Bombay High Court
Registered Office At Tel.Bhuvan vs Registered Under The Companies ... on 18 October, 2010
Bench: Anoop V.Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 325 OF 2008
Oil & Natural Gas Corpn. Ltd.
A public sector undertaking incorporated
under the Companies Act, 1956 having its
Registered Office at Tel.Bhuvan, Dehradun
India and its Mumbai regional Business Centre at 502,
Bengal Chemicals Bhavan, Prabhadevi, Mumbai 400 025 .... Petitioner
Vs
DOLPHIN Offshore Enterprises (I) Ltd.
Registered under the Companies Act, 1956
having its registered office at 1001, Raheja
Centre 214, Nariman Point, Mumbai-21 .... Respondent
Mr.Pradeep Sancheti, Senior Counsel i/by M/s.Vyas & Bhalwal for the petitioner.
Mr. V. K. Rambhadran for the respondent.
CORAM: ANOOP V. MOHTA, J.
DATE : 18th October, 2010
JUDGMENT:-
Rule, returnable forthwith. By consent of the parties, heard finally.
2 The petitioner has challenged the Award dated 2nd April, 2008 ("the
Award") under Section 34 of the Arbitration & Conciliation Act, 1996 ("the Act")
passed by the Arbitral Tribunal.
3 The basic facts as per the petitioner are as under:-
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(a) The petitioner is the owner of the Vessel named "Sindhu 14" (hereinafter
referred to as "the vessel").
(b) In response to the Tender Notice No.MRBC/MM/TECH/O and M/10(18)
99 (`Tender') dated February 19, 1999 issued by the petitioner, the Respondent
submitted its bid for rendering the services of manning, running, operation,
victualising and maintenance for the aforesaid vessel. The bid of the Respondent
was accepted by the petitioner which was communicated to the Respondent by
the Letter of Intent (LOI) dated August 11, 1999 which was then eventually
culminated in Contract dated November 29, 1999 between the parties (the
contract).
(c) The vessel was handed over to the Respondent on August 22, 1999 by the
outgoing operator M/s. Seaspan Shipping Ltd. The Contract was valid for two &
half years with effect from August 22, 1999 till February 21, 2002.
(d) The Contract envisaged maintenance to seaworthiness by the Respondent
along with the other necessary incidental repairs and maintenance needed for
effective functioning of the vessel. The process of delivery of the said vessel by
the outgoing operator and taking over thereof by Respondent technically known
as "Handing over - Taking over" - (HOTO') was done under clause 3 of the
contract. The HOTO process and formalities thereto consisted of a Protocol
signed by both the parties. An independent survey Agency appointed by the
petitioner to evaluate the condition and to prepare a condition report. The
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Protocol provided for preparation of a list of defects in the hull, machinery and
equipment of the said vessel. The defects were noticed in the presence of the
representatives of both the parties and a list ("HOTO list") was prepared by the
independent surveyors Messrs Metcalf Hodkingon Pvt.Ltd., containing 221 defects
on August 22, 1999.
(e) After the HOTO list was prepared, petitioner desired to know the estimated
costs of rectification of the listed defects and vide contract
No.MRBC/LOG/MP/HOTO/ESTM/2000 dated March 23, 2000, the petitioner
appointed J. Basheer and Associates Surveyors Pvt.Ltd for the purpose of
estimation of cost for rectification of HOTO defects of the vessel as detailed in the
tender. The report of the said J. Basheer and Associates is of January 25, 2001.
(f) However the petitioner processed the invoice submitted by Respondent as
agreed in the contract which resulted in deduction of payment which was outside
the scope of the work contract.
(g) In the said arbitral proceedings, respondent sought for an award interalia
praying that the petitioner herein be directed to pay the Respondent a sum of Rs.
24,77,121 along with interest at the rate of 18% per annum from October 12,
2002 and also prayed for costs thereto.
4 There were eight claims raised by the respondent supported by the
documents. The petitioner resisted the same by placing on record documents as
well as relevant clauses of the Agreement between the parties. The learned
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Tribunal, considering the details of respective claims and the defence so raised
and after giving opportunity to both the parties, gave the findings on individual
claim and concluded in the following words:
"(A) The Oil and Natural Gas Corporation, the Respondents
herein are ordered and directed to pay to Dolphin Offshore
Enterprises (I) Ltd., the claimants herein, the sum of Rs.22,29,226.00
(Rupees twenty-two lacs twenty-nine thousand two hundred twenty-
six only) with interest thereon at the rate of 12% per annum from
12.10.2002 till payment or realisation whichever is earlier.
(B) Oil and Natural Gas Corporation Ltd., the Respondents herein
are ordered and directed to pay to Dolphin Offshore Enterprises (I)
Ltd., the Claimants herein the sum of Rs.5,00,000.00 (Rupees: Five
lacs only) towards costs of these proceedings."
By consent, the sum amount is corrected as Rs.21,60,606/-
5 The petitioner's submission with regard to the grant of interest inspite of
specific clauses of the Agreement has some force as the Supreme Court judgment
cited by the learned counsel appearing for the respondent is not applicable on
facts as well as the agreed clauses between the parties. In Sayeed Ahmed and
Company vs. State of Uttar Pradesh & ors., (2009) 12 SCC 26, the Supreme
Court has dealt with Sections 31(7) (a) and (b) and 34 of the Act. The relevant
portion of Sections 28(3) and 31(7) are as under:
"28. Rules applicable to substance of dispute.- (1) .....
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(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.
31. Form and contents of arbitral award. - (1) ...
(2) ....
(3) ......
(4) ...........
(5) .........
(6) ..........
(7) (a) Unless otherwise agreed by the parties, where and
insofar as an arbitral award is for the payment of money, the arbitral
tribunal may include in the sum for which the award is made
interest, at such rate as it deems reasonable, on the whole or any
part of the money, for the whole or any part of the period between
the date on which the cause of action arose and the date on which
the award is made.
(b) A sum directed to be paid by an arbitral award shall,
unless the award otherwise directs, carry interest at the rate of
eighteen per centum per annum from the date of the award to the
date of payment.
6 The relevant clauses of the Agreement are as under:
"22.0 ARBITRATION:
22.1 Except as otherwise provided elsewhere in the
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contract, if any dispute, difference, question or disagreement or
matter whatsoever shall, before or after completion or abandonment
of work or during extended period, hereafter arises between the
parties hereto or respective representative or assignees concerning
with the construction, meaning, operation or effect of the contract or
out of or relating to the contract or breach thereof shall be referred
to arbitration.
22.2 The reference to arbitration shall be to a arbitral
tribunal consisting of three arbitrators. Each party shall appoint one
arbitrator and the two appointed arbitrators shall appoint the third
arbitrator, who shall act as the presiding arbitrator.
22.3 ................
22.4 .................
22.5 It is a term of the contract that the cost of arbitration
will be borne by the parties in equal shares.
22.6 It is also a term of the Contract that neither party to
this agreement shall be entitled to the interest on the amount of
award.
22.7 ...............
22.8 Subject as aforesaid, the provisions of Arbitration and
Conciliation Act, 1996 and any statutory modifications or re-
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enactments thereof and rules made thereunder for the time being in
force shall apply to the arbitration proceedings under this clause."
7 The above agreed clauses are clear to the effect that the parties agreed
that"Neither party to this agreement shall be entitled to the interest on the
amount of award". It is also agreed that subject to aforesaid, the provisions of
the Act shall apply to the arbitration proceeding between the parties. It is also
agreed that any dispute and difference or question or disagreement, before or
after completion and/or during extended period, between the parties, with the
construction, meaning, operation or effect of the contract or out of or relating to
the contract or breach thereof, shall be referred to arbitration. Therefore, it is
agreed that the arbitral Tribunal is empowered to decide the dispute, difference or
disagreement concerning construction, meaning, operation and effect of contract
or out of or relating to the contract and/or breach thereof. In view of above
specific agreed clauses, in my view, the arbitral Tribunal ought not to have
awarded the interest on the sum of Rs.22,29,226/- at the rate of 12% per annum
from 12.10.2002 till payment or realisation whichever is earlier as awarded, as it
was specifically agreed by both the parties that they shall not be entitled for any
interest on the amount of award.
8 It is necessary to consider basic notwithstanding/ non-obstante clause i.e.
"unless otherwise agreed by the parties" of Section 31(7) (a) of the Act. The
parties can agree to waive or restrict the interest and/or rate of interest on the
whole or any part of the money or for the whole or any part of the period between
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the date on which the cause of action arose and the date on which the award was
made or intent on the award amount. There is no bar for such agreement.
Therefore, if the parties in the present facts and circumstances of the case, agreed
as recorded above, they are not entitled for any interest on the amount of award.
There is no question of granting even 12% p.a. interest as awarded on the
awarded amount.
9 The arbitrator, in view of clause (b) of Sub-Section (7) of Section 31 of the
Act, in absence of otherwise agreed clause and if there is no bar, can award
interest up to the rate of 18% p.a.. The words in Section 31(7) (b) "unless the
award otherwise directs" are supports the agreed clause and in view of Section 28
(3) of the Act also, therefore, the arbitrator has no power to award any future
interest, from the date of the award. It is specifically permitted and/or
permissible under the Act itself, specially in view of rider of Section 31 (7) so
reproduced above. Therefore, if such contract/ agreement permits the parties not
to claim interest on the awarded amount, in my view, such debar clause ought not
have been overlooked by the arbitrator. The submission that the other part of
Section 31(7) (a) and (b) if read in isolation then the power of arbitrator to
award such interest is permissible as per the judgment of the Apex Court as
referred above, Sayyed Ahmed and Company (Supra), is unacceptable. Sections
31 (7) (a) & (b) and 28(3) need to read together. There is no question of reading
the same in isolation.
10 In Sayyed Ahmed and Company (Supra), there was no such clause for
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consideration. The question is the power and jurisdiction of the arbitrator to
award interest for the three periods viz. pre-reference period, pendent lite and
future period from the date of the award, but it is only when there is no express
bar in the contract regarding the award of interest. It is observed by the Apex
Court, in Sayyed Ahmed and Company (Supra).
"10. Ultimately, this Court made it clear that the arbitrator had
the jurisdiction and authority to award interest for the three
periods, namely, pre-reference period, pendente lite and future
period (from the date of award) if there was no express bar in
the contract regarding award of interest - vide Irrigation
Deptt. Govt. of Orissa V. G.C. Roy, (1992) 1 SCC 508,
Executive Engineer, Dhenkanal Minor Irrigation Division Vs.
N.C. Budharaj, (2001) 2 SCC 721, as also the decision in
Bhagawati Oxygen Ltd. Vs. Hindustan Copper Ltd., (2005) 6
SCC 462."
(Emphasis added)
11 The points relating to interest have been further summarized in State of
Rajasthan V. Ferro Concrete Construction (P) Ltd., (2009) 12 SCC 1, in the
following words.:-
(a) Where a provision for interest is made on any debt or
damages, in any agreement, interest shall be paid in
accordance with such agreement.
(b) Where payment of interest on any debt or damages is barred
by express provision in the contract, no interest shall be
awarded.
(c) Where there is no express bar in the contract and where there
is also no provision for payment of interest then the principles
of Section 3 of the Interest Act will apply and consequently
interest will be payable;
(i) where the proceedings relate to a debt (ascertained
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sum) payable by virtue of a written instrument at a
certain time, then from the date when the debt is
payable to the date of institution of the proceedings;
(ii) where the proceedings is for recovery of damages or for
recovery of a debt which is not payable at a certain
time, then from the date mentioned in a written notice
given by the person making a claim to the person liable
for the claim that interest will be claimed.
(d) Payment of interest pendente lite and future interest shall not
be governed by the provisions of the Interest Act, 1978, but by
the provisions of Section 34 of the Code of Civil Procedure,
1908 or the provisions of law governing arbitration as the
case may be."
ig (Emphasis added)
12 In the present case, the clause is comprehensive and bars interest on the
awarded amount. Clause G1.09 in [Sayyed Ahmed (Supra)] bars interest under
any head in clear and categorical terms on the money or balance lying with the
Government or due and payable owing to any dispute or delay on the part of
Engineer in making payment and in other respect whatsoever. Those facts and
circumstance based upon the agreed terms in question, therefore, are distinct and
distinguishable, as the clauses in question are significantly different. Even
otherwise, the Act provides discretionary powers to the arbitrator to award such
interest. There is no question of exercising discretionary power in view of agreed
clause. The arbitrator, is bound by the agreed clause and he cannot go beyond
the same, in the present facts and circumstances, therefore, there is no question in
awarding any interest on the awarded amount.
13 The importance has already been given to the specific clauses/ agreed
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clauses of the agreement between the parties. Therefore, in view of the peculiar
clauses in question, I am of the view that the interest so awarded by the arbitrator
is unsustainable and without jurisdiction. The award needs to be set aside to that
extent as the part of the award can be modified and rest of the award can be
maintained, in view of the Full Bench Judgment. [R.S. Jiwani (M/s.), Mumbai
Vs. Ircon International Ltd., Mumbai, 2010 (1) Mh. L.J., 547.]
14 Section 31(7) (a) of the Act begins with a non-obstante clause i.e. "unless
otherwise agreed by the parties". This clause prevails overall other provisions of
interest in all the stages, by the Arbitrator. I am dealing with a specific agreement
clause and therefore, also the power of the Arbitrator to award interest in all the
stages. The obstante clause read with agreed clause govern and regulate the
power of the Arbitrator to grant interest. This non-obstante clause prevails over
the entire scheme of power of the arbitrator to grant interest at all stages.
15 It is made clear that the power of arbitrator to grant interest is regulated by
the agreement between the parties. This is no way control or regulate the power
of the Court to award interest once the award is made final in accordance with
law. This obstante clause and the agreed clause nowhere control the power of the
Court to award future interest or modify the interest rate or period or stage. But,
in view of the Scheme of the Act and specially of Section 28(1) and (31) (7), the
Court needs to consider the agreed clause between the parties while making the
award final and binding.
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16 "Such non-obstante clause needs to be interpreted widely to cover Section
31(7) (a) and (b) together. The provisions and the power to award interest is not
mandatory, but it is discretionary. The Arbitral Tribunal needs to exercise that
discretion judicially. The Tribunal should normally exercise its power to award
interest, but subject to overriding contractual right to interest, if any. The right to
interest, therefore, is subject to contract/agreement between the parties, which
they are permitted and free to execute or agree under the Act itself. Such
agreement shall have precedence over the default provision of Section 31(7)(a)
and (b) of the Act. There is no conflict between the power of Arbitrator to
award interest and a contractual right to claim particular rate of interest and/or
from the particular period and/or to waive or debar from claiming any interest on
any amount even at all stages to the rate of interest under the Act.
17 As noted, Section 31(7) (a) begins with a non-obstante clause as referred
above. This clause, in my view, govern Section 31(7)(a) & (b) both. As the
parties are free to agree on the power of the Tribunal in respect of the award of
interest, such power cannot be restricted only to Section 31(7) (a), the provision
permit, in my view, the parties to agree on the powers of the Tribunal in regard to
the award of interest for Section 31(7)( (b) also. In the present case, as noted
above, the parties agreed accordingly covering Section 31(7) (a) and (b) both.
This contractual agreement restricting the interest is well within the frame work
of law and there is no conflict of such contractual right with Section 31(7) (a) and
(b). The freedom to enter into such type of agreement with regard to the interest
is well within the UNCITRAL Model Law and Rules, scheme and recognised power
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even under Section 49(1) of the English Arbitration Act, 1996.
18 The object of awarding post/future-interest is always to get the awarded
amount as early as possible and/or to avoid delay in making payment towards the
awarded amount specially when the Award attains finality. The respondents
and/or a party against whom Award is passed may delay the proceeding and/or
payment. Once the Award is final and/or attains finality as per the provisions of
the Act, the Court in a given facts and circumstances, in spite of above clauses
may pass or award and/or grant future or post-award interest for early recovery of
the amount so awarded and/or protect the interest of the party in whose favour
award is passed or the future loss as he may not be in a position to utilise
awarded amount from the date of confirmation and/or final award till the
execution and/or realization of the same.
19 Another challenge was raised with regard to the claim at Serial No.7
towards the operation and maintenance charges while the vessel was waiting for
instructions from ONGC. Item No. VI, Clause 12 of the agreement provides open
ended time for revamping 60% compensation for the same. The Petitioner
deducted 40% operation and maintenance charges though the vessel was waiting
for revamping and was non-operational during 104 days, but 60% of the daily
rate was paid. The claim, therefore, was raised for unpaid balance. There is a
material on record, as observed by the learned Arbitral Tribunal that during 104
days, the said vessel with complete crew on board was waiting for finalization of
the tender and the award of the contract for revamping. The Respondent
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themselves on their own could not have kept the fully ready and manned vessel
for such period. For want of instructions, the Respondent could not have even
moved the vessel to the revamping yard. The learned Tribunal, in my view, rightly
considered the word "revamping" to include waiting for instructions of
revamping. Clause 12 of the agreement (down time) provides that the master
and crew of the vessel as well as the base staff are to be fully involved in the
revamping of the vessel. Having once entered into the contract in question and
compel other parties to keep everything ready and involved, subject to
instructions and as they could not proceed with, the submission that it no way
covers waiting for revamping, as rightly rejected by the Tribunal. The Petitioner
denied the claims of the Respondent only because of their own inaction as they
unable to give instructions and/or finalize the contract within the reasonable time
and kept the fully manned vessel waiting. The Petitioner cannot claim benefit of
their own wrong. It is not the case that the Respondent were not ready and fully
and/or failed to complete their steps within the time prescribed. In such type of
contract, it is expected that both the parties will complete and perform their part
within reasonable time. When time period is prescribed, it is always with the
clear understanding that both the parties will act within the framework of it.
Therefore, on the basis of undisputed position on record, and as the Petitioner
caused waiting, they cannot deny the right of the payment so claimed by the
Respondent for keeping the vessel ready and the crew involved. In my view also,
the reasoning so given is well within the purview of law and cannot be stated to
be absurd or beyond the overall scope of the contract. The interpretation so given
by the Tribunal to the clause, in the facts and circumstances, is possible and
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reasonable and therefore, needs no interference.
20 The Tribunal has further rightly observed referring to clause 5.1 of the
agreement that the vessel was not expected to operate offshore but waited for to
be moved to the revamping yard. Therefore, submission with regard to the class
certificate in no way sufficient to discard the claims so raised by the Respondent.
There was no question of operation with all certificates and clearances as rightly
observed. There is a clear finding given that the vessel was operational for the
purpose of carrying itself for revamping and participating for revamping.
Therefore, costs so incurred during this waiting period, need to be compensated
and has rightly awarded by the Arbitral Tribunal. In all, considering the facts and
circumstances and the agreement clauses between the parties, the view so taken,
cannot be stated to be unjust, perverse or contrary to law.
21 Another submission was raised that no proper and previous approval was
taken for various repairs and replacements which were not listed in HOTO and/or
without giving list and estimation of the same for approval. The learned Tribunal
after considering Section 70 of the Contract Act and considering the nature of
contract between the parties and as it was for to carry out repairs and
replacements of the vessel and as the fact of repairs or replacements and the
materials so used were not denied, the Petitioner cannot deny the claims of the
Respondent so raised; and as it was done without any objections and as it was
necessary to repair and replace the same under the contract. The learned Tribunal
has rightly granted claims on the principle "where the person for whom the act
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was done accepted and enjoyed the benefits although there was no request for the
act on his part" which in the present case, is not in dispute. The submission that
the work was not in the list of HOTO and therefore, was not under the contract, in
the facts and circumstances, therefore, not acceptable, in view of the claim Nos.
1,4,5,6 and 8 specially, when other claim Nos. 2,3 and 7 were duly proved.
22 There are various facets of costs of the proceedings, which may include
"cost of the reference", "cost of the arbitration proceeding", "cost of the parties".
The parties in the present case agreed to share the cost of the arbitration. The
Arbitral Tribunal, in the present case, considering the facts and circumstances of
the case, awarded the cost of Rs.5,00,000/- (Rupees five lacs) in favour of the
winning party and against the losing party. Such grant of award is well within the
frame work of law even as per Section 31 (8) of the Act. Such after event award
of cost cannot be equated with the arbitration costs which the parties have agreed
to share equally; they must have incurred and shared already till the date of the
award. The lump sum amount so awarded towards the costs, therefore, needs no
interference. To award the costs, is entirely in the discretion of the Court, so also
the tribunal. It cannot be claimed as a matter of right. The cost awarded by the
Court while awarding the claim in favour of winning party cannot be shared
equally with the loosing party based upon the agreement in question. The share
of costs of Arbitration as per clause 22.5 has nothing to do with the present costs
so awarded. This was in addition to the expenses and/or costs of the Arbitration
which party agreed to share equally. No other challenge raised.
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23 I have observed in Jigar Vikamsey Vs. Bombay Stock Exchange Limited,
[2010(1) Bom. C.R. 908], considering the various judgments of the Supreme
Court revolving around Section 34 of the Act as under:-
"11 The Petition is under Section 34 of the Act. The Apex Court
recently in G. Ramchandra Reddy & Company v. Unin of India &
anr., (2009) 6 SCC 414 and in Madhya Pradesh Housing Board v.
Progressive Writers and Publishers, (2009) 5 SCC 678, while
dealing with both the Arbitration Acts and considering the principles
to challenge the Arbitral Award has re-iterated the following points :
(a) The re-appraisal of the evidence by the Court is not
permissible (Ispat Engineer Foundary Works vs. Steel Authority of
India, (2001) 6 SCC 347). An Award of an Arbitrator need to be
read as a whole to find out the implication and meaning thereof of
the reasons. The Court, however, does not sit in Appeal over the
Award.
(b) The interference, where reasons are given would still be less,
unless there exists a total perversity and/or the Award is based on a
wrong proposition of law.
(c) Even if two views are possible on an interpretation of central
clause, that would not be justification in interfering with the Award
specially when the view so taken is possible/plausible one (Sudarshan
Trading v. Allied Construction (2003) 7 SCC 396). [ G.
Ramchandran (Supra) ] But the interpretation of the clause
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which is wholly contrary to law should not be upheld by the Court.
[Numaligarh Refinery Ltd v. Daehim Industrial Co. Ltd., 2007(10)
SCALE 577/(2007) 8 SCC 466 ]
(d) The jurisdiction of the Court to interfere with an Award made
by an Arbitrator is limited, unless there is an error apparent on the
face of the Award and/or jurisdictional error and/or legal mis-
conduct. [ Numaligarh Refinery Ltd (supra).
(e) The wrong point of law and apparent, improper and incorrect
findings of facts which are demonstratable on the face of the material
on record, may be treated as grave error and/or legal misconduct.
(g) "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.
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(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." [ Delhi Devedlopment Authority vs. R.S.Sharma & Co.-
(2008) 13 SCC 80 ].
In view of above settled principles of law, the judgments cited by
the parties in support of their respective submission on law need
no further discussion. The facts are totally distinct and
distinguishable."
24 In view of above itself, I am interfering and modifying so far as the order of
interest on the awarded amount till realization by the arbitral tribunal in
following words:-
The petitioner to pay 18% interest from the date, the award has attained
finality, till the realization of same, if the Petitioner fails to make the payment
from the date of final order under the Act.
25 The rest of the award is maintained.
26 The arbitration petition is partly allowed and disposed of accordingly. No
costs.
(ANOOP V. MOHTA, J.)
