M/S Projects And Equipments ... vs M/S Airtech Private Limited
2010 Latest Caselaw 4358 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on : 16.09.2010

+                             OMP 62/1999


M/S. PROJECTS & EQUIPMENTS CORPORATION
OF INDIA LTD.                                                .......PETITIONER

                                         versus

M/S. AIRTECH PRIVATE LTD.                                  ........RESPONDENT

Advocates who appeared in this case:

For the Petitioner            :      Mr. C.M. Oberoi, Ms. Surekha Raman &
                                     Mr. Venu Gopal, Advocates

For the Respondent            :      Mr. Rajiv Mehra, Sr. Adv. With Mr. Ritesh
                                     Sharma, Advocate


CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER

1.     Whether the Reporters of local papers may
       be allowed to see the judgment ?          NO

2.     To be referred to Reporters or not?          YES
3.     Whether the judgment should be reported      YES
       in the Digest ?

RAJIV SHAKDHER, J. (ORAL)

1. By this order I propose to dispose of the captioned petition which has been filed by

Projects and Equipment Corporation of India Limited (hereinafter referred to in short as

"PEC") under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996

(hereinafter referred to in short as "Arbitration Act") against an Award dated 06.11.1998

passed by the Arbitral Tribunal.

2. The petitioner was the respondent before the Arbitral Tribunal, and had opposed

the claims filed by the respondent herein i.e., Airtech Pvt. Limited. For the sake of

convenience, I would be referring to them as "PEC" & "Airtech". The objections to the

award by PEC pertain to only one claim which involves the encashment of bank guarantee

furnished by Airtech in the sum of Rs.3,50,000/-. There is also an objection filed qua a

consequential relief granted by Arbitral Tribunal with respect to payment of interest. The

Arbitral Tribunal, apart from the claim qua return of money recovered by PEC and grant

of consequential relief of interest thereon, rejected all other claims of Airtech. Similarly,

the counter claims filed by PEC were also rejected by the Arbitral Tribunal. It is not

disputed that neither Airtech filed cross objections against the Award nor has PEC filed

objections vis-à-vis rejection of its claims. Therefore, I am only concerned with the claim

allowed by Arbitral Tribunal qua encashment of the bank guarantee and the interest

granted thereon.

3. For this purpose, it is necessary to briefly advert to the circumstances in the

backdrop of which the disputes arose between the parties.

3.1 PEC in response to an invitation of tender for supply of Sewage Disposal

Equipment (hereinafter referred to as the "Equipment") floated by Dhaka Water Supply

and Sewage Authority (hereinafter referred to in short as "DWASA" ) submitted a bid.

The bid submitted by PEC was accepted which, culminated in an agreement dated

13.12.1994 (hereinafter referred to as the "Contract").

3.2 To be noted, a fact which is not disputed that prior to the submissions of the bid,

communication had taken place between the PEC and Airtech. The reason for the same

was that PEC not being a manufacturer of the Equipment which DWASA showed interest

in buying, it had to seek the help and assistance of Airtech. Consequently, this fact was

revealed to DWASA. The offer of PEC in point of fact was based on the offer of Airtech

made to PEC.

3.3 At the moment, I am not required to deal with the terms of the agreement in detail.

It would suffice for the purposes of this petition to only note that the offer which was

finally accepted by DWASA was structured in a fashion whereby, Airtech undertook to

supply and transport the goods till Benapole, a town situate at the border of India and

Bangladesh; and from thereon it was the responsibility of PEC to ensure that equipment

reached the final destination which was Pagla, Bangladesh. For this purpose, the services

of a local Bangladeshi agent had to be solicited to ensure transportation of goods between

Benapole and Pagla on a fee to be paid by PEC.

4. The terms of the offer which obtained between PEC and DWASA required PEC

to supply the goods against a Letter of Credit (in short, "LC") to be opened by a local

banker of DWASA i.e., one Janata Bank. It is not disputed that the LC was opened by

Janata Bank. It is also not disputed that in terms of Clause 3.2 of the Special Conditions

of the Contract (in short, "SCC"), the supply of the Equipment was to be made by PEC to

DWASA within 180 days. For the sake of convenience, said clause 3.2 is extracted

hereinbelow :-

"Clause 3.2 - The supply of Sewage Disposal Equipment shall be completed in all respect within 180 (one hundred eighty) days from the date of signing the Contract or receipt of Letter of Credit whichever is later."

4.1 In terms of contract, PEC was required to furnish a performance bond in the form

of a bank guarantee, drawn in favour of DWASA. As noticed hereinabove, since Airtech

was inextricably involved in the execution of the contract being the manufacturer of the

equipment, a back to back contract was executed as between PEC and Airtech. This

contract was termed as "Associateship Agreement". The Associateship Agreement was

executed on 23.01.1995. As per the terms of this Associateship Agreement, Airtech was

required to furnish a bank guarantee in favour of PEC, which incidently is the bank

guarantee in question. The said bank guarantee was drawn on State Bank of India,

Nizamuddin Branch, New Delhi (in short, "SBI"). As a matter of fact, this bank guarantee

was furnished by Airtech to PEC on 11.11.1995.

4.2 To complete the narration under the contract obtaining between PEC and

DWASA, a LC was opened by DWASA in favour of PEC on 02.02.1995. The said LC

was valid till 19.07.1995. As per clause 10 of the said LC dated 02.02.1995, it was clearly

indicted that the letter of credit shall become operable only on receipt of a commitment

letter from the Asian Development Bank (in short, "ADB"). In terms of the said clause 10

of the LC, a letter of commitment was issued by ADB on 07.04.1995. Intimation to that

effect was sent to Airtech on 29.04.1995. It is not disputed by the PEC that on

27.04.1995, Airtech wrote to PEC for extension of the validity of the LC for the period of

six months. It appears that based on this request, which was transmitted through PEC,

Janata Bank advised vide communication dated 21.05.1995 that the LC had been extended

till 10.08.1995. Thereafter, several letters were exchanged between Airtech and PEC

whereby, Airtech sought extension of LC as per the terms of the contract. Importantly, by

a letter dated 26.07.1995, Airtech, even while informing PEC that they were trying to

"expedite" delivery with regard to the equipment, indicated to PEC that they should

inform the buyer i.e., DWASA as regards their concern with regard to amendment of the

LC.

4.3 It appears that on 29.09.1995, Janata Bank extended the LC till 15.10.1995, and

thereafter till 04.11.1995.

4.4 It is important to note that in the interregnum, Airtech had written two crucial

letters to PEC. First, being a communication dated 16.10.1995, and the second being: a

communication dated 26.10.1995. By its communication dated 16.10.1995, the Airtech

informed PEC about the difficulties that it had been experiencing vis-à-vis the supplier in

respect of the supply of "chassis" which was evidently required for mounting the

Equipment. Airtech went on to say that the delay was not anticipated by them, and was

totally beyond their control. Airtech ended the communication by calling upon PEC to

request DWASA to extend the LC uptil 30.06.1996. This request was reiterated by

Airtech in their communication dated 26.10.1995. As a matter of fact, Airtech referred to

their earlier communication of 16.10.1995, in the communication of 26.10.1995. The

request was identical, except to the extent that, Airtech found no good reason why the

extension of the LC could not be carried out till 30.06.1996; as according to them, this was

their "first such request".

4.5 In the background of this, PEC communicated to Airtech vide Comunication dated

20.10.1995 that the delivery period for shipment stood extended upto 30.11.1995. They

sought a confirmation in respect of the same from Airtech.

5. It is not disputed that, in the background of the aforesaid circumstances, PEC

failed to deliver the Equipment to DWASA, and consequently, their performance bond

i.e., the bank guarantee furnished to DWASA was invoked and encashed. This triggered

the invocation of the bank guarantee furnished by Airtech in favour of PEC. By a

communication dated 06.11.1995, PEC invoked the bank guarantee furnished by SBI in its

favour. It is pertinent to note by a communication dated 08.11.1995, Airtech disputed the

right of PEC to invoke, and seek encashment of its bank guarantee. As a matter of fact,

Airtech in the said communication, inter alia, objected to the encashment of its bank

guarantee by PEC until such time PEC was able to prove that DWASA had actually

encashed its bank guarantee; in view of the fact that, Airtech's bank guarantee was only a

counter bank guarantee.

5.1 As noted above, parties are ad-idem that DWASA did encash the bank guarantee

furnished by PEC.

6. It is in the background of these facts that the parties referred their disputes to the

Arbitral Tribunal.

7. The Arbitral Tribunal in respect of the issue at hand, in substance, came to the

conclusion that the period of the LC had to run concurrently with the period prescribed for

delivery of the Equipment under the contract; which as noticed hereinabove was 180

days. The Arbitral Tribunal was also of the view, that the fact that, the LC was opened on

02.02.1995, and thereafter extended from time to time till 04.11.1995 could legally be

ignored by Airtech as the LC had to, in accordance with the terms of the contract, run for a

continuous period of 180 days. The relevant observations in regard to the same are

extracted hereinbelow :-

"......Giving a thoughtful consideration to the aforesaid contentions of the learned counsel for both the parties, the contention of learned counsel for the claimant is correct and must be accepted and that of the learned counsel for the respondent has to be rejected as untenable. When the contract does not provide for the delivery of goods in bits at different stages during the total period of delivery, the seller is entitled to deliver the goods at any point of time during subsistence of the total delivery period and in that situation the L/C which is a prompt and ready and immediate mode of payment for the seller for the supply of goods to the buyer, the buyer has to assure in all reasonableness that he opens the LC to safeguard the payment to the seller and the L/C has to be co- extensive with the delivery period and thus should be for a clear period of 180 days before the seller is to take steps for the supply of the goods. When this

assurance on the part of the buyer is the right of the seller, the seller, before taking any steps towards producing / procuring the goods contracted to be sold, must have before his eyes a clear and unambiguous total period of delivery in the L/C in one go and at one point of time, and this is the basic and underlined principle even in the facts of the case in hand regarding delivery and L/C and before the L/C is issued in this manner, the obligations of the seller cannot commence and all other things fall in the background and cannot be considered at all. The seller cannot be called upon by the buyer or even by the respondent in the case in hand to first show his bona fides by taking steps for effecting delivery, as in the circumstances referred to above the payment assurance in the form of a valid operational L/C is a must as a since qua non for the commencement of any obligations of the seller in the matter of production / procurement or delivery of goods.

The matter of guaranteeing payment to the seller for his price of goods as a conditional precedent in the circumstances of the case in hand can be seen from another angle also as the delivery of goods by the claimant is not to be effected in bits at various stages during the period of 180 days, and he can deliver the entire goods at one point of time, he may choose to do so towards the closing time of the delivery period of 180 days and it is quite probable that L/C may lapse by that time, in which case the L/C would not be available to the claimant for his prompt and ready payment and who may have to fall back on a complicated and prolonged process for the recovery of his price. In order to obviate any such complications the buyer has to open the L/C which is valid and operational for the entire delivery period by way of assurance of payment to the seller before the seller takes any steps to produce / procure and deliver the goods.

The claimant never had before his eyes at any point of time the L/C for a total delivery period of 180 days. The initial L/C being for a period shorter than 180 days, the claimant was within its right, to ignore the same and thus could ignore it for the period from 02.02.1995 the date of its issuance till 19.07.1995 the date of its expiry, and even for the period from 21.05.1995 the date of its extension during its continuance upto 30.08.1995 and even for the period from 29.07.1995 the date of second extension to 15.10.1995 or even 04.11.1995, all these periods could be legally ignored by the claimant by looking into the validity of the L/C which had to be or a continuous period of 180 days at one go and at one point of time and no valid L/C ever came into existence which could force the claimant to take steps towards delivery of the

goods and thus his obligations under the contract for the supply of goods did not commence and in view of this, very important factor, the contention of the learned counsel for the respondent propounding the proposition of considering the requisite 180 days period of L/C in a cumulative manner, is bereft of all force and cannot be accepted."

8. Based on their finding with respect to the said issue, the Arbitral Tribunal held that

PEC was in breach of the terms of the Associateship Agreement, and hence was required

to pay the interest. Even though Airtech had demanded interest at the rate of 24% p.a., the

Arbitral Tribunal found the rate to be excessive, and accordingly ordered that interest be

paid by PEC at the rate of 18% p.a. w.e.f. 06.11.1995 i.e., the date when Airtech's bank

guarantee stood invoked and encashed.

9. Mr. Oberoi assisted by Mr. Venu Gopal, who appeared for the Objector/PEC

challenged the findings of the Arbitral Tribunal on the ground that they are perverse. For

this purpose, he has drawn my attention to clause 2.3, 2.7, 2.8 and 3.2 of the SCC of the

contract and clauses 2, 4.7 of the Associateship Agreement and clauses 2, 5, 8, 12 of the

General Terms & Conditions (GCC) of the Associateship Agreement. The finding of the

Arbitral Tribunal that the LC opened by DWASA in favour of PEC had to run for 180

days, and because it did not do so, the obligations of Airtech did not get triggered, was

according to him, contrary to the terms of the Associateship Agreement. Mr. Oberoi

argued that there was no privity of contract obtaining as between the Airtech and

DWASA. These were, according to him, two separate contracts though back- to-back.

The first one involved DWASA and PEC; while the second one was executed between

PEC and Airtech. Mr. Oberoi submitted that even though clause 4 of the Associateship

Agreement, provided that PEC would make payment to Airtech on receipt of money from

DWASA, it did not absolve PEC from making payment to Airtech, had Airtech fulfilled

its part of the obligations under the Associateship Agreement. The obligation of PEC

towards Airtech was independent of any obligation that PEC had towards DWASA.

9.1 In order to buttress his submission, Mr. Oberoi referred me to the letters dated

16.10.1995 and 26.10.1995. These letters have already been noticed by me hereinabove.

Based on the contents of the said communication issued by Airtech, it was submitted by

Mr. Oberoi that, the Arbitral Tribunal could not have come to the conclusion that the

Associateship Agreement obtaining between PEC and Airtech had not become operative.

In view of these facts, it was Mr. Oberoi's contention that the findings of Arbitral Tribunal

were perverse and hence, the award deserved to be set aside.

9.2 Mr. Oberoi also laid stress upon clause 8 of the Associateship Agreement, which

required Airtech to indemnify PEC in respect of any loss suffered by them qua the

contract executed between DWASA and PEC. It was his case that even as per this clause

PEC was entitled to money from Airtech in view of similar amount paid by PEC to

DWASA.

9.3 Mr. Oberoi further argued that if period of LC is calculated from 02.02.1995 till

04.11.1995, it remained open for 220 days and if it is calculated from 07.04.1995 i.e, the

date ADB issued its letter of commitment, the LC remained open for 191 days. Therefore,

the finding of the Arbitral Tribunal, according to him, even on this score was contrary to

the record.

10. As against, Mr. Mehra, Sr. Advocate assisted by Mr. Ritesh Verma addressed

arguments on behalf of Airtech.

10.1 Mr. Mehra briefly confined his submissions to the following. First, even if this

court were to come to a different conclusion, based on the material placed before the

Arbitral Tribunal, it would not provide, in law, a sufficient ground to set aside the award.

In his view, the challenge raised in the captioned petition did not fell within the purview of

Section 34 sub section(2) of the Arbitration and Conciliation Act, 1996 (in short,

"Arbitration Act").

10.2 Second, that in view of clause 16 of the GCC of the Associateship Agreement,

PEC could not rely on any correspondence which was exchanged between the parties as

the same was "null and void" as per the terms of the said clause. This argument was

directed to, the reference made by Mr. Oberoi, to letters dated 16.10.1995 and 26.10.1995.

10.3 Lastly, Mr. Mehra placed reliance on clause 17 of the GCC of the Associateship

Agreement to contend that the contract obtaining between PEC and DWASA was

necessarily an integral and inseparable part of the Associateship Agreement. The

argument being that the terms of the LC and its period of validity, were material for the

purposes of the Associateship Agreement obtaining between PEC and Airtech.

11. I have heard learned counsel for the parties. On reading of the award, in respect

of, the only issue which presently arises between the parties i.e. encashment of the bank

guarantee, it appears that the sum and substance of the finding of the Arbitral Tribunal is

that, in order to trigger the obligations of Airtech to supply the equipment, a valid LC

ought to have come into existence. A valid LC, according to the Arbitral Tribunal, would

be an LC which remained open continuously for a period of 180 days. In this context, the

Arbitral Tribunal noted that even though the LC, which had been decidedly opened on

02.02.1995, was extended from time to time till 04.11.1995 that, by itself was not legal

and hence, the obligation of Airtech under the contract did not get triggered.

11.1 In this context, I may only note an argument of Mr. Oberoi that if the period of the

LC is taken into account from 02.02.1995 to 04.11.1995, then the LC was actually

opened for a period of, 228 days. In the alternative, it was submitted by Mr. Oberoi, as

noticed hereinabove, that if the period were to commence from the date when letter of

commitment was issued by ADB i.e., 07.04.1995, then the LC as a matter of fact remained

open for 191 days.

11.2 Dehors the aforementioned argument, in my opinion there being no privity of

contract obtaining between Airtech and DWASA the argument of Airtech that it was not

legally bound to discharge its obligations under the Associateship Agreement was a

complete red herring. In my view, the Arbitral Tribunal has overlooked this crucial aspect

of the matter. It is not in dispute that PEC offered a bid in respect of tender floated by

DWASA based on the assurance of Airtech that it would manufacture and supply the

Equipment. As noticed above, even though this fact was in the knowledge of DWASA,

parties did not execute a tri-partite contract, instead two separate and independent

contracts were executed notwithstanding the overlap. DWASA, under its contract held

only PEC responsible for discharge obligations provided in the contract executed with it.

The obligations under the agreement obtaining between PEC and DWASA required them

to deliver the equipment at Pagla in Bangaldesh. This obligation of PEC even though

pivoted on Airtech supplying the equipment to PEC at Benapole, which is the border town

between India and Bangladesh; required PEC to engage the services of a local agent to

transport the Equipment from Benapole to Pagla. The Arbitral Tribunal lost sight of the

fact that the LC which DWASA was required to open, had to be in favour of PEC. The

LC was infact opened on 02.02.1995, and thereafter extended from time to time till

04.11.1995. As per the terms of the Agreement i.e., clause 3.2 it was the sole and

exclusive obligation of PEC to ensure that the supply of Equipment was completed within

180 days from the date of signing of the contract or receipt of LC whichever was later in

point of time. In view of this clause, PEC could not have taken a stand qua DWASA that

180 days would not commence from 02.02.1995. In order to ensure discharge of its

obligations, DWASA had sought from PEC a performance bond in the form of bank

guarantee, which PEC had furnished. On failure of PEC to discharge its obligations, one

of the consequences was that DWASA could invoke and encash PEC's bank guarantee.

As against this, the obligations which were undertaken by Airtech were independent of

those which PEC had undertaken qua its agreement with DWASA. This is clear on

reading clause 2 of the GCC of the Associateship Agreement which excluded Airtech's

obligation qua the contract executed between PEC and DWASA to the extent they were

"specifically reserved to be performed or fulfilled by PEC". Therefore, the incorporation

by reference, the terms of contract obtaining between PEC and DWASA in the

Associateship Agreement, would have in no way made Airtech liable to DWASA in the

event of non supply of the Equipment by Airtech. Clause 17 of the GCC would have to be

read in conjunction with clause 2 of the GCC and other terms of the Associateship

Agreement. The findings of the Arbitral Tribunal that the obligations of Airtech did not

commence in terms of their agreement with PEC is, in my view, perverse. Best evidence

of this is, the letters dated 16.10.1995 and 26.10.1995 wherein, Airtech had indicated that

they were unable to make supplies in view of their difficulties with the supplier of

chassis. As a matter of fact, they sought extension of LC till 30.06.1996. It could not

have been a stand of PEC that, if equipment was supplied by Airtech, it would not make

the payments to Airtech in case DWASA were to renege its obligation under the contract

with PEC. The obligation interse PEC and Airtech to that extent were mutual and

exclusive to the obligations obtaining in the contract subsisting between DWASA and

PEC.

11.3 Furthermore, in the context of the above much stress was laid on Clause 4 of the

Associateship Agreement and clause 17 of the GCC. It was sought to be argued that the

obligation to furnish an LC, and to keep it open continuously for a period of 180 days by

virtue of clause 17 of GCC, formed an inseparable part of the Associateship Agreement.

First and foremost, each clause would have to be read in the context of all other clauses

obtaining in Associateship Agreement. Clause 2 of GCC, as observed hereinabove, makes

that crystal clear. In this context let's examine what is envisaged by clause 17 of GCC

and clause 4 of the Associateship Agreement. The opening line of clause 17 stipulates

that only those conditions, which are not agreed to in the Associateship Agreement, shall

stand incorporated. Clause 4 of the Associateship Agreement, on the other hand,

prescribed only the mode and the procedure for payment. The opening words of said

clause 4, which read as follows, make that clear: "PEC shall pay the Associate by the

following procedure". Therefore, the finding of the Arbitral Tribunal that the LC had to

be kept open for a continuous period of 180 days; a term of the contract, could not in my

view have been telescoped into the Associateship Agreement obtaining between PEC and

Airtech.

11.4 It is no one's case, as it cannot be, that the mode of payment to Airtech was by

way of a LC. The terms of payments i.e., clause 4 of the Associateship Agreement clearly

bring to fore that point. Thus, Airtech on supplies being made to PEC was to be paid in

terms of clause 4 which did not envisage payment through LC. A perusal of clause 4 of

the Associateship Agreement, shows that PEC undertook to make payment to Airtech on

receipt of money from DWASA; that by itself could not construed to mean that Airtech, in

law, was not required to commence manufacture of the Equipment since the LC had to

remain valid for a continuous period of 180 days. The entire purpose, it appears, to

provide for a validity period in the LC which, would run concurrently with the period

provided for execution of the contract (obtaining between PEC and DWASA) seems to be

that since, it was a contract for supply of Equipment, the supplies may not perhaps have

been made in one go. Therefore, the period of LC being made co-terminus with the period

of execution of the contract would perhaps have been incorporated to give comfort to

PEC. Clause 3.2 of the SCC to the contract was for the benefit of PEC, and bound only

PEC qua DWASA. It was the obligation of PEC to reach the Equipment to Pagla, for

which it was given 180 days. Clause 3.2 of SCC made it clear that 180 day period would

commence once an LC was opened. It is no one's case that encashment of bank guarantee

took place before expiry of 180 days, which commenced with effect from 02.02.1995.

Which is why, perhaps on 08.11.1995 Airtech wrote to PEC that it could encash its bank

guarantee only if PEC's bank guarantee had been encashed. The fact that LC was not

open for a continuous period of 180 days could not have given an excuse to Airtech to

wriggle out of its promise to perform its obligation under the Associateship Agreement to

supply the Equipment within a period of 180 days.

11.5 As a matter of fact, as per clause 7 of the Associateship Agreement, Airtech was

required to furnish within 30 days of the execution of the said agreement, a detailed

programme for manufacture of the Equipment, taking into account the delivery schedule

stipulated in the contract. Airtech was required to inform PEC on a fortnightly basis the

progress on the manufacture of the Equipment to be supplied under the contract obtaining

between PEC and DWASA. Similarly, under clause 5 and 8 of the GCC of the

Associateship Agreement, Airtech had to reimburse and / or indemnify PEC in respect of

any claim by DWASA. These clauses give intrinsic evidence of the limited inter-linkage

between the contract obtaining between PEC and DWASA on the one hand, and the

Associateship Agreement obtaining between PEC and Airtech, on the other. To infer from

this, that the obligations of Airtech to execute the contract did not commence as the LC

was not opened for a continuous period of 180 days is, in my view, completely contrary to

the terms of the Associateship Agreement. Furthermore, I am also in agreement with Mr.

Oberoi's submission that the case set up by Airtech was that it had commenced in its

obligations under the Associateship Agreement. Mr Oberoi had in this regard placed

reliance on Issue no.8 culled out in the Award. A reading of Issue no.8 would show that

Airtech sought to lay a monetary claim with respect to parts of Equipment which it had

purportedly purchased and / or fabricated. In these circumstances for the Arbitral Tribunal

to conclude that Airtech's obligations had not commenced appears to be contrary to the

record; even though it is another matter that this claim was rejected by the Arbitral

Tribunal.

11.6 Mr. Mehra's submission based on clause 16 of GCC of the Associateship

Agreement that the correspondence obtaining between parties could not be referred to as,

in terms thereof it had to be considered as null and void; is untenable. The reason being

that a bare perusal of clause 16 of the GCC of the Associateship Agreement would show

that it refers to correspondence which is exchanged, between the parties prior to the

execution of the contract, and not post, the execution of the contract.

12. It is well settled that the award can be set aside on the ground of perversity. In this

regard see the observations made in Security Printing and Minting Corporation of India

Ltd & Anr. vs Gandhi Industrial Corporation (2007) 13 SCC 236 paragraph 16 at pages

244 and 245 and ONGC Ltd vs Garware Shipping Corporation Ltd (2007) 13 SCC 434

paragraph 30 at page 441.

13. The findings of the Arbitral Tribunal being perverse, the objections are allowed

and the Award dated 06.11.1998 is set aside.

RAJIV SHAKDHER, J SEPTEMBER 16, 2010 yg