Simplex Concrete Piles (India) ... vs R.P.N.N. Limited And Anr.
2007 Latest Caselaw 1438 Del

JUDGMENT

Sanjay Kishan Kaul, J.

IA No. 9961/2002 (u/Sections 30 and 33 of the Arbitration Act, 1940)

1. Respondent No. 1 seeks to challenge the award dated 20.07.2000 of the sole arbitrator Mr. Bikash Bhattacharya, Additional General Manager, of respondent No. 1.

2. A contract was entered into between the parties which had an arbitration clause. Disputes arose between the parties and the claims of the petitioner were referred to arbitration. Some part of the claims amounting to Rs. 6,98,541.48 have been allowed out of the total claim of Rs 9,60,446.48/- with interest. Interest has been awarded at varying rates. Past and pendente lite interest for a period of thirteen years form May, 1987 to April, 2000 has been awarded at the rate of 4.5 per cent per annum simple interest while future interest from 14.07.2000 till date of payment has been awarded at the rate of 4 per cent per annum.

3. A perusal of the grounds as raised in the objections shows that most of them really seek to challenge the conclusion arrived at by the arbitrator on appraisement of evidence. This is certainly not the scope of scrutiny by this Court under Section 30 and 33 of the Arbitration Act, 1940 ('the said Act' for short). If the Court was to re-scrutinize the evidence, it would amount to this Court sitting as a court of appeal, which is not permissible. It is not for this Court to interfere with an award merely on the basis that the Court would come to a different conclusion on the material available before the arbitrator. It is only in the eventuality of the award being totally perverse that such interference is called for. A reference, in this behalf, may be made to a Division Bench judgment of this Court in DDA v. Bhagat Construction Co.(P) Ltd and Anr. 2004(3) Arbitration Law Reporter 481 where the Apex Court has observed that in the absence of an award being absurd, reasonableness is not a matter to be considered by the Court as appraisement of evidence by an arbitrator is not ordinarily a matter for the Court. This legal position is clearly enunciated in Food Corporation of India v. Joginderpal Mohinderpal and Anr. and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd and Anr. . In fact, the Apex Court has observed in M/s Sudarshan Trading Co. v. Govt of Kerala; that as far as interpretation of a contract is concerned, the same is a matter for the arbitrator to consider and on which the Court cannot substitute its own decision. So long as the view taken by the arbitrator is a plausible one, though perhaps not the only correct view, the award cannot be examined by the Court. The arbitrator is a chosen Judge by the parties and it is in view thereof that the Apex Court has repeatedly cautioned that unless an award is contrary to law and misconduct is with reference to either personal misconduct of the arbitrator or misconduct of law, an award ought not to be interfered with.

4. In view of the aforesaid legal position, I see no reason to examine each of the grounds and discuss the grievance of the respondents insofar as the appraisement of evidence is concerned.

5. Learned Counsel for respondent No. 1 states that at least two aspects ought to be examined.

6. The first aspect relates to the plea of limitation. It is the case of respondent No. 1 that the final bill was submitted on 10.04.1987 while the reference was claimed in February, 1991. This aspect has been examined by the arbitrator in para 28 of the award. The material fact taken note of by the arbitrator is that the respondent No. 1 was informing the petitioner that the bills were under process and last such letter received from the respondent No. 1 by the petitioner was on 12.09.1990. Till that date, therefore, there was no rejection of payment. It is only when the disputes arose, would the occasion be there for the petitioner to claim reference to arbitration. The findings in this behalf by the arbitrator are thus in accordance with law.

7. Last aspect urged by learned Counsel for respondent No. 1 is about lack of adequate opportunities and the award being passed in the absence of respondent No. 1. In this behalf, a reference may be made to paras 11 to 15 of the award. These paragraphs show that on 27.08.1998, both the parties were present when time was taken to explore the possibility of settlement. However, in February, 1999 both the parties agreed that the arbitration proceedings must be resumed on 11.03.1999. On 17.03.2000 a fax was received by the arbitrator from the respondent No. 1 expressing its inability to attend the proceedings. Thereafter proceedings were adjourned to 22.03.2000 when again none was present. The position was no different thereafter on 24.03.2000 when the proceedings were finally adjourned to 26.04.2000 onwards till 02.05.2000. Proceedings were held on all these dates, but none appeared for respondent No. 1.

8. Learned Counsel for respondent No. 1 states that before proceeding ex parte, the arbitrator must clearly express his intent to do so and mere absence of the respondent would not entitle the arbitrator to proceed with the arbitration. In this behalf, learned Counsel has drawn the attention of this Court to the decision of the learned Single Judge of this Court in suit No. 1730A/1992 titled M/s Ruby Enterprises v. National Projects Construction Corporation Ltd; decided on 19.08.1994 wherein reliance has been placed on the earlier judgment in M/s Lovely Benefit Chit Fund and Finance Pvt. Ltd v. Puran Dutt Sood and Ors. ; where it was observed that if a party has failed to appear on a particular sitting, the arbitrator should fix another date for hearing and give notice to the defaulting party of his intention to proceed ex parte on a specified date. Learned Counsel for respondent No. 1 is unable to point out from the record the relevant proceedings or communication in this behalf, but states that from his record he can show that on 03.03.2000 a fax was sent seeking postponement of the matter. The proceedings conducted before the arbitrator on 17.03.2000 show that when the arbitrator was about to leave from Agartala to Calcutta at the nth minute this fax was received and obviously it was sent much after 03.03.2000. Even if this fax is perused all that is requested for is that no proceedings should be held from 17.03.2000 to 20.03.2000. Respondent No. 1 cannot have any grievance in this behalf since the next proceedings were fixed on 22.03.2000 in view of the block dates proposed by respondent No. 1.

9. The arbitration proceedings were held also on 10.07.2000, 11.07.2000, 12.07.2000 and 13.07.2000. The arbitrator has placed on record a letter dated 04.05.2000 of the respondent No. 1 seeking reply of the petitioner to the same. The arbitrator has once again expressed his deep displeasure for non presence of respondent No. 1 for a number of dates and adjournments being requested. Despite appropriate notice, respondent No. 1 failed to appear even on the dates of hearing. The ex parte proceedings were initiated against respondent No. 1 only thereafter.

10. In view of the aforesaid, I am of the considered view that the judgments sought to be relied upon by respondent No. 1 in M/s Ruby Enterprises v. National Projects Construction Corporation Ltd's case (supra) would not apply to the facts of the present case since the present case is not one where the respondent No. 1 has failed to appear on a particular date and the arbitrator has immediately proceeded ex parte against the said respondent. Almost ten proceedings were held but respondent No. 1, on one pretext or the other, evaded attending the proceedings leaving the arbitrator with no option but to proceed ex parte.

11. In the end, it must be noted that the arbitrator was in fact a senior officer of respondent No. 1 being of the rank of Additional General Manager and yet respondent No. 1 chose not to join the proceedings before the arbitrator.

12. Learned Counsel for the petitioner has referred to his reply to state that the proceedings were held by the arbitrator at the office of respondent No. 1 itself at Sector Office, 3A, Dr.S.N.Roy Road, Calcutta - 700 029 after 24.07.1998. I find there is no violation of any principles of natural justice and it is a case of gross negligence or deliberate attempt to evade the proceedings on the part of respondent No. 1.

13. Dismissed.

CS(OS) No. 1836A/2000

1. The award dated 20.07.2000 of the sole arbitrator Sh.Bikash Bhattacharya is made rule of the Court. The petitioner shall also be entitled to costs quantified at Rs 7,500/-. In terms of the award, interest is awarded till date of decree or date of payment, whichever is earlier. In view thereof, future interest from date of decree till date of payment is awarded at the rate of ten per cent per annum simple interest on the principal amount of the award excluding interest component.

2. Decree sheet be drawn up accordingly.