Bombay High Court
Having Their Office At Chhaya ... vs 2 Shri N. Mani on 10 December, 2009
Bench: Anoop V.Mohta
Arbp31.09 1
ssm/-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 31 OF 2009
M/s. Anupam Engineers
A partnership firm REGISTERED MAIL
Under the Indian Partnership Act
Having their office at Chhaya Sadan,
Opp. I.I.T. Powai,
Mumbai-400 078 ...Petitioner.
Vs.
1 India Oil Corporation ltd.,
Western Region Office,
254-C, Dr. Annie Besant Road,
Prabhadevi, Mumbai-400 025.
2 Shri N. Mani,
Hon'ble Sole Arbitrator,
India Oil Corporation Ltd.,
Western Region Office,
254-C, Dr. Annie Besant Road,
Prabhadevi,
Mumbai-400 025. ...Respondents.
Ms. Shilpa Kapil for the Petitioner.
Mr. Naushad Engineer with Mr. Sunil Gangan i/by M/s. RMG Law &
Associates for Respondent No.1.
CORAM :- ANOOP V. MOHTA, J.
DATE OF RESERVING THE JUDGMENT :18TH NOVEMBER, 2009.
DATE OF PRONOUNCING THE JUDGMENT:10TH DECEMBER,2009.
JUDGMENT :-
1 Heard finally by consent of the parties.
2 The Petitioner has challenged the award dated 30th September, 2008,
by invoking Section 34 of the Arbitration and Conciliation Act, 1996 (for
short, the Arbitration Act).
3 The challenge is restricted to the claims not awarded i.e. claim Nos.
2,3,6,7,8,11,12 and 14. The learned Arbitrator has given reason, based
upon the material available on record. By observing that "all other claims
are found not tenable as the same are not substantiated by proof/
evidence", not granted claim No.10 as final bill was accepted by the party,
without any objection, at any point of time. In view of this, rejected the
claim Nos. 3, 6 and 7. As no material was brought on record, to justify
claim No.8 as nothing was brought to site, therefore, the compensation
towards the loss of interest and non payment of material advance was also
denied. The claim for compensation towards legal charges and mental
torture were also dismissed for oral and substantiate evidence. The claims,
so awarded, are not challenged by the respondents.
4 The learned counsel appearing for the Respondents submitted that
such petition to modify the award is not maintainable in view of a
Judgment of Division Bench in Appeal No.981 of 2001 in Arbitration
Petition No.432 of 1998, Mrs. Pushpa P. Mulchandani & Ors. Vs.
Admiral Radhakrishin Tahiliani (Retd.) & Ors. also. The learned single
Judge, in 2009(3) Bom. C.R. 446, IRCON International Ltd. Vs. R.S.
Jiwani, has also followed the same.
5 Strikingly, the Apex Court has been modifying the award on merit, as
well as on the issue/ rate of interest under Section 34 of the Arbitration Act
and even maintaining the partial modified award passed by the High
Courts, since long. Some of the cases are as under:-
Tata Hydro-Electric Power Supply Co. Ltd. Vs. Union
of India, 2003(4) S.C.C. 172
2 Hindustan Zinc Ltd. Vs. Friends Coal Carbonisation,
(2006) 4 S.C.C. 445.
3 Mcdermott International Inc. Vs. Burn Standard Co.
Ltd. & Ors. (2006) 11 S.C.C. 181
4 Krishna Bhagya Jala Nigam Ltd. Vs. Harischandra
Reddy & Anr. (2007) AIR SCW 527.
5 Numaligarh Refinery Ltd. Vs. Daquelim Industrial
Co. Ltd., (2007) 8 S.C.C. 466
6 Delhi Development Authority Vs. R.S. Sharma & Co.
New Delhi, (2008) 13 S.C.C. 80
7 Royal Education Society Vs. Lis (India) Construction
Company Pvt. Ltd. (2009) 2 S.C.C. 261.
6 The Division Bench has relied upon the Apex Court decision
Mcdermott International Inc. Vs. Burn Standard Co. Ltd. & Ors. JT
2006 (11) SC 376. The Apex Court in (Mcdermott) (Supra) itself, has
modified the award.
7 I have already modified the awards in following cases, based upon
the Apex Court's Judgments. Some are as under:- (a) Union of India Vs.
Arctic India, 2007 (6) Bom. C.R. 384, (b) Sai Enterprises Vs.
Mahanagar Telephone Nigam Ltd. & Anr. 2007(6) Bom. C.R. 390, (c)
Arbitration Petition No. 494 of 2004 in The Board of Trustees of the
Port of Mumbai Vs. M/s. Mohinder Singh & Company.
8 The Judgments of the Supreme Court are binding on the High
Courts. It appears that the above Apex Court Judgments might not have
been placed before the Court at the relevant time. The Apex Court,
considering the scope and purpose of Section 34 of the Arbitration Act and
as there is no bar, the Courts have modified the Arbitral Awards. In view of
above, in my view, there is no substance in the contention that the Petition
under Section 34 of the Arbitration Act, itself is not maintainable. Any such
Application/Petition under Section 34 of the Arbitration Act for partial or
modification of the award is maintainable.
9 The parties, even otherwise, can restrict or waive their claim and/or
challenge at any stage of the proceedings. There is no such bar. The
Arbitrator can also grant full or partial award by rejecting or restricting the
claims. As all these are within the framework of law, there is no reason
that the Court under Section 34 of the Arbitration Act, cannot modify or
pass such appropriate order to avoid further delay in the Arbitration
Proceedings to enable the parties to enjoy fruits of the same.
10 However, considering the fact and reasoning so given by the Tribunal
and as no case is made out by the Petitioner to interfere with the order so
awarded, there is no question of modification of award.
11 The award needs to be considered in totality. The reasoning so
recorded, based upon the material available on record and as the Petitioner
failed to support the same with material, there is no question of granting
any damages as per the findings so recorded, for want of supporting
material and the evidence, therefore, no interference. (AIR 2000, Bom.
204, Maharashtra State Electricity Board Vs.Sterlite Industries (India)
Ltd. and AIR 2005 Orissa 58, State of Orissa Vs. Pratibha Prakash
Bhawan.)
12 In the result, the petition is dismissed with no order as to costs.
(ANOOP V. MOHTA, J.)
