Sulzer Pumps India Limited vs Shriram Epc Ltd
2021 Latest Caselaw 5626 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION
                          IN ITS COMMERCIAL DIVISION

      INTERIM APPLICATION(L)NO. 3041 OF 2021
                       IN
   COMMERCIAL ARBITRATION PETITION (L)NO. 8430 OF
                      2020
                      WITH
   COMMERCIAL ARBITRATION PETITION (L)NO. 8430 OF
                      2020



Sulzer Pumps India Pvt Ltd                         ..Applicant
IN THE MATTER BETWEEN
Shriram EPC Ltd                                    ..Petitioner
             Vs.
Sulzer Pumps India Pvt Ltd                         ..Respondent


Mr.Kevic Setalvad, Senior Counsel a/w Ms.Rajalakshmy
Mohandas, Ms. Pooja Shinde, Ms. Rajul Jain i/b Rajalakshmy
Associates, for the Petitioner in CARBPL. 8430/20 and for the
Applicant in IAL 8430 of 2020 for the Respondent in IAL. 3041 of
2021.

Mr.Cyrus Bharucha a/w Mr. Hormuz Mehta, Mr.Ahsan Allana i/b
J. Sagar Associates, for the Applicant in IAL. 3041 of 21 and for
the Respondent in IAL. 8430 of 2020 and for the Respondent in
CARBPL. 8430 of 20.

                                    CORAM :- B.P.COLABAWALLA, J.

DATE :- MARCH 25, 2021.

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P. C.:

1. The above Interim Application is filed under Section 34

(4) of the Arbitration and Conciliation Act, 1996 (for short "the

Arbitration Act") seeking to adjourn the above Section 34

Petition in order to permit the Arbitral Tribunal to resume the

arbitral proceedings or take such action as in the opinion of the

Tribunal is necessary, so as to eliminate the ground of challenge in

relation to the Awards dated 14th March, 2020 and 18th March,

2020 insofar as they do not constitute the majority consensus

Award.

2. Mr. Bharucha, the learned counsel appearing on behalf

of the Applicant (the Respondent in the Petition) submitted that

pursuant to arbitration proceedings that commenced between the

parties in 2014, an Award of the Presiding Arbitrator (the Hon'ble

Mr. Justice S. N. Variava) came to be passed on 18th March, 2020

in favour of the Applicant. Along with the Presiding Arbitrator's

Award, the concurring Award passed by the Hon'ble Mr. Justice

A.V. Savant dated 14th March, 2020 was also in favour of the

Applicant. The Awards of the Presiding Arbitrator as well as that

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of the Hon'ble Mr. Justice A. V. Savant, for the sake of

convenience, be referred to as the "majority Award". An

undated Dissenting Award was also passed by the Petitioner's

nominated Arbitrator the Hon'ble Mr. Justice J. D. Kapoor (the

Dissenting Award). These Awards have been challenged in the

present Petition on various grounds.

3. Mr. Bharucha submitted that one of the grounds of

challenge is that the Arbitral Tribunal has passed three separate

Awards and there is no majority consensus Award. According to

the Petitioner, these separate Awards ought to be set aside in light

of the above. Mr. Bharucha submitted that according to the

Petitioner, (i) the Award passed by the Presiding Arbitrator dated

18th March, 2020 does not refer to the Award dated 14th March,

2020 passed by the Hon'ble Mr. Justice A. V. Savant; (ii) it does

not specify that the same is passed on a majority basis with the

concurrence of the Hon'ble Mr. Justice A. V. Savant; and (iii) is

signed by the Presiding Arbitrator alone and does not bear the

signature of the Hon'ble Mr. Justice A. V. Savant. Similarly,

according to the Petitioner, the Award passed by the Hon'ble Mr.

Justice A. V. Savant dated 14th March, 2020 (i) refers to an

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opinion prepared by the Presiding Arbitrator, and therefore,

cannot be linked or connected with the Award passed by the

Presiding Arbitrator on 18th March, 2020 and which was in any

event after the concurring Award (dated 14th March, 2020), and

therefore, the Hon'ble Mr. Justice A. V. Savant could not have

concurred with an Award passed by the Presiding Officer

subsequently; and (iii) the Award passed by the Hon'ble Mr.

Justice A. V. Savant is an independent document and does not

form the part of the Award passed by the Presiding Officer.

4. Mr Bharucha submitted that submitted that in view of

these technical objections taken by the Petitioner, the Applicant

addressed a letter to the Tribunal as well as the Petitioner's

advocate dated 7th January, 2021 wherein the Applicant inter alia

requested a response to the following queries:-

(a) Whether the Hon'ble Mr. Justice Savant concurs with the Award dated 18th March 2020?

(b) Whether the Award dated 14th March 2020 issued by the Hon'ble Mr. Justice Savant ought to be read with/in addition to the Award dated 18th March 2020?

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5. Mr. Bharucha brought to my attention that the

Petitioner objected to the aforesaid clarification sought by the

Applicant vide its letter dated 9th January, 2021. Thereafter, the

Presiding Arbitrator (the Hon'ble Mr. Justice S. N. Variava) by his

letter dated 11th January, 2021 inter alia clarified that:-

(a) He had not prepared any opinion in the matter. He had prepared the draft Award.

(b) The Presiding Arbitrator forwarded the draft Award to both his Co-Arbitrators.

(c) The Hon'ble Mr. Justice J. D. Kapoor issued an undated dissenting Award by his email dated March 11, 2020.

(d) the Hon'ble Mr. Justice A. V. Savant issued a "concurring opinion" dated March 14, 2020 which referred to the draft Award as an "opinion" as it has not been signed and dated.

(e) On receipt of the dissenting Award and the concurring opinion/award the draft Award was corrected, signed and issued with the date of March 18, 2020.

6. Similarly, the Hon'ble Mr. Justice A. V. Savant, by his

letter dated 13th January, 2021, clarified that:-

(a) He had received the draft Award from the Presiding Arbitrator.

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          (b)      He had the benefit of perusing the same before issuing

his concurring award/opinion dated March 14, 2020.

(c) The concurring award/opinion was not an independent document and was based on the reasoning and conclusions recorded in the Award of the Presiding Arbitrator.

(d) In any event he completely agrees and entirely concurs with the Award dated 18th March 2020 of the Presiding Arbitrator.

7. Mr. Bharucha, therefore, submitted that the above

clearly establishes that though the concurring opinion/Award

dated 14th March, 2020 passed by the Hon'ble Mr. Justice A. V.

Savant was based on the draft Award sent to him by the Presiding

Arbitrator, he in any event completely concurs with the Award of

the Presiding Arbitrator dated on 18th March, 2020.

8. Mr. Bharucha submitted that though this would be

enough to overrule the objection raised by the Petitioner on this

technical aspect, since the Petitioner has raised arguments to the

effect that the Tribunal has become functus officio and hence no

clarifications could have been sought from the Tribunal, the

present Interim Application is filed to obviate such an argument.

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It is in these circumstances that Mr. Bharcuha submitted that the

said objection/challenge raised by the Petitioner is technical in

nature and is such as can be eliminated by making a reference to

the Arbitral Tribunal in accordance with Section 34(4) of the

Arbitration Act.

9. On the scope of the provisions of Section 34 (4), Mr.

Bharcucha relied upon the following judgments:-

(i) Dyna Technologies Pvt Ltd v/s Crompton Greaves Ltd [(2019) 20 SCC 1];

(ii) Kinnari Mullick and Another v/s Ghanshyam Das Damani [(2018) 11 SCC 328].

10. On the other hand, Mr. Setalvad, the learned Senior

Counsel appearing on behalf of the Petitioner, submitted that

Section 34(4) contemplates an opportunity being given to an

Arbitral Tribunal to eliminate the grounds for setting aside the

Arbitral Award. This necessarily means that there must be a valid

Award in existence. It is only the grounds for setting aside the

Arbitral Award which may be eliminated, subject to there being a

valid Award in existence. Mr. Setalvad submitted that Section

34(4) does not contemplate the rectification of the record so as to

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validate an Award, which is otherwise invalid in law. He

submitted that in the present case there is no Award as

contemplated in law. There are three separate Awards i.e. (i) the

Hon'ble Mr. Justice A. V. Savant's Award dated 14th March, 2020

(which purports to be the "Concurring Opinion"); (ii) the Presiding

Arbitrator's Award dated 18th March, 2020; and (iii) the Hon'ble

Mr. Justice Kapoor's Dissenting Award which is undated. Notably,

the Presiding Arbitrator (the Hon'ble Mr. Justice S. N. Variava)

has, in his communication dated 11th January, 2021 stated that

"after I received the Dissenting Award and Concurring

Award/Opinion, I corrected the draft, signed it and made it into an

Award on 18th March, 2020." Mr. Setalvad submitted that

indisputably, there was no joint deliberation between the

Arbitrators with regard to the corrections effected. Further the

nature of the corrections are also not known. He therefore

submitted that in these facts following position emerges:-

a. There is no "Award" as contemplated by law. What the Arbitration Act contemplates - Section 31 (5) - is that "the arbitral award" is made, signed and delivered to each party;

b. Section 31 (1) contemplates that "an Arbitral Award"

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shall be signed by the members of the arbitral tribunal. Section 31(2) sets out that for the purposes of sub- section (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated;

c. The Supreme Court in State of Maharashtra v. Ark Builders (2011) 4 SCC 616 after considering the provisions of Section 31 (5) and Section 31(1) held that - "what Section 31(5) contemplates is not merely the delivery of any kind of a copy of the award but a copy of the award that is duly signed by the member of the arbitral tribunal." [emphasis supplied]. The Supreme Court in Union of India v. Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 held that - "6. Form and contents of the arbitral award are provided by Section 31 of the Act. The arbitral award drawn up in the manner prescribed by Section 31 of the Act has to be signed and dated." Further - "8. The delivery of an arbitral award under sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance." In the present case there is no single Award, as is mandated by law. The Award dated 18th March 2020 has not been signed by all three arbitrators and therefore is not "duly signed" as required by the Supreme Court. There is also no single date.

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          d.       The Bombay High Court in MSEDC v.                         Deltron

Electronics 2017 (2) MhLJ 605 has held that "That still does not dispense with the requirement of participation of all Arbitrators in the reference and in the deliberations of making of the award." It is further held that the absence of a signature of an arbitrator "goes to the root of the award and undermines its validity." In the present case, the "Award" dated 18th March 2020 was not deliberated upon by all three arbitrators. The corrections carried out by the Presiding Arbitrator were not shown to the other two arbitrators. The same were not perused or deliberated upon. The said 'Award' dated 18th March 2020 was not signed by two of the arbitrators (i.e. Justice Savant and Justice Kapoor). The said defects in the Award undermine its very validity and are not curable;

e. The elimination of grounds as contemplated by Section 34(4) can only be with regard to the merits of the case. An invalid award cannot be validated by resorting to Section 34(4) - see AIR 1962 SC 551 Rikhabdass v. Ballabhdas and 1998 1 Mah LJ 700 Ashok Tubes v.

Steel Industries; and

f. The Lahore High Court has held that an award signed on different dates by two arbitrators renders the

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award invalid in law - see AIR 1914 Lah 436 (DB) Bhagwan Das v. Shiv Dial.

11. Mr. Setalvad therefore submitted that there was no

merit in the above Application filed under Section 34 (4) of the

Arbitration Act and the same ought to be dismissed.

12. In the alternative, Mr. Setalvad submitted that if I am

inclined to allow the Application under Section 34 (4) of the

Arbitration Act, then the bank guarantee of Rs.3.5 crores given by

the Petitioner at the stage of the Section 9 petition (and which

petition was filed post the passing of the Awards), should be

returned to the Petitioner. If an order under Section 34 (4) is

passed at the request of the Applicant, it plainly demonstrates

that there are errors on the face of the Award. In the present

case, the validity of the Award itself is in doubt. In such

circumstances, a pre-deposit order which has been passed in the

section 9 petition ought not to be permitted to stand and hence I

ought to direct the return of the bank guarantee of Rs. 3.5 Crores

furnished by the Petitioner to this Court. The last submission

made by Mr. Setalvad and which was also in the alternative was

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that, if I am inclined to entertain the present Application, then the

Arbitral Tribunal also ought to consider all the submissions made

by the Applicant in connection with mitigation of damages.

13. I have heard the learned counsel for the parties at

length and have perused the papers and proceedings in the

Interim Application. The challenge in the above section 34

Petition is to quash and set aside the Award dated 18th March,

2020, Award dated 14th March, 2020 and the Dissenting Award.

One of the grounds of challenge to the aforesaid Awards is that

there are three separate Awards i.e. (i) the Hon'ble Mr. Justice

Savant's Award dated 14th March, 2020 (which purports to be the

"Concurring Award"); (ii) The presiding Arbitrator's Award dated

18th March, 2020 (the Hon'ble Mr. Justice Variava's Award); and

(iii) the Hon'ble Mr. Justice Kapoor's Award which is undated and

which is the Dissenting Award. The argument canvassed before

me is that the Hon'ble Mr. Justice Savant's Award is dated 14th

March, 2020 and which is the concurring opinion with the

Presiding Arbitrator's Award. On the other hand, the Presiding

Arbitrator's Award (the Hon'ble Mr. Justice S. N. Variava) is

dated 18th March, 2020. The argument canvassed is that the

Hon'ble Mr. Justice A. V. Savant could not have given a

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concurring opinion on 14th March, 2020 when the Presiding

Arbitrator's Award (Justice Variava's Award) itself, and with

which he concurred with, is dated 18th March, 2020. He

submitted that this is fatal and cannot be cured under Section

34(4) of the Arbitration Act. The entire argument before me

proceeded on this basis.

14. I am unable to agree with the submissions of Mr.

Setalvad as I find that the objection taken is a hyper technical one,

to say the least. Though it may be true that the Hon'ble Mr.

Justice A. V. Savant could not have given a concurring opinion on

14th March, 2020 to the Award passed by the Presiding Arbitrator

on 18th March, 2020, the facts of this case would clearly show that

when this objection was raised, the Hon'ble Mr. Justice A. V.

Savant clearly opined that it is incorrect to assume that his

concurring opinion/Award could not have referred to the

opinion/Award passed by the Presiding Arbitrator. He has clearly

stated that the Presiding Arbitrator forwarded a draft of his

Award in the first week of March, 2020. Having perused the

same, he prepared his concurring opinion and signed the same on

14th March, 2020 and sent the hard copy to the learned Presiding

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Arbitrator. He therefore clarified that it is in this factual

background that one has to read the opening two paragraphs of

his concurring opinion and which has been quoted in paragraph 5

(I) (a) of the above Arbitration Petition. The Hon'ble Mr. Justice

A. V. Savant thereafter has categorically stated that he fully

concurs with the Presiding Arbitrator's Award dated 18th March,

2020 and his concurring opinion ought to be read with/in addition

to the Award dated 18th March, 2020. In effect, what has been

stated by the Hon'ble Mr. Justice A. V. Savant is that he has had

the opportunity to see the signed Award of the Presiding

Arbitrator dated 18th March, 2020 and he fully concurs with the

same. In fact, on the basis of this correspondence itself, I would

have been justified in rejecting the aforesaid objection taken by

the Petitioner in the above Petition. However, as mentioned

earlier, in order to obviate any argument by the Petitioner that no

such clarifications could have been given by the Tribunal after

passing of the Award as it had become functus officio, is why the

present application is filed under Section 34 (4) of the Arbitration

Act.

15. Section 34 deals with an application for setting aside

the Arbitral Award. The grounds on which the Arbitral Award can

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be set aside are also set out in the said Section. Sub-section 4 of

Section 34 stipulates that on receipt of an application under sub-

section (1) (i.e. to challenge an Arbitral Award), the Court may,

where it is appropriate and it is so requested by a party, adjourn

the proceedings for a period of time determined by it in order to

give the Arbitral Tribunal an opportunity to resume the arbitral

proceedings or to take such other action as in the opinion of the

Arbitral Tribunal will eliminate the grounds for setting aside the

Arbitral Award.

16. I am cognizant of the fact that Arbitral Awards should

not be interfered with in a casual and cavalier manner, unless the

Court comes to a conclusion that the perversity of the Award goes

to the root of the matter without there being a possibility of an

alternative interpretation which may sustain the Arbitral Award.

Undoubtedly, Section 34 is different in its approach and cannot be

equated with a normal appellate jurisdiction. The mandate under

Section 34 is to respect the finality of the Arbitral Award and the

party autonomy to get their dispute adjudicated by an alternative

forum as provided under the law. If the Courts were to interfere

with Arbitral Awards in the usual course on factual aspects, then,

the commercial wisdom behind opting for alternate dispute

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resolution would stand frustrated.

17. I am stating this not merely as my opinion but the

same has been clearly stated by the Supreme Court in Dyna

Technologies Pvt Ltd (supra). Paragraphs 24 and 25 of this

decision read thus:-

"24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated.

25. Moreover, umpteen number of judgments of this Court have categorically held that the courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act."

18. In the very same decision, the Supreme Court has also

held that the legislative intent of enacting Section 34 (4) of the

Arbitration Act was to make the Award enforceable, after giving

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an opportunity to the Tribunal to undo the curable defects. This

provision cannot be brushed aside. In fact, the Supreme Court has

opined that even in the case of an unreasoned Award the power

under Section 34(4) of the Arbitration Act can be exercised to

cure such a defect. The Supreme Court has clearly laid down that

the power vested under Section 34(4) of the Arbitration Act to

cure defects can be utilized in cases where the Arbitral Award

does not provide any reasoning or if the Award has some gap in

the reasoning or otherwise and that can be cured so as to avoid a

challenge based on the aforesaid curable defects under Section 34

of the Arbitration Act. The relevant portion reads thus:-

"36. At this juncture it must be noted that the legislative intention of providing Section 34(4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits.

37. In case of absence of reasoning the utility has been provided under Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34(4) of the Arbitration Act to cure defects can be utilised in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced."

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19. In the present case, I find that the objection taken is

purely of a technical nature. The Petitioner wants to take

advantage of the fact that the concurring opinion of the Hon'ble

Mr. Justice A. V. Savant was based on a draft Award of the

Presiding Arbitrator (the Hon'ble Mr. Justice S. N. Variava) and

not on the basis of his final Award. This defect can certainly be

cured under Section 34 (4) of the Arbitration Act by giving an

opportunity to the Arbitral Tribunal to resume the arbitral

proceedings or take such other action as in its opinion will

eliminate the aforesaid ground of challenge. I am unimpressed

with the argument of Mr. Setalvad that to eliminate a ground for

setting aside the Arbitral Award would necessarily mean that

there must be valid Award in existence. I fail to understand this

argument. Any Petitioner who approaches the Court under

Section 34 of the Arbitration Act, seeks to set aside Award on the

ground that it is invalid. No party approaches the Court under

Section 34 to challenge a valid Award. That would be

preposterous. Every Petition under Section 34 proceeds on the

basis that the Award is invalid for the reasons set out in the

Petition and hence be set aside. I, therefore, fail to understand as

to how Mr. Setalvad contends that the power under Section 34(4)

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can only be exercised when there is a valid Award in existence. If

the Award is valid, there is no question of challenging the same

under Section 34 of the Arbitration Act. In fact, from the Petition

it can be seen that there are several grounds on which the

impugned Awards are challenged. This being the case, I do not

think that this Court would be precluded from exercising its

jurisdiction under Section 34(4) of the Arbitration Act.

20. There is yet another reason why I am inclined to

exercise my jurisdiction under Section 34 (4) of the Arbitration

Act. It is not in dispute that the arbitration proceedings

commenced in the year 2014. Both parties led their respective

evidence and were thereafter heard by the Arbitral Tribunal

which culminated into the impugned Awards. If I was to set aside

the Awards on the hyper technical ground that they are not signed

on the same date, it would not only be highly unjust but would run

counter to the very object of the Arbitration and Conciliation Act,

1996 and the Commercial Courts Act, 2015 which is to dispose of

commercial disputes as expeditiously as possible.

21. This now only leaves me to deal with the alternate

arguments canvassed by Mr. Setalvad. Mr. Setalvad argued that if

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I am inclined to exercise my jurisdiction under Section 34(4), the

bank guarantee given by the Petitioner of Rs.3.5 Crores be

returned. This argument proceeds on the basis that the Court is

therefore satisfied that there is a defect in the Awards which is

required to be cured and without which the Awards would be set

aside. I am afraid, I am unable to entertain this argument at this

stage. By order dated 23rd July, 2020 passed in a Section 9

Petition filed by the Applicant herein (the Respondent in the

Section 34 Petition), the Petitioner was required to deposit or

furnish a bank guarantee in the sum of Rs. 3.5 Crores. The

Petitioner has in fact furnished a bank guarantee for the said

amount. Whilst passing its order, the Court made it clear that

when this Court hears any application for stay preferred by the

Petitioner herein, it will be open to the Petitioner to argue that the

bank guarantee furnished should be returned or the bank

guarantee furnished be allowed to be adjusted or reckoned in any

conditional order that this Court may pass in that regard. Today, I

am not considering any application for stay of the impugned

Award. This will be decided as and when the application for stay

of the impugned Award is heard by this Court. This being the

position, I do not think that at this stage any such order can be

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passed and that too in an Application filed by the Applicant herein

under Section 34 (4) of the Arbitration Act.

22. As far as the other alternative submission regarding

the fact that the Arbitral Tribunal ought to consider all the

submissions made by the Applicant in connection with mitigation

of damages is concerned, I fail to understand how such a request is

made by a party who is challenging the Award. One of the

grounds taken by the Petitioner is that the Tribunal failed to

consider all the submissions in connection with mitigation to

damages. If it is correct in its submission it would succeed so long

as it able to satisfy the Court that it falls within the parameters of

Section 34. I, therefore, do not think that even this alternative

argument can be granted by this Court.

23. In view of the foregoing discussion, the Interim

Application is allowed and the Arbitral Tribunal is directed to

resume the arbitral proceedings or take such other action as in the

opinion of the Tribunal is necessary to eliminate the ground of

challenge in relation to the two Awards dated 14th March, 2020

and 18th March, 2020 insofar as they do not constitute the

majority consensus Award.

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24. The Tribunal is requested to carry out this exercise

within a period of four weeks from today.

25. Place the above Arbitration Petition along with the

Application for stay on 5th May, 2021.

26. The above Interim Application is accordingly disposed

of. However, there shall be no order as to costs.

27. At this stage, the learned counsel appearing on behalf

of the Petitioner (the Respondent in the Interim Application) has

prayed for stay of this order. Considering what I have already

held in the order, I do not think any stay is warranted. The

application for stay is therefore rejected.

28. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act

on production by fax or email of a digitally signed copy of this

order.

                                        (B. P. COLABAWALLA, J.)



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