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1 - 10 of 14 (0.28 seconds)Section 34 in The Arbitration Act, 1940 [Entire Act]
The Arbitration And Conciliation Act, 1996
State Of Kerala And Anr. vs N.E. Abraham on 5 February, 1998
361) and also by the Division Bench decision of
the Kerala High Court in State of Kerala v.
N.E.Abraham (1998(2) ILR Ker. 700). We are
therefore, unable to accept the argument of
Mr.Manimohan that the District Court exceeded its
powers in interfering with the award of the
arbitrator. The award of the arbitrator was
substantially in conflict with the expressed
provisions of the contract between the parties. It
Arbitration Appeal Nos.4, 5, 6 & 7 of 2007 -39-
was not within the powers of the arbitrator to
award escalations in rates when the contract
prevented award of such escalations on whatever
reasons. There is no evidence in this case to hold
that the company was in any way responsible for
the delay caused on the side of the Contractor in
completing the execution of the work. We
therefore are of the view that the District Court
was justified in interfering with the awards in O.P.
Nos.55/02, 168/02 in full and with the award in
O.P.8/02 in part.
Venture Global Engineering vs Satyam Computer Services Ltd. & Anr on 10 January, 2008
The scope of section 34 of the
Arbitration and Conciliation Act is again
considered by the Supreme Court in Venture
Global Engineering v. Satyam Computer Services
Ltd. (2008 (4) SCC 190). Their lordships held inter
alia under the above judgment that the aggrieved
party is entitled to invoke right under Section 34
to have the award of the arbitrator set aside on
the reason that the same is in conflict with the
public policy of India. The public policy of India
includes not only (a) the fundamental policy of
India; or (b) the interest of India; or (c) justice or
morality, but also the policy to interfere with
anything which is patently illegal.
Numaligarh Refinery Ltd vs Daelim Industrial Company Ltd on 6 September, 2007
The judgment of
the Supreme Court in Numaligarh Refinery Ltd. v.
Daelim Industrial Co. Ltd. (2007(8) SCC 466) was
in a case which involves a question whether it was
Arbitration Appeal Nos.4, 5, 6 & 7 of 2007 -34-
open to a contracting party to claim variation of
the rates in the teeth of the provision of the
contract that rates are firm and fixed. Their
lordships held that once the price is fixed there is
no provision for giving any benefit of fluctuation
on the exchange rate in terms of the contract.
Therefore, the expression firm and fixed is clear
answer to the question that if during the course of
contract certain fluctuations have taken place in
the market on that count the claimant cannot
raise extra demand on account of upward trend in
the exchange rate.
Mcdermott International Inc vs Burn Standard Co. Ltd. & Ors on 12 May, 2006
The judgment of the Supreme
Court in McDermott International Inc. v. Burn
Standard Co. Ltd. (2006(11) SCC 181) and Oil &
Natural Gas Corporation Ltd. v. Saw Pipes Ltd.
(2003(5) SCC 705) also deal with scope of the
power of the court under Section 34(2) of the
Arbitration Appeal Nos.4, 5, 6 & 7 of 2007 -35-
Arbitration and Conciliation Act and keeping in
mind the views expressed by the Supreme Court
in those decisions it is not difficult to hold that the
District Court under the impugned order did not
transgress the limits of its powers under Section
34(2).
M/S. Gas Authority Of India Ltd. And Anr vs M/S. Keti Construction (I) Ltd. And Ors on 11 May, 2007
651) to argue that the District Court was not
justified in its interpretation of the clause in the
contract which provides that under no
circumstances increase in rates will be allowed.
According to him, there are other clauses in the
Arbitration agreement which will justify award of
higher rates and when these clauses are
harmoniously interpreted it will be possible to
sustain the award of the arbitrator. Mr.Manimohan
relied on the judgment of the Supreme Court in
Gas Authority of India Ltd. v. Keti Construction (I)
Arbitration Appeal Nos.4, 5, 6 & 7 of 2007 -27-
Ltd. (2007(5) SCC 38) to argue that a ground that
Arbitral Tribunal has no jurisdiction to pass a
particular award was not to be accepted lightly. In
the instant case, the question of jurisdiction was
not raised by the company at the appropriate time
and that at any rate not pursued seriously in
evidence. It is therefore, not open to the company
to challenge the award of the Arbitrator on the
ground of absence of jurisdiction in a proceeding
under Section 34. Very strong reliance was placed
by Mr.Manimohan on the judgment of the
Supreme Court in K.N.Sathyapalan (Dead) By Lrs.
v. State of kerala & Anr. (JT 2006(10) SC 615).
On the authority of the above decision, the
learned counsel argued that even when the terms
of the contract does not provide for escalation of
rates, once it becomes evident that the contractor
Arbitration Appeal Nos.4, 5, 6 & 7 of 2007 -28-
is unable to complete the work within the
stipulated time and that to a certain extent at
least the delay is attributable to certain actions or
inactions on the part of the principal and also in
cases where it becomes evident that the delay is
due to unforeseen circumstances then there will
be justification in awarding escalation.
Mr.Manimohan placed reliance on the judgment of
the Supreme Court in Food Corporation of India v.
M/s Ahmed & Co. and Anr. (JT 2006 (10) SC 62)to
argue that escalation of rates was normal and
routine incident arising out of gap of time during
inflationary period in performing any contact of
any time. Hence, even in the absence of a clause
in the contract permitting escalation in rates,
escalation can be allowed once the evidence
reveals that the delay in execution is at least to a
Arbitration Appeal Nos.4, 5, 6 & 7 of 2007 -29-
certain extent due to laches on the part of the
principal.
Ispat Engineering And Foundry Works, ... vs Steel Authority Of India Ltd. B.S. City, ... on 25 July, 2001
In Ispat Engineering & Foundry Works v.
Steel Authority of India Ltd. (2001(6) SCC 347), it
has been clearly held that the arbitrator has no
authority or jurisdiction to abdicate the terms of
the contract which actually incorporate of that
party's desire while executing the contract. The
arbitrator derives authority from the contract and
if the arbitrator acts in manifest disregard of the
contract the award passed by him would be an
arbitrary one. In our view the District Court was
justified in taking view that the award passed by
Arbitration Appeal Nos.4, 5, 6 & 7 of 2007 -36-
the Arbitrator to the extent it was in conflict with
express terms of the contract was arbitrary and
hence, liable to be interfered with under Section
Rajasthan State Mines & Minerals ... vs Eastern Engineering Enterprises & Anr on 20 September, 1999
34. The judgment of the Supreme Court in
Rajasthan State Mines and Minerals Ltd. v.
Eastern Engineering Enterprises (1999(3) Arb.L.R
350(SC), according to us, is apposite to the facts
which obtain in these cases. The Supreme Court
held therein that if there is a specific term of the
contract which does not permit or give the
arbitrator the power to decide the dispute or there
is a specific bar under the Contract to the raising
of a particular claim (underline supplied) then the
award passed by the arbitrator in respect thereof
will be excess of jurisdiction. The Supreme Court
held that if the award passed by the arbitrator is
disregarding the terms of the reference or the
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arbitration agreement or the terms of the contract
will be a jurisdictional error which is liable to be
decided by the court under section 34.