Bombay High Court
M/S Saloja And Sons vs Union Of India on 4 July, 2016
Bench: Anoop V. Mohta
(1)APPSTNo.105-07(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORIDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) No.105 OF 2007
IN
ARBITRATION PETITION NO.456 OF 2006
M/s.Saloja & Sons ... Appellant
V/s.
Union of India, acting through
Divisional Railway Manager (Works) ... Respondent
.....
Ms.Shilpa Kapil, Advocate for the Appellant.
Mr.Suresh Kumar with Ms.Sangeeta Yadav, Advocate for the
Respondent.
....
CORAM : ANOOP V. MOHTA J.
G.S.KULKARNI J.
DATED :4th JULY 2016.
ORAL JUDGEMENT :
1 Heard finally by consent of the parties.
2 Appeal is filed by the appellant against the order
passed by the Single Judge dated 18/12/2006. Considering the
agreement clauses between the parties specifically clauses 64.5
and 64.6 and after considering the rival contentions referring to
the reasons given by the learned trial Court, the learned Single
Judge has interfered with the award to the extent of setting aside
the directions on interest and cost of arbitration.
Gaikwad RD 1/3
(1)APPSTNo.105-07(J)
3 We have noted the arguments of learned counsel for
the appellant and basically that these clauses were not placed
before Arbitrator and, therefore, the learned Judge ought not to
have relied upon this to interfere with the order/award passed by
the arbitrator in question. However, the fact of existence of these
clauses is not in dispute and not specifically denied. Therefore,
the condition which binds the parties ought to have been
considered by the learned Arbitrator while passing the award
including these clauses. The learned Judge has considered this
basic aspect and noting the clauses as well as position of law, that
if party specifically agrees with regard to the interest as well as
costs, then it binds them for all the purposes. The clauses so
referred above and relied upon by the learned Single Judge,
therefore, in our view are well within the frame work of law and
the record. Findings given by the learned Judge, which are as
under :
"It is clear that the learned Arbitrator while awarding
interest and cost has not considered these two
conditions. The learned counsel appearing for
respondents, relying on my judgment in arbitration
petition No.427 of 2004 (Dy.Chief Engineer, Western
Railway v/s M/s.R.P.Shah) dated 6 th September 2005,
submitted that in that judgment, it is held that because
condition No.64.5 of the General Conditions of
Gaikwad RD 2/3
(1)APPSTNo.105-07(J)
Contract was not relied on by the petitioners, the
learned Arbitrator was justified in not considering it.
In the present case, in the rejoinder filed on behalf of
the petitioners, General Conditions of Contract have
been specifically referred to. It appears that in the case
of Dy.Chief Engineer, Western Railway, referred above,
even there was no reference to the General Conditions
of Contract. As the General Conditions of Contract
were referred to, it was for the learned Arbitrator to
enquire as to which conditions of General Conditions
of Contract are applicable. It is clear that the award
made is contrary to the condition Nos.64.5 and 64.6
and therefore, it is liable to be dismissed. It is
accordingly dismissed to that extent. Petition is
disposed off."
4 We see there is no case made out to interfere with the
same.
5 The appeal is dismissed.
(G.S.KULKARNI J.) (ANOOP V. MOHTA J.)
Gaikwad RD 3/3
