Document Fragment View

Matching Fragments

10. Shri Vivek Tankha, learned Senior Counsel appearing for the respondent, points out that the appellants have given a totally distorted and wrong submissions on facts. He argued that the concession agreement for construction and development of the road was entered into on 11.4.2003 and side by side another agreement was also entered into between the Government of M.P. Rajya Sethu Nirman Nigam (later renamed as the M.P. Road Development Corporation, appellant herein), Tiara Dhaya Maju Constructions and Jabalpur Corridor India Ltd. - Respondent herein. On 14.11.2003 an EPC contract was entered into between Jabalpur Corridor (India) Pvt. Ltd and TDM Infrastructure Pvt. Ltd., for Rs. 120 Crores. He argues that the actual contract was entered into between the MP Road Development Corporation, Tiara Dhaya Maju Constructions and Jabalpur Corridor (India) Pvt. Ltd. The EPC contract was entered into between TDM Infrastructure Pvt. Ltd., an Indian Company and the Jabalpur Corridor (India) Pvt. Ltd. Thereafter, on 23.7.2004 a loan agreement was entered into between Jabalpur Corridor (India) Pvt. Ltd. and EXIM Bank Malaysia for a sum of Rs.80.85 crore and this agreement was to be governed by Malaysia laws. Shri Tankha took us through various documents on record and pointed out that after execution of the agreement in the year 2003, execution of the project could not be undertaken by the Contractors for three years and when the corporation was trying to terminate the agreement on flimsy grounds, a writ petition was filed by the respondents Jabalpur Corridor (India) being W.P. No.4450/2007 before this Court on 29 th March 2007, originally in the said writ petition the prayer made was to issue a Arbitration Appeal No:: 23 / 2016.

MP Road Development Corporation Limited Vs. M/s Jabalpur Corridor (India) Pvt Ltd.

say that the High Court cannot now act like the Appellate Court and decide an appeal under Section 37.

11- In this regard, Shri Vivek Tankha also refers to the following judgments : Navodaya Mass Entertainment Ltd. Vs. JM Combines - (2015)5 SCC 698; P.R. Shah Shares & Stock broker (P) Ltd. Vs. BHH Securities (P) Ltd. - (2012)1 SCC 594; Indu Engineering & Textiles Ltd. Vs. Delhi Development Authority - (2001)5 SCC 691; Associate Builders Vs. DDA - (2015)3 SCC 49; and, Swan Gold Mining Ltd. Vs. Hindustan Copper Ltd. - (2015)5 SCC 739, to say that public policy and the grounds of patent illegality canvassed by the appellants is not correct and by taking us through the judgments as are referred to herein-above argued that the appeal is not maintainable. With regard to the contention of the appellant that the 'debts due' cannot be paid and in directing for payment of a 'debt due' the Tribunal has exceeded its jurisdiction, Shri Tankha, learned Senior Counsel argued that appellants are trying to mix up the issue pertaining to 'termination of payment' with 'debt due'. It is argued that the claimant contractor demanded 'termination payment' on 18.7.2008 for Rs.69.97 crore. This was in followed with the reminders dated 14.10.2008, 17.12.2008 and 14.1.2009, and when the appellant denied the 'termination payment' on 16.1.2009 the claim was raised and the Arbitral Tribunal allowed the claim based on balance sheet and account certified by the statutory auditor as available at pages 823 to 829 of the record of the arbitrator wherein the loan details of EXIM Bank Malaysia is depicted. It is stated that the appellant herein did not rebut this contention by leading evidence, on the contrary all the documents were admitted by the authorities and no oral evidence were lead before the Tribunal. Based on this the Tribunal adjudicated the dispute with regard to 'termination payment' claimed under dispute No. 2 of the claim vide heading "value of work done". Shri Tankha, learned Senior Counsel invites our attention to the findings recorded in para 295 of the Award in support of his contention and argues that the Arbitral Tribunal held that 'termination payment' was payable but without approving to the method Arbitration Appeal No:: 23 / 2016.

MP Road Development Corporation Limited Vs. M/s Jabalpur Corridor (India) Pvt Ltd.

adopted by the claimant, the Tribunal interpreted the termination clause and calculated 'termination payment' in accordance with law. 12- Shri Vivek Tankha, learned Senior Counsel, argues that the question of not making a reference for 'debt due' does not arise as the claim of the respondent was for 'termination payment' and the award of Arbitral tribunal was exactly as per the contract, therefore, there is no illegality in the same. It is argued that the Tribunal interpreted various clauses of the contract, and while passing the award, it took into account all the provisions of the contract and based on the trade practice usage and the contract made the award. This being in conformity with Section 28(3) of the Act of 1986, the award does not call for any interference. With regard to challenge made for payment of interest on loan, Shri Tankha argues that against a claim for interest made for Rs.42.55 Crores, the Tribunal only awarded interest till 11.7.2007 for a sum of Rs.9.06 Crores and included 'termination payment' in dispute No.2. Shri Tankha refers to the finding of the Trial Court held in the proceeding under Section 34 and argued that in para 196 a specific finding is recorded by the trial Court to say that both the parties were present before the arbitration tribunal and argued the dispute with regard to 'termination payment' and once the question of 'termination payment' was argued and agitated by the parties before the Tribunal, the argument that trial Court and Tribunal travelled beyond the terms of refrain, is not permissible. Shri Tankha took us through the detailed written argument submitted and rebut each and every contention of the appellant and argued that the Trial Court and Arbitral Tribunal have not committed any error in awarding the "termination payment" and "interest". Learned Senior Counsel relied upon various judgments on this count. He also submits that the question of limitation has been rightly decided by the Tribunal and the Trial Court as the cause of action for raising of the dispute accrued when the termination payment was sought on 18.7.2008 and when it was rejected and refused for the first time on 16.1.2009 and if this be the cut-off point, the contention of Shri Naman Nagrath cannot be accepted. He referred to various clauses in the agreement to rebut the Arbitration Appeal No:: 23 / 2016.

MP Road Development Corporation Limited Vs. M/s Jabalpur Corridor (India) Pvt Ltd.

contention of Shri Nagrath to say that in the event of termination by the M.P. Road Development Corporation the amount would become payable only to lender and not to the concessionaire, Shri Tankha submits that once there is a provision for termination payment whatever be the event of termination, the amount payable towards 'termination payment' i.e. 'debt due' and the 'equity' having been rightly paid, there is no error in the award. In the matter of bias of the Arbitrator, Shri Tankha refers to the attitude of Managing Director of the Company in participating in the proceeding of the Tribunal in an illegal manner, the finding recorded by the Arbitrators and the Trial Court after considering the statement of P.W.3 Shri Sanjay Rusia, witness of M.P. Road Development Corporation, recorded in the proceeding under Section 34 and the fact that Shri Arun Chug was not an employee of the M.P. Road Development Corporation but he was an employee of another Corporation namely M.P. Rural Development Corporation which has got nothing to do with the present corporation to say that bias alleged against Shri Chug is not proved. It was admitted by Shri Sanjay Rusia, witness of the appellant which itself shows that a false plea of bias was made and if after evaluating all these factors the object is rejected, Shri Vivek Tankha argues that there is no error in the same. Shri Tankha also refers to various misleading statement made by the appellant to say that the award has been rightly passed, no case for interference is made and therefore, appeal is liable to be rejected. Shri Tankha took us through various grounds detailed in the written argument submitted by him in rebuttal to the arguments canvassed on behalf the appellant.