Bombay High Court
M/S. Shirdi Country Inns Pvt. Ltd vs M/S. Suvidha Engineers India Pvt. ... on 13 June, 2016
Bench: Anoop V. Mohta
PVR 1/6 4app246-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 246 OF 2015
IN
ARBITRATION PETITION NO. 782 OF 2014
M/s. Shirdi Country Inns Pvt. Ltd., )
having their address at 5th Avenue, )
A-1, 5th floor, Dhole Patil Road, )
Pune 411 001 ) ...Appellant
Versus
M/s.Suvidha Engineers India Pvt. Ltd.
ig )
having their address at 409-412, )
Siddharth Towers, 4th floor, S.No.12/38, )
Sangram Press Road, Kothrud, )
Pune-411029. ) ...Respondent
Mr.Rajiv Singh with Mr.Sayeed Mulani and Mr.Dileep Sutale i/b. MULANI
AND CO., for the Appellant.
Mr.L.G.Rai, for the Respondent.
-------
CORAM : ANOOP V. MOHTA &
G.S.KULKARNI, JJ.
DATE : 13th JUNE,2016
---
ORAL JUDGMENT: (PER ANOOP V. MOHTA, J.)
1. This Appeal is filed under Section 37 of the Arbitration and
Conciliation Act,1996 (for short 'the Act') against judgment and order
dated 13th January,2015 passed by the learned Single Judge under
Section 34 of the Arbitration Act whereby the Appellant's petition was
PVR 2/6 4app246-15.odt
dismissed and the Award passed in favour of the Respondent (original
claimant) and against the Appellant has been maintained. Hence, this
appeal.
2. The Appellant invited a tender for certain work through its
consultant. The Respondent had submitted its tender. A work order was
issued and the tender work was completed. The amount so due was
paid accordingly. It is averred that the Respondent carried out extra
work and raised various invoices for the same. Thus, disputes arose
between the parties on the issue of this extra work. By a consent order
dated 18th February,2011 in an application under Section 11 of the Act,
the Chief Justice appointed a sole arbitrator. The learned Arbitrator
made an award which came to challenged by the Appellant by filing
earlier arbitration petition. By consent of both the parties the Award was
set aside by order dated 29th October,2012. The Court appointed
another Arbitrator to adjudicate the disputes. The learned Arbitrator
made a fresh Award on 18th January,2014 which was challenged in the
Arbitration Petition No.782 of 2014. The petition was dismissed by order
dated 13th January,2015. Hence, the appeal.
3. There is no dispute that the Respondent's claim was arising
out of extra work which was outside the purview of the basic work
order. There is no issue on the fact that the work was actually carried
PVR 3/6 4app246-15.odt
out. The obligation of the Appellant to make payment was, therefore,
considered on the basis of the claim so raised by the Respondent by
leading evidence in support of the same with supporting documents.
The learned Arbitrator has appreciated the same. This is also in the
background that the Appellant did not lead any counter-evidence except
making denials and/or opposing the claim, also on the ground of no
jurisdiction to entertain the claim so raised.
4.
Admittedly, there was no specific arbitration clause for the
extra work as carried out, but the claim was raised by the Respondent
covering the amount due and payable for extra work. The same was
denied and has not been paid fully. It was recorded that a part payment
was made in the year 2007 and what remained was a payment of
Rs.10,72,899/-. This was the foundation based upon which the learned
Arbitrator and the learned Judge has accepted the case of the
Respondent and rejected the submissions of the Appellant that the claim
is beyond limitation. A finding is given by the learned Arbitrator and the
learned Judge that the claim is within limitation. We have also gone
through these findings, including the letter dated 29 th March,2008 to
justify that there was no denial to the part payment made, for this extra
work and the claim was for the balance amount.
5. The issue of claim being outside the purview of the work
PVR 4/6 4app246-15.odt
order, in the present facts, is also unacceptable, as apart from the earlier
appointment of Arbitrator, as there arose disputes, after hearing both
the parties in view of no objection so raised about the claim of the
amount of extra work, which are stated to be outside the purview of the
work, by consent for the second time an Arbitrator was appointed. The
learned Arbitrator, in view of the above consent order proceeded with
the arbitration. The issues were raised but no evidence led by the
Appellant though participated in the proceedings. We see that there is
no illegality in deciding the claim so referred and as decided. The above
order passed by the learned Judge is well within the purview of record
and law.
6. The issue of jurisdiction even if raised, that itself is not
sufficient to interfere with the Award passed by the learned Arbitrator.
Even otherwise, there is no substance in the objection so raised with
regard to the jurisdiction. This is specifically in the background of the
order passed by the Chief Justice while appointing the Arbitrator on 18 th
February,2011. The issue of arbitrability and the jurisdiction, in our
view, is also concluded by the consent order. The Appellant cannot be
permitted to go behind the consent order. Even otherwise in the present
case there is no reason to permit the Appellant to re-agitate the issue in
appeal, merely because while appointing the Arbitrator all contentions
were kept open. We have to see the background of the disputes between
PVR 5/6 4app246-15.odt
the parties and so also the conduct. The work done if not in dispute and
not seriously contested by not leading evidence in defence, on the
contrary the Respondent based upon the material by leading evidence
justified its claim and the learned Arbitrator has accepted it. We thus
see no case is made out of any illegality and/or perversity.
7. The learned Judge after considering the reasoned award
passed by the learned Arbitrator, has considered the submissions of the
Appellant and the Respondent and rejected the petition. We have also
gone through the reasons given by the learned Arbitrator and by the
learned Single Judge. We also see no reason to interfere as there is no
perversity and/or there is no illegality to the extent that the Appeal
Court should interfere with the reasoned order passed by the learned
Single Judge.
8. The judgment cited by the learned Counsel appearing for
the Appellant in the case "VISA International Ltd. Vs. Continental
Resources (USA) Ltd., (2009(2) SCC 55)" is of no assistance in view of
the reasons so recorded above as the Appellant itself made a part
payment and the claim was for the balance amount for the extra work
done. Therefore, the submission that there was no "issue" between the
parties in the present case, is unacceptable. The judgment relied on is
distinct and distinguishable on facts and on law also.
PVR 6/6 4app246-15.odt
9. The Apex Court has reiterated and maintained the payment
for the extra work done beyond the basic contract, in "Venkatesh
Construction Company Vs. Karnataka Vidyuth Karkhane Limited
(Kavika), (2016(2) All MR 953 (S.C.)."
10. Therefore, taking overall view of the matter and in view of
the Judgment also in the case of "M/s.Chebrolu Enterprises Vs. Andhra
Pradesh Backward Class Co-operative Finance Corporation Ltd., reported
in '2015(12) SCALE 207', wherein it is observed that:-
"20. ... ... ... .... This Court or even the Appellate Court
would not look into the finding of facts unless they are
perverse."
The appeal is liable to be dismissed. Hence, the following order:-
ORDER
The Appeal is dismissed.
No costs.
(G.S.KULKARNI, J.) (ANOOP V. MOHTA, J.)
