#F-18-19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
18
+ O.M.P. 208/2001
GAS AUTHORITY OF INDIA ..... Petitioner
Through Mr. Rajiv Bansal, Advocate
versus
PCP INTERNATIONAL LTD.
AND ANR. ..... Respondents
Through Mr. N.B. Joshi with
Mr. Kaushik Dey, Advocates
AND
19
+ O.M.P. 217/2001
PCP INTERNATIONAL LTD.
AND ANR. ..... Petitioners
Through Mr. N.B. Joshi with
Mr. Kaushik Dey, Advocates
versus
GAS AUTHORITY OF INDIA ..... Respondent
Through Mr. Rajiv Bansal, Advocate
% Date of Decision : March 5, 2010
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
JUDGMENT
MANMOHAN, J (ORAL)
1. By way of present petitions both Gas Authority of India (in short "GAIL) and PCP International Ltd. (in short "PCP") have filed objections under Section 34 of Arbitration and Conciliation Act, 1996 O.M.P. 208/2001 & 217/2001 Page 1 of 6 (hereinafter referred to as "Act, 1996") challenging the Award dated 8th January, 2001 passed by the Sole Arbitrator, Mr. Justice (Retd.) M.S. Gujral. While OMP No. 208/2001 has been filed by GAIL, OMP No. 217/2001 has been filed by PCP.
2. The controversy pertains to a contract between the parties executed on 24th October, 1994 for construction of certain buildings etc. at the site of GAIL in Uttar Pradesh. Suffice it to say that disputes arose between the parties which led to arbitration clause being invoked in respect of the disputes. PCP filed its statement of claims to which GAIL filed its written statement/objections and raised certain counter claims. The arbitral proceedings culminated in the Award dated 8th January, 2001.
3. After the passing of the Award, both GAIL and PCP filed applications under Section 33 of Act, 1996 before the Arbitrator. Both the applications were disposed of by the Arbitrator vide order dated 3rd March, 2001. The Arbitrator made a minor correction in the Award which was in the nature of correcting typographical error and other than that correction, the Arbitrator dismissed both these applications.
4. Both the parties before the Arbitrator approached this Court by way of their OMPs. As both the parties had impugned the Award as well as the order of the Arbitrator dismissing their applications under Section 33 of Act, 1996, there was no question of executing the Award. Pleadings being complete in the two OMPs and the arbitral O.M.P. 208/2001 & 217/2001 Page 2 of 6 record having been summoned, both the parties were heard at length.
5. During the course of arguments, Mr. N.B. Joshi, learned counsel for PCP argued that the Arbitrator has not considered the evidence and has made the Award without taking into account the documentary evidence on record, even though the Arbitrator has stated in the Award that the questions would be decided on the basis of documentary evidence.
6. Similarly, Mr. Rajiv Bansal, learned counsel for GAIL has argued that the Arbitrator has not decided the controversy with respect to liquidated damages. Both the learned counsel have in effect argued that the determination of facts made by the Arbitrator is faulty and that such determination is perverse.
7. Mr. Joshi has further argued that assuming that the findings of the Arbitrator are not to be interfered with, the Arbitrator has made grave errors of arithmetical calculation and has worked out a final figure of Rs.49,29,,824 as the principal sum payable by PCP to GAIL under the Award. Mr. Joshi contended that while arriving at such a figure, the Arbitrator has not taken into account the amounts already received by GAIL by way of encashment of bank guarantees and that the Arbitrator has not given PCP the credit of the final bill. According to Mr. Joshi, even if impugned Award is allowed to stand, it is only a sum of Rs.16,64,453/- which can be said to be payable by PCP to GAIL.
O.M.P. 208/2001 & 217/2001 Page 3 of 6
8. In a similar vein, Mr. Bansal argued that it is on account of an arithmetical error/calculation mistake that the learned Arbitrator has left out the amount of Rs. 5,94,617, being the interest accrued on the sum of Rs. 35 lakhs disbursed by GAIL to PCP as Special Advance for the period commencing from the date of release till 4th October, 1996. His submission therefore is, that this amount of Rs. 5,94,617/- should have been awarded to GAIL.
9. The substantive challenge to the Award by both the parties in effect requires this Court to appreciate the evidence afresh and come to a finding of fact different from the finding arrived at by the Arbitrator. The scope of Section 34 of the Act, 1996 is very limited. Section 34 does not permit this Court to re-appreciate evidence. This Court does not exercise appellate jurisdiction over the award passed by the Arbitrator. The grounds on which this Court can interfere with the Award have been enumerated in section 34(2) of the Act, 1996. I find no such infirmity in the impugned Award.
10. It was urged by Mr. Bansal that the claim of GAIL with respect to liquidated damages was not adjudicated by the Arbitrator as should have been done. Having gone through the Award and having examined the contract between the parties, I find that Clause 27 of the contract specifically states that on this aspect, it is the decision of the Engineer-in-charge which would be binding on the parties. Thus, I find no infirmity in the Award. The Arbitrator could well not have given any finding on GAIL's claim of liquidated damages, as it was O.M.P. 208/2001 & 217/2001 Page 4 of 6 beyond the purview of the arbitration and did not form the subject matter of an arbitral dispute. I, therefore, find no merit in the objections of GAIL to the impugned Award. OMP No.208/2001 preferred by GAIL is, therefore, dismissed, subject however, to the directions given hereunder.
11. I have no hesitation in dismissing OMP No.217/2001 on the same grounds i.e. that this Court cannot go into the evidence and come to a finding of fact different from the finding arrived at by the Arbitrator.
12. Nevertheless, I find merit in the contention of Mr. Joshi that the computation of the total amount payable by PCP to GAIL where such a computation arises out of the Award itself requires examination. For this, Mr. Joshi has placed reliance on an illustrative Chart at Page 124 of the paper book in OMP No. 217/2001, which appears to be based on figures culled out of the amount awarded with credit being claimed by PCP from the bank guarantee amounts as well as the final bill.
13. Consequently, I direct the General Manager (Law), GAIL to appoint a Chartered Accountant within ten days from today. Similarly, PCP will also appoint a Chartered Accountant within ten days from today. Both the Chartered Accountants will meet as often as may be required in the week commencing 15th March, 2010. They will reconcile the amounts payable by PCP to GAIL with reference to the Chart referred to hereinabove. They shall also verify whether it is O.M.P. 208/2001 & 217/2001 Page 5 of 6 on account of an arithmetical error/calculation mistake that the Arbitrator has left out the amount of Rs. 5,94,617, being the interest accrued on the sum of Rs. 35 lakhs disbursed by GAIL to PCP as Special Advance for the period commencing from the date of release till 4th October,1996. The Chartered Accountants shall submit their joint report to this Court not later than 5th April, 2010 with advance copies to both the parties.
14. List this matter for directions in the category of short matters on 16th April, 2010.
15. Order Dasti to both the parties under the signature of the Court Master.
MANMOHAN,J MARCH 05, 2010 rn O.M.P. 208/2001 & 217/2001 Page 6 of 6