivan Chkraborty,
Ld. Counsel for petitioner.
Sh. Parminder Singh Goindi, Ld. Counsel for the
respondent.
ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 1 of 50
JUDGMENT
1. The instant petition under Section 34 of Arbitration & Conciliation Act, 1996 (hereinafter referred as "the Act") has been filed on behalf of Group SEB India Pvt Ltd (earlier known as M/s Maharaja Whiteline Industries Pvt Ltd, petitioner, aggrieved by arbitral award passed on 07.06.2018, corrected on 06.08.2018 (herein referred as 'impugned award') in the arbitration proceedings between petitioner and Vimal Moulders (India) Pvt Ltd, respondent.
2. The factual background and a brief reiteration of controversy between the parties that is necessary for adjudication of dispute in the present petition is delineated hereunder:
a) The petitioner is a wholly owned subsidiary of SEB International SAS, France, is a world leader in small home appliances operating in more than 150 countries worldwide.
It was originally incorporated as "Maharaja Whiteline Industries Limited" on 02.09.2005 and converted into a private limited company. It's name was also changed to Maharaja Whiteline Industries Private Limited vide Fresh Certificate of Incorporation dated 20.09.2011 issued by Registrar of Companies, NCT of Delhi. Vide Certificate of Incorporation dated 28.10.2014 issued by Registrar of Companies, NCT of Delhi, it's name was changed to Group SEB India Private Limited. The petitioner is engaged in the ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 2 of 50 business of manufacturing / selling air coolers.
b) The respondent, a company incorporated under Companies Act, is engaged in the business of moulding having moulding facilities and claimed to do the assembly of air coolers. It also supplies air coolers as per specifications, design and quality parameters of the petitioner.
c) According to petitioner, it was looking for outsourcing air coolers to be manufactured for expansion of its business. The respondent approached the petitioner in January, 2011 and again in March, 2011 and showed its desire to supply air coolers as per specification, designs and quality parameters as stipulated by the petitioner. The petitioner entered into Master Purchase Agreements dated 05.01.2011 and 23.03.2011 (in short 'the Agreements') with respondent for purchase of air coolers as per the specifications, designs and quality parameters stipulated by the petitioner on the terms & conditions set forth in the said Agreements. Purchase orders were to be issued in furtherance thereto. As per agreed terms, the petitioner was to supply moulds / dyes of air coolers to the respondent for mouldings of various plastic components of air cooler models and thereafter the respondent was to assemble the same into final products (air coolers) by using other required bought out parts. The respondent would use the said moulds for manufacturing of Air Coolers. Without prejudice to the other terms and conditions mentioned in the ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 3 of 50 said Agreements, it was agreed that petitioner can take back the possession of the moulds / dyes at any time and the respondent shall without any reasons whatsoever, deliver all the said moulds/dyes safely and in good condition. Every purchase and sale of the Air Coolers was to be evidenced by the documents viz. Excisable invoice having confirmed P.0. number, Inspection Certificates and Lorry/ Cargo receipts. In addition to the terms and conditions stipulated in the said Agreements, all purchases and sales of Air Coolers were to be governed by the terms and conditions set forth in the relevant purchase orders to be issued from time to time. Final costing for manufacture of Air coolers will have to be approved and confirmed by the Managing Director of the petitioner and it was to be final and binding upon the supplier company. As per the said Agreements, it was the duty of respondent to deliver the goods to the petitioner company or its authorized agent at the delivery location specified in the applicable purchase order within the stipulated period. All payments by buyer of goods i.e. petitioner were subject to verification of count.
d) Various purchase orders were issued upon the respondent by the petitioner from time to time. As per the terms and conditions of the Purchase Order (s), the payments were to be settled via Letter of Credit. Among other terms and conditions as agreed between the parties, it was also agreed ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 4 of 50 that some of the raw material for moulding of various plastic components of air cooler models and to assemble the same into final products (air coolers) shall be supplied to the respondent by the petitioner and a debit note shall be made to the account of the respondent by the petitioner and in lieu of the same, the respondent agreed and undertook to reimburse the same to the petitioner. Various transactions were undertaken by the petitioner with the respondent since 2011 and onwards on a continuous basis. During the course said transactions, large quantities of raw material was supplied by the petitioner to the respondent to be used for the manufacture of the air coolers. However, it transpired that the final products supplied back by the respondent to the petitioner were far less in number / quantity vis-a-vis the large quantities of raw material supplied from time to time. Upon reconciliation of the accounts from time to time, it came to the notice of the petitioner that the air cooler / goods supplied by the respondent were far less than the raw material supplied by the petitioner and the payment made from time to time. As per accounts maintained by the petitioner in due course of its business, the respondent is required to pay an amount of Rs. 58,47,282/- to the petitioner as on 31.03.2015. In this regard, since disputes had arisen between the petitioner and the respondent in relation to reconciliation of accounts arising out of and relating to the Master Purchase Agreements, the petitioner, vide legal notice ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 5 of 50 dated 30th December, 2014 and 5th January,2015 addressed to the respondent invoked the arbitration clause, in accordance with clause 16 of the Master Purchase Agreements. When the respondent disputed the appointment of the Arbitrator, the petitioner approached Hon'ble Delhi High Court vide Arb. P No. 602 of 2015 titled as "Group SEB India Pvt Itd Vs M/S Vimal Moulders (India) Pvt Ltd". The said petition was allowed. The petitioner filed Statement of Claim and alleged that as per the Statement of Account maintained by the petitioner, in due course of its business, the respondent owes an amount of Rs. 58,47,282/- to the petitioner as on 31.03.2015. Apart from claiming the amount of Rs. 58,47,282/-, the petitioner has also claimed interest @ 18% per annum w.e.f. 31.03.2015, pendente lite & future interest along with its costs.
e) Respondent has filed the reply denying the averments made by the petitioner and has contended that the claims asserted in the claim petition are artificially inflated. The petitioner never raised these issues, at any point of time, prior to commencement of these proceedings. The petitioner in the first notice dated 30.12.2014 sent through its lawyer demanded a sum of Rs. 1,13,76,0041- as principal outstanding amount due from the respondent, whereas, in Statement of Claim, the petitioner has been claiming an outstanding amount of Rs.58,47,282/- and the claim is ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 6 of 50 without any documents and valid entries of account as per rules and norms of accounting pattern. The petitioner is using illegal and unfair tactics to extort money from the respondent. The petitioner is guilty of suppression of material facts and have made the wrong entries as against the accounting laws and norms to raise the alleged claim against the respondent. The petitioner, as against the accounting principles, twice debited the amount to the respondent, meaning thereby the petitioner is claiming one amount twice from the respondent. It is submitted that the petitioner is its books of account maintained in regular course of business debited the amount of Rs. 4,18,760/ vide entry dated 30-04- 2011 with the narration that "Being material directly delivered from JSH Packaging to Vimal Moulders India Pvt. Limited..'' and also debited the amount of Rs. 3,24,066/-vide entry, dated 30-04-2011 with the narration that "Being material directly delivered from JSH. Packaging to Vimal Moulders India Pvt. Limited." and whereas again the petitioner raised a debit note of Rs. 1,18,28,640/-, which amount also. include the earlier mentioned debited amount of Rs. 7,42,826/-. Thus by making two entries of the same debit note, the petitioner has inflated claimed wrongly and tried to cause wrongful gain to itself and wrongful loss to the respondent. Similarly, the petitioner has wrongly claimed the amount of Rs. 13,500/- vide entry dated 29.04.2011 and Rs. 24,000/- and Rs. 22,000/- vide entry dated 30.04.2011, ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 7 of 50 12.05.2011 respectively whereas, there is no Debit Note / bill given to the respondent. Various entries are not supported by the any bills of the vendors showing the amount due to the respondent.
f) The respondent further in the reply contended that the petitioner has claimed an amount of Rs. 1,18,28,640/- vide entry dated 31.10.2011 as payment to the third party on behalf of the respondent. The petitioner is not entitled to get the said amount from the respondent. The entries are not supported by any bills of the vendor showing the amount so due to them. The petitioner arbitrarily on its own, without getting any approval, from the respondent and even without informing the respondent, made payment to the third party of the aforesaid sum, as per the accounts of the respondent, the total liability of the respondent towards the said two third party vendors is only to the tune of Rs. 1,10,10,016/- (payment: due to Condor Power Rs.1,02,67,170/- and Payment due to JSH Packaging Rs. 7,42,846/- only). As a matter of fact, the petitioner was unable to show from the accounts or from the pleadings of the instant case that he has made a total. payment of Rs 1.18,28,640/- to the said third party vendor. There is no corresponding bank transaction shown by the petitioner to support their claim to have made the third party averment on behalf of the respondent. The entire claim of the claimant is nothing but an eye wash.
ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 8 of 50g) The respondent further submitted that on the one hand the petitioner is claiming Rs.1,02,67,170/- from the respondent which includes the excise duty of Rs. 10,63,328/-, on the other hand the petitioner is separately claiming the said amount of Rs. 10,68,328/- on account of MODVAT / EXCISE DUTY' vide entry dated 30.11.2011. Further, it is submitted that the petitioner has claimed Rs. 8,92,560/- as debit note on account of rate, difference of spare parts supplied by petitioner to the respondent. The entire debit note is baseless and inflated. It is further submitted that the petitioner has claimed on account of shortages goods returned i.e. spare parts etc. at the time of closing of business dealings between the parties and has wrongly debited an amount of Rs. 16,81,297/- vide various entries dated 29.07.2013, this claim is wrong. It is submitted that the petitioner ought to have informed the respondent of the shortage of goods received back within a reasonable time frame which the petitioner had failed to inform about the same to the respondent. Further, as the respondent had returned the material on ex-works basis which now the petitioner is prohibited from claiming the same from the respondent that too after a period of 3 years. It is further submitted that the respondent has always supplied the exact quantity of air cooler/goods as per the purchase order. The final raw material left with respondent was return back to the ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 9 of 50 petitioner. The respondent denied that as per accounts maintained by the petitioner in due course of its business, the respondent is required to pay an amount of Rs. 58,47,282/- to the petitoner as on 31.03.2015. On the contrary, it was submitted that the petitioner is liable to pay a sum of Rs. 16,00,000/- to the respondent as per the accounts maintained, by the respondent in books of account maintained in during course of business. The respondent asserted that a joint meeting was held on 31.01.2015 and after reconciliation reconciliation of the accounts, a sum of Rs. 24,36,168/- was found to be due from the petitioner and the respondent is not liable to pay any amount to the petitioner. Besides that, the petitioner is under obligation to issue CST Forms for the relevant period from year 2010-2011 and 2013-2014 to the respondent. It was also submitted that the petitioner needs to file entire record of account since beginning to reconcile all the entries. On the strength of aforesaid grounds, the respondent sought dismissal of the claim.
h) The Ld. Arbitrator after considering the pleadings, evidence and material available on record, finally passed the impugned award. The following conclusion was passed regarding the claim based and impugned award was granted as under:
Conclusion
34.Thus to summarize, the following entries in the statement of account filed by the claimant being CW-2/2 stand rejected:-ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 10 of 50
Details of Rejected Entries Amount Entry dated 30.11.2011 towards MODVAT / Excise Rs. 10,68,328/-
Duty at page 67 of CW-2/2.
Entry dated 28.01.2012 at page 69 of CW-2/2 Rs. 16,07,470/- Entries dated 29.07.2013 and 31.12.2013 on account of Rs. 16,81,297/- Shortages at pages 106-108 of CW-2/2 Entry dated 30.11.2011 at page 68 of CW-2/2 Rs. 8,92,560/- Entry dated 29.07.2013 at page 107 of CW-2/2 Rs. 99,384/- (Rs. 4,20,783/- minus Rs. 3,21,339/-) Entry dated 12.05.2011 at page 59 of CW-2/2 Rs. 2,898/- Entry dated 30.04.2011 at page 58 of CW-2/2 Rs. 2,905/- Entry dated 12.05.2011 at page 59 of CW-2/2 Rs. 53,842/-
32. Entries dated 30.11.2011 at page 68 of CW-2/2 Rs. 31,920/-
and Rs. 28,664.75 Total amount of rejected entries 54,69,268.75
35. Thus, the claimant is entitled to recover from the respondent the following amounts:-
Total Claim as per statement of claim Rs. 58,47,282/-
Amount of rejected entries Rs. 54,69,268.75
Claim Allowed Rs. 3,78,013.25
Or say
Rs. 3,78,013/-
36. Since, as per the statement of account filed by the claimant, the said amount became due and payable by the respondent to the Claimant on 31.03.2005, the claimant is entitled to simple interest on the said amount of Rs. 3,78,013/- @ 12% per annum from the said date till the date of the Award. In case, the respondent fails to pay the said amount within a period of two months from the date of the Award, the respondent shall be liable to pay simple interest on the awarded amount @ 15% per annum till realization.
3. Aggrieved by the impugned award, Ld. Counsel ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 11 of 50 appearing on behalf of petitioner submitted that impugned award qua rejecting the claim for entries amounting to Rs. 54,69,268.75 passed by Ld. Arbitrator is perverse, not reasonable and against the fundamental principles of public policy. Ld. Arbitrator failed to consider that the claim filed by the petitioner was solely based upon the Statement of Account. Contract entered between the parties and the relevant documents related thereto were admitted to the respondent, which have been ignored by Ld. Arbitrator in reaching a perverse conclusion that the case of petitioner was based upon Statement on Account only. The petitioner has filed all relevant evidence on record in respect of all entries, which are wrongly rejected by the Ld. Arbitrator. Ld. Arbitrator has ignored the vital evidence available on record.
3.1 Ld. Counsel submitted that the manner and approach of Ld. Arbitrator is contrary to the well settled principles of rules governing adjudication of the Civil Suit including the rules of evidence, burden of proof and proving disputed question of facts.
It is contended that Ld. Arbitrator failed to consider basic rules of evidence that only the disputed questions are required to be proved in accordance with law. In a running account between a party, for transactions running over several years, the petitioner has filed the Statement of Account, along with details of outsourcing amount on the account of continuous running account, including purported disputed entries by the respondent herein and the requisite pleadings as to why the disputed entries ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 12 of 50 by the respondent cannot be sustained. The respondent, in its reply to the Statement of Claims filed before the Ld. Arbitrator, admitted the fact that parties are maintaining running accounts over many years and confined the disputes to a few entries forming subject matter of dispute. The respondent, in its pleading, no where disputed any other entries in the Statement of Account. The petitioner was required to prove the disputed entries and no further. It cannot be burdened upon the petitioner to go on and prove the entire transaction, including each and every entry by leading positive evidence before the Arbitrator, when those entries are not even disputed in the pleadings filed by the respondent. It is submitted that in a dispute relating to running account and reconsideration of account, if the disputed entries are identifiable by the pleadings of the parties, the petitioner is not required to discharge an additional burden of proving even those entries, which are not disputed by other parties. While referring to Para 19 of the impugned award, it is submitted that Ld. Arbitrator wrongly come to the conclusion that "the respondent has also contended that the petitioner (claimant therein) has not given bifurcation of amount of claim Rs. 58,47,282/-. The said contention is totally misconceived as the claim is based on the Statement of Account". Ld. Counsel submitted that the case of the petitioner is not solely based upon Statement of Account, but the said entries proved on account of the fact that Statement of Account placed on record in respect of said entries was not disputed, either in the pleadings filed by the respondent, nor in the affidavit by way of evidence ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 13 of 50 filed by respondent on record.
3.2 Ld. Counsel for petitioner further submitted that Section 19 (1) of the Act provides that Arbitral Tribunal shall not be bound by the Code of Civil Procedure, 1908 as well as Indian Evidence Act, 1872, so the provisions of Section 34 of Indian Evidence Act, 1872 are not applicable to the present arbitration proceedings.
3.3 Ld. Counsel for petitioner relied upon judgment in the case of Ramgobind Prasad v. Gulab Chand, AIR 1941 Pat 430 (P), the relevant paragraph is reproduced as under:
"15. 'What is necessary to be seen in each case is whether besides the entries in the account books there is any evidence to prove that the transactions referred to in these entries actually took place. Where the transactions sued upon are on numerous and extend over some length of time, it is hardly reasonable to expect independent evidence to be given to prove each & every particular transaction.
16. In such cases, the genuineness of account books, if they are regularly kept in the course of business, will be the determining factor. But mere proof of correctness of the entries in the books will not be enough. There must be some evidence to corroborate these entries. Such corroboration will be best afforded by the evidence of the person who wrote the account books and in whose presence the transactions toot place. He need not prove each & every particular transaction. If he proves the entries written by him and states that the transactions referred to in these entries actually took place in his presence or to his knowledge, that would be enough. Where, however, the dispute between the parties confine to some particular items only specific evidence may be available and should be insisted upon to prove these transactions."ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 14 of 50
3.4 Ld. Counsel submitted that the Ld. Arbitrator has failed to consider that petitioner maintains the account of respondent in its computers by using accounting software Tally, in due course of business from time to time. Statement of Account filed on record was a true copy of statement as maintained by the petitioner and Statement of Accounts was duly proved by witness of the petitioner.
3.5 Ld. Counsel further submitted that it is a settled principle of law that evidence is required to be adduced only on those issues, which are asserted by one of the parties and denied by the other. No evidence is required to be adduced on the facts, which are not denied by the parties. It is urged that it is admitted case of the respondent that accounts were reconciled from time to time and lastly on 31.01.2015. Pertinently, the respondent after reconciliation of entries raised a dispute on certain entries and no dispute was raised on other entries. Ld. Arbitrator has failed to consider that against a total amount as claimed by the petitioner, the respondent disputed the entry for Rs. 45,04,156/- only. No entries for the balance of an amount of Rs. 13,43,126/- were disputed by the respondent. As such, without even going into the disputed entries, Ld. Arbitrator ought to have passed an award of at least aforesaid amount along with interest. Ld. Counsel for the petitioner further relied upon judgment Gian Chand & Brothers vs Rattan Lal @ Rattan Singh, CIVIL APPEAL NO. 130 OF 2013 decided on 8 January, 2013, Hira Meher And Anr. vs Birbal ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 15 of 50 Prasad Agarwala decided on 23 April, 1957, Chemical Systems Technologies (India) Pvt Ltd. vs Simbhaoli Sugar Mills Ltd. CS(OS) 1480/2009 decided on 2 March, 2015.
3.6 Ld. Counsel for the petitioner further submitted that in the Purchase Order, there was a specific contract entered into between the parties that:
"Excise duty:- Extra as actual at the time of dispatch of goods. However, you will charge us excise duty from us after taking into account CENVAT claimed by you for supplies received directly by you on our behalf".
3.7 While referring above, ld. Counsel submitted that the terms of contract are absolutely clear and unambiguous. For payment of excise duty, the respondent is responsible to account for the CENVAT claimed by him for supplies received directly by him on behalf of petitioner. The Ld. Arbitrator failed to consider the aforesaid terms stipulated in Purchase Order and that the respondent obtained the benefit of CENVAT amounting to Rs. 10,68,328/-, however, the credit of same was not given to the petitioner. In view of the express terms of the contract, the benefit of aforesaid amount ought to have been given to the petitioner. It is further submitted that Ld. Arbitral Tribunal failed to consider that CENVAT paid by the respondent in the said invoice for an amount of Rs. 1,02,67,170/- was duly credited to the supplier of material i.e. Condor Power Products Ltd. The Ld. Arbitrator has wrongly interpreted the aforesaid clause in the Purchase Order toward the benefit of CENVAT and the finding of Ld. Arbitrator ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 16 of 50 for rejecting the said entry for Rs. 10,68,328/- dated 30.11.2011 is perverse and against the fundamental policy of Indian Law. Ld. Counsel for petitioner relied upon judgments titled Security Printing And Minting Corporation of India Limited & Ors vs Gandhi Industrial Corporation, Civil Appeal No. 4857 of 2007 on 12 October, 2007 and Mahanagar Telephone Nigam Ltd vs Haryana Telecom Ltd, O.M.P. 1113/2012 on 14 March, 2019.
3.8 Ld. Counsel next submitted that the Ld. Arbitrator has failed to consider that the debit entries of Rs. 16,07,470/- dated 28.01.2012 and for Rs. 3,21,339/- dated 29.07.2013 were neither disputed by the respondent in reply to the Statement of Claim nor in the affidavit by way of evidence filed by the respondent. The respondent, for the first time, during the cross examination of CW2 asked questions about the said entries to the witness. The aforesaid two entries were never disputed and as such, it is not permissible for the respondent to have disputed about the aforesaid two entries. The petitioner cannot be put to surprise by putting the question and raising the dispute about the said entries. Ld. Arbitrator has failed to consider that there had been a reconciliation of accounts between the parties on 30.01.2015. The findings recorded by Ld. Arbitrator that petitioner ought to have taken steps to produce the documents relating to the entry in question or to have confronted the respondent's witness on this issue are completely perverse. Once, the said entries were not disputed in pleadings, there was no occasion for the petitioner ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 17 of 50 to produce document or evidence to prove the aforesaid entries, which was undisputed by the respondent. Ld. Counsel further submitted that the Ld. Arbitrator has failed to consider that there was no counter claim or relief of set off prayed by the respondent. The findings arrived at by the Ld. Sole Arbitrator in Para 25.3 of the impugned award by allowing deductions from the claimed amount by the petitioner filing that against a particular invoice of Rs. 4,20,783/-, only an amount of Rs. 3,21,339/- was paid, resulting into shortfall of Rs. 99,384/- is perverse.
3.9 Ld. Counsel for petitioner further submitted that the Ld. Arbitrator has failed to consider that account was stated over to the respondent and debit entry for Rs. 8,92,560/- dated 30.11.2011 was duly explained to the respondent. Respondent maintained the account in its books in respect of the said entry and in evidence filed the Statement of Account for Rs. 8,92,560/- on record along with its reply and stated in affidavit evidence that the said account has been duly maintained in due course of its business. Ld. Arbitrator failed to consider that the respondent deliberately vide exhibiting its document in evidence avoided to exhibit said portion of Statement of Account. The malafide of the respondent has been apparent from this very fact that it was its document, which was filed by the respondent on record in evidence, so the document is to be read against the respondent and in favour of the petitioner. Merely making a bald statement and denying the said entries in the reply by the respondent that the said ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 18 of 50 entry has been inflated, is not sufficient, more particularly, in view of the fact that respondent itself filed the said Statement of Accounts and relied upon the same in its affidavit. The Ld. Arbitrator failed to consider that mere making a bald statement by the respondent without giving any details and any proof is not sufficient to discharge the onus as the onus shifts upon the respondent that how and for what amount the said entry is inflated.
4. Ld. Counsel appearing on behalf of respondent per contra, vehemently opposed the instant petition and the contentions raised in the pleadings. It is submitted that the petitioner is attempting to re-agitate the contentions raised before Ld. Arbitral Tribunal. While hearing a petition under Section 34 of the Act, the Court is not an Appellate Court and cannot re- appreciate the evidence. The jurisdiction of the Court in Section 34 of the Act is limited the conclusion drawn by Ld. Arbitral Tribunal is fair and reasonable. It is further submitted that Ld. Arbitrator after evaluating each and every entry on strict accounting standard has come to conclusion as mentioned under the heading conclusion. Further, it is for the petitioner to prove its case and has to elaborate the claim based on entries and documents. The petitioner has simplicitor stated in the claim petition that as per books of account, the respondent is liable to pay Rs. 58,47,282/- but failed to show the entries on which, the claim is based. It is the prime duty of the petitioner to prove its ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 19 of 50 case beyond doubt. Mentioning of certain entries as disputed does not mean that all other entires are accepted by the respondent. It is further submitted on behalf of respondent that cross examination is the right of the parties doing it and it can go to any extent to dig the truth. The petitioner cannot object to confine the cross examination. The law is well settled that cross examination can be any extent but relevant to the subject.
4.1 It is further submitted on behalf of respondent that petitioner's claim is of Rs. 58,47,282/- and if the respondent has denied the entries to the extent of Rs. 45,04,156/-, that does not mean that rest of the amount is admitted as its liability, rather, onus to prove its entire claim rest on the petitioner and it is the petitioner, who has to prove its case beyond doubt and not the respondent. It is further submitted that at the first instance the petitioner did not file document in support of this claim and when the respondent filed its defence, the respondent sought an opportunity to file additional document. The opportunity was given to the petitioner to file all the relevant documents, thereafter, when the witness from the side of petitioner was asked certain question about the transaction and asked to show from record the relevant documents in support thereto, the petitioner sought one more opportunity to file certain document, the petitioner was given ample opportunities to file the documents in support of its claim but even after availing the opportunities, the petitioner failed to prove its claim beyond doubt.
ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 20 of 504.2 It is further submitted by Ld. Counsel on behalf of respondent that while deciding entry dated 29.07.2013, the witness CW2 in his cross examination has categorically admitted that there was a totaling error while calculating the exact amount. The witness was confronted with relevant invoice no. 16, it was admitted by the witness that invoice was originally was Rs. 4,20,783/- and has arrived at figure of Rs. 3,21,339/- on their own.
4.3 It is further submitted that the ld. Arbitrator has rightly come to the conclusion that petitioner is not entitled to claim CENVAT from the respondent. The petitioner is not entitled to claim excise duty benefit from the respondent but however, without prejudice submitted that on one stand, the petitioner is claiming Rs. 1,02,67,170/- from respondent, which includes excise duty of Rs. 10,68,328/-. On the other hand, the petitioner is separately again claiming the said amount while entry dated 30.11.2011. Even otherwise, the petitioner cannot claim the MODVAT from the respondent because the basic value of good was Rs. 91,98,842/- on which, the CENVAT duty was Rs. 10,68,328/-, thus making total of Rs. 1,02,67,170/-. The petitioner debited the aforesaid amount, vide entry dated 30.10.2011. Again vide entry dated 31.03.2011, the petitioner debited the aforesaid amount on account of excise duty to the respondent. Thus, by making the entry dated 30.11.2011, the petitioner is trying to make ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 21 of 50 profit out of the CENVAT by debiting twice the same amount of CENVAT, which is not allowed as per CENVAT Rules. Hence, Ld. Counsel submitted that impugned award is neither perverse nor against the fundamental policy of law or the public policy of the country. The impugned award passed by the Ld. Arbitrator was both reasoned and speaking and was passed by Ld. Arbitrator after taking into consideration the respective contentions and stands of the parties and after referring to the documents relied upon by both the parties. He submitted that the petitioner wants this Court to re-appreciate the evidence and arrived at its own conclusion, other than arrived at by Ld. Arbitrator, which is not permissible in law. Ld. Counsel submitted that Ld. Arbitrator decided the claim of the petitioner in terms of powers vested in him. Accordingly, Ld. Counsel for respondent prayed that as the petition is without any merit, the same be dismissed.
5. I have heard arguments advanced by Ld. Counsel for the parties and gone through the arbitral record.
6. Before adverting to the contentions of the parties, it is essential to refer to the law laid down by Hon'ble Supreme Court, the jurisdiction conferred on the Courts under Section 34 of the Act. The petitioner before this Court has invoked Section 34 of the Act to challenge the impugned award. The relevant portion of the said provision is reproduced hereunder:
"34.Application for setting aside arbitral award-
(1)Recourse to a court against an arbitral award may be made ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 22 of 50 only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3). (2)An arbitral award may be set aside by the court only if-
(a) the party making the application furnishes proof that-
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation- I For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India only.
i) if the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section
81."
ii) It is in contravention with the fundamental policy of Indian law;
iii) It is in conflict with the most basic notions of morality or ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 23 of 50 justice.
Explanation-II- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
[2 (A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award:
[Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence].
6.1 The contents of the provision of Section 34 of the Act clearly show that the intention of the legislature by enacting the Act as well as while carrying out amendment to the same was that there should be limited intervention of the Courts in arbitral proceedings, especially after the proceedings have been concluded and award thereto have been made by the Tribunal. Any claim brought forth a Court of law under Section 34 of the Act shall be in accordance with the principles of the provision laid down under the Act.
6.2 Normally, the general principles are that the decision of the Arbitrator unless there is an error apparent on the face of the award which makes it unsustainable, is not to be set aside even if the court as a court of law would come to a different conclusion on the same facts. The court cannot reappraise the evidence and it is not open to the court to sit in appeal over the conclusion of the arbitrator. It is not open to the court to set aside a finding of fact arrived at by the arbitrator and only grounds on which the award ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 24 of 50 can be challenged are those mentioned in the Act. Where the arbitrator assigns cogent grounds and sufficient reasons and no error of law or misconduct is cited, the award will not call for interference by the court in the exercise of the power vested in it.
6.3 In the case of Associate Builders v/s Delhi Development Authority, (2015) 3 SCC 49, it was held that interference with an arbitral award is permissible only when the findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the Court is shocked or when illegality is not trivial but goes to the root of the matter. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbitral award.
Patent illegality must go to the root of the matter and cannot be of trivial nature.
6.4 In Ssangyong Engineering & Construction Co. Ltd. vs. National Highways Authority of India Ltd. 2019 SCC OnLine SC 677, the Hon'ble Supreme Court has held that under Section 34 of the Act, a decision which is perverse while no longer being a ground for challenge under public policy of India but would certainly amount to a patent illegality appearing on the face of the award. A finding based on the documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties and therefore would also have to be characterized as perverse.
ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 25 of 506.5 The Hon'ble Apex Court in Union of India Vs. Varindera Construction Limited, (2018) 7 SCC 794, while discussing the object of arbitration observed as under:
12. The primary object of the arbitration is to reach a final disposition in a speedy, effective, inexpensive and expeditious manner. In order to regulate the law regarding arbitration, legislature came up with legislation which is known as Arbitration and Conciliation Act, 1996. In order to make arbitration process more effective, legislature restricted the role of courts in case where matter is subject to the arbitration. Section 5 of the Act specifically restricted the interference of the courts to some extent. In other words, it is only in exceptional circumstances, as provided by this Act, the court is entitled to intervene in the dispute which is subject matter of arbitration. Such intervention may be before, at or after the arbitration proceeding, as the case may be. In short, court shall not intervene with the subject matter of arbitration unless injustice is caused to either of the parties.
6.6 In Anant Brothers (P) Ltd Vs. Union of India & Ors, (2014) 9 SCC 212, the Hon'ble Apex Court on the question of a reasoned and speaking award and finding of ld. Arbitrator observed as under:
7. Before we examine whether the expression 'finding' appearing in Clause 70 would include reasons in support of the conclusion drawn by the arbitrator, we consider it appropriate to refer to the Constitution Bench decision of this Court in Raipur Development Authority v. M/s Chokhamal Contractors etc (1989) 2 SCC 721 where this Court was examining whether an award without giving reasons can be remitted or set aside by the Court in the absence of any stipulation in the arbitral agreement obliging the arbitrator to record his reasons. Answering the question in the negative, this Court held that a non-speaking award cannot be set aside except in cases where the parties stipulate that the arbitrator shall furnish reasons for his award. This Court held :
"33...... When the parties to the dispute insist upon reasons being given, the arbitrator is, as already observed earlier, under an obligation to give reasons. But there may ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 26 of 50 be many arbitrations in which parties to the dispute may not relish the disclosure of the reasons for the awards. In the circumstances and particularly having regard to the various reasons given by the Indian Law Commission for not recommending to the Government to introduce an amendment in the Act requiring the arbitrators to give reasons for their awards we feel that it may not be appropriate to take the view that all awards which do not contain reasons should either be remitted or set aside....."
8. Having said that, this Court declared that Government and their instrumentalities should - as a matter of policy and public interest - if not as a compulsion of law, ensure that whenever they enter into an agreement for resolution of disputes by way of private arbitrations, the requirement of speaking awards is expressly stipulated and ensured. Any laxity in that behalf might lend itself and perhaps justify the legitimate criticism that government failed to provide against possible prejudice to public interest. The following passage is in this regard apposite:
37. "There is, however, one aspect of non-speaking awards in non-statutory arbitrations to which Government and governmental authorities are parties that compel attention.
The trappings of a body which discharges judicial functions and is required to act in accordance with law with their concomitant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter, as we have noticed earlier, is not supposed to exert the State's sovereign judicial power. But arbitral awards in [pic]disputes to which the State and its instrumentalities are parties affect public interest and the matter of the manner in which Government and its instrumentalities allow their interest to be affected by such arbitral adjudications involve larger questions of policy and public interest. Government and its instrumentalities cannot simply allow large financial interests of the State to be prejudicially affected by non-reviewable -- except in the limited way allowed by the statute -- non-speaking arbitral awards. Indeed, this branch of the system of dispute resolution has, of late, acquired a certain degree of notoriety by the manner in which in many cases the financial interests of Government have come to suffer by awards which have raised eyebrows by doubts as to their rectitude and propriety. It will not be justifiable for Governments or their instrumentalities to enter into arbitration agreements which do not expressly stipulate the ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 27 of 50 rendering of reasoned and speaking awards. Governments and their instrumentalities should, as a matter of policy and public interest -- if not as a compulsion of law -- ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitrations, the requirement of speaking awards is expressly stipulated and ensured. It is for Governments and their instrumentalities to ensure in future this requirement as a matter of policy in the larger public interest. Any lapse in that behalf might lend itself to and perhaps justify, the legitimate criticism that Government failed to provide against possible prejudice to public interest."
9. Reference may also be made to The Arbitration and Conciliation Act, 1996 which has repealed the Arbitration Act of 1940 and which seeks to achieve the twin objectives of obliging the Arbitral Tribunal to give reasons for its arbitral award and reducing the supervisory role of Courts in arbitration proceedings. Section 31(3) of the said Act obliges the arbitral tribunal to state the reasons upon which it is based unless the parties have agreed that no reasons be given or the arbitral award is based on consent of the parties. There is, therefore, a paradigm shift in the legal position under the new Act which prescribes a uniform requirement for the arbitrators to give reasons except in the two situations mentioned above. The change in the legal approach towards arbitration as an Alternative Dispute Resolution Mechanism is perceptible both in regard to the requirement of giving reasons and the scope of interference by the Court with arbitral awards. While in regard to requirement of giving reasons the law has brought in dimensions not found under the old Act, the scope of interference appears to be shrinking in its amplitude, no matter judicial pronouncements at time appear to be heading towards a more expansive approach, that may appear to some to be opening up areas for judicial review on newer grounds falling under the caption "Public Policy" appearing in Section 34 of the Act. We are referring to these developments for it is one of the well known canons of interpretation of statues that when an earlier enactment is truly ambiguous in that it is equally open to diverse meanings, the later enactment may in certain circumstances serve as the parliamentary exposition of the former. (See: Ram Kishan Ram Nath v. Janpad Sabha AIR 1962 SC 1073 and Ghanshyam Dass v.
ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 28 of 50Dominion of India (1984) 3 SCC 46 at 58).
xxx xxx xxx
14. It is trite that a finding can be both; a finding of fact or a finding of law. It may even be a finding on a mixed question of law and fact. In the case of a finding on a legal issue the Arbitrator may on facts that are proved or admitted explore his options and lay bare the process by which he arrives at any such finding. It is only when the conclusion is supported by reasons on which it is based that one can logically describe the process as tantamount to recording a finding. It is immaterial whether the reasons given in support of the conclusion are sound or erroneous. That is because a conclusion supported by reasons would constitute a "finding" no matter the conclusion or the reasons in support of the same may themselves be erroneous on facts or in law. It may then be an erroneous finding but it would nonetheless be a finding. What is important is that a finding presupposes application of mind. Application of mind is best demonstrated by disclosure of the mind; mind in turn is best disclosed by recording reasons. That is the soul of every adjudicatory process which affects the rights of the parties. This is true also in the case of a finding of fact where too the process of reasoning must be disclosed in order that it is accepted as a finding in the sense the expression is used in Clause 70. 6.7 It is well settled that while considering a challenge to an arbitral award, the Court need not examine the validity of the findings or the reasoning behind the findings given by the Arbitrator. It has also been reiterated that while adjudicating a challenge under Section 34 of the Act, the Courts must limit themselves to examining the award itself and not the facts of the case. A Court shall not conduct a roving inquiry into the facts and the evidence of the matter and neither shall the Court sit an appeal against the award of Arbitrator.
ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 29 of 506.8 In case of Jharkhand Vs. HSS Integrated DSN, (2019) 9 SCC 798, the Hon'ble Court observed that even when there are more than one plausible view and the Arbitrator, in his wisdom, adopt one of them, having given reasons for findings, the Courts shall interfere this such an award. It was observed as under:
6.2 In the case of Datar Switchgear Ltd. (supra), this Court has observed and held that the Arbitral Tribunal is the master of evidence and the findings of fact which are arrived at by the arbitrators on the basis of the evidence on record are not to be scrutinized as if the Court was sitting in appeal. In para 51 of the judgment, it is observed and held as under:
51. Categorical findings are arrived at by the Arbitral Tribunal to the effect that insofar as Respondent 2 is concerned, it was always ready and willing to perform its contractual obligations, but was prevented by the appellant from such performance.
6.9 The Hon'ble Apex Court in ONGC Limited Vs. Western Geco International, (2014) 9 SCC 260 elaborated upon the concept of fundamental policy of Indian law at the implication of its contravention under Section 34 of the Act, the relevant portion of judgment is reproduced hereunder:
35. What then would constitute the 'Fundamental policy of Indian Law' is the question. The decision in Saw Pipes Ltd. (supra) does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression "Fundamental Policy of Indian Law", we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the Fundamental Policy of Indian law. The first and foremost is the principle that in every determination whether by a Court ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 30 of 50 or other authority that affects the rights of a citizen or leads to any civil consequences, the Court or authority concerned is bound to adopt what is in legal parlance called a 'judicial approach' in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the Court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of Judicial approach in judicial and quasi judicial determination lies in the fact 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 bonafide 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 that sense acts as a check against flaws and faults that can render the decision of a Court, Tribunal or Authority vulnerable to challenge.
36. In Ridge v. Baldwin [1963 2 All ER 66], the House of Lords was considering the question whether a Watch Committee in exercising its authority under Section 191 of the Municipal Corporations Act, 1882 was required to act judicially. The majority decision was that it had to act judicially and since the order of dismissal was passed without furnishing to the appellant a specific charge, it was a nullity. Dealing with the appellant's contention that the Watch Committee had to act judicially, Lord Reid relied upon the following observations made by Atkin L.J. in [1924] 1 KB at pp. 206,207:
"Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."
37. The view taken by Lord Reid was relied upon by a Constitution Bench of this Court in A.C. Companies Ltd Vs. P.N. Sharma and Anr, (AIR 1965 SC 1595) where Gajendragadkar, C.J. speaking for the Court observed:
"In other words, according to Lord Reid's judgment, the necessity to follow judicial procedure and observe the principles of natural justice, flows from the nature of the ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 31 of 50 decision which the watch committee had been authorised to reach under S.191(4). It would thus be seen that the area where the principles of natural justice have to be followed and judicial approach has to be adopted, has become wider and consequently, the horizon of writ jurisdiction has been extended in a corresponding measure. In dealing with questions as to whether any impugned orders could be revised under A. 226 of our Constitution, the test prescribed by Lord Reid in this judgment may afford considerable assistance."
38. Equally important and indeed fundamental to the policy of Indian law is the principle that a Court and so also a quasi- judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated 'audi alteram partem' rule one of the facets of the principles of natural justice is that the Court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the Court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian Law.
39. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a Court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury's principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a Court of law often in writ jurisdiction of the Superior courts but no less in statutory processes where ever the same are available.
40. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 32 of 50 miscarriage of justice, the adjudication even when made by an arbitral tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest.
6.10 In the case of MMTC Limited Vs. Vedenta Limited, (2019) 4 SCC 163, the Hon'ble Apex Court held that position is well settled by law that the Court does not sit in appeal over the arbitral award and may interfere on merits on the limited grounds provided under Section 34 (2) (b) (ii) of the Act i.e. if award is against the public policy of India. Hon'ble Apex Court observed that as per legal position clarify through decisions of Hon'ble Apex Court prior to the amendments to the Act, 1996 in 2015, a violation of Indian Public Policy, in turn, include a violation of the Fundamental Policy of Indian Law, a violation of interest of Indian, conflict with justice or morality and the existence of patent illegality in the arbitral award. Hon'ble Apex Court further held that additionally, the concept of the 'Fundamental Policy of Indian Law' would cover compliance with statute and judicial precedence, adopting a judicial approach, compliance with principles of natural justice, and Wednesbury reasonableness. Hon'ble Court further observed that 'patent illegality' has been held to mean contravention of the substantive law of India, contravention of the 1996, Act and the contravention of the terms of the contract.
6.11 In case of Dyna Technologies Pvt Ltd Vs. Compton Greaves Limited, (2019) 20 SCC 1, Hon'ble Apex Court in Para ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 33 of 50 24, thereof has been pleased to observe as under:
24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated.
6.12 In Dyna Technologies Pvt Ltd (supra), Hon'ble Apex Court has also observed that the Court should not interfere with an award merely because an alternate view on facts and interpretation of contract exists and the Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal, even if, the reasoning provided in the award is implied unless such award portrayed perversity unpardonable under Section 34 of the Act.
6.13 In case of Parse Kente Collieries Ltd Vs. Rajasthan Rajya Vidut Utpadan Nigam Ltd, (2019) 7 SCC 236, Hon'ble Apex Court has reiterated that a possible view by the Arbitrator on facts has necessarily to pass muster as Arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Hon'ble Court has also observed that an award based on little evidence or no evidence, ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 34 of 50 which does not measure up the quality to the trained legal mind would be held to be invalid on this Court.
6.14 In case of K Sugarmar & Anr v/s Hindustan Petroleum Corporation Limited & Anr (2020) 12 SCC 539, Hon'ble Court observed that the contours of powers of the court under Section 34 of the Act are too well established to require any reiteration and even a bare reading of Section 34 of the Act indicates the highly constricted power of the Civil Court to interfere with an arbitral award. It is further held that reason for this is obvious as when parties have chosen to avail an alternative mechanism for dispute resolution, then they must be left to reconcile themselves to the wisdom of the decision of arbitrator and role of the court should be restricted to bare minimum.
6.15 Hon'ble Apex Court in case of UHM Power Company Limited v/s State of Himachal Pradesh 2022 (4) SCC 116 reiterates that under Section 34 of the Act, the court cannot re-
appreciate the findings returned by Ld. Arbitral Tribunal and take up different view in respect of interpretation of relevant clauses of the agreement between the parties. The Court cannot act as a Court of appeal and the power confers under Section 34 of the Act are fairly limited.
6.16 The law is well settled by Hon'ble Higher Courts that the scope of interference is limited and narrow. The Court cannot ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 35 of 50 sit in appeal while adjudicating the challenges to an award, which is passed by an Arbitrator, who is master of evidence, after consideration of facts, circumstances, evidence and material before him.
7. Adverting to the facts of the case, the facts which led to the filing of the claim before the Ld. Arbitrator that the petitioner entered into Master Purchase Agreements dated 05.01.2011 and 23.03.2011 with the respondent for purchase of air coolers as per the specifications, designs and quality parameters stipulated by the petitioner in accordance with the terms and conditions set-forth in the above agreements and the purchase orders to be issued in furtherence thereof. In accordance with above agreements, various transactions were undertaken by petitioner with the respondent since the year 2011 and onwards on a continuous basis. In due course of time, large quantities of raw material was supplied by the petitioner to the respondent to be used for manufacturing of air coolers. Since disputes has arisen between the petitioner and the respondent in relation to reconciliation of accounts and relating to Master Purchase Agreements, the petitioner filed the Statement of Claim and raised claims therein which reads as under:-
Claim No.1- The applicant company is entitled to receive an amount of Rs. 58,47,282/- from the respondent company, as evidenced by the Statement of Account (ledger account of M/s Vimal Moulders) duly maintained by the applicant company in its due course of business.ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 36 of 50
Claim No. 2- The transaction between the parties is commercial and the applicant company is also entitled to pre- claim, including pendent elite and future interest @ 18% per annum on the amount as determined under claim no. 1 with effect from 31.03.2015 and until date of actual payment by the respondent company.
Claim No. 3- The applicant company is also entitled to recover the arbitration costs incurred / to be incurred by the claimant including the legal costs.
8. Claim petition was resisted by the respondent. Ld. Arbitrator, after referring to the respective pleadings of the parties, framed issues as to whether the petitioner herein is entitled to a sum of Rs. 58,47,282/- as claimed and further, whether the claimant/petitioner herein is entitled to interest and at what rate and for which period. The Ld. Arbitrator after referring the respective pleadings of parties as well as evidence led by them, allowed the claim petition to the extent that petitioner herein is entitled for Rs. 3,78,013/- along with interest.
9. The grounds taken by the petitioner while assailing the impugned award is that impugned arbitral award is ex facie erroneous and is conflict with public policy of India and by expansion is contrary to fundamental law of India.
10. It is settled law that what is not pleaded cannot be argued, as for the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet.
However, it is equally well settled that the requirement of having to plead a particular argument does not include exhaustively doing ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 37 of 50 so. In Ram Sarup Gupta (Dead) By Lrs vs Bishun Narain Inter College & Ors, 1987 AIR 1242, wherein it was observed as follows:
"6. ... It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. To have a fair trial it is imperative that the party should settle the essential material facts so that the other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair- splitting technicalities. Sometimes, pleadings are expressed in words that may not expressly make out a case in accordance with a strict interpretation of the law. In such a case the court must ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead, the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead, the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal....".
11. In the case of Udhav Singh v. Madhav Rao Scindia, 1976 AIR 744, wherein Hon'ble Court observed:-
"25...If the plea or ground of defence "raises issues of fact not arising out of the plaint", such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 38 of 50 evidence but raises a pure question of law turning on a construction of the plaint."
12. Though, Section 19 of the Act provides that Arbitral Tribunal shall not be bound by the Code of Civil Procedure Code, 1908 or the Indian Evidence Act, 1872. Then in the absence of applicability of Evidence Act, a question arises as to how Arbitral Tribunal will determining admissibility of any evidence. The answer is provided by sub-section (2) to (4) of Section 19 of the Act. Sub-Section (2) provides that subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings, Sub-Section (3) provides that failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate, Sub-Section (4) provides that the power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence. Further, Section 18 of the Act insists that parties shall be treated with equally and each party shall be given a full opportunity to present his case. So, it can be culled out that it is obligatory upon the Arbitrator to see that the rules framed under Section 19 of the Act should not be in violation of public policy and further there should not be violation of principle of natural justice. The objective is to secure a fair and impartial administration of justice between the parties.
13. A conjoint reading of above would show that the ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 39 of 50 objective before the Ld. Arbitrator is to secure a fair and impartial administration of justice and there should not be violation of principles of natural justice. Moreover, while dealing with the pleas of the respective parties, what is required to consider, did the parties know that matter and did they lead their evidence about it. If it appears that the party did not know the matter in issue and he had no opportunity to lead the evidence in respect of that and Ld. Arbitrator failed to take a note of objection raised, then the matter is entirely different.
14. Coming to the grounds agitated by the petitioner in the present petition, a perusal of arbitral record shows that the Ld. Arbitrator has dealt with the objections raised by the petitioner in detail. The relevant extract of Para 16, 17 & 18 are re-produced as under:
16. It is to be noted that although reference was made by the respondent to several entries in its reply,however during the cross examination of CW-2, several questions were put to the witness regarding other entries also. During the cross examination, objection was taken by the claimant objecting to the said questions on the ground of lack of pleading to that effect. During the course of the argument, much stress has been laid by the claimant that this tribunal has to confine itself to only those entries which are disputed by the respondent in its reply. It has been submitted that the purpose of the pleadings is to narrow down the dispute. The claimant has also relied upon various judgments in this regard viz.
Kishan lal Gupta Vs. Dujodwala Industries and Ors. [AIR. 1977 Delhi 49], Ram Sarup Gupta (Dead) by LRs. Vs. Bishun Narain Inter College and Ors.[AIR 1987 SC 1242], Badat and Co. Vs. East India Trading Co. [ AIR 1964 SC 538], Smt. Chanan Kaur and Anr. Vs. Kartari (deceased)Represented by her LRs. Darshan Singh and Ors. [AIR 2004 P&H 331], N.K. Sood Vs. Tara wati [1992 0 CivCC 185], The National Textile Corporation Ltd. Vs Nareshkumar Badrikumar Jagad and ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 40 of 50 Ors.[(2011)12 SCC 695].
17. From a perusal of the reply of the respondent it is clear, that the respondent disputed the claims of the claimant based on the statement of account filed by it in general. It is correct that the respondent disputed several entries in the said reply but it also took the plea that the claim of the claimant is without any basis, documents and valid entries of account. It is further stated in the reply that the claim is not based on any cogent evidence and further that claimant has failed to produce the entire record in support of the entries. It is also submitted that the production of the entire records was necessary so that the accounts could be reconciled fairly and properly. Although, at one place the respondent has also submitted that during a reconciliation held on 30.01.2015 between the parties a sum of Rs. 24,36,168/- was found due and payable to the respondent, however no counter claim has been filed by the respondent in the present proceedings.
18. Section 34 of Evidence Act lays down that entries in the books of account are not alone sufficient evidence to charge any person with liability. It is settled law that books of accounts being only corroborative evidence must be supported by other evidence. It is also settled law that each and every entry of the books of account should be proved by supporting evidence. Thus, the question arises as to whether the claimant should have filed supporting evidence in respect of each and every entry in its books of accounts. No doubt as per the settled principle of law the claimant should have done so, however, when the respondent has not disputed all the said entries and has disputed some of them, in my view there was no requirement for the claimant to file supporting evidence in respect of each and every entry. But then the question arises as to whether the respondent should have confined its cross examination of CW-2 to only those entries which were disputed by it in the reply or could have also cross examined him for some other entries not referred to in the pleadings. In my view since the claim was based on the statement of account only, and the respondent had denied the said claim in toto being without any basis and supporting documents, the respondent was at liberty to cross examine the claimant's witness on other entries also although they were not referred to in its reply. In the present case the only issue which has to be decided is as to whether the claimant was entitled to the amount on the basis of the statement of account as filed by the claimant. In my view the contention of ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 41 of 50 the claimant that the respondent could have put questions only on the entries disputed in the reply and this Tribunal also has to confine itself to only those entries which are disputed in the reply, is wholly' misconceived. It is settled law that the scope of cross examination is much wider and a witness can be asked any question provided the same is relevant to the matter in controversy. Section 138 of the Evidence Act also states that the cross examination need not be confined to the facts to which the witness has testified in his examination in chief. Thus, in case the respondent has brought out any discrepancy in any of the entries during the course of cross examination, that has to be given due consideration while deciding the matter. Furthermore, once a discrepancy in any of the entries has been brought out during the cross examination, the same cannot be overlooked or ignored. Thus, the contention of the claimant that the decision of the tribunal should be confined to only those entries which are disputed in the reply is hereby rejected.
15. It is clear from above findings that the Ld. Arbitrator followed the approach that though the basis of filing of claims were books of accounts but it was the responsibility of the petitioner to back up each and every claim based on documents. Ld. Arbitrator has also rejected the contention of petitioner that the respondent in cross examination, cannot travel beyond the entries especially objected in the pleadings. Ld. Arbitrator has recorded that once the discrepancy in any of the entries has been brought out cannot be overlooked or ignored and it was incumbent upon the petitioner to produce basic documents for making each claim. A perusal of the impugned award demonstrates that while deciding each disputed entries, the Ld. Arbitrator took into consideration the respective submissions of the parties and thereafter, returned his findings thereupon. The item-wise claims rejected by the Ld. Arbitrator and impugned against by the ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 42 of 50 petitioner are discussed in paragraph below:-
(i). While deciding entry dated 30.11.2011 of Rs. 10,68,328/-
towards MODVAT /Excise Duty, the Ld. Arbitrator took note of Clause in the purchase order in para 21 of the impugned award which reads as under:-
"Excise Duty:- Extra as actual at the time of dispatch of goods, however, you will charge us excise duty from us after taking into account cenvat claimed by you for supplies received directly by you on your behalf.' The Ld. Arbitrator in para 21.6 interpreted the Clause and returned its findings in para 21.7 that transaction in the question was a trilateral transaction whereby the goods were supplied by Condor Power Products Private Limited to the respondent on behalf of petitioner and for the said transaction, the said company must have raised an invoice. Ld. Arbitrator took note of the fact in whose name the invoice was raised is not known as no document has been filed by claimant (petitioner herein) in proof of said transaction. It is the admitted case of the petitioner herein that said amount of Rs. 1,02,67,170/- was paid by the petitioner to the Condor Private Limited and further, the said amount was debited from the account of respondent and that the amount of Rs. 10,68,328/- is included in Rs. 1,02,67,170/-. The Ld. Arbitrator in paragraph 21 referred to the cross examination of RW-2 where it is admitted that the claim of Rs. 10,68,328/- is included in the account of Condor Power Products Limited. The findings of the Ld. Arbitrator ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 43 of 50 with regard to this entry that this amount cannot be claimed twice is justified.
(ii). In the impugned award, in paragraph 22, Ld. Arbitrator has rejected the claimed amount of Rs. 16,07,470/- being the claim lodged based on the entries in the account of the petitioner for the materials directly supplied from third parties. The Ld. Arbitrator in para 22.1 and 22.2 of the impugned award, after referring to the cross examination of CW-2 recorded that this entry was disputed by the respondent during the cross examination of CW-2. In the impugned award, again referring to the cross examination of CW-2, findings were returned that claim is based merely on entries of books of accounts without any substantiating documents.
Ld. Arbitrator distinguished this claim from the claims based on supplies from M/s JSH Packaging and Condor Power Products Private Limited by holding that in those cases, the respondent has admitted the said transactions in its reply whereas, the present claim is merely based on entries of account books without substantiating documents. The Ld. Arbitrator also observed that petitioner has sought two opportunities to place on record additional documents but the petitioner has not filed any supporting documents in this regard and rejected the claim of the petitioner. The relevant extract of impugned award is reproduced as under:
22.4. It is noted that in this case the claimant had sought two opportunities to place on record additional ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 44 of 50 documents. Although, the aforesaid questions relating to the entry dated 28.01.2012 were put to the witness after its second application for additional documents was allowed on 15.09.2017, this Tribunal is of the view that in case the claimant was in possession of any supporting document, it would have certainly taken steps to produce the said document as the amount in question was quite huge. The further fact that the claimant has not confronted the respondent's witness RW-1 with any such document while putting Q.62 or Q.71 further goes to show that no such supporting document existed.
22.5. As per section 34 of the Evidence Act, the onus to prove the entry was on the claimant. Since, the respondent had disputed the said entry and there is no supporting documents filed by the claimant to prove the same, the said entry dated 28.01.2012 of Rs.
16,07,470/- at page 69 of Ex. CW-2/2 is rejected.
The above findings of Ld. Arbitrator shows that the Ld. Arbitrator after taking into account the answers given by witness CW-2, drew an inference that petitioner was not in possession of any document in support of said entries and further, observed that onus was upon the petitioner to substantiate the claim with evidence beyond mere entries in books of accounts.
(iii). Ld. Arbitrator in paragraph 23 has examined the claim of Rs. 16,81,297/- being amount claimed as shortage admitted from several entries recorded in account books of the petitioner for short material when the goods/materials were returned on the close of the business. Based on the evidence produced before the Ld. Arbitrator, the findings were recorded that no objection was ever communicated to ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 45 of 50 the respondent during April and May, 2013 when the goods were returned by the respondent to the petitioner on ex-works basis. The Ld. Arbitrator accepted the objection of respondent that these were raw materials returned on ex- works basis for which no objection was raised at the time of taking delivery and no debit notes were ever issued for this shortage. Ld. Arbitrator has given extensive and valid reasonings based on the evidence adduced before rejecting the claim of the petitioner.
(iv). Ld. Arbitrator has rejected the claim of Rs. 8,92,560/- lodged by the petitioner based debit notes for correcting the wrong description of goods in the earlier debit notes. Ld. Arbitrator in paragraph 24.2 has initially explained the claim quoting an example of correction of debit note initially issued for electric motor with capacitator issued for Rs. 38/- and later on, correct debit note was issued for Rs. 240/-. During the arbitral proceedings, the invoice wise evidence/statement and cross examination was conducted by the Ld. Arbitrator. The findings are recorded in para 24.12 where Ld. Arbitrator has rejected the claim by stating that description of goods supplied cannot be assumed and all the invoices cannot be taken to have supplied with electric motor of Rs. 240/- each when the invoices clearly state that description of goods and respective prices. The rejection of debit claim and observation by Ld. Arbitrator on the facts of the case is ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 46 of 50 justified. The relevant para 24.12 is reproduced as under:-
24.12. The said submission of the claimant is misconceived.
It is not understood as to how the same item could be described differently by the same person but in fact it is one and the same. Furthermore, the rate of all the said items are different. In invoice no. 1013 itself Rs. 240/-m has been charged for 'MOTOR WITH CAPACITOR' and Rs. 38/- for 'ELECTRIC MOTOR'. When in the same invoice two different items are separately mentioned and differently charged, it would be wrong to say that both the items are the same and are of the same rate. Similarly, a capacitor in invoice no. 1149 is of only Rs. 3/- and in invoice no. 1203 of Rs. 2/-, and invoice no. 010 of Rs. 15/-. To say that they are all the same i.e. 'MOTOR WITH CAPACITOR' only and not what was described in the invoices. The claimant is thus not entitled to Rs. 240/- for all the items described differently and thus the debit note as raised by the claimant is without any basis and the same is hereby rejected. Accordingly, the said debit entry dated 30.11.2011 of rs. 8,92,560/- at page 68 of Ex. CW-2/2 is rejected.
(v). In the impugned award, Ld. Arbitrator decreased the claim of Rs. 3,21,339/- lodged by the petitioner to Rs. 99,384/- after observing that this entry was disputed by the respondent during cross examination of CW2. Ld. Arbitrator in paragraph 25.2 referred to the cross examination of CW2 and observed that credit entry dated 29.07.2013 is incorrect and in its place credit of Rs. 4,20,783/- would have been given by the petitioner to the respondent. The Ld. Arbitrator returned its findings on this issue after multiplying the total quantity of goods with the tariff value per unit and based on the facts, are sustainable.
(vi). In the impugned award, Ld. Arbitrator rejected the claim ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 47 of 50 of Rs. 53,842/- being amount towards purchasing of consumable items for Vimal Moulders for assembly of coolers by Anirudh, after considering the fact that the cash payment voucher of a much later date raises doubt about the entry. The Ld. Arbitrator has given valid reasoning based on the evidence adduced before rejecting the claim of the petitioner.
(vii). The Ld. Arbitrator has rejected the claim of Rs. 31,920/- being amount debited due to poly bag of cooler and Rs. 28,664.75 being amount debited for short and access limit. In the impugned award again referring to the cross examination of witness CW2 returned the finding that as regard entry of Rs. 31,920/-, no substantiating document in support of this entry has been filed by the petitioner. With regard to the amount of Rs. 28,664.75, Ld. Arbitrator observed that issue of shortages have already been dealt with respect to the entry of Rs. 16,07,470/-.
16. A careful perusal of the entire award demonstrate that the same was passed by Ld. Arbitrator after referring to the respective contentions of the parties and after taking into consideration the evidence which were led by them to substantiate their respective contentions. Therefore, in this background, it cannot be said that impugned award passed by Ld. Arbitrator without appreciating the documents on record. The findings returned by the Ld. Arbitrator are findings of fact which have been ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 48 of 50 so returned after appreciating the respective stand of the parties as also the evidence led by them. The Court cannot substitute own evaluation of law and fact to come to conclusion other than that of Ld. Arbitrator, as per the law laid down in the precedent elicited herein above. It is evident from the impugned award that cogent and sufficient reason have been assigned by Ld. Sole Arbitrator in reaching the conclusion. It is well settled that re-appreciation of evidence is not within the forte of this Court under Section 34 of the Act. Therefore, the impugned award passed by the Ld. Arbitrator does not call for any interference as this court cannot re-appreciate the evidence so as to return the findings on merit qua the points/entries which were raised before the Ld. Arbitrator by the petitioner. Once, the findings that have been returned by the Arbitrator are based on respective contentions of the parties and also the evidence on record, in considered view of this Court, the findings returned by Ld. Arbitrator cannot be interfered with Section 34 of the Act. Appropriately guided by the judgments (supra), this Court again reiterate that the Arbitrator is the ultimate master of the quantity and quality of evidence being relied upon by the parties. That being the case, this Court cannot re-appreciate the the evidence on record and then applying its mind and returned the findings as to whether the conclusions, which have been arrived at by the Ld. Arbitrator are correct or not. Accordingly, in view of above discussion, this Court is of considered view that the petitioner have not been able to make out any case for interference in the award in terms of Section 34 (2) ARBTN No. 5041 of 2018 Group SEB Ind Pvt Ltd Vs. Vimal Moulders (Ind) Pvt Ltd Page 49 of 50
(b) of the Act, the present petition being devoid of any merit is dismissed. Parties are left to bear their own costs.
17. File be consigned to Record Room.
Pronounced in the open Court (VINEETA GOYAL)
on this 21.02.2024 District Judge (Commercial-03)
Patiala House, New Delhi
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