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8. Validity of Authority of Mr. H.G. Advani:

8.1 Both parties have referred various documents on this issue.

Admittedly, the contract has been signed by Mr.H.G. Advani as authorized signatory of Som Dutt Builder-NCC-NEC Joint Venture. The same has been continued and operated on the authority and approval of the JV partners in favour of Mr.H.G. Advani. The word 'contractor' is defined in clause 1.1 of the GCC to mean the joint venture and the joint venture is being represented in the contract by Mr.H.G. Advani. Clause 67.1 and 67.3 of the agreement provides for settlement of disputes by arbitration which can be invoked by the contractor, Mr. Advani's position has been approved by the petitioner as well as by other two partners of the JV as contractor. His signatures accepted as binding signatures of the contractor on behalf of the JV as per contract agreement which is annexed as Annexure RH-15. Mr. H.G. Advani has signed the contract agreement including the arbitration clause 67 which is part and parcel of the contract as authorized signatory of the Joint venture. The arbitral tribunal during pendency of Arbitration proceeding also passed an order dated 31st July, 2008, rejecting the objections with respect to the authority of Mr.H.G. Advani. The said order was further not challenged by the petitioner. It was held in the said order if Mr.H.G. Advani can bind parties to other Clauses of the contract, he can also bind parties to the arbitration clause. It is not denied by the petitioner that the objection was not raised at the time of referring of the dispute to the dispute review board (DRB).

8.2 Clause 5.2(c) and clause 5.2(d) of the Instructions to Bidders, requires the Joint Venture to nominate one of the partners as being in-charge. The authorization shall be evidenced by submitting a power of attorney signed by legally authorized signatories of all the partners. Mr. H.G. Advani, Director of the Som Dutt Builders was nominated as being Company in-charge who was authorised to incur liabilities and receive instructions for and on behalf of any and all partners of the Joint Venture.

8.4 The judgment referred by the petitioner i.e. Apple Valley Resort vs. H.P. State Electricity Board and Anr., 2004 (118) Company Cases 328 has no bearing in the facts and circumstances of the present case since it relates to power of Board of Directors of a company under the Companies Act, 1956. The respondent joint venture is neither a company incorporated under the Companies Act, 1956 nor a registered partnership firm, rather it is a separate entity where the rights and obligations of the parties to the JV are governed by the Joint venture agreement and not by the provisions of either Companies Act, 1956. Similarly, another decision in Nibro Ltd. vs. National Insurance Company Ltd., AIR 1991 Delhi 25, does not help the case of the petitioner as the said case pertains to the provisions of Section 291 of the Companies Act, 1956. Thus the petitioner has accepted the authority of Mr.H.G. Advani for the purpose of settlement of dispute.

9.2 The Learned Arbitral Tribunal has recorded the fact in the award that the only construction material in the notification for payment of entry tax was the cement. It has come on record that OPC-43 grade cement required for the project was not being manufactured in UP and therefore the engineer had permitted the respondent JV to bring OPC from outside the State. The Joint venture was engaged in project II B and there was no other project of joint venture. It is held by Division Bench of this Court in FCI vs. Shanti Cereals 2011 (1) RAJ 413 (Delhi, para 7), that "as has been constantly held by this Court as well as the Supreme Court, the Forum to raise factual pleas and contention in an arbitration matter is only the arbitral tribunal." It is against the proprietary of legal regime as well as the mandate of law set out in Section 34 of the Act that the Court in objection (and more so in appeal under Section 37) should entertain the arguments that are purely factual in nature. There is no gainsaying that the arbitral tribunal is the master of factual arena and has the right to even go wrong while deciding the factual issues. Unless there is something manifest from the face of the award that is so grave as to move the conscience of the Court that the error would result in a monumental miscarriage of justice.