Document Fragment View

Matching Fragments

7. On the said grievances remaining unresolved between the appellant and the respondent, the matter was referred, in accordance with the arbitral clause, contained in the agreement dated, 1st September, 2004 (supra), to a learned Sole Arbitrator, for arbitration and decision on the claims of the respondent. Counter-claims were also filed, by the appellant, before the learned Sole Arbitrator.
8. It is also relevant to note that, in the interregnum, CONCOR terminated its agreement with the appellant, on the ground that the appellant had sub-let the contract to the respondent, in contravention of the proscription, against such sub-letting, contained in the contract between CONCOR and the appellant.
19. The learned Single Judge, examining the said contention, first reproduced clauses 22, 29 and 35 of the agreement dated 1 st September, 2004, between the appellant and the respondent. Having done so, the learned Single Judge proceeded to record, in the impugned judgment, thus:
"15. The learned Arbitrator while interpreting the above clauses has noted that there is no privity of contract between the Contractor and CONCOR. The privity of contract is between the parties to the present proceedings. Work has been got executed at the instance of NPCC. In case there is any liability to pay it would be that of NPCC and not of CONCOR. The Award also holds that in case no amount is released by CONCOR and no action is taken by NPCC for realization of the amount, the Contractor cannot be without any remedy as he cannot approach CONCOR directly by filing appropriate judicial proceedings. It cannot be said that in such a situation the Contractor would be deprived of his amount which is admittedly due as per the contract and he would be remediless. The Award notes that interpretation of various clauses of the contract has to be a reasonable one. The Award further concludes that it would be the obligation of NPCC to pay the amount to the contractor and later, seek remedy against CONCOR.
18. In any case, interpretation of the contracts within the domain of the arbitrator. it is settled legal position that the court shall not ordinarily substitute its interpretation of the terms and contract with the interpretation of the arbitrator. "

20. Placing reliance on the judgment of the Supreme Court in Swan Gold Mining Ltd. Vs. Hindustan Copper Ltd., (2015) 5 SCC 739 and National Highways Authority of India Vs. ITD. Cementation India Limited, (2015) 14 SCC 21, the learned Single Judge held that there was no merit in the contention of the appellant that its liability, to make payment to the respondent, stood extinguished with the termination of the contract between CONCOR and the appellant.

21. The appellant is before us, in the present appeal, challenging the aforementioned judgment dated 19th July, 2017 of the learned Single Judge.

22. Mr. Bhambhani, on behalf of the appellant, emphatically contends that the learned Sole Arbitrator, as well as the learned Single Judge, signally erred in failing to appreciate the fact that the MOU dated 4th December, 2003, and the agreement dated 1st September, 2004, between the appellant and the respondent, read holistically and in conjunction with each other, made it clear that, with the termination of the contract between CONCOR and the appellant, all liability, of the appellant, towards the respondent, ceased to exist. Mr. Anup Bhambhani would submit that the agreements between the appellant and the respondent, and between CONCOR and appellant, were on back-to-back basis, and contemplated payment, by the appellant, to the respondent, only on receipt of payment by the appellant, from CONCOR, and after deduction, therefrom, of the profit and commission available to the appellant. As such, he would submit that requiring the appellant to make payment to the respondent even without receipt of payment from CONCOR would amount to doing credence to the agreements between the appellant and the respondent.