Calcutta High Court
Ap-Com 135 Of 2024 (Old Ap 698 Of 2016) vs Laxmi Pat Surana & Anr on 19 September, 2025
1
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
Present: - Hon'ble Mr. Justice Subhendu Samanta.
IN THE MATTER OF
AP-COM 135 of 2024 (Old AP 698 of 2016)
Future Market Networks Ltd.
Vs.
Laxmi Pat Surana & Anr.
For the Petitioner : Mr. S.N. Mookherjee, Ld. Sr. Adv.,
Mr. Rishad Medora, Adv.,
Mr. Naman Chowdhury, Adv.,
Ms. Pooja Chakrabarti, Adv.,
Mr. Aritra Deb, Adv.,
Mr. Sagniok Aditya, Adv.,
For the respondents : Mr. Laxmi Pat Surana (In person)
Reserved on : 07.03.2025
Judgment on : 19.09.2025
Subhendu Samanta, J.
1. This is an application u/s 34 of the Arbitration and Conciliation
Act, 1996 filed by Future Market Networks Limited, challenging
an award dated May 19th, 2016 passed by Learned sole
Arbitrator Mr. Syama Prosad Sarkar in an arbitration
proceeding between respondent Laxmipat Surana (claimant in
the arbitration) and predecessor in interest of the petitioner and
respondent No. 2 herein.
2. By filling the present application the petitioner has challenged
the award on 04 grounds. They are--
1. License fee for entire lock-in period i.e. August 11,
2008 to July 31, 2013 for a sum of Rs. 13,26,56,751.
2. Loss of interest on security deposit for a sum of Rs.
50,00,000; and loss of income on account of additional
license fees for a sum of Rs. 3,95,50,500.
3. Electricity charges for a sum of Rs. 14,68,762.
4. Water Charges for a sum of Rs. 11,70,000.
3. Petitioner also challenges the award to the extent that counter
claims of the petitioner for cost of diesel for a sum of Rs.
3,30,23,904/- and for infrastructure for a sum of Rs.
21,00,00,000/- having been allowed.
4. Submission by the petitioner on Point No. 1 :- Mr. S.N.
Mookherjee, Ld. Senior Advocate, for Petitioner contends
Learned Arbitrator has erroneously awarded the license fees for
entire lock-in period of 5 years, commencing from August 11,
2008 to July 31, 2013, for a sum of Rs. 13,26,56,751/-, when
in fact, license fees could only have been awarded for the period
of August 11, 2008 to March 2012 for a sum of Rs.
8,96,14,514/-as the possession of the premises was admittedly
given up by the Petitioner to the Claimant in April 2012.
Therefore, no loss could have been suffered by the Claimant
from April 2012 to July 31, 2013 and no damages could have
been awarded on such account. Thus, an excess amount of Rs.
4,30,42,237 has been awarded in the award on account of
license fees for the period April 2012 to July 31, 2013.
5. Mr. Mookherjee further contended agreement was terminated by
letter dated 31st October, 2011, such termination was accepted
by the respondent No. 1 by his letter dated December 19th,
2011, and the respondent No. 1 also exercised lien form of
goods and materials stored in the premises. Petitioner submits
that having received possession of the premises there cannot be
any loss suffered by claimant on account of license fee for
compliance lock in period being April 2012, to July 31 st, 2013.
6. Petitioner further submits, following termination of the
agreement, the Sub-Sub- licensees inducted by the petitioner
under Clause 17 of the supplementary agreement dated June
14th , 2008, were paying rent directly to the banker of
respondent No. 1 and such arrangement was accepted by the
claimant. The petitioner further submits no proof of damage
had been proved by the Respondent No. 1 in the instant case, in
fact, it was the finding of the Learned Arbitrator that claimant
received benefit in view of the fact that the sub-sub-licensees
were making direct payment to claimants banker. Petitioner
submits there is no finding in the Award that the Petitioner
suffered any damage. Thus, no liquidated damages could have
been awarded for such period where, in fact, no loss has been
pleaded or proved by the claimant. Petitioner submits Proof of
loss is a sine qua non for award of damages, whether liquidated
or unliquidated and the same also applies to agreements
containing a lock in period.
7. In support of his contention Mr. Mookherjee cited following
decisions of Hon'ble Supreme Court in :-
i) Kailash Associates Vs. Delhi Development
Authority & Anr. (2015) 4 SCC 136
ii) M/s. Auto Craft Engineers Vs. Akash
Automobiles Agencies Private Limited.
8. It is further argued by the petitioner that the award has
therefore been passed in ignorance of binding precedents and is
contrary to the fundamental policy of Indian Law and thus
liable to be set aside u/s 34(2)(b)(ii) of the Arbitration and
Conciliation Act, 1996.
9. In support of their contention petitioner cited following
decisions:-
i) Associate Builders Vs. Delhi Development
Authority (2015) 3 SCC 49
ii) Ssangyong Engineers Vs. National Highway
Authority of India (NHAI) (2019) 15 SCC 131
10. Submission of respondent (Laxmi Pat Surana in person) on
point No. 1:- Mr. Surana Submits that Learned Arbitrator has
awarded license fee for 5 years lock-in period clearly holding, in
paragraph 30 of the Award, that while issuing the termination
letter dated October 31, 2011 (page/348-350, Vol-3) the
Petitioner did not give 30 days written notice in terms of the
agreement and held that the said letter complaining the breach
was a peremptory termination. Mr. Surana submits the
admission of the Claimant's claim is neither perverse nor
patently illegal nor against the law laid down by the Superior
Court nor against the fundamental policy of Indian law nor
contrary to public policy of India nor suffers from the vice of
justice or morality nor against the contractual terms nor
contrary to the provisions of law. He submits claim has been
admitted by the Ld. Arbitrator with full application of mind. Mr.
Surana Submits Arbitrator is bound to respect the terms of the
contract, according to legal precedent, if a tenant breaks a lease
agreement during a lock-in period, the tenant is obligated to pay
the rent for the remaining period of the lock-in term, as the
"balance rent" is considered a pre-estimated loss by the
landlord. Mr. Surana submits this principle has been upheld by
several courts in the country and have also held that such a
clause in a lease agreement as a valid and enforceable.
Similarly, if a reasonable amount is contemplated by the parties
to be the compensation payable upon a breach of the
agreement, actual loss need not be proved.
11. In support of his contention Mr. Surana cited decision of
Hon'ble Supreme Court passed in ONGC VS. Shaw Pipes
(2003) 5 SCC 705.
12. Mr. Surana further submits that there are two types of damages
(a) Liquidated (b) Unliquidated. As per the crystallised legal
position, sum ascertained as liquidated damages in the contract
is not in the nature of penalty, but is a pre-estimate of loss
estimated by the parties likely to be suffered by a party in the
event of breach of contract by the other party. Mr Surana
further submits since the execution of the agreement is not in
dispute, the onus would be on the Petitioner to demonstrate
that the relevant clause providing for payment of license fee
(liquidated damages) in the event of the sub-licensee
determining the sub-license within the lock-in period, is a
penalty that would fall foul of the Contract Act, He argued- It
would be the Petitioner's obligation to establish what the
Respondent No.1 (Claimant) could have done to mitigate its
damages and the consequential reduction, if at all, of the
Petitioner's liability as to liquidated damages knowing fully well
that the Petitioner was admittedly in wrongful occupation of the
premises. Mr. Surana submits Learned Arbitrator has awarded
the license fee for the 5 year lock-in period as per agreed rate of
license fee between the parties stated in the agreement since the
termination letter, in accordance with paragraph 30 of the
Award, was not issued in accordance with the provisions of
agreement. Such claim being in the nature of liquidated
damages, the Claimant was not required to prove the same
more so when the Petitioner was admittedly in wrongful
occupation of the premises even after passing of an Interim
Award on 8th April, 2013 on an unequivocal consent of the
Petitioner to deliver vacant khas and peaceful possession of the
premises in terms of prayer (b) of the Claimant's application for
Interim Award. He argued Vacant khas and peaceful possession
was never delivered by the Petitioner, there is neither any
evidence nor any record on the Arbitral Tribunal for delivery of
possession. In terms of Clause 22 of the Agreement only vacant,
khas and peaceful delivery of possession is recognised.
13. Heard the Learned Counsel for the parties perused the written
notes of argument has placed by the parties. To justify the point
raised by the petitioner. It is required to be set out. Paragraph
30 and 31 of Arbitral award-
30. It is not difficult to appreciate as to why such a clause
was inserted in the agreement. A project of such
magnitude, as undertaken by the Claimant, contemplated
huge initial investment. It was, therefore, reasonable for
the Claimant to safeguard his interest to a reasonable
measure. Mr. Saha's argument to the effect that many a
warning and prior notice of Claimant's various breaches
had been served in the past, though true, cannot, in any
event, be viewed as compliance with requirement of Clause
31. Under the said Clause, unless a 30 day prior notice
was served on the Claimant licensor, in accordance with
provisions of Clause 31 of the agreement, complaining of
breach committed by the Claimant, giving an opportunity
to the latter to have the same rectified within the period,
the Respondents, in any event, remained liable to pay the
license fee for a period of 5 years rendering the
controversy over the actual tenure referred to above
irrelevant. In absence of such prior notice, the
Respondents remained liable to pay the license fees to the
Claimant for the entire period of 5 years, regardless of
termination at an earlier point of time.
I therefore, hold that the 5 years lock-in period was
attracted since the Respondent (PRIL) as sub-licensee did
not give to the licensee (the Claimant) 30 day written
notice of such breach giving an opportunity to the latter to
have the same rectified by end of the said notice period.
Letter dated 31st October, 2011 of the Respondents
complaining the breach was a peremptory termination.
14. The above observations of Learned Arbitrator has materialised
in paragraph 42 to 45 regarding calculation of license fee. The
paragraph 42 to 45 set out hereinunder for better appreciation.
42. On the basis of aforesaid discussion as to parameters
of calculating license fees; I hold that the Respondents
were liable to pay lease rent for the period from 11th
August, 2008 till termination of the agreement on 31st
October, 2011 i.e. 39 months for the total chargeable area
of 109021 sq. ft. in the sum of Rs.8,35,48,243.20 /-
calculated on the following basis:
a) License fee for 36 months @ Rs.19.50 per sq. ft. Rs.
7,65,32,742.00/-
b) License fee for 3 months @ Rs.21.45 per sq. ft. Rs.
70,15,501.20/-
Total liability Rs.
8,35,48,243.20/-
43. In course of his argument, Ld. Counsel for the
Respondents, however, conceded that his clients were
liable to be pay licence fees till March, 2012. This
submission, I presume, was made on the footing that
possession of scheduled premises not being made over to
the Claimant until say 14th April 2012. In the view I have
taken is, it cannot be correct. I have held earlier that the
liability to pay rent must ends on 31st October, 2011 when
the agreement was terminated. The Claimant was,
however, free to make claim on the basis of mesne profit,
should he had chosen to file a suit for eviction and mense
profit, but for the purpose of calculation of licence fees,
such possible claim has to be ignored.
44. However, having regard to the fact that the
Respondents terminated the agreement within the 5 years
lock-in period without serving a 30 day prior notice, as
required by Clause 31 of the agreement, the Claimant
would be entitled to the lease rent for residue of 5 year
lock-in period i.e. till 31st July, 2013 covering 21 months
calculated at the rate of Rs.21.45p. per sq. ft. Accordingly,
the Claimant would be entitled to an additional rent of
Rs.4,91,08,507.80/-.
45. In the premises, the total liability of the Respondents
for License fee was for a sum of Rs. 13,26,56,751/- (Rs.
8,35,48,243.20/- + 4,91,08,507.80/-).
15. Basic objection of the petitioner against the award for granting
license fee in the lock in period is that the claimant has not or
proved pleaded loss or damages suffered by him during such
lock in period. Hence the same cannot be awarded legally.
16. In Kailsah Nath Associates (supra), is a suit for specific
performance of contract, the Single Judge of High Court's order
of refund of earnest money on the ground that "respondent did
not suffer any loss" has reached to the Hon'ble Apex Court
wherein the Hon'ble Supreme Court has held that Set out
Paragraph 43,43.1.
17. In Kailsah Nath Associates (supra) the Hon'ble Supreme Court
in dealing with refund of earnest money by a bidder has
overruled the view of Hon'ble Division Bench who set aside the
order of Single Judge, holding the proof of loss is not required to
recover earner money. In dealing with such issues the Hon'ble
Supreme Court is of view that proof of loss has already been
proved as the respondent was sold the same land to the third
party at about three and half times price of estimated cost. In
the present case the agreement itself stipulates regarding 5
years lock- in period, both the parties are agreed about such
conditions, so in my view the fact situation of Kailsah Nath
Associates (supra) is not similar to that of the present
agreement between the parties.
18. In M/s Autocraft Engineers, an ex-party award passed by a
sole arbitrator was under challenge before Hon'ble Apex Court.
It is admitted by the parties in M/s Autocraft Engineers
(Supra) that award in lock in period in respect of the property in
question was already occupied by previous tenants. The
petitioner never took possession of the suit property for a single
day and evidence suggests that respondent suffered no loss
during the lock in period. The premises was already occupied by
the previous licensee who running the show room of Mahindra
Jeep and continued to occupy the said premises.
19. In the present case it has been pleaded by the petitioner that
Sub-Sub- licensees are in possession, after the petitioner has
vacated the premises; it has further been pleaded that such
Sub-Sub-licensees are directly paying rent to the banker of the
claimant. Such fact was not categorically admitted by the
Learned Arbitrator in the entire proceeding. I have gone through
the award impugned wherein the argument and submission of
the parties were recorded and it has been categorically admitted
that instead of interim award on 8th April 2013, petitioner could
not delivered vacant, khas and peaceful possession of the
premises to the claimants. Reasons are numerous but facts
suggests that the learned Arbitrator has held that as the
petitioner failed to terminate the agreement within 05 years lock
in period without serving 30 days prior notice, as required by
Clause 31 of the agreement, the Learned Arbitrator awarded
lease rent for entire 05 years lock in period.
20. Let me consider whether the observation of Learned Tribunal is
not sustainable within "public police of India" or "fundamental
policy of Indian Law". Hon'ble Supreme Court in Ssangyong, in
dealing with an arbitral award passed by majority of the arbitral
tribunal has set aside of award on ground of being against
"most basic notions of justice". In the case of Ssangyong
Engineering and construction Company Limited (Supra) two
out of three members of arbitral tribunal, by their award held
that new circular could be applied to the cases as it was within
contractual stipulations. It has been held by Hon'ble Supreme
Court that the majority of arbitral tribunal created new contract
for the parties by applying the unilateral circular and by
substituting a workable formula under the agreement by
another formula de-hors the agreement. Further, it has been
held by the Hon'ble Supreme Court that the circular itself
expressly stipulated that it cannot apply unless the contractor
furnished an undertaking/affidavit that the price adjustment
under the circular was acceptable to them. Thus it has been
observed by the Hon'ble Apex Court that this is being the case
of "fundamental principles of justice" had been breached clearly
such a course of conduct would be contrary to the fundamental
principles of justice as followed in this country and shocks the
conscience of the court.
21. In the present case the Learned Arbitrator has passed the
award on license fees according to the terms of the agreement, it
has not travelled beyond the agreement. There may be certain
other views according to the petitioner. Moreover, there may be
some other end findings on the basis of the evidence on record,
which an appellate court may determine, but in the present
facts and circumstances of this case the observation of Learned
Tribunal is not such exceptional that can shocks the conscience
of the court by infraction of fundamental notions or principle of
justice. It appears to me that the learned arbitrators has
construed the contract in fair mind as reasonable person and
not wonders outside the contract. Thus, in my view he commits
no error.
22. Under the above observations the first ground raised by the
petitioner appears to me not meritorious, award by the Learned
Arbitrator on point No. 1 appears to me justified.
23. Submission by the petitioner on point No. 2 :- Mr. Mookherjee
Learned Counsel, for the petitioner submits that the Learned
Arbitrator has erroneously awarded loss of interest on security
deposit for a sum of Rs. 50,00,000/- and loss of income on
account of additional license fees for a sum of Rs. 3,95,50,500/-
although the same is contrary to and also outside the terms of
the Agreement executed between the parties read with the
Supplemental Agreement dated June 14, 2008.
24. Mr. Mookherjee further submits that Clause 17 of origninal
Agreement stood amended by the Supplementary Agreement
dated June 14, 2008, whereby the Petitioner was allowed to
induct third party sub-licensees into the licensed premises.
There was no stipulation of payment of any additional security
deposit or additional license fee to the Respondent No. 1 herein
and further, there was no documentary proof to reflect any
contrary understanding between the parties was on record
before the Learned Arbitrator.
25. Mr. Mookherjee submits that the reliance of the Respondent
no. 1 on the letter dated May 13, 2008 [@page 584, Vol. IV of
the Compilation of Documents] and the letter dated February
27, 2009 is misplaced as the aforesaid letters do not establish
any understanding for payment of any additional security
deposit or additional license fee to the Respondent No. 1.
26. Mr. Mookherjee contended that the Learned Arbitrator has thus
erroneously awarded the aforementioned two claims de hors the
Agreement(s) between the parties and the Award to such extent
is not only contrary to the fundamental policy of Indian law as it
fails to consider Sections 91 and 92, the Indian Evidence Act,
1872 and is also patently illegal as it is dehors the contract and
bad in law and is thus liable to be set aside under Section
34(2)(b)(ii) and Section 34(2-A) of the Arbitration and
Conciliation Act, 1996
27. Submission by the respondent on point No. 2 :- Mr. Laxmi Pat
Surana (in person) submits that Additional License Fee and
Security Deposit claims are based on the permission granted to
the Petitioner for further sub-licensing 30% of the total space
sub-licensed i.e. roughly 30,000 sq ft to third parties in
consideration of making over additional rent over and above
what the Petitioner is paying to the Claimant i.e. Rs.19.50 per
sq ft per month and the additional security deposit which shall
be collected from such third parties to the Claimant. Such
arrangement was apparent from the conduct of the parties as
well as from an e-mail of the Petitioner dated 13th May, 2008 at
page/582, Vol-IV (for transfer of security deposit) and also from
Petitioner's letter dated 27th February, 2009 at page/1179, Vol-
IX (paragraph 2 for transfer of security deposit) and para 2 of e-
mail dated 30th March, 2009 at page 1212, Vol-IX (for sharing
additional rent with the Claimant). Mr. Surana submits the
Claimant in course of his cross examination as Claimant's
witness, particularly in answer to Q. No. 91G at page/1293,
Vol-XI has said that in course of discussion it was agreed that
three conditions would be required to be observed in this regard
i.e. the respondent would follow the terms and conditions which
have been accepted by the Claimant while executing various
Term Sheets with other sub-licensees in other Blocks. Mr.
Surana submits such terms were not incorporated in the
Supplementary Agreement at the sole request of the Petitioner
on the ground that such agreement is required to be shared
with the new sub-licensees and such terms may send a wrong
wind and cause a stumbling block for attractive license fee from
the prospective sub-sub-licensees. However, the Petitioner
agreed to issue such acceptance/confirmation separately. Mr.
Surana submits, he accepted such request of the Petitioner in
good faith being a large corporate house and a leading force in
retail business in the country at that point of time. The
Petitioner, however, refused to comply with such confirmation
despite repeated requests by the Claimant by several letters and
e-mails at pages/583-585, 588, 589, 591-594, Vol-4, 676, 677,
690, 696, Vol-5 and others available on record of the Tribunal
except issuing few emails and a letter, stated above, which fully
and unequivocally confirms such understanding between the
parties leading to the liability of the Petitioner in respect of
additional license fee and security deposit. Mr. Surana submits
It is settled law that interpretation of the terms of the contract
is within the domain of the Arbitrator. The proposition of law is
clear that an Award can only be interfered with if found to be
perverse or contrary to the evidence or in conflict with public
policy. This evidence of the Claimant has not been contradicted
nor there has been any cross examination on this point. Mr.
Surana argued this has duly been recorded by the Ld.
Arbitrator in paragraph 73 of the Award.
28. Heard the Learned Counsel for the petitioner as well as Mr.
Laxmi pat Surana, it appears that Learned Arbitrator has dealt
with Point No. 2 i.e. loss of interest of security deposit and loss
of income on account of additional license fees in paragraph 73
to paragraph 76 of the impugned award. I perused the said
paragraphs. For the better appreciation of the fact paragraph 73
of the award is set out hereinunder.
Loss of Interest on Security Deposit.
Loss of income on account of additional Licence fees.
73. For the sake of convenience, I deal with the above two
claims together, as both are based on provisions of the
supplementary agreement made between the Claimant and
Pantaloons Retail (India) Limited on 14th June, 2008 (RD-I,
P 428) which modified Clause 17 of the original agreement
dated 30th January, 2007. The said agreement provided
that Pantaloons would be entitled to further sub-lease
30,000 sq. ft. area to third parties in consideration of
making over additional security deposit and additional
rent to the Claimant. Such arrangement was apparent
from conduct of the parties as well as from e-mail of the
Respondents dated 13th May, 2008 (CD-II, p 303) and also
from a letter dated 27th February, 2009 (RD-11 P 442). Mr.
Surana, the Claimant, in course of his cross -examination,
particularly in answer to Q. 91G, he said that in course of
discussion it was agreed that three conditions would be
required to be observed in this regard; (i) Respondents
would be obliged to pay additional rent to be received by
Pantaloons from their sub-licensees to the extent, exceeds
their rate of rent payable to be Claimant i.e. Rs. 19.50p
per sq. ft.; (ii) Security deposit to be received by the
Pantaloons from such sub-licensees would be transferred
to the Claimant and (iii) Such sub-licensee should be in
conformity with the terms of agreement between the
Claimant and other sub-licensees in other Blocks as
recorded in Terms Sheets. This evidence of Mr. Surana has
not been contradicted and nor there has been any cross
examination on this point. Claimant's further case is that
the Respondents neither gave any prior intimation before
execution of any agreement with sub-licensees nor did they
provide copies of the same at any stage. Hence, the
Claimant claims on these two items appearing as Serial
No.25 and 26 at Rs.50,00,000/- and Rs.3,95,50,500 and
pleaded in paragraphs 42, 43 and 50 was largely a guess
work. I accept Mr. Surana's version of facts credible and
his assessment of loss quite reasonable. Innumerable
demands were made by the Claimant as would appear
from pages 304, 306, 310, 315 of CD-II and pages 392,
393, 401-406, 409-412 of CD-IV. Those demands
apparently had not been disputed.
29. It has been argued by the petitioner that claim of loss of interest
on security deposit and loss of income on account of additional
license fees are out of ambit of the reference. Learned arbitrator
has observed that two claims are passed on provisions of
supplementary agreement between the parties dated 14th June,
2008 which modified Clause 17 of original agreement dated 30 th
January, 2007. The Learned Arbitrator has discussed the points
in detail and also referred the pleadings, communication
through e-mail between the parties and the evidences laid
before him. It is the observation of Learned Arbitrator that the
claim of the petitioner/Mr. Surana has not been contradicted by
the present petitioner or there has no cross-examination on that
point. On the basis of which Learned Arbitrator has came to
opinion that claimant is entitled to Rs. 50,00,000/- towards
loss of interest on security deposit and also Rs. 3,95,50,000/-
on account of additional license fees. The reference was made
before the Learned Arbitrator in respect of agreement between
the parties dated 30th January, 2007. It has been admitted
before the Arbitrator by the parties that Clause 17 of the
original agreement was modified by the parties by way of
supplementary agreement dated 14th June, 2018. Thus, in my
view the point No. 2 is not out of the ambit of the reference. The
Hon'ble Apex Court in Ssanyong Engineering (supra) in
paragraph 66 has referred some observation of High court of
Ireland regarding the scope of arbitration.
66. The High Court of Ireland, in Patrick Ryan & Ann Ryan
v. Kevin O'Leary ( Clonmel) Ltd. & General Motors 60, put it
thus:
"24. As regards the second principle which
emerges from the case law, namely, that
an application to set aside is not an appeal
from the decision of the arbitrator and
does not confer upon the court the
opportunity of second-guessing the
arbitrator's decision on the merits, it is
sufficient to refer to a small number of the
Irish cases and the observations made in
those cases. In Snoddy, Laffoy, J. made it
very clear that it was not open to the
court to second-guess the construction of
the relevant contractual issue in that case
by the arbitrator by way of a set aside
application. Laffoy, J. stated that if the
court were to do so, it would be usurping
the arbitrator's role (para 34. p. 16). In
Delargy 62, Gilligan, J. stated:
It is no function of this Court to attempt
in any way to second guess the decision as
arrived at by the arbitrator and this Court
does not propose to do so. (para 74, p. 37).
Later in his judgment, Gilligan, J.
stated that:
"This Court does not consider that it is
appropriate to revisit the merits of the
arbitrator's award." (para 78, p. 39).
30. After considering the entire circumstances and after considering
the argument it appears to me that the Learned Arbitrator has
not travelled beyond the scope of submissions to arbitration. He
also not misinterpreted the reference to him as the arbitrator
has only considered the impugned reference and subsequent
agreement which amounting particular clause of agreement
(subject of reference). Thus in my view the Learned Arbitrator
has not wondered outsider the contract and only dealt with the
matter allotted to him there is no jurisdictional error in passing
the impugned award.
31. On the above observation I find no justification regarding the
objection raised by the petitioner.
32. Regarding point no. 3 and 4
Learned Arbitrator has awarded Rs 14,68,762/- in favour of the
claims towards electricity charges and also awarded Rs.
11,70,000/- towards water charges. Mr. Mookherjee, submits
that Learned Arbitrator has gone beyond the terms of the
agreement the Learned Tribunal has categorically held such
claims were not within the contractual terms of the parties and
it is within the quasi contractual claims arising out of Section
70 of Contract Act 1872. Mr. Mookherjee further submits that
the water charge is a complete guess work of Learned Arbitrator
which cannot be excepted. Mr. Mookherjee further submits that
claims of electricity charges and water charges do not find basis
on the contractual terms. Therefore, the Learned Arbitrator has
committed jurisdictional error by wondering the outside the
agreement between the parties which is outsider the mandate of
his reference.
33. Mr. Surana, submits that the claim electricity and water
charges are completely within the reference there is clear
provision in agreement for payment of electricity charges and
water charges. He submits though the Learned Arbitrator has
awarded such charges u/s 70 of the Contract Act under the
concept of quasy contract, but the same observation is baseless
in the view of clear stipulations for payment of electricity and
water charges in the agreement itself. He submits the Learned
Arbitrator though have awarded the same the charges of
electricity and water charges but there are some typographical
errors, the calculation of electricity charges should be more. It
was calculated from "November 2010" it should be corrected as
"January 2010" and the payment for electricity charges and
water charges should be up to the date of publication of the
award.
34. Having heard the Learned Counsel for the parties considering
the submissions. I perused the necessary clauses of the
agreement dated 30th January, 2007. Wherefrom it appears that
water charges and electricity charges are take part of the
agreement. Though the Learned Tribunal has awarded said
claims in terms of quasi contract u/s 70 of Indian Contract Act
but I think it necessary to hold that claims are properly within
the scope of reference and Learned Arbitrator has correctly
observed the materials therein; the finding of the Learned
Arbitrator cannot be said to be perverse and outside the scope
of reference. Thus the points of objection raised by the
petitioner in point 3 and 4 is appeared to me not meritorious
and the same is hereby set aside.
35. It appears that in the instant application u/s 34 of Arbitration
and Conciliation Act, 1996, the petitioner claims for setting
aside the entire final award dated 19th May, 2016 (except potion
allowing petitioner's counter claim); during the course of
argument no other grounds are raised by the petitioner except
the above mentioned 04 grounds. Thus I refrain myself to dealt
with those other points of objection.
36. It further appears that Mr. Surana has also argued at length
regarding his claim for enhancement of award amount on the
above mentioned 04 claims; as Mr. Surana has already filed
another application u/s 34 of the said Act, 1996, the claim and
objection of Mr. Surana shall be dealt with properly in deciding
his application.
37. Under the above observations, I am of a view that the
application of the petitioner u/s 34 of Act, 1996, against final
award dated 19th May 2016, is not meritorious and the same is
hereby dismissed. Thus AP-COM/135/2024 is hereby disposed
of.
38. Parties to act upon the server copy and urgent certified copy of
the judgment be received from the concerned Dept. on usual
terms and conditions.
(Subhendu Samanta, J.)
