Document Fragment View

Matching Fragments

Mr. A. Bhan, Adv. 

i)       Whether approved for reporting in                  Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                          Yes/No

1. These three Arbitration Appeals have been filed by the appellant North Eastern Electric Power Corporation (for short "NEEPCO") under Sec. 37 of the Arbitration and Conciliation Act, 1996, challenging the common order dated 27.04.2018 passed by the Court of the learned Additional Deputy Commissioner (Judicial), Shillong on applications under Sec. 34 of the Arbitration and Conciliation Act, 1996 filed by NEEPCO which were registered as Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016. The learned Additional Deputy Commissioner (Judicial), Shillong vide the aforesaid common order dated 27.04.2018 has dismissed the aforesaid Sec. 34 applications filed by NEEPCO and upheld the 3 (three) Arbitral Awards dated 29.03.2016.

14.The appellant NEEPCO then filed three separate applications under Sec. 34 of the Arbitration and Conciliation Act, 1996 before the learned Additional Deputy Commissioner (Judicial), Shillong challenging the three Arbitral Awards dated 29.03.2016 in respect of Packages-I, II and III and the same were registered as Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016 respectively. The Court of the learned Additional Deputy Commissioner (Judicial), Shillong vide common order dated 27.04.2018 declined to interfere and dismissed the aforesaid Sec. 34 applications filed by NEEPCO and upheld the 3 (three) Arbitral Awards dated 29.03.2016.

15.The appellant NEEPCO has filed these 3 (three) Arbitration Appeals under Sec. 37 of the Arbitration and Conciliation Act, 1996 challenging the common order dated 27.04.2018 passed by the Court of the learned Additional Deputy Commissioner (Judicial), Shillong in Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016.

16.Heard learned Senior Counsels Shri. H.A. Ahmadi and Shri. V.K. Jindal appearing for the appellant and Senior Counsel Shri. A. Bhan appearing for the respondents.

52.The Arbitral Awards and the findings of the learned Arbitrator suffer from the vice of perversity. The learned Arbitrator has taken into account various factors irrelevant in coming to the decision and has ignored vital clauses of the tender documents like Clause 2 and various Sub-clauses i.e. Sub-clauses 2.1 to 2.8.7 under Clause 2 and Clause 3 and various Sub-Clauses i.e. Sub-clauses 3.1 to 3.7 under Clause 3 of the BoQ, Clause 2 and various Sub-clauses i.e. Sub-clause 2.1 to 2.17.7 under Clause 2 and Clause 3 and various Sub-clauses i.e. Sub-clause 3.1 to 3.10.5 under Clause 3 of "Particular Technical Specifications", Vol. 2, Part II. The learned Arbitrator has taken into consideration an irrelevant fact that while making provisional payment, the initial lead of 3.0 km has been deducted and that this shows that Clause 2.7 and 3.4 of the BoQ are applicable. The provisional payment was an interim arrangement and was preceded by meetings dated 07.12.2012 and 08.12.2012 wherein it was specifically agreed between the parties that HoP, NEEPCO would take steps for referring the dispute to arbitration and that till the arbitral award, the payment would be made as per the prevailing provisional rate without any escalation and that final rate payable for transportation of sand and boulder shall be done on implementation of the arbitral award. As such the fact that provisional payment was made by deducting initial lead of 3.0 km was an irrelevant fact for deciding the issue. The findings of the learned Arbitrator having been arrived at by taking into account irrelevant factors and by ignoring vital clauses, the same suffers from vice of irrationality and perversity. It must be borne in mind that the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation. The findings of the learned Additional Deputy Commissioner (Judicial), Shillong while upholding the arbitral awards of the learned Arbitrator also suffer from the similar vice. We are, therefore, of the considered view that that the common order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong in Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016 as well as the 3 (three) Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator warrant interference in these appeals under Sec. 37 of the Arbitration and Conciliation Act, 1996.