Andhra Pradesh High Court - Amravati
Rashtriya Ispat Nigam Limited vs 5.2015 Till Payment on 6 January, 2022
IN THE HIGH COURT OF ANDHRA PRADESH:
AT AMARAVATI
***
COM.C.A.No.03 of 2020
Between:
Rashtriya Ispat Nigam Limited, a Government of India
undertaking Incorporated under the Companies Act with its
Office at Ukkunagaram, Visakhapatnam rep. by Sri N.
Udayabhanu, S/o.P.N. Reddy, aged about 59 years, R/o.
Ukkunagaram, Visakhapatnam and working as Asst. General
Manager (MM) bearing employee No.108351 with the
petitioner company since Mr.N.Udayabhanu retired,
presently rep.by J. Venkayya, DGM (MM).
.... Appellant
And
1) M/s.Balaji Coke Industry Pvt. Ltd. Having its Head Office
at #12, Ho-Chi-Minh Sarani, Flat No.2-B, 2nd floor,
Kolkata - 700071, alternatively
M/s.Balaji Coke Industry Pvt. Limited, having its Head
Regd. Office at 2nd floor, 4, Govt. Place, (North), Kolkata -
700001 and three others.
....Respondents.
Date of Judgment pronounced on : 06.01.2022
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
1. Whether Reporters of Local newspapers
may be allowed to see the judgments? : Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals : Yes/No
3. Whether the Lordship wishes to see the fair : Yes/No
copy of the Judgment?
________________________________
JUSTICE C. PRAVEEN KUMAR
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COM.C.A.No.03 of 2020
* THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
+ COM.C.A.NO.03 OF 2020
% 06.01.2022
# Rashtriya Ispat Nigam Limited, a Government of India
undertaking Incorporated under the Companies Act with its
Office at Ukkunagaram, Visakhapatnam rep. by Sri N.
Udayabhanu, S/o.P.N. Reddy, aged about 59 years, R/o.
Ukkunagaram, Visakhapatnam and working as Asst. General
Manager (MM) bearing employee No.108351 with the
petitioner company since Mr.N.Udayabhanu retired,
presently rep.by J. Venkayya, DGM (MM).
.... Appellant
And
$ 1) M/s.Balaji Coke Industry Pvt. Ltd. Having its Head Office
at #12, Ho-Chi-Minh Sarani, Flat No.2-B, 2nd floor,
Kolkata - 700071, alternatively
M/s.Balaji Coke Industry Pvt. Limited, having its Head
Regd. Office at 2nd floor, 4, Govt. Place, (North), Kolkata -
700001 and three others.
....Respondents.
! Counsel for the Appellant : Sri. C.V. Mohan Reddy
Learned Senior Counsel.
Counsel for the 1st Respondent: Sri B. Adinarayana Rao
Learned Senior Counsel.
<Gist :
>Head Note:
? Cases referred:
1) (1991) 1 SCC 212
2) (2013) 202 DLT 218
3) 2018 SCC Online 8367
4) MANU/SC/0485/2021
5) (2015) 3 SCC 49
6) (2003) 5 SCC 705
7) (2006) 11 SCC 181
8) (2008) 13 SCC 80
9) (2020) 5 SCC 164
10) (2019) 4 SCC 163
11) (2011) 15 SCC 101
12) 2011 (5) SCC 758
13) (2007) 8 SCC 1
14) 2021 SCC Online 695
CPK, J & BKM, J
COM.C.A.No.03 of 2020
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
COM.C.A.No.03 of 2020
JUDGMENT : (Per Hon'ble Sri Justice C. Praveen Kumar)
The present appeal is filed by Rashtriya Ispat Nigam
Limited [for short "RINL"] under Section 37 of the Arbitration
and Conciliation Act, 1996 read with Order 43 Rule 1 of Code
of Civil Procedure, 1908 [for short, "C.P.C"], assailing the
Order, dated 14.10.2019 passed in C.A.O.P.No.
1 of 2018, on the file of Special Judge for Trial and disposal
of Commercial Disputes, Visakhapatnam, wherein the
application, filed by the appellant herein under Section 34 of
the Arbitration and Conciliation Act, 1996, was dismissed
confirming the order of the Arbitral Tribunal.
2. The circumstances, which led to filing of the Claim
Petition, are as under:-
i) The appellant [RINL] herein which is a Government
of India undertaking, issued a Global Tender Notice bearing
No. PUR.6.17.013/06006 dated 14.03.2006 for supply of
30,000 MT (+)/[-] 5% shipping tolerance of Low Ash
Metallurgical (LAM) Coke. The respondent/claimant, who
was a successful bidder was given a Letter of Intent, on
21.06.2006 vide PUR 6.17.013/0051. In continuation of the
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Letter of Intent, the respondent/claimant placed an
acceptance of tender for supply of said goods, inconformity
with the specifications mentioned in Annexure-I to the
contract @ Rs.7730/- per tonne.
ii) Though, the claimant had to supply the goods
between August and September, 2006 as per the purchase
order, but delay has occurred due to heavy rains and floods
in Gujarat State, where the cookeries were located and that
the claimant could offer to supply the goods by nominating
the Vessel on 23.09.2006, indicating the particulars of the
Ship, which are as under:-
Name of the Vessel : M.V. Great Haffy
Year of built : 1997
Length of overall : 185.74 metrs
Crane : 4 x 30 MT
Grabb : 4 x 10 CBM
iii) However, vide letter dated 26.09.2006, the appellant
herein rejected the nomination for the reason as under:
―In terms of the contract and also due to non-submission of
Performance Guarantee bond, we cannot accept the vessel nominated on
26.09.2006. We request you to arrange for Performance Guarantee bond
immediately but not later than 27.09.2006 for further necessary action at
our end‖.
iv) The material on record also shows that vide letter
26.09.2006, the Claimant submitted Performance Guarantee
bond and nominated another vessel. The particulars of
which are as under:
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Name of the Vessel : M.V. Halis Kalkavan
Year of built : 1984
Length of overall : 186.70 Mtrs
M/Beam : 28.40 Mtrs
Crane : 4 x 25 MT
Leavycan : 7-14, Jan, 2007
v) However, the same was rejected by the appellant
herein mainly on the ground that the Vessel is more than 22
years of age, which is contrary to Clause 1.1 of Annexure-II
B to A/T, as it prescribes a Vessel not more than 15 years
old. Further, the Vessel has Cranes of 25 MT capacity only
as against the requirements of 30 MT capacity. No grabs
were available on board, while Clause 1.1 of the agreement
prescribe that the Vessel should have atleast four grabs each
of 12 Cubic Metres capacity. The claimant addressed letters
dated 23.12.2006, 29.12.2006, 30.12.2006 and 01.01.2007
requesting the appellant to accept the nominated vessel
named M.V. Halis Kalkavan with an undertaking that he
would comply all the terms and conditions which are agreed
between the appellant and its stevedoring agent at the
Visakhapatnam Port. The claimant also agreed to bear all
costs in connection with acquisition of additional grabs. The
claimant nominated another Vessel by name GESCO and
forwarded the details of the same vide letter dated
11.01.2007 for approval, but it was also rejected on the
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ground that it did not comply with the requirements of
Annexure-II-B.
vi) Vide letter dated 03.02.2007, the claimant indicated
to the appellant that in view of the rejection of three Vessels
nominated by him, without any valid reasons, the claimant
got absolved from further performance of contract dated
21.06.2006. Thereafter, the matter landed before the
Arbitral Tribunal.
3. The Claimant filed Claim Statement, seeking the
following reliefs, which are as under:
i) Declaration that the claimant has duly performed and
fulfilled its commitments, obligations, covenants and
undertakings under the Agreement dated August 13, 2003
[as modified on October 11, 2003] other than the terms
performance of which has been prevented or waived by
the respondent.
ii) A declaration that the claimant is absolved from further
performance of the contract dated June 21, 2006 due to
the breaches committed by the respondent;
iii) Declaration that the contract between the parties has,
in the facts of the case; stood repudiated and put to an
end thereby disentitling the respondent from claiming from
the claimant further performance of the contract between
the parties;
iv) Perpetual injunction restraining the respondent from
claiming from the claimant further performance of the
contract between the parties;
v) An award for a sum of Rs.14,50,00,000/- as pleaded in
paragraph 53 hereof;
vi) An Award for Rs.69,57,000/- on account of the refund
of the aforesaid amount furnished as bank guarantee by
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the claimant and invoked and/or encashed illegally and
wrongfully by the respondent;
vii) Interest and further interest on the awarded sum @
18% per annum or at such other rate or rates as the
Learned Arbitrator may deem fit and proper;
viii) Alternatively, an enquiry be made in the damages
suffered by the claimant and an Award be made in favour
of the claimant for such sum or sums as may be found due
thereupon;
ix) Declaration that the notice No. 02/02/
6003/000019/000013 dated March 22, 2004 (styled as a
modification advice) is invalid, null and void,
unconscionable, burdensome, lacking in mutality onerous
and not binding on the parties, ineffective and of no effect;
x) Perpetual injunction restraining the respondent from
invoking the risk purchase clause being Clause No.14
contained in the said agreement dated June 21, 2006;
xi) Declaration that bank guarantee No.IBC/03/RI/344
dated October 16, 2003 has stood discharged;
xii) Declaration that the purported threat of invocation of
the said bank guarantee by the respondent is fraudulent
and/or barred by special equities and is null and void,
illegal, ineffective and of no effect;
xiii) Perpetual injunction restraining the respondents from
invoking or enforcing or encashing the bank guarantee
No.IBC/03/RI/344 dated October 16, 2003 or receiving
any payment thereunder from the Allahabad Bank,
International Branch, Kolkata;
xiv) Costs and incidential to the present arbitration
proceedings;
xv) Such further award or awards be made as the Learned
Tribunal may deem fit and proper.
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The details are as under:-
A) Interest on Rs.21.48 Crores (from August,
2006 to June, 2007 @ 14% on the value of the
ordered goods Rs.23.19 Crores less profit
Rs.1.74 Crores = Rs.21.48 Crores)
= Rs.2.75 Crores
B) Loss of Production/Profit = Rs.7.15 Crores
C) Loss on account of movement
From Kandla to New Mangalore = Rs.4.54 Crores
D) Plot Rent at Mangalore Port
And other expenses = Rs.0.05 Crores
--------------------------
Rs.14.49 Crores
--------------------------
Total claim (A+B+C+D) = Rs.14.50 Crores
--------------------------
4. A counter came to be filed by the appellant herein
along with a counter claim for Rs.7,78,20,000/- together
with interest at 12% from 11.04.2007 and also for pendente
lite interest apart from costs to the Arbitrator.
(a) While denying the allegations made in the claim
petition except to the extent admitted, it is stated that all the
terms of the Annexure-II-A are absolutely binding and are
mandatory and that it is incorrect to say that they are
directory. It is said that the claimant never raised the issue
while submitting the offer or even at the time of Acceptance
of Tender ["AT"]. In order to wriggle out of its commitment
under the contract, the claimant is coming forward with the
plea that the terms of Annexure-II-A are only warranties. It
is said that question of deviating from or departing from the
terms under Annexure-II-A does not arise and the claimant
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is fully bound by them, having accepted the terms of
agreement.
(b) In so far as Acceptance to Tender conditions are
concerned, it is stated that the claimant was to furnish a
Performance Guarantee bond for 3% on CFR value within 15
days of the issue of the AT order and was to effect shipment
during August-September, 2006 in parcel size of 30000 MT
(+)/(-) 5%. It is stated that after a great deal of persuasion
and repeated correspondence, Performance Guarantee (PG)
bond was given in October, 2006 which is beyond the
schedule delivery period of August-September, 2006.
However, the same was accepted though it was late.
(c) Dealing with the averments in para 10 of the claim
petition namely that the conditions in Annexure-I alone are
essential for purpose of the contract, the same is denied,
stating that the Annexure-II-A is equally important and
essential. Though, letters dated 29.08.2006 and 30.08.2006
written by the claimant, were accepted, but it is said that the
allegations made in the said letters that the respondent did
its best to locate a suitable Vessel to deliver the goods is
incorrect. It is further stated in the counter that the
claimant failed to adhere to the original schedule of laycan in
August, 2006. Letters came to be addressed to the claimant
that due to accumulation of stocks, the appellant herein was
not in a position to receive the stock till January, 2007.
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However, in the month of December, 2006, the claimant
nominated the vessel M.V. Halis Kalkavan and informed the
appellant herein for its approval. Though, the vessel does
not specify the requirements of Annexure-II-A, with regard to
physical features, age, crane requirement etc., and also
number of grabs, the claimant requested that the vessel
should be accepted. But, the reason for rejection was clearly
indicated by the appellant herein in their letter dated
22.12.2006. Counter which is running into number of pages
answers the allegations made in the claim petition. It may
not be necessary for this Court to refer to all the averments
in the counter, as the prime issues are reiterated before this
Court, which we will refer to a little later.
5. The claimant got himself examined as C.W.1 along with
another witness while the appellant herein examined three
witnesses on their behalf.
Issue arising out of Claim:
i) What are the terms of contract dt.21.06.2006 and
whether the terms mentioned in Annexure II-A of the
contract are mandatory or directory, and or in the
nature of warranties which could be waived or
varied?
ii) Whether the breach of any of the terms of Annexure
II-A could give rise to the termination of contract and
invoking the guarantee?
iii) Whether both the parties have performed their
obligations under the contract?
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iv) Whether the claimant is entitled for a declaration as
claimed in paragraph (iii) of the prayer of the claim
statement?
v) Whether the claimants are entitled to a sum of
Rs.14.50 Crores or to any part of claim ‗A' to ‗D' of
paragraph 51 of the claim statement and/or any part
thereof?
vi) Whether the invocation of bank guarantee by the
respondent is improper and whether the claimant is
entitled to the said amount?
vii) Whether the claimant is entitled to interest for any
period before the commencement of arbitration and
pendente lite and after the award and if so at what
rate?
viii) Whether the claimant is entitled for costs?
ix) To what relief is the claimant entitled?
Issue arising out of Counter Claim:
(B):
i) Whether the respondent Steel Plant is entitled to the
counter claim of Rs.7,78,20,000/-?
ii) If so, whether the respondent is entitled to interest on
the same at 12% from 11.04.2007?
6. After considering the material on record, an Award
came to be passed by the Arbitral Tribunal on 30.04.2015,
the operative portion of which is as under:
―In the result,
i) We award a sum of Rs.14,42,65,130/- as the amount
payable to the claimant up to the date of award
(roughly 30.04.2015).
ii) We further award, in the light of the recent judgment of
the Supreme Court in Hyder Consultancy (U.K) vs.
Governor, State of Orissa dated 25.11.2014, (partly
overruling State of Haryana vs. Arora), future interest at
12% on the above sum of Rs.14,42,65,130/- from
01.05.2015 till payment.
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iii) We also award and direct the respondent shall pay a
sum of Rs.2,00,000/- towards cost of arbitration".
7. Challenging the same, the appellant herein preferred
A.O.P.No.1114 of 2015 which was renumbered as
C.A.O.P.No.1 of 2018 before the Special Judge for Trial and
Disposal of Commercial Disputes at Visakhapatnam under
Section 34 of the Arbitration and Conciliation Act, 1996
seeking to set aside the Award of the Arbitral Tribunal. The
Special Judge vide its order dated 14.10.2019 dismissed
C.A.O.P.No.1 of 2018 which is subject matter of challenge
before this Court in the appeal filed under Section 37 of the
Act.
8. Various grounds are raised in the grounds of appeal,
which may not be necessary to be referred to, since the same
are reiterated in the arguments advanced by the counsel for
the appellant, which are herein under referred to.
9. Heard Sri C.V. Mohan Reddy, learned Senior Counsel
representing Sri K. Sarvabhouma Rao, learned counsel for
appellant and Sri B. Adinarayana Rao, learned Senior
Counsel representing Sri Javvaji Sarath Chandra, learned
counsel for respondent No.1.
10. Sri C.V.Mohan Reddy, learned Senior Counsel
appearing for the appellant herein submits that though the
scope of interference under Sections 34 and 37 of the
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Arbitration and Conciliation Act, 1996 are very limited, but
the Court can interfere with the award on three grounds (1)
award being arbitrary and shocking to the conscience of the
Court, (2) violative of substitutive laws in India or judicial
pronouncements and (3) award being perverse and opposed
to Public Policy. He took us through the judgments of the
Hon‟ble apex Court in (a) Associate Engineering Co. vs.
Government of Andhra Pradesh, (b) Ssangyong
Engineering vs. NHAI and (c) Anglo American Case.
11. According to learned Senior Counsel for the appellant,
a Global Tender dated 14.03.2006 was issued by the
appellant for supply of 90,000 MT of Low Ash Metallurgical
Coke (LAM Coke) subject to terms and conditions in the Bid
document. The delivery has to be done in a parcel size of
30,000 MT. The tender document lays down certain
conditions with regard to the vessel, cranes and grabs etc.,
on the vessel, which are mentioned in clause 1.1 of the
tender condition. Since, they are price bearing conditions,
and as the freight charge of the vessels varies depending on
age, discharge capacity and other equipment like cranes and
grabs etc, these conditions are mandatory. He submits that
if the tenderer proposed any deviation in the tender
condition, he has to propose the same while submitting his
bid, so that the same would be put to all the other tenderers
so as to provide a Level Playing Field, more so as the
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tenderer is a public sector undertaking. In other words, his
plea is that rules cannot be changed once the tender process
starts. According to him, the claimant did not choose to
propose deviations to the original conditions. When once the
claimant agrees to abide by all conditions of the bid
document, he cannot now turn around and contend that
specifications mentioned, with regard to vessel are not
mandatory. Hence, the stand of the appellant in rejecting
the vessel nominated on the ground that it does not satisfy
the specifications in Annexure-II-B and II-A, cannot be found
fault with. He took us through the correspondence between
the parties in support of his plea. In other words, his
argument in short is that the finding of the Special Court in
holding that conditions with regard to specifications of the
vessel are only warranties and not mandatory is perverse,
and opposed to public policy.
12. The learned Senior Counsel further submits that the
appellant being a Public Sector Undertaking cannot relax the
Tender conditions during the course of execution of contract,
particularly the conditions which have a bearing on price.
According to him, if there is any deviation from the tender
conditions after the offer of the claimant is accepted, then
definitely the authorities will be accused of favouritism,
exposing them for an enquiry by vigilance. He placed
reliance on the evidence of R.Ws.2 and 3 in support of his
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plea. According to him, basing on one sentence in the
evidence namely ―but also to bring in some uniformity in all
the vessels‖, the Tribunal and Special Court came to a
conclusion that the conditions are only warranties and not
mandatory, which according to the learned counsel is
contrary to the other evidence on record, namely that of
R.W.1 who in his cross-examination to question No.5, states
that "all conditions are mandatory" and ―conditions have not
been relaxed after placement of orders‖. He further submits
that merely because, the claimant agreed to bear the extra
costs that may be incurred if vessels which are older or
which do not have the necessary cranes or grabs does not
make the tender conditions directory, more so when such
offer was accepted by the appellant. Though, the
communication between the claimant and the appellant
would show that the claimant mentioned that the vessels of
the specifications were not available in spite of his best
efforts and it is very difficult to get vessels with such
specifications, but, there is nothing on record to show the
efforts put in to secure such vessel. Even otherwise, the
same shall not be a ground to relax the terms of the
agreement.
13. According to learned Senior Counsel, the claimants
should have filed the Lloyd‟s Register which contains the
names of all the vessels that are available, Or, should have
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obtained information from the Directorate of Shipping. But,
nothing of that sought was done. He also took us through
the letter dated 29.12.2006 to show that the claimant
himself has stated that it is very difficult to get vessels for
movement of LAM Coke. Hence, the claimant ought to have
been verified the factual situation before agreeing to the
terms of the contract. He placed reliance on a judgment in
Kumari Srilekha Vidyarthi (Kumari) vs. State of U.P.1, in
support of the plea that the State cannot be attributed to
show that there is an obvious difference in the contracts
between private parties and contracts to which the State is a
party.
14. Learned Senior Counsel also took us through Sections
12 and 13 of the Sale of Goods Act, 1930, to show that the
buyer alone may waive the condition or elect to treat the
breach of the condition as a breach of warranty and not by
the supplier.
15. One of the objections raised by learned Senior Counsel
for the appellant is that the claimant cannot maintain this
claim, as he is only an agent of the supplier. He took us
through Clause 3.0, which deals with eligibility criteria. In
other words, the plea of the learned Senior Counsel appears
to be the tenderer should be a legal owner of the offered
Cargo for the purpose of sale to the purchaser. Referring to
(1991) 1 SCC 212
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Section 230 of Indian Contract Act, 1872 that the agent
cannot personally enforce, nor be bound by terms of the
contract on behalf of Principal, referred to bids of landing to
show that the companies such as Aditya Coke Private
Limited, Antai Balaji Limited and Lotus Energy (India)
Private Limited are the owners and as such, it is
incomprehensible as to how the claimant can be the owner
of the Cargo. A comment was also made on the finding of
the Tribunal at Para 13, Page 33 of the award to show that
the third category referred to therein was added by the
Tribunal and it is not a condition of the agreement at all.
16. Learned Senior Counsel further contends that the
respondent/claimant was to transport material from Kandla
to Visakhapatnam, but by diverting the vessel to Mangalore
Port on his own will, the appellant cannot be made
responsible for the freight and plot charges payable at
Mangalore. According to him, nobody asked him to
transport the material to Mangalore or for that matter load
the material into the ship which is not meeting the
specifications, at Kandla.
17. Coming to the interests on the value of goods from
August, 2006 to June, 2007, he would submit that the goods
are not ready by then due to rains from July, 2006 to
August, 2007, hence awarding of interests is also perverse.
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Learned Senior Counsel would submit that the fundamental
question that was ignored by the Tribunal as well as by
Court is, there was no need for the claimant to load the
Cargo at Kandla and divert the vessel to New Mangalore Port
and unload the material there, when the terms of agreement
are to the effect that the material has to be delivered at
Visakhapatnam.
18. On the other hand, Sri B. Adinarayana Rao, learned
Senior Counsel appearing for claimant/respondent No.1
disputes the grounds raised by the appellant. Starting from
where the learned Senior Counsel appearing for appellant
ended, he would contend that the claimant was forced to
unload the goods at New Mangalore as the appeals made to
the Chairman of the appellant after the goods were loaded
into the vessel at Kandla for being delivered at
Visakhapatnam, came to be rejected.
19. Coming to the scope of interference by the Appellate
Court in appeal under Section 37 of the Act, he would
submit that the same is narrow and very limited. Referring
to the judgments of the Delhi High Court in Jhang
Cooperative Group Housing Society vs. P.T. Munshi Ram
and Associates Private Limited2 and in L.G. Electronics
India Private Limited Vs. Dinesh Karla3, the judgment of
(2013) 202 DLT 218
2018 SCC Online 8367
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the Hon‟ble Supreme Court in PSA SICAL Terminals
Private Limited vs. The Board of Trustees of V.O.
Chidambranar Port Trust, Tuticorin4, he would contend
that the jurisdiction of the appellate Court is limited and
that too it is only a supervisory jurisdiction. He further
submits that the requirement under Section 34 of the Act is,
beside raising objections, the party is required to furnish
proof in respect of such objections. It is stated that the
grounds in respect of each of the objections to the award,
were not set forth with reference to material before the
Arbitral Tribunal. On the other hand, the appellant was
merely pointing out the conclusions arrived at by the
Tribunal, which cannot be treated as those falling under
Section 34(2) of the Act.
20. In so far as the issue relating to the ownership of the
goods, he would submit that the Arbitral Tribunal dealt with
the matter in three different angles and accordingly held that
the claim made by the claimant requires consideration. In
so far as the issue, as to whether the conditions in the
tender are warranties, he took us through various clauses
and conditions in the tender document and more
particularly Clause 10 which deal with delivery of material as
per the Annexure-II-A.
MANU/SC/0485/2021
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21. According to learned Senior Counsel, in view of Section
12 of the Sale of Goods Act, the Arbitral Tribunal and the
Special Court have rightly come to a conclusion that the
aforesaid terms are warranties and hence refusal to accept
the vessel nominated by the claimant, is illegal. According to
him, the Arbitrators are the masters of the interpretation of
the contracts and its terms and even if the Arbitrators make
a mistake, the same constitutes an error within the
jurisdiction and such errors cannot be grounds for setting
aside the arbitral award. Referring to paragraph No.33 in
Associates Builders vs. Delhi Development Authority5
case, he would contend that Arbitral Tribunal is the master
of the quantity and quality of evidence, the finding of fact
arrived at on the basis of evidence on record are not to be
scrutinized, as the Court does not sit in appeal over the
award. Hence, the Special Court was right in not interfering
with the Award.
22. Learned Senior Counsel further submits that unless it
is shown that there was an error apparent on the face of the
record, which goes to the root of the matter, interference
with the award is unwarranted. Learned Senior Counsel
further submits that the specifications of the vessel are only
for the purpose of a computing the lay time and demurrage
and when the claimant offered to bear the additional costs,
(2015) 3 SCC 49
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the appellant cannot have any objection, as the agreement
was only in respect of supply of material but not for
providing transport facilities. He would submit that Section
12 of the Sale of Goods Act, provides the stipulation in a
contract of sale with reference to goods, can be a condition
or warranty. According to him, the act denies a condition, as
a stipulation essential to the main purpose to the contract,
the breach of which gives rise to a right, to treat the contact
as repudiated. A warrantee is definite as collateral to the
main purpose of contract, breach of which gives raise to a
claim for damages but not to reject the goods and treat the
contract as repudiated. Since the mode of delivery is
collateral to the main contract and its breach can only give
raise to a claim of damages, but not otherwise, they are to be
treated as warranties.
23. He further submits that Section 13 of the Sale of
Goods Act has no application at all. It suggests that even a
condition can be waived by the parties so as to avoid the
rigour thereof. In so far as the plea that the appellant is a
State under Article 12 of Constitution of India and it is
bound to follow Article 14, it is contended that in a
Commercial contract, the parties are governed by the terms
of contract and contract cannot be read with reference
Article 14 of the Constitution of India. It is pleaded that the
commercial contracts are not states largeness and that is a
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bargain. He further submits that on account of movement of
goods from Kandla to New Mangalore port, the claimant has
sustained loss. The loss incurred on movement of goods
from Kandla to New Mangalore port was dealt with
exhaustively and the same cannot be gone into for more
than one reason. Firstly, the rejection of the vessel is bad in
law and secondly having regard to non-availability of the
vessel for effecting delivery, the respondent chartered the
vessel on 02.01.2007, to comply with the stipulations,
thirdly having chartered a ship and when the goods are lying
in the yard, the liability for payment to the ship caused
greater loss and fourthly, the goods are meant for specific
reason which cannot be stored at Kandla and offered for
sale.
24. Referring to Clause 2.1.3, learned Senior Counsel
would contend that the other condition in the contract
cannot be mandatory and the interpretation given to the
terms of contract by the Arbitral Tribunal is for coming to a
just conclusion since the emphasis of the contract is only
the supply of material specifications as to its quality and
content. In other words, his argument is that the
stipulations as to number of cranes, grabs etc. are meant for
the purpose of counting the laytime and for the purposes of
fixing the mutual obligations under the contract for the
purpose of payment of sum that is agreed upon.
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25. He also submits that the awarding of interests from
August, 2006 to June, 2007 requires no interference in an
appeal under Section 37 of the Act. In other words, he
submits that merely because, the goods did not reach
Visakhapatnam and were not delivered to the appellant does
not mean that the claimant cannot invoke the provisions of
the Arbitral Act, claiming damages for the loss incurred.
Delivery of goods is not a prerequisite for raising a dispute
between the parties. For the aforesaid reasons, the learned
Senior Counsel would contend that having regard to the
scope of Section 37 of the Act, the order under challenge
warrants no interference.
26. The point that arises for consideration is, whether the
Court hearing the appeal under Section 34 of
Arbitration and Conciliation Act, 1996 was right in
confirming the Award of Arbitral Tribunal in awarding
damages as indicated in the award?
27. It is to be noted that the present Arbitral Tribunal
came to be constituted under the terms of the agreement,
meaning thereby that, it is a creature of an agreement
entered into between the appellant and respondent. It would
be appropriate to extract the said portion of the agreement,
which is as under:
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23.1: All disputes arising in connection with the present
Acceptance to Tender shall be finally settled under the Rules of
Arbitration of the Indian Council of Arbitration by one or more
arbitrators appointed in accordance with the said Rules and
the Award made in pursuance thereof shall be binding on the
parties. The Arbitrator(s) shall give a reasoned award. Cost of
arbitration to be borne by the losing party. The venue of
arbitration shall be Visakhapatnam, India.
28. Before proceeding further, it would be necessary for us
to deal with scope of the court for interference under
Sections 34 and 37 of the Act. Section 34(2)(b)(ii) of the Act,
reads as under:
34. Application for setting aside arbitral award.--(1)
Recourse to a Court against an arbitral award may be made
only by an application for setting aside such award in
accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if--
(b) the Court finds that--
(ii) the arbitral award is in conflict with the public policy of India.
37. Appealable orders.--(1) An appeal shall lie from the
following orders (and from no others) to the Court authorised by
law to hear appeals from original decrees of the Court passing
the order, namely:--
3[(a) refusing to refer the parties to arbitration under
section 8;
(b) granting or refusing to grant any measure under
section 9;
(c) setting aside or refusing to set aside an arbitral
award under section 34.]
(2) Appeal shall also lie to a court from an order of the arbitral
tribunal--
(a) accepting the plea referred to in sub-section (2) or
sub-section (3) of section 16; or
(b) granting or refusing to grant an interim measure
under section 17.
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(3) No second appeal shall lie from an order passed in appeal
under this section, but nothing in this section shall affect or take
away any right to appeal to the Supreme Court.
29. In ONGC Limited vs. Saw Pipes Limited6 , the
Hon‟ble Supreme Court in Para No.31, held as under:
31. Therefore, in our view, the phrase ‗public policy of India'
used in Section 34 in context is required to be given a wider
meaning. It can be stated that the concept of public policy
connotes some matter which concerns public good and the
public interest. What is for public good or in public interest or
what would be injurious or harmful to the public good or public
interest has varied from time to time. However, the award
which is, on the face of it, patently in violation of statutory
provisions cannot be said to be in public interest. Such
award/judgment/decision is likely to adversely affect the
administration of justice. Hence, in our view in addition to
narrower meaning given to the term ‗public policy' in
Renusagar case [1994 Supp (1) SCC 644] it is required to be
held that the award could be set aside if it is patently illegal.
The result would be - award could be set aside if it is contrary
to:
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality, or
(d) in addition, if it is patently illegal.
Illegality must go to the root of the matter and if the illegality is
of trivial nature it cannot be held that award is against the
public policy. Award could also be set aside if it is so unfair
and unreasonable that it shocks the conscience of the court.
Such award is opposed to public policy and is required to be
adjudged void.
(2003) 5 SCC 705.
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30. In McDermott International Inc. Vs. Burn Standard
Co.Ltd.7, the Hon‟ble apex Court in para 58 to 60 held as
under:
58. In Renusagar Power Co.Ltd. v. General Electric Co. this
Court laid down that the arbitral award can be set aside if it is
contrary to (a) fundamental policy of Indian law; (b) the interests
of India; or (c) justice or morality. A narrower meaning to the
expression ‗public policy' was given therein by confining judicial
review of the arbitral award only on the aforementioned three
grounds. An apparent shift can, however, be noticed from the
decision of this Court in ONGC Ltd. V. Saw Pipes Ltd. (for short
‗ONGC'). This Court therein referred to an earlier decision of
this Court in Central Inland Water Transport Corpn. Ltd. V.
Brojo Nath Ganguly wherein the applicability of the expression
‗public policy' on the touchstone of Section 23 of the Contract
Act, 1872 and Article 14 of the Constitution of India came to be
considered. This Court therein was dealing with unequal
bargaining power of the workmen and the employer and came
to the conclusion that any term of the agreement which is
patently arbitrary and/or otherwise arrived at because of the
unequal bargaining power would not only be ultra vires Article
14 of the Constitution of India but also hit by Section 23 of the
Contract Act, 1872. In OnGC this Court, apart from the three
grounds stated in Renusagar, added another ground thereto for
exercise of the court's jurisdiction in setting aside the award if it
is patently arbitrary.
59. Such patent illegality, however, must go to the root of the
matter. The Public Policy violation, indisputably, should be so
unfair and unreasonable as to shock the conscience of the court.
Where the arbitrator, however, has gone contrary to or beyond
the expressed law of the contract or granted relief in the matter
not in dispute would come within the purview of Section 34 of
the Act. However, we would consider the applicability of the
aforementioned principles while noticing the merits of the
matter.
(2006) 11 SCC 181
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60. What would constitute public policy is a matter dependent
upon the nature of transaction and nature of statute. For the
said purpose, the pleadings of the parties and the materials
brought on record would be relevant to enable the court to judge
what is in public good or public inter5est, and what would
otherwise be injurious to the public good at the relevant point,
as contradistinguished from the policy of a particular
Government. (See State of Rajasthan v. Basant Nahata).
31. In DDA vs. R.S. Sharma and Co.8, the Hon‟ble apex
Court concluded as under:
"21. From the above decisions, the following principles emerge:
(a) An award, which is
(i) contrary to substantive provisions of law; or
(ii) the provisions of the Arbitration and Conciliation Act,
1996; or
(iii) against the terms of the respective contract; or
(iv) patently illegal; or
(v) prejudicial to the rights of the parties; is open to interference
by the court under Section 34(2) of the Act.
(b) The award could be set aside if it is contrary to:
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality.
(c) The award could also be set aside if it is so unfair and
unreasonable that it shocks the conscience of the court.
(d) It is open to the court to consider whether the award is against
the specific terms of contract and if so, interfere with it on the ground that
it is patently illegal and opposed to the public policy of India.
(emphasis supplied)
With these principles and statutory provisions, particularly,
Section 34(2) of the Act, let us consider whether the arbitrator as well as
the Division Bench of the High Court were justified in granting the award
in respect of Claims 1 to 3 and Additional Claims 1 to 3 of the claimant or
the appellant DDA has made out a case for setting aside the award in
(2008) 13 SCC 80
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respect of those claims with reference to the terms of the agreement duly
executed by both parties.‖
32. In Associates Builders' case (cited 5 supra), the
Hon‟ble Supreme Court after referring to the earlier
Judgments of Apex Court analysed each of the heads
contained in Saw Pipes's case and observed as under:
33. It must clearly be understood that when a court is
applying the ‗public policy' test to an arbitration award, it does
not act as a court of appeal and consequently errors of fact
cannot be corrected. A possible view by the arbitrator on facts
has necessarily to pass muster as the arbitrator is the ultimate
master of the quantity and quality of evidence to be relied upon
when he delivers his arbitral award. Thus an award based on
little evidence or on evidence which does not measure up in
quality to a trained legal mind would not be held to be invalid
on this score. Once it is found that the arbitrators approach is
not arbitrary or capricious, then he is the last word on facts.
34. It is with this very important caveat that the two
fundamental principles which form part of the fundamental
policy of Indian law (that the arbitrator must have a judicial
approach and that he must not act perversely) are to be
understood.
40. We now come to the fourth head of public policy,
namely, patent illegality. It must be remembered that under the
Explanation to Section 34(2)(b), an award is said to be in conflict
with the public policy of India if the making of the award was
induced or affected by fraud or corruption. This ground is
perhaps the earliest ground on which courts in England set
aside awards under English law. Added to this ground (in
1802) is the ground that an arbitral award would be set aside if
there were an error of law by the arbitrator.
42. In the 1996 Act, this principle is substituted by the
―patent illegality‖ principle which, in turn, contains three
subheads:
42.1: (a) A contravention of the substantive law of India
would result in the death knell of an arbitral award. This must
be understood in the sense that such illegality must go to the
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root of the matter and cannot be of a trivial nature. This again
is really a contravention of Section 28(1)(a) of the Act, which
reads as under:
"28. Rules applicable to substance of dispute__ (1) Where the
place of arbitration is situated in India___
(a) In an arbitration other than an international commercial
arbitration, the Arbitral Tribunal shall decide the
dispute submitted to arbitration in accordance with the
substantive law for the time being in force in India.
42.2: (b) A contravention of the Arbitration Act itself would
be regarded as a patent illegality _ for example if an arbitrator
gives no reasons for an award in contravention of Section 31(3)
of the Act, such award will be liable to be set aside.
42.3: (c) Equally, the third subhead of patent illegality is
really a contravention of Section 28(3) of the Arbitration Act,
which reads as under:
―28. Rules applicable to substance of dispute__(1)(2)
(3) In all cases, the Arbitral Tribunal shall decide in
accordance with the terms of the contract and shall take into
account the usages of the trade applicable to the transaction.‖
(emphasis supplied).
This last contravention must be understood with a caveat.
An arbitral Tribunal must decide in accordance with the terms of
the contract, but if an arbitrator construes a term of the contract
in a reasonable manner, it will not mean that the award can be
set aside on this ground. Construction of the terms of a contract
is primarily for an arbitrator to decide unless the arbitrator
construes the contract in such a way that it could be said to be
something that no fair-minded or reasonable person could do.
33. In South East Asia Marine Engineering and
Constructions Limited (SEAMEC Limited) vs. Oil India
Limited9, the Apex Court in Paras 17 & 30 of the said
judgment while dealing with interpretation of clause vis-à-vis
circular issued by Government of India, observed as under:-
(2020) 5 SCC 164
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―According to rule of construction of any document
harmonious approach should be made reading or taking the
document as a whole and exclusion should not be readily
inferred unless it is clearly stated in the particular clause of the
document. This is according to rule of interpretation. A
consistent interpretation should be given with a view to smooth
working of the system, which the document purports to regulate.
The word, which makes it inconsistent or unworkable, should
be avoided. This is known as beneficial construction and a
construction should be made which suppresses the mischief
and advances the remedies. So, the increase in the operational
cost due to enhanced price of the diesel is one of the subject-
matters of the contract as enshrined in Clause 23. It may be
said that Clause 23 may be termed as ―Habendum Clause‖. In
the deed of the contract containing various granting clauses and
the habendum signifying the intention of, the grantor.
That Clause 23 requires liberal interpretation for
interpreting the expression ―law‖ or change in law, etc. will also
be evident from the facts that the respondents Oil India Limited.
through its witness Mr. Pasrija has clearly stated that the
change in diesel price or any other oil price was never done and
by way of any statutory enactment either by Parliament or by
State Legislature. So, it is clear that at the time when Clause 23
was incorporated in the agreement Oil India Ltd. was very much
aware that change in oil price was never made by any statutory
legislation but only by virtue of government order, resolution,
instruction, as the case may be, on accepting that a condition of
the appropriate committee, namely, OPC it is also clear to apply
when there is change in oil price, here HSD, by the Government
and its statutory authority as enacted in the above without
resorting to any statutory enactment. Therefore that the
interpretation of expression ―law‖ or change in law, etc. requires
this extended meaning to include the statutory law, or any
order, instruction and resolution issued by the Central
Government in its Ministry of Petroleum and Natural Gas.‖
30. From the aforesaid discussion, it can be said that the
contract was based on a fixed rate. The party, before entering
the tender process, entered the contract after mitigating the risk
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of such an increase. If the purpose of the tender was to limit the
risks of price variations, then the interpretation placed by the
Arbitral Tribunal cannot be said to be possible one, as it would
completely defeat the explicit wordings and purpose of the
contract. There is no gainsaying that there will be price
fluctuations which a prudent contractor would have taken into
margin, while bidding in the tender. Such price fluctuations
cannot be brought under Clause 23 unless specific language
points to the inclusion.
34. After referring to Associates Builders' case, the
Apex Court in MMTC vs. Vedanta Limited10 held:-
―11. As far as Section 34 is concerned, the position is well-
settled by now that the Court does not sit in appeal over
the arbitral award and may interfere on merits on the
limited ground provided Under Section 34(2)(b)(ii) i.e. if the
award is against the public policy of India. As per the legal
position clarified through decisions of this Court prior to the
amendments to the 1996 Act in 2015, a violation of Indian
public policy, in turn, includes a violation of the
fundamental policy of Indian law, a violation of the interest
of India, conflict with justice or morality, and the existence
of patent illegality in the arbitral award. Additionally, the
concept of the "fundamental policy of Indian law" would
cover compliance with statutes and judicial precedents,
adopting a judicial approach, compliance with the
principles of natural justice, and Wednesbury [Associated
Provincial Picture Houses v. Wednesbury Corporation,
(1948) 1 KB 223 (CA)] reasonableness. Furthermore,
"patent illegality" itself has been held to mean
contravention of the substantive law of India,
contravention of the 1996 Act, and contravention of the
terms of the contract.
12. It is only if one of these conditions is met that the
Court may interfere with an arbitral award in terms of
Section 34(2)(b)(ii), but such interference does not entail a
review of the merits of the dispute, and is limited to
(2019) 4 SCC 163
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situations where the findings of the arbitrator are
arbitrary, capricious or perverse, or when the conscience of
the Court is shocked, or when the illegality is not trivial but
goes to the root of the matter. An arbitral award may not
be interfered with if the view taken by the arbitrator is a
possible view based on facts. (See Associate Builders v.
DDA, (2015) 3 SCC 49. Also see ONGC Ltd. v. Saw Pipes
Ltd., (2003) 5 SCC 705; Hindustan Zinc Ltd. v. Friends
Coal Carbonisation, (2006) 4 SCC 445; and McDermott
International Inc. v. Burn Standard Co. Ltd., (2006) 11
SCC 181).
14. As far as interference with an order made Under
Section 34, as per Section 37, is concerned, it cannot be
disputed that such interference Under Section 37 cannot
travel beyond the restrictions laid down Under Section 34.
In other words, the court cannot undertake an independent
assessment of the merits of the award, and must only
ascertain that the exercise of power by the court Under
Section 34 has not exceeded the scope of the provision.
Thus, it is evident that in case an arbitral award has been
confirmed by the court Under Section 34 and by the court
in an appeal Under Section 37, this Court must be
extremely cautious and slow to disturb such concurrent
findings.
15. Having noted the above grounds for interference
with an arbitral award, it must now be noted that the
instant question pertains to determining whether the
arbitral award deals with a dispute not contemplated by
or not falling within the terms of the submission to
arbitration, or contains decisions on matters beyond the
scope of the submission to arbitration. However, this
question has been addressed by the courts in terms of the
construction of the contract between the parties, and as
such it can be safely said that a review of such a
construction cannot be made in terms of reassessment of
the material on record, but only in terms of the principles
governing interference with an award as discussed above.
(emphasis supplied).
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16. It is equally important to observe at this juncture
that while interpreting the terms of a contract, the conduct
of parties and correspondences exchanged would also be
relevant factors and it is within the arbitrator's jurisdiction
to consider the same. [See McDermott International Inc. v.
Burn Standard Co. Ltd., (2006) 11 SCC 181; Pure Helium
India (P) Ltd. v. ONGC, (2003) 8 SCC 593 and D.D. Sharma
v. Union of India, (2004) 5 SCC 325].
17. We have gone through the material on record as
well as the majority award, and the decisions of the
learned Single Judge and the Division Bench. The majority
of the Arbitral Tribunal as well as the courts found upon a
consideration of the material on record, including the
agreement dated 14-12-1993, the correspondence between
the parties and the oral evidence adduced, that the
agreement does not make any distinction within the type
of customers, and furthermore that the supplies to HTPL
were not made in furtherance of any independent
understanding between the Appellant and the Respondent
which was not governed by the agreement dated
14-12-1993. (emphasis supplied).
After referring to MMTC Ltd. Vs. Vedanta Ltd., the Hon‟ble
Supreme Court in Anglo American Metallurgical Coal PTY
Limited vs. MMTC Limited (2021) 3 SCC 308, observed as
under:-
54. All the aforesaid judgments are judgments which, on
their facts, have been decided in a particular way after applying
the tests laid down in Associate Builders (supra) and its
progeny. All these judgments turn on their own facts. None of
them can have any application to the case before us, as it has
been found by us that in the fact situation which arises in the
present case, the Majority Award is certainly a possible view of
the case, given the entirety of the correspondence between the
parties and thus, cannot in any manner, be characterised as
perverse.‖ (emphasis supplied).
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Keeping in view the principles of law laid down in the
judgments referred to above, we shall now proceed with the
matter.
35. It should be further noted here that in the instant case,
award came to be passed prior to October, 2015 and as
such, Section 34 and 37 of 1996 Act, would apply. A
reading of the above judgments make it very clear that the
scope of interference would be only when the award is
against the public policy of India or the order came to be
passed contrary to the terms of the contract or where the
order is so perverse which goes to the root of the matter or
where the Arbitrator or the Special Court construe the
contract / agreement in such a way which no fair minded or
a reasonable person would do.
36. The preliminary objection raised by the appellant is
with regard to maintenance of Claim Petition by the agent of
the supplier. Clause 3.0 of the invitation to tender for supply
of LAM Coke deals with Tenderers eligible to quote in
response to this invitation to Tender.
3.1: The tenders received from the following categories of
tenderers only, will be considered by RINL/VSP.
Established/LAM Coke Producer (s) owning Cokeries and
producing LAM Coke.
OR
LAM Coke suppliers offering LAM Coke produced by a
Cokery/Coke producer, duly backed by a letter of Authority of
the concerned Coke Producer/Cokery, specifically authorizing
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the said LAM Coke supplier and no one else to make an offer in
response to this invitation to Tender.
The tenderer(s) should be a legal owner of the offered cargo
for the purpose of sale to the Purchaser.
37. Admittedly, the respondent herein submitted the bid on
behalf of the three Coke manufacturers supported by three
documents. The said three companies i.e., Aditya Coke
Private Limited, Antai Balaji Limited and Lotus Energy
(India) Private Limited have authorized into bid on the
claimant to participate in their behalf. Referring to these
three letters, it is urged that the claimant is only a supplier,
authorized to bid on their behalf and being an agent cannot
be the owner of the goods to make a bid.
38. The learned Senior Counsel for the appellant also relied
on Section 230 of Indian Contract Act, 1872, in support of
his plea. Learned Senior Counsel mainly relied upon the
letters, more particularly, the authorized letter, dated
31.03.2006, to show that the claimant is only an authorized
agent of the owner of the goods. In other words, his
argument is that the tenderer should be the legal owner of
the tender Cargo, as indicated in Clause 3.1, and the same
has been perversely read by the Tribunal. Learned Senior
Counsel also submits that when there are only two
categories of persons who can participate in the tender, the
Tribunal added a third category, which was only a proviso or
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an extension of second category. Therefore, it is pleaded
that a new sub-clause was added to the terms of the
contract by the Tribunal which was not a part of the original
tender conditions.
39. The fact that the claimant is a supplier/agent of the
owner of the goods is not in dispute. The said fact was to
the knowledge of the appellant at the time when the bid was
submitted. Infact, the material and the orders indicate that
the letters given by the three owners of the goods, only
authorize the claimant to act on their behalf to supply the
goods and the said letters were made part of bid document.
In spite of the same, the tender was accepted. That being
the position, the appellant cannot now turn around and say
that the claimant cannot maintain this claim being an agent.
Apart from that, the Performance Guarantee bond executed
by the claimant was accepted on 21.06.2006 and encashed
by the appellant. It is also to be noted here that a plain
reading of the tender condition make it clear that even a
trader is allowed to participate in the bid, if he gets
authorization from the cookeries stating that the stock will
be supplied pursuant to this tender. Things would have
been different, if a third party or a stranger makes a claim as
a real owner of the goods. In the absence of the same and
having regard to the letters written by the cookeries, which
were enclosed along with the bid and the case of the
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claimant being that he entered into an agreement with
supplier, for supply of Coke on payment and when the bid of
the claimant is accepted, knowing that the claimant is only
an agent, the argument of the learned Senior Counsel that
the claim itself is not maintainable, cannot be accepted.
40. The second issue which arises for consideration is
whether the Arbitral Tribunal was right in holding that the
specifications of the vessel as contemplated in the agreement
are not mandatory and are only warranties.
41. The fact that the Arbitral Tribunal is a creature of the
agreement between the parties is not in dispute. It is also
not in dispute that there was a Global tender on 14.03.2006
for supply of 90,000 MT of Low Ash Metallurgical (LAM)
Coke. The claimant/respondent was a successful bidder,
who was given L.O.I. on 21.06.2006 pursuant thereto the
claimant accepted the tender conditions, for supply of goods
as per the specifications including the type of vessel in which
the goods have to be transported. Clause 1.1 of the tender
conditions, as specified in Annexure-II-A reads as under:-
1.1: The SELLER shall effect shipment in single-deckers,
self-trimming type of vessels suitable for bulk discharge with
self-discharging gear/cranes fitted with grabs fully automatic
requiring no manual labour to open/close and guarantee that
the vessel has minimum 4 number of cranes each of capacity
minimum 30 tonnes and minimum 4 number of grabs each of 12
cubic meters capacity and serving all hatches and accordingly
the minimum capacity to discharge is 10,000 tonnes per day of
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24 consecutive hours. The vessels shall not be over 15 years
age.
Clause 7.0 deals with Statement of Deviations, which
reads as under:-
7.1: The terms and conditions of the offer shall be as
incorporated in the draft Acceptance to Tender given in Part-VIII
of these Tender Documents. If any tenderer is unable to accept
any particular term(s) as incorporated in the draft Acceptance to
Tender or proposes any deviation therefrom, the Tenderer shall
enclose alongwith his offer, a statement of deviations clearly
spelling out the deletions/deviations proposed, which may,
however, have an impact on the evaluation of his offer by the
PURCHASER.
42. A reading of the above clause would makes it clear that
if the tenderer wants to deviate from the tender condition, he
should indicate the same, while submitting the bid, which
was not done.
43. It is also an admitted fact that the vessels nominated
by the claimant for supply of LAM Coke vide letter dated
19.12.2006 (M.V. Halis Kalkavan) was rejected on
21.12.2006, on the ground that it does not satisfy the tender
specifications i.e., [(a) vessel is 22 years old as against 15
years specified in tender specifications (b) has capacity to
carry only 25 MT only as against the request of 30 MT and
(c) length of the vessel etc.]. When a vessel as contemplated
under the terms of agreement is not available, is it
permissible to relax the specifications in the agreement on a
plea that the crux of the agreement is only for supply of
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material (LAM Coke) and the additional expenditure incurred
would be borne by the claimant, which was not accepted by
the appellant herein. There cannot be any dispute that
interpretation of a clause in the contract or the terms of
contract, if there is any ambiguity in the wording of the
agreement or where the terms of the agreement are mutually
inconsistent to each other, is exclusively within the domain
of the Tribunal. Even if, a different view is possible than the
one prescribed by the Tribunal and accepted by the Special
Court under Section 34 of the Act, it is impermissible to
interfere under Section 37 of the Act. But, in the instant
case though there is no ambiguity in the terms of the
contract, with regard to specifications of the vessel, which
has to carry the Cargo, the Special Court held that the said
term in the agreement (with regard to specifications of the
vessel) is not mandatory but only warranty. Whether the
Special Court was right in doing so?
44. In other words, the issue in the instant case is not with
regard to interpretation of the terms of contract, but as to
whether the said clause in the agreement is mandatory or
directory. The terms of agreement are silent on this aspect
i.e., whether they are mandatory, conditional or otherwise.
The clause in the agreement with regard to specifications of
the vessel is very clear, referring to requirements of the
vessel. As the vessel hired by the claimant, failed to satisfy
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the requirements, after accepting the tender conditions, the
appellant herein rejected transportation of cargo in the said
vessel even before it set on sail from Kandla.
45. The Special Court has held that the said condition is
only a warranty, mainly on an admission made in the
evidence of R.W.3 that it is a standard condition to avoid
demurrage and basing on the letter dated 03.02.2007
addressed by the claimant to the appellant, long after the
rejection of the vessels by the appellant and after the
material was loaded. The letter reads as under:-
―Both the above vessels were capable of effecting shipment
without any difficulty whatsoever at the Port of Visakhapatnam.
The objections raised by you to our repeated endeavours to
effect shipment by our nominated vessels despite our
unequivocal undertaking to bear any extra cost which may
accrue on account of deviation in the vessel's specifications or
any effect that the altered vessel would have on the unloading
rate as fatuous.‖
46. It is to be noted here that the offer made in the letter
dated 03.02.2007 was not accepted by the appellant. But,
however, the Special Court as well as Arbitral Tribunal
proceeded on a footing that what all is required under the
terms of the agreement is delivery of goods at
Visakhapatnam irrespective of age, capacity and number of
cranes etc., on the vessel. It would be appropriate to extract
the findings on this aspect, which is as under:
―25.5. All that the law requires is that the vessels
arranged by claimant must be able to deliver the goods at
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Visakhapatnam, (the claimant made a specific pleading in the
claim statement that they would able to do so and also gave
similar evidence as CW1), whatever be the age, capacity or
number of cranes and grabs, as long as claimant is prepared
to bear the extra premium for the age, and demurrage for
extra time for unloading goods due to using a vessel which
does not conform to the specifications in the contract.‖
47. As seen from the judgments referred to above, the
interference with the order or award would arise only when it
is opposed to public policy or where it is patently illegal
going to the root of the matter or if a decision is taken
contrary to the terms of the agreement between the parties.
When the agreement to which the claimant is a signatory
and agreed to the conditions specified therein, which state
the Cargo has to be transported in a vessel having four
Cranes of Minimum 30 MT capacity; four Grabs each 12
cubic meters capacity and the vessel should not be more
than 15 years age etc, can the claimant be allowed to
transport cargo in a vessel not meeting the specifications?
The specifications must have been prescribed with a
particular purpose, otherwise there is no meaning in
insisting on specifications in the tender document. The
reason for incorporating a particular clause in the agreement
which was agreed to be acted upon, in our view, have to be
strictly given effect to. Otherwise, if the conditions were to
be relaxed, there would be no reason or rhym for including a
particular term in the agreement.
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48. At that stage, it would be appropriate to extract the
letter dated 03.02.2007 written by the appellant to the
respondent/claimant, which reads as under:
―You may please appreciate that the specifications
provided for in Annexure-IIA of the AT are not devised only to
meet the limitations in the Visakhapatnam Port, but also to
bring in some uniformity in all the vessels handled by you.
Having agreed to abide by the conditions of the Contract, no
deviation in the specifications of the vessel is allowed.‖
49. It is to be noted that though R.W.3 admits that the
conditions in the agreement with regard to specifications of
the vessel is to prevent demurrage but at the same time, he
categorically deposed that they are mandatory. We are
mindful of our limitations in looking into the evidence in an
appeal under Section 37 of the Act, but we are forced to
observe that the Special Court referred only to a part of the
evidence without referring to the other portion wherein
R.W.3 along with R.Ws.1 and 2 deposed that terms of
agreement are mandatory.
50. Further, the Special Court after referring to Section 12
of the Sale of Goods Act, 1930 held that the term of the
agreement is only a warranty. It would be appropriate to
refer to Sections 12 and 13 of Sale of Goods Act, which are
as under:-
12.Condition and warranty.--
(1) A stipulation in a contract of sale with reference to
goods which are the subject thereof may be a condition or a
warranty.
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(2) A condition is a stipulation essential to the main
purpose of the contract, the breach of which gives rise to a right
to treat the contract as repudiated.
(3) A warranty is a stipulation collateral to the main
purpose of the contract, the breach of which gives rise to a claim
for damages but not to a right to reject the goods and treat the
contract as repudiated.
(4) Whether a stipulation in a contract of sale is a condition
or a warranty depends in each case on the construction of the
contract. A stipulation may be a condition, though called a
warranty in the contract.
13. When condition to be treated as warranty.--
(1) Where a contract of sale is subject to any condition to be
fulfilled by the seller, the buyer may waive the condition or elect
to treat the breach of the condition as a breach of warranty and
not as a ground for treating the contract as repudiated.
(2) Where a contract of sale is not severable and the buyer
has accepted the goods or part thereof, 1*** the breach of any
condition to be fulfilled by the seller can only be treated as a
breach of warranty and not as a ground for rejecting the goods
and treating the contract as .repudiated, unless there is a term
of the contract, express or implied, to that effect.
(3) Nothing in this section shall affect the case of any condition
or warranty fulfilment of which is excused by law by reason of
impossibility or otherwise.
But, as urged by the learned counsel, there is no reference to
Section 13 of the Sale of Goods Act either in the Award or by
in the order of the Special Court. It is to be noted that
Section 12(1) of the Sale of Goods Act deals with Goods and
does not refer to the Vessel used in transport of the goods,
which is subject matter of dispute herein. Further, Section
12(3) postulates a warranty as a stipulation, breach of which
gives rise to a claim for damages but no right to reject the
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goods. However, Section 13 categorically states it is only the
buyer who can waive the conditions. Be that as it may, as
urged by learned Senior Counsel for the appellant that the
Special Court while dealing with an application under
Section 34 of the Act ought not to have gone into the said
issue namely the applicability of Sections 12 and 13 of the
Sale of Goods Act, when there is no ambiguity in Clauses 1.1
to 1.3 of Annexure-II, which forms part of the agreement.
51. Further, the payment of loss caused or the demurrage
to be reimbursed in our view, may not be a ground in our
view to reverse or rewrite the tender conditions as it was not
accepted by the appellant. Secondly, if such an offer was
made part of the tender document, there could have been
more number of participants, offering less price, which we
will discuss a little later.
52. Dealing with rewriting the terms of the agreement, the
Hon‟ble apex Court in Satyanarayana Construction
Company vs. Union of India and others11, held as under:
―Thus, as per the contract, the contractor was to be paid for
cutting the earth and sectioning to profile etc. @ Rs.110 per
cubic meter. There may be some merit in the contention of
Mr. Tandale that contractor was required to spend huge
amount on the rock blasting work but, in our view, once the
rate had been fixed in the contract for a particular work, the
contractor was not entitled to claim additional amount merely
because he had to spend more for carrying out such work. The
whole exercise undertaken by the Arbitrator in determining the
rate for the work at serial No. 3 of Schedule 'A' was beyond his
competence and authority. It was not open to the Arbitrator to
11 (2011) 15 SCC 101
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rewrite the terms of the contract and award the contractor a
higher rate for the work for which rate was already fixed in
the contract. The Arbitrator having exceeded his authority and
power, the High Court cannot be said to have committed any
error in upsetting the Award passed by the Arbitrator with
regard to claim No. 4.‖ (emphasis supplied).
53. In J.G. Engineers Private Limited vs. Union of India
(UOI) and others12, the Hon‟ble apex Court dealt with similar
issue holding:-
―A Civil Court examining the validity of an arbitral award
under Section 34 of the Act exercises supervisory and not
appellate jurisdiction over the awards of an arbitral tribunal. A
court can set aside an arbitral award, only if any of the
grounds mentioned in Sections 34(2)(a)(i) to (v) or Section
34(2)(b)(i) and (ii), or Section 28(1)(a) or 28(3) read with Section
34(2)(b)(ii) of the Act, are made out. An award adjudicating
claims which are `excepted matters' excluded from the scope of
arbitration, would violate Section 34(2)(a)(iv) and 34(2)(b) of the
Act. Making an award allowing or granting a claim, contrary to
any provision of the contract, would violate Section 34(2)(b)(ii)
read with Section 28(3) of the Act ........................................
.......................................................... (emphasis supplied).
The High Court proceeded on the erroneous assumption
that when Clauses (2) and (3) of the agreement made the
decisions of the Superintending Engineer/Engineer-in-Charge
final as to the quantum of liquidated damages and quantum of
extra cost in getting the balance work completed, the said
provisions also made the decision as to the liability to pay
such liquidated damages or extra cost or decision as to who
committed breach final and therefore, inarbitrable; and that as
a consequence, the Respondents were entitled to claim the
extra cost in completing the work (counter claims 1 and 3) and
levy liquidated damages (counter claim No. 2) and the
arbitration costs (counter claim No. 4). Once it is held that the
issues relating to who committed breach and who was
responsible for delay were arbitrable, the findings of the
2011 (5) SCC 758
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arbitrator that the contractor was not responsible for the delay
and that the termination of contract is illegal are not open to
challenge. Therefore, the rejection of the counter claims of the
Respondents is unexceptionable and the High Court's finding
that arbitrator ought not to have rejected them becomes
unsustainable. The award of the Arbitrator rejecting the
counter claims is therefore, upheld.
............... Section 28(3) of the Act provides that in all
cases the arbitral tribunal shall decide in accordance with the
terms of the contract and shall also take into account the
usages of the trade applicable to the transaction. Sub-section
(1) of Section 28 provides that the arbitral tribunal shall decide
the disputes submitted to arbitration in accordance with the
substantive law for the time being in force in India. Interpreting
the said provisions, this Court in Oil and Natural Gas
Corporation Ltd. v. Saw Pipes Ltd. 2003 (5) SCC 705 held that
a court can set aside an award under Section 34(2)(b)(ii) of the
Act, as being in conflict with the public policy of India, if it is (a)
contrary to the fundamental policy of Indian Law; or (b)
contrary to the interests of India; or (c) contrary to justice or
morality; or (d) patently illegal. This Court explained that to
hold an award to be opposed to public policy, the patent
illegality should go to the very root of the matter and not a
trivial illegality. It is also observed that an award could be set
aside if it is so unfair and unreasonable that it shocks the
conscience of the court, as then it would be opposed to public
policy.
It is well-settled that where the contract in clear and
unambiguous terms, bars or prohibits a particular claim, any
award made in violation of the terms of the contract would
violate Section 28(3) of the Act, and would be considered to be
patently illegal and therefore, liable to be set aside under
Section 34(2)(b) of the Act.
54. If the award is contrary to the substantive provisions of
law or the provisions of the Act or against the terms of the
contract, it would be patently illegal, which could be
interfered under Section 34. However, such failure of
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procedure should be patent affecting the rights of the
parties. (ONGC's case).
55. Ergo, from the above judgments referred to above, it is
clear that decisions of the Court or Arbitral Tribunal shall be
in accordance with the terms of contract or agreement and if
it is against the terms of agreement, the same would be
patently illegal. (ONGC and Associates Builders' cases). If
there is any ambiguity in the terms, the Arbitral Tribunal
can interpret the same vis-à-vis the other terms of the
contract or the communication. As observed earlier, in the
instant case, the issue is not with regard to any ambiguity or
inconsistency in the terms of the agreement.
56. Issue relating to change in tender condition, after
acceptance of the tender, by the successful tenderer came up
for consideration before the Hon‟ble Apex Court in Central
Coalfields Limited and another vs. SLL - SML (Joint
Venture Consortium) and others dated 17.08.2016
Passed in Civil Appeal No.8004 of 2016. It was a case
where the bid of SLL-SML in response to a notice inviting
tender issued by Central Coalfields Limited was rejected.
57. It would be appropriate to extract the relevant paras in
the said judgment, which are as under:
34. The core issue in these appeals is not of judicial review
of the administrative action of CCL in adhering to the terms of
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the NIT and the GTC prescribed by it while dealing with bids
furnished by participants in the bidding process. The core issue
is whether CCL acted perversely enough in rejecting the bank
guarantee of JVC on the ground that it was not in the prescribed
format, thereby calling for judicial review by a constitutional
court and interfering with CCL's decision.
35. In Ramana Dayaram Shetty v. International Airport
Authority of India (1979) 3 SCC 489 this Court held that the
words used in a document are not superfluous or redundant but
must be given some meaning and weightage:
It is a well-settled Rule of interpretation applicable alike
to documents as to statutes that, save for compelling necessity,
the Court should not be prompt to ascribe superfluity to the
language of a document "and should be rather at the outset
inclined to suppose every word intended to have some effect or
be of some use". To reject words as insensible should be the last
resort of judicial interpretation, for it is an elementary Rule
based on common sense that no author of a formal document
intended to be acted upon by the others should be presumed to
use words without a meaning. The court must, as far as
possible, avoid a construction which would render the words
used by the author of the document meaningless and futile or
reduce to silence any part of the document and make it
altogether inapplicable.............................................................
36. It was further held that if others (such as the Appellant
in that case) were aware that non-fulfillment of the eligibility
condition of being a registered II Class hotelier would not be a
bar for consideration, they too would have submitted a tender,
but were prevented from doing so due to the eligibility condition,
which was relaxed in the case of Respondents 4. This resulted
in unequal treatment in favour of Respondents 4-treatment that
was constitutionally impermissible. Expounding on this, it was
held:
It is indeed unthinkable that in a democracy governed
by the Rule of law the executive Government or any of its
officers should possess arbitrary power over the interests of the
individual. Every action of the executive Government must be
informed with reason and should be free from arbitrariness.
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That is the very essence of the Rule of law and its bare minimal
requirement. And to the application of this principle it makes no
difference whether the exercise of the power involves affectation
of some right or denial of some privilege.
(Emphasis given)
Applying this principle to the present appeals, other bidders
and those who had not bid could very well contend that if they
had known that the prescribed format of the bank guarantee
was not mandatory or that some other term(s) of the NIT or GTC
were not mandatory for compliance, they too would have
meaningfully participated in the bidding process. In other
words, by re-arranging the goalposts, they were denied the
"privilege" of participation.
58. In Reliance Energy Limited and another vs.
Maharashtra State Road Development Corporation
Limited13, the Hon‟ble apex Court while dealing with Article
14, 19(1)(g) of Constitution of India and the doctrine of level
playing field, held as under:
36. We find merit in this civil appeal. Standards applied
by courts in judicial review must be justified by constitutional
principles which govern the proper exercise of public power in a
democracy. Article 14 of the Constitution embodies the principle
of "non-discrimination". However, it is not a freestanding
provision. It has to be read in conjunction with rights conferred
by other articles like Article 21 of the Constitution. The said
Article 21 refers to "right to life". In includes "opportunity". In our
view, as held in the latest judgment of the Constitution Bench of
nine-Judges in the case of I.R. Coelho v. State of Tamil Nadu
AIR2007SC861 , Article 21/14 is the heart of the chapter on
fundamental rights. It covers various aspects of life. "Level
playing field" is an important concept while construing Article
19(1)(g) of the Constitution. It is this doctrine which is invoked
by REL/HDEC in the present case. When Article 19(1)(g) confers
fundamental right to carry on business to a company, it is
(2007) 8 SCC 1
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entitled to invoke the said doctrine of "level playing field". We
may clarify that this doctrine is, however, subject to public
interest. In the world of globalization, competition is an
important factor to be kept in mind. The doctrine of "level
playing field" is an important doctrine which is embodied in
Article 19(1)(g) of the Constitution. This is because the said
doctrine provides space within which equally-placed competitors
are allowed to bid so as to subserve the larger public interest.
"Globalization", in essence, is liberalization of trade. Today India
has dismantled licence-raj. The economic reforms introduced
after 1992 have brought in the concept of "globalization".
Decisions or acts which results in unequal and discriminatory
treatment, would violate the doctrine of "level playing field"
embodied in Article 19(1)(g) . Time has come, therefore, to say
that Article 14 which refers to the principle of "equality" should
not be read as a stand alone item but it should be read in
conjunction with Article 21 which embodies several aspects of
life. There is one more aspect which needs to be mentioned in
the matter of implementation of the aforestated doctrine of "level
playing field". According to Lord Goldsmith - commitment to "rule
of law" is the heart of parliamentary democracy. One of the
important elements of the "rule of law" is legal certainty. Article
14 applies to government policies and if the policy or act of the
government, even in contractual matters, fails to satisfy the test
of "reasonableness", then such an act or decision would be
unconstitutional.
38. When tenders are invited, the terms and conditions
must indicate with legal certainty, norms and benchmarks. This
"legal certainty" is an important aspect of the rule of law. If there
is vagueness or subjectivity in the said norms it may result in
unequal and discriminatory treatment. It may violate doctrine of
"level playing field".
59. In State of Chattisgarh and another vs. M/S.SAL
Udyog Private Limited, dated 08.11.2021 passed in
Civil Appeal No.4353 of 2010, the Hon‟ble apex Court
while dealing with a situation, where the Sole Arbitrator
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failed to consider clause 6(b) of the Agreement governing the
parties, which was not disputed, held in para No.25 as
under:-
25. To sum up, existence of Clause 6(b) in the Agreement
governing the parties, has not been disputed, nor has the
application of Circular dated 27th July, 1987 issued by the
Government of Madhya Pradesh regarding imposition of 10%
supervision charges and adding the same to cost of the Sal
seeds, after deducting the actual expenditure been questioned
by the respondent-Company. We are, therefore, of the view that
failure on the part of the learned Sole Arbitrator to decide in
accordance with the terms of the contract governing the parties,
would certainly attract the ―patent illegality ground‖, as the said
oversight amounts to gross contravention of Section 28(3) of the
1996 Act, that enjoins the Arbitral Tribunal to take into account
the terms of the contact while making an Award. The said
‗patent illegality' is not only apparent on the face of the Award,
it goes to the very root of the matter and deserves interference.
Accordingly, the present appeal is partly allowed and the
impugned Award, insofar as it has permitted deduction of
‗supervision charges' recovered from the respondent-Company
by the appellant-State as a part of the expenditure incurred by it
while calculating the price of the Sal seeds, is quashed and set
aside, being in direct conflict with the terms of the contract
governing the parties and the relevant Circular. The impugned
Judgment dated 21st October, 2009 is modified to the aforesaid
extent.‖
60. Hence, the above judgments make it clear that if the
terms of agreement are changed after the process has
started either by the employer or otherwise, especially if a
tender floated by a Government agency, the other bidders
would be denied the benefit of either securing the contract or
participate in the bid, thereby violating Article 14 of the
Constitution of India, which would attract the patent
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illegality ground amounting to contravention of Section 28(3)
of the 1996 Act.
61. Having regard to the observations made in the previous
paragraphs, it is evident that there is no ambiguity with
regard to the specifications required to be maintained while
hiring a vessel for transport of LAM Coke. Infact, even the
Tribunal or the Special Court did not comment upon any
ambiguity in the conditions prescribed therein for hiring a
vessel. It also remains undisputed that the claimant agreed
to hire the vessel meeting the requirements of the appellant
herein. As he could not do so, he addressed a letter for
hiring a vessel with specifications not meeting the
requirements of the appellant, which came to be rejected and
the said rejection was communicated to the
respondent/claimant (not disputed). But, the letter
addressed by him to meet the expenditure incurred towards
the demurrage as it will take more time for unloading the
material from the vessel hired by him, was not accepted by
the appellant herein. In fact, letters have been addressed
refusing permission to transport the Cargo in the vessel of
claimant‟s choice. We are making the observation knowing
our limitations while dealing with appeals under Section 37
of the Act. As stated earlier all the three witnesses i.e.,
R.Ws.1 to 3 categorically deposed that the conditions in the
agreement are mandatory in nature, which was not taken
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into account by the Special Court. Having regard to the
above, the order of the said Court in accepting the claim of
the claimant is liable to be set aside on this score.
62. Even assuming for the sake of argument that the terms
of agreement, with regard to specifications of vessel are only
warranties, but the claim made and awarded, is liable to be
set aside on another score. As seen from the findings of the
Special Court, the request of the claimant to transport cargo
in a vessel, which does not satisfy the requirement of tender
condition, came to be rejected on 22.12.1996; 27.12.1996
and 02.01.1997. A detailed letter was also addressed by the
appellant giving reasons for rejection. In spite of the same,
the cargo was being loaded from 26.12.1996 onwards and
then the vessel was made sail to Mangalore Port.
63. It is to be noted that the claimant was aware about the
rejection of vessel, much prior to loading. Secondly, as per
clause 1.3 of the agreement, the material was to be delivered
at Visakhapatnam, in a vessel with certain specification, but,
for no reason, the material (LAM Coke) was unloaded at
Mangalore New Port, which was neither part of the
agreement nor was there any understanding between the
parties either oral or otherwise, and sold to third parties. No
evidence has been adduced with regard to the
person/company to whom it was sold and the rate at which
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it was sold. As observed in ONGC's case (cited 6 supra) and
in Para No.42.3 (3) of Associates Builders' case (cited 5
supra), in all cases, the Arbitral Tribunal shall decide in
accordance with the terms of the contract.‖
64. The Patent illegality is the permissible ground for
reviewing a domestic award vide ruling in Delhi Airport
Metro Express Pvt. Limited vs. Delhi Metro Rail
Corporation Ltd.14 What would constitute patent illegality
has been elaborately discussed in Associates Builders'
case, (cited 5 supra), wherein it has been held that patent
illegality falls under the head of „Public Policy‟. Failure on
the part of Special Court/Arbitral Tribunal to decide in
accordance with the terms of contract governing the parties
would be opposed to public policy and awarding the claim
contrary to terms of the contract goes to the root of the
matter. Ignoring the terms of contract, amounts to gross
contravention of Section 28(3) of Arbitration and Conciliation
Act, 1996 that enjoins the Arbitral Tribunal to take into
account the terms of the contract, while making the award.
To sum up, in the instant case, the material as per the Letter
of Intent issued by appellant, dated 12.05.2006, a quantity
of 30,000 M.T. + /- 5% (firm quantity) in parcel size of
30,000 M.T. + /- 5% shipping tolerance of Low Ash
Metallurgical (LAM) Coke was to be delivered at
2021 SCC Online 695
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Visakhapatnam through a specified ship meeting the
requirements of the appellant. Diverting the material to the
destination which was not stipulated in the contract
amounts to violation of the terms of agreement, which as
observed is opposed to public policy.
65. Ignoring the admitted terms of the contract in making
the award, warrants invocation of the power vested under
Section 34 of the Arbitration Act, but the learned District
Judge did not advert and take note of the same while
upholding the order passed by the Arbitral Tribunal.
66. Accordingly, the COM.CA is allowed by setting aside
the Order passed in C.A.O.P.No.1 of 2018, dated 14.10.2019
on the file of Special Judge for Trial and Disposal of
Commercial Dispute, Visakhapatnam. There shall be no
order as to costs.
Consequently, miscellaneous petitions, if any, pending
shall stand closed.
______________________________
JUSTICE C. PRAVEEN KUMAR
______________________________
JUSTICE B. KRISHNA MOHAN
Date:06.01.2022
Note: LR copy to be marked
B/o.MS
CPK, J & BKM, J
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
COM.C.A.NO.03 OF 2020
(Per the Hon'ble Sri Justice C. Praveen Kumar)
DATE: 06.01.2022
MS
