Delhi High Court
Cybernetics Network Pvt. Ltd. vs Bisquare Technologies Pvt. Ltd. on 24 February, 2012
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th December, 2011
Decision on: 24th February 2012
O.M.P. 267/2005
CYBERNETICS NETWORK PVT. LTD. ..... Petitioner
Through: Mr. Rajeev K. Virmani, Senior Advocate
with Ms. Mukta Dutta, Advocate.
Versus
BISQUARE TECHNOLOGIES PVT. LTD. ..... Respondent
Through: Mr. Vivek Sood, Advocate.
O.M.P. 282/2005
BISQUARE TECHNOLOGIES PVT. LTD ..... Petitioner
Through: Mr. Vivek Sood, Advocate.
Versus
CYBERNETICS NETWORK PVT. LTD. ..... Respondent
Through: Mr. Rajeev K. Virmani, Senior Advocate
with Ms. Mukta Dutta, Advocates.
O.M.P. 283/2005
RAMENDRA SINGH BAONI ..... Petitioner
Through: Mr. Vivek Sood, Advocate.
Versus
CYBERNETICS NETWORK PVT. LTD. ..... Respondent
Through: Mr. Rajeev K. Virmani, Senior Advocate
with Ms. Mukta Dutta, Advocate.
CORAM: JUSTICE S. MURALIDHAR
JUDGMENT
24.02.2012
1. These three petitions have been filed under Section 34 of the Arbitration
and Conciliation Act, 1996 against the same Award dated 14th March 2005
passed by the learned sole Arbitrator whereby the claim of Cybernetics
Network Pvt. Ltd. ('CNPL') was allowed and the Respondent Bisquare
Technologies Pvt. Ltd. ('Bisquare') was held liable to pay CNPL
Rs.98.77,672/- together with interest @ 9% from 30th March 2002 till the date
of the Award and interest @ 18% per annum from the date of the Award till
the date of payment. CNPL was awarded costs of Rs.5,00,000/-. The counter
claims of Bisquare and Mr. Ramendra Singh Baoni (hereinafter Mr. Baoni)
were rejected.
2. Aggrieved to the extent that some of its claims have been rejected, CNPL
has filed O.M.P. No. 267 of 2005. Against the rejection of the respective
counter claims Bisquare has filed O.M.P. No.282 of 2005 and Mr. Baoni has
filed O.M.P. No.283 of 2005.
Background Facts
3. CNPL is a company incorporated under the Companies Act, 1956 claiming
to have expertise in the marketing of products in the field of multimedia home
entertainment. Bisquare, also a company incorporated under the Companies
Act, is carrying on the business of technology development and research in the
field of information technology, multimedia, telecommunications, and direct-
to-home transmissions of television signals with its associated hardware
design and embedded software development. Mr. Baoni is the Promoter and
Director of Bisquare.
4. CNPL states that the parties met during October/November 1999 when Mr.
Baoni claimed to have been engaged in the business of technology
development and research and made representations inter alia that he had
designed, developed, proved and tested a proprietary set top box ('STB')
which was Digital Video Broadcasting ('DVB') compliant and was ready for
commercial exploitation. It is further stated by CNPL that Mr. Baoni
demonstrated an STB by claiming inter alia that it was a proprietary STB
developed and designed by him and that he had all the deliverables ready for
commercial production of such STBs. It is stated that Mr. Baoni represented to
CNPL that he was in the process of developing STBs for direct to home
('DTH') and terrestrial reception and dissemination of digital satellite signals.
Mr. Baoni offered to transfer exclusive rights in the intellectual property and
proprietary technology in STBs to a company to be promoted by Mr. Pradeep
Jain of CNPL for commercial exploitation of the said technology or any other
technology to be developed in future. Mr. Baoni stated that he needed to
consult with one Mr. Baid, the other promoter and Director of Bisquare
Consultants Pvt. Ltd. ('BCPL') so as to ensure smooth transition and stated
that he required funds for that purpose as well.
The MOU
5. CNPL states that acting upon the aforesaid representations, CNPL and
Bisquare entered into a Memorandum of Understanding ('MOU') on 17th
January 2000 whereby CNPL was to subscribe 30% of the issued and
subscribed equity capital of Bisquare and Bisquare was to subscribe to 30% of
the issued and subscribed equity capital of CNPL. It was agreed that if the
change in equity of either company due to the issue of sweat equity to the staff
occurred/took place, the share of each in the other could not fall below 26% of
the issued and subscribed capital of each company. Each company had a right
to exit from their respective shareholding in the other company subject to the
company holding the shares offering the right of first refusal to the remaining
shareholders. In terms of the MOU, CNPL and Bisquare were to identify
through mutual consent, the technology/products to be designed for CNPL.
Bisquare was to provide CNPL the product concept which was capable of
generating business for CNPL provided that the technology developed by
Bisquare and transferred to CNPL would be upgraded, adopted, assimilated
and modified, serviced by Bisquare which would render all technical help for
its absorption, assimilation and manufacturing by CNPL as per the TSSA.
CNPL would be free to source designs / technologies / products from other
sources or design houses if they were found to be more cost effective or
technically superior with prior approval of Bisquare. Under Clause 4.5,
Bisquare agreed to transfer the technology developed by it for the manufacture
of STB to CNPL. CNPL agreed to purchase the said technology on exclusive
basis as per the TSSA. CNPL was to deploy resources and investments as per
the agreed project plan for each product to be marketed by CNPL. All
development activities undertaken by Bisquare would be with the prior
approval and authorisation of CNPL. Mr. Baoni, the main Promoter and
Director of Bisquare was to exclusively associate with and work for Bisquare
and was to transfer, sell, assign, pledge, mortgage, charge or otherwise
encumber all or any part of the equity share capital held by him in Bisquare.
Further, till the time the equity participation of CNPL in Bisquare continued,
Mr. Baoni would be the Managing Director of Bisquare. Likewise Mr.
Pradeep Jain, the Promoter and Director of CNPL was not to transfer any part
of the equity share capital held in CNPL by him or through his spouse or
minor/dependant, children or through a company, firm, association or persons,
body of individuals during the continuance of the MOU share holdings of
CNPL and Bisquare. Clause 12 was a good faith clause which enjoined the
parties to render all co-operation and assistance to the other party and to do all
things to give effect to the letter spirit of the MOU.
6. In terms of the MOU, Bisquare and Mr. Baoni required CNPL to pay
Bisquare Rs. 17.37 lakhs for acquiring 19,300 equity shares of a face value of
Rs.10 each in Bisquare. The amount consisted of a sum of Rs. 15.44 lakhs as
share premium demanded by Bisquare and Mr. Baoni. CNPL states that it paid
the entire sum of Rs. 17.37 lakhs during January and March 2000.
Relevant clauses of the TSAA
7. CNPL, Bisquare and Mr. Baoni executed a separate Technology Sale and
Support Agreement ('TSSA') on 1st April 2000. In para 3 of the preamble
Bisquare represented to have designed, developed, tested and proved the
current STB based on Essential Platform as a proprietary technology owning
all intellectual property rights in it. 'Current STB' meant a specific type, i.e.
Direct-to-Operator ('DTO') category of STB. Essential Platform meant DVB-
S complaint Digital STB based on Integra 1000 chip set from LSI Logic. The
software was developed on PSOS+. Bisquare agreed, subject to the terms and
conditions set out in the TSSA to sell outright to CNPL all intellectual
property rights in the STB as also to provide technical assistance and upgrades
as was sufficient to enable CNPL to commercially produce and market the
STB and thereby achieve its business objectives as set out in the TSSA.
8. The following definitions contained in the TSSA are relevant for the
purposes of the case:
"Commercial Operations Date--means, in relation to Current
STBs, that date on which CNPL sells the first lot of not less than
one thousand DTO's to any customer, and means, in relation to
Future STBs, that date on which CNPL sells the first lot of not less
than one thousand of each of DTH or STB(T), as the case may be.
Current STB--means DTO.
Deliverables--means in relation to each of the STB and in
accordance with the provisions hereof, all design features,
Technical Specification, performance specifications, bills of
quantities, detailed schematics, gerber files, hardware design
documents, software design documents, all source codes, all hard
and soft copies of user manuals and all software for the Flash ROM
and all Source Codes pertaining to the software for the Flash ROM
and includes Technical Information as also a list of at least one
recommended vendor with the capability to supply at competitive
prices consistent with quality standards, each of the parts
comprising the STB.
Delivery Schedule--means the time within which BSQ shall have
the obligation to deliver all Intellectual Property Rights in respect of
each of the STBs mutually agreed between the parties.
DTO--means that category of STB as permits direct-to-operator
reception and dissemination of digital satellite signals.
DTH--means that category of STB as permits direct-to-home
reception of digital satellite signals.
Essential Performance Specifications--means the essential
performance specification of each of the STB duly disclosed by
BSQ to CNPL and as set forth in Annexure-A hereto.
STB--means collectively all and individually each of the following
categories of proprietary Set Top Boxes:
(a) DTO;
(b) DTH; and
(c) STB(T),
each being based on the Essential Platform and in either event,
having the Essential Performance Specifications and includes all
Upgrades.
Upgrade--means such improvements and upgrades in the Essential
Performance Specifications within the limits of the Essential
Platform as BSQ hereafter undertake to provide at the requirement
of CNPL to enable CNPL to effectively service its customer's needs
and compete in the market. BSQ shall provide to CNPL such
Upgrades as CNPL may request at all times within 84 months of the
Commercial Operations Date.
Warranties--means the representations and warranties in relation
to the performance and characteristics of STB made by BSQ to
CNPL as better set forth in Article 4.1, 4.2 and, to the extent
applicable to BSQ, Article 11 hereof."
9. Clauses 3.2.1 and 3.2.2 of the TSSA read as under:
"3.2.1 In consideration of the mutual covenants, promises and
premises herein contained and in consideration of the purchase by
it of the Intellectual Property Rights, the receipt of the
Deliverables with its associated Technical Information, and the
benefits of Technical Assistance and Support, CNPL shall tender
and pay to BSQ, the consideration therefor in the aggregate sum
of Rs.115 lac (Rupees One Hundred Fifteen Lacs Only) for the
current STB (the "Consideration") in accordance hereunder:
a. Rs. 15 lacs at the date of execution hereof;
b. Rs. 50 lacs on the delivery of deliverables;
c. Rs. 20 lacs on completion of pilot production;
d. Rs. 30 lacs on approval by three customers.
3.2.2 The payment for the Future STBs shall be on the basis of
the Cost, which is estimated to be about Rs. 135 lacs to be
finalised and confirmed at the stage of initiation of development
of Future STBs as mentioned in clause 3.8."
10. Clause 4.4 relating to warranties reads as under:
"4.4. Without restricting the rights or ability of CNPL to claim
damages on any basis available to it, in the event that any of the
Warranties prove to be untrue or misleading or are breached, as
the case may be, BSQ and Promoter shall pay to CNPL on
demand the amount necessary to put CNPL into the position
which would have existed if the said Warranties had been true
and not misleading or not broken, as the case may be, together
with all costs and expenses incurred by CNPL as a result of such
breach."
11. Article 11.2 contains additional warranties and indemnification and reads
as under:
"11.2 BSQ and Promoter shall indemnify, defend and hold
harmless CNPL and each of the respective directors and officers
of CNPL from and against any and all losses which may be
incurred or suffered by any such party and which may arise out of
or result from:
(a) any breach of any Warranties, obligations, covenants or
agreement of BSQ contained in this Agreement;
(b) any third party claims for loss or damage of whatever
description caused to such or any other third party as a result of
the activities of BSQ or its employees pursuant to its obligations
hereunder: and
(c) any and all actions, suits, proceedings, claims, judgments,
costs, expenses, including incurred in enforcing this indemnity."
CNPL's Case
12. CNPL states that it paid Bisquare, at the instance of Mr. Baoni, a sum of
Rs.1,01,82,000/-. A further payment of Rs.21,60,000/- was made towards
technology transfer fee in July 2000. It is stated that this was wrongfully and
illegally termed as 'design and development charges for pilot production of
the current STB'. CNPL further states that when in April 2000 the pilot
production of the current STB commenced, under the direct supervision of
Bisquare and Mr. Baoni, it transpired that Bisquare and Mr. Baoni had played
a fraud and that their various representations to CNPL about possessing the
technology and complete "deliverables" for the commercial production of
DVB compliant STBs were false. CNPL states that Bisquare and Mr. Baoni
totally failed and neglected to perform their obligations under the MOU and
TSSA despite receiving substantial sums of money from CNPL. They lacked
the necessary capability, competence, ability and intention to perform their
obligations under the MOU and TSSA. The pilot production of the 38 STBs
could be completed in August 2000 after repeated hits and trials and when
they were sent for field test, it was discovered that they could not achieve the
required performance.
13. CNPL states that pursuant to the TSSA, CNPL set up production facilities
at No.462, Udyog Vihar, Phase-V, Gurgaon in July 2000 employing the
requisite number of persons and arranging other infrastructures for that
purpose. At the instance of Bisquare and Mr. Baoni, CNPL placed an order
for MPEG Test System at a cost of US $ 34,350/- for which it paid
Rs.4,58,321/- as an advance and TV Test Transmitter DVB-C, DVB-S and
DVB-T at a cost of Euro 54,561/- and for which CNPL paid an advance of
Rs.6,13,834.63. CNPL further states that on the bona fide belief that Bisquare
and Mr. Baoni would be able to commercially build the current STB, it
accepted an order from TV Today for 3800 current STBs which were to be
delivered by October 2000. Based on the order of TV Today, Bisquare and
Mr. Baoni required the Petitioner to import/procure further raw materials for
the commercial production of the current STBs. CNPL states that it was
surprised when Bisquare and Mr. Baoni informed that the commercial
production of the STB would not commence till the STBs produced during
pilot production were tested on the testing equipments for DVB compliance.
Further, Bisquare and Mr. Baoni informed CNPL that the STBs were to be
tested on the equipments which they had required CNPL to import by
misrepresenting them to be the equipment required for manufacturing. On
enquiry, CNPL found that the testing equipment that was ordered to be
imported from Tektronik Inc. USA Kohde & Schruaz Grabil Co. K.G.,
Germany were required by technology developers and not the commercial
producers of STBs, who were to manufacture STBs based on fully developed,
proven, tested and commercially sound STBs. CNPL was informed by
Bisquare and Mr. Baoni that commercial production of current STBs could
commence after testing and rectification of the defects that would take three
months and that DVB compliance would be certified thereafter. As a result,
the CNPL informed TV Today that the STBs would be delayed by a few
months. This was not accepted by TV Today, which cancelled the contract
with CNPL. This caused a grave embarrassment and loss of reputation in the
limited market of current STBs. CNPL demanded that Bisquare and Mr.
Baoni return the money paid to them and recover losses. They further
informed CNPL that they were looking for a suitable buyer, who would
acquire the technology in the current STB along with various raw materials
that have been procured. However, no suitable buyer could be traced by them.
CNPL, in order to mitigate its losses, terminated the lease of the factory taken
on rent and returned its possession to the landlord.
14. CNPL states that Bisquare and Mr. Baoni also required it to procure the
PSOS software, which had transpired later, and was required for development
of STB technology and not for its commercial production. CNPL paid
Bisquare and Mr. Baoni during the period July to December 2000 a sum of
Rs.82,50,000/- which was kept by them as share application money, without
issuing any shares. A matching contribution had to be made by Mr. Baoni in
the equity of Bisquare so as to keep the equity participation of Mr. Baoni and
his group at 70:30. This also was not done. At an urgent meeting of Bisquare
held on 24th December 2001, CNPL noticed that the sum of Rs. 82.50 lacs
paid by CNPL was misappropriated as share application money and instead of
allotting shares, Bisquare and Mr. Baoni had dishonestly sought to adjust the
same against certain purported non-existent dues of Bisquare. CNPL asked
Bisquare and Mr. Baoni to rectify the accounts and also raised the issue at the
AGM. However, they failed to do so.
15. CNPL states that the sum total of the aforementioned amount i.e. Rs.17.37
lacs paid by CNPL towards share capital of Bisquare, the sum of Rs.82.50 lacs
paid as share application money, the sum of Rs.1,01,82,000 towards
technology transfer fee and the sum of Rs.21.60 lacs paid by CNPL towards
technology assistance charges worked out to the aggregate of Rs.2,23,29,000.
Apart from above, CNPL also claims to have incurred expenses in setting up
the facility at Gurgaon. This included rent and incidental charges of the factory
at Rs.8,88,629/-, raw material cost for pilot production of 38 STBs at
Rs.14,07,547/-, the amount paid for raw material at port for TV Today order at
Rs.67,70,697/-, cost of software/licensing fee at Rs.16,77,672/-, advance paid
against testing equipment and raw materials at Rs.39,18,821/- and overheads
and various other expenses at Rs.50,17,147/- worked out to the aggregate of
Rs.1,96,80,513/-. The sum total worked out to Rs.4,20,09,513/-. CNPL had
also become liable to pay custom duties, penalties, demurrage and detention
charges in respect of the raw materials imported at the behest of Bisquare and
Mr. Baoni.
16. CNPL sent them a notice on 30th March 2002 followed by a further notice
dated 23rd April 2002, invoking the arbitration clause. In their reply dated 13th
May 2002, Bisquare and Mr. Baoni rejected CNPL's claims. Thereafter Arb.
Petition No. 125 of 2002 was filed by CNPL in this Court. By an order dated
30th September 2003, this Court appointed Justice G.B. Patnaik, former Chief
Justice of India, as the sole Arbitrator.
Issues framed by the Arbitrator
17. CNPL in its statement of claim dated 24th November 2003 before the
learned Arbitrator claiming inter alia a sum of Rs.4,20,09,513/- together with
interest, both pendente lite and future. Bisquare and Mr. Baoni jointly filed
their replies and counter claims. On the basis of the pleadings, the learned
Arbitrator framed, on 21st February 2004, the following issues:
"1.Was there any wrongful inducement by the Respondent No. 2 to
the Claimant for entering into the MOU and did Respondent No.2
deliberately concealed or withheld from the Claimant vital
materials, as alleged in the Claim Statement?
2. Has there been any breach of the terms and conditions of MOU
dated 17.01.2000 and/or Technology Agreement dated 01.04.2000
by the Respondent?
3. Has there been any breach of the aforesaid two agreements,
namely, 17.01.2000 and 01.04.2000 by the Claimant?
4. Was the Set Top Boxes Technology supplied by Respondent No.
1 to the Claimant was in any way defective and not of DVB
Compliant as well as commercially unviable?
5. Has there been any failure on the part of the Respondent No. 1 to
transfer and deliver to the Claimant the Deliverables, Technology
Information, Technical Support, Intellectual Property Rights,
Technology for commercially viable DVB compliant Set Top Box
in terms of the Technology Agreement?
6. Is the Claimant entitled to compensation from the Respondent on
account of breach on the part of the Respondent as per the Terms
and Conditions of the Agreement?
7. Is the Claimant in any way responsible for delay in the
procurement of components and equipments and whether the
Claimant himself abandoned the project of manufacturing Set Top
Boxes and if so, is the Respondent entitled to compensation from
the Claimant on that score? Whether the Respondent is entitled to
get compensation from the Claimant in respect of the Counter
Claim made, and if so what is the amount involved therein?
8. Is the Claimant is entitled to any interest and if so at what rate &
from what date?"
18. On behalf of CNPL, Mr. Rakesh Sharma, Mr. Ravi Sharma and Mr.
Sanjiv Kainth were examined. Mr. Baoni was the witness for the Respondents.
Findings of the Arbitrator
19. As regards Issue No.1, the learned Arbitrator held that the STB technology
supplied by Bisquare to CNPL was "undoubtedly defective and was neither
DVB compliant nor was it commercially viable." Issue No.2 was answered in
the affirmative and Issue No.3 in the negative. Issue Nos.4 and 5 were
answered in favour of CNPL. It was held that Bisquare had failed to transfer
and deliver to CNPL the deliverables, technical information and the
technology of the commercially viable DVB compliant STB in terms of the
Technology Agreement. On the question of compensation under Issue No.6, it
was held that:
(a) CNPL was entitled to refund of the sum of Rs.82.50 lacs towards share
application money.
(b) CNPL's claim for refund of Rs.1,01,82,000 towards technology transfer
fee, the claim for refund of Rs.21.60 lacs paid as assistance charges, the claim
towards expenditure for setting up the facility at Gurgaon for pilot production
included rent and incidental charges of the factory at Rs.8,88,629/-, raw
material cost for pilot production of 38 STBs at Rs.14,07,547/-, the amount
paid for raw material at port for TV Today order at Rs.67,70,697/-, advance
paid against testing equipment and raw materials at Rs.39,18,821/- and
overheads and various other expenses at Rs.50,17,147/- and the claim for
refund of the sum of Rs.17.37 lacs were all rejected.
(c) CNPL was held entitled to refund of Rs.16,77,672/- towards price of the
PSOS software.
20. Thus, in all CNPL was held entitled to be paid by Bisquare and Mr. Baoni
a sum of Rs.98,77,672/-. In respect of Issue No.8, it was held that CNPL
would be paid the principal awarded amount together with interest at 9% per
annum from 30th March 2002 till the date of the Award and post-Award
interest at 18% p.a. till the date of payment as well as costs of Rs.5,00,000/-.
Issue No.7 relating to the counter claims of Bisquare and Mr. Baoni in the sum
of Rs.15,14,27,908/- was rejected by holding that there was a breach of the
terms and conditions by Bisquare and not by CNPL and that no supporting
material was available for the assertions made in the counter claims.
21. This Court has heard the submissions of Mr. Rajeev K. Virmani, Senior
counsel appearing on behalf of CNPL and Mr. Vivek Sood, learned advocate
appearing on behalf of Bisquare and Mr. Baoni.
Scope of the present proceedings
22. The scope of the powers of the Court under Section 34 of the Act to
interfere with an award has been explained by the Supreme Court in Oil &
Natural Gas Corporation Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705. The
Supreme Court held that "a patently illegal award is required to be set at
naught, otherwise it would promote injustice" and proceeded to explain (SCC,
p. 727):
"31. Therefore, in our view, the phrase "public policy of India"
used in Section 34 in context is required to be given a wider
meaning. It can be stated that the concept of public policy
connotes some matter which concerns public good and the
public interest. What is for public good or in public interest or
what would be injurious or harmful to the public good or public
interest has varied from time to time. However, the award which
is, on the face of it, patently in violation of statutory provisions
cannot be said to be in public interest. Such
award/judgment/decision is likely to adversely affect the
administration of justice. Hence, in our view in addition to
narrower meaning given to the term "public policy" in
Renusagar case 1994 Supp (1) SCC 644 it is required to be held
that the award could be set aside if it is patently illegal. The
result would be -- award could be set aside if it is contrary to:
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality, or
(d) in addition, if it is patently illegal.
Illegality must go to the root of the matter and if the illegality is
of trivial nature it cannot be held that award is against the public
policy. Award could also be set aside if it is so unfair and
unreasonable that it shocks the conscience of the court. Such
award is opposed to public policy and is required to be adjudged
void."
23. The legal position was crystallized in the later decision in Steel Authority
of India Limited v. Gupta Brother Steel Tubes Limited, (2009) 10 SCC 63
thus (SCC, p. 78):
"18. It is not necessary to multiply the references. Suffice it to
say that the legal position that emerges from the decisions of
this Court can be summarised thus:
(i) In a case where an arbitrator travels beyond the contract, the
award would be without jurisdiction and would amount to legal
misconduct and because of which the award would become
amenable for being set aside by a court.
(ii) An error relatable to interpretation of the contract by an
arbitrator is an error within his jurisdiction and such error is not
amenable to correction by courts as such error is not an error on
the face of the award.
(iii) If a specific question of law is submitted to the arbitrator
and he answers it, the fact that the answer involves an erroneous
decision in point of law does not make the award bad on its
face.
(iv) An award contrary to substantive provision of law or
against the terms of contract would be patently illegal.
(v) Where the parties have deliberately specified the amount of
compensation in express terms, the party who has suffered by
such breach can only claim the sum specified in the contract and
not in excess thereof. In other words, no award of compensation
in case of breach of contract, if named or specified in the
contract, could be awarded in excess thereof.
(vi) If the conclusion of the arbitrator is based on a possible
view of the matter, the court should not interfere with the
award.
(vii) It is not permissible to a court to examine the correctness of
the findings of the arbitrator, as if it were sitting in appeal over
his findings."
False representations by Bisquare and Mr. Baoni
24. Having noted the settled legal position as regards the scope of interference
under Section 34 of the Act, the Court proceeds to consider the submissions of
the parties. The grievance of the CNPL is that despite the learned Arbitrator
holding in its favour on the main issues, he declined to award it the refund of
the sums paid by it to Bisquare and Mr. Baoni towards share capital in
Bisquare, technology transfer fee, technology assistance charges, the raw
material costs, pilot production, rent and other facilities to set up the factory
and the advance payment against other overheads and various other expenses.
CNPL urges that under Article 4.4 of the TSSA, in the event the warranties of
Bisquare and Mr. Baoni proving to be untrue or misleading or are breached
they were to pay CNPL on demand "the amount necessary to put CNPL into
the position which would have existed if the said Warranties had been true and
not misleading or broken together will all costs and expenses incurred by
CNPL as a result of such breach." The contention is that with the learned
Arbitrator having found Bisquare and Mr. Baoni to be in breach of the terms
and conditions of the MOU and the TSSA, he ought to have required them to
compensate CNPL for the losses suffered by it as a result thereof. Reliance is
also place on Article 11 of the TSSA whereby in the event of their being in
breach of the agreement, Bisquare and Mr. Baoni were required to indemnify
CNPL the losses suffered by it. Likewise, the learned Arbitrator having
accepted the plea of CNPL that Bisquare and Mr. Baoni lacked the basic
infrastructure or the technology to develop an STB for commercial purpose
and that they had made a false representation, ought to have held CNPL
entitled to the refund of Rs.17.37 lacs particularly when no technology had in
fact been transferred to CNPL. Moreover, technical assistance was expected to
be provided to CNPL by the Respondents not only till the date of commercial
operation but thereafter till the procedure for commercial production of STB
was streamlined. Likewise, the claim for the costs incurred by CNPL in
setting up the factory and procuring the raw material for the pilot production
should not have been rejected.
25. On the other hand, it is sought to be contended on behalf of Bisquare and
Mr. Baoni that the liability if any was that of Bisquare and not of Mr. Baoni.
The prototype STB was in fact approved. It is maintained that technology was
in fact provided to CNPL as acknowledged by it for 2001-02 by the letter
dated 21st December 2001 to CNPL by Bisquare and Mr. Baoni was in fact an
afterthought. There is an admission that 38 STBs had in fact been
manufactured. It is submitted that the alleged representation was stated to
have been made to Mr. Pradeep Jain who failed to enter the witness box. The
evidence of Mr. Sanjiv Kainth was not corroborated and ought not to have
been believed. It was the CNPL which abandoned the manufacture of STBs
and there was no omission by Bisquare or Mr. Baoni in that regard. There was
a mutual agreed business plan in terms of which CNPL was to invest Rs.5.3
crores in the design business. Clause 5.2 of the MOU was silent about the
consequence of non-issue of shares. Reliance is placed on the decision in
Juwarsingh v. State of Madhya Pradesh 1981 SCC (Cri) 357 to urge that the
evidence of Mr. Kainth ought not to have been relied upon. Reliance was also
placed on the decision in Ramji Dayawala & Sons (P.) Ltd. v. Invest Import
AIR 1981 SC 2085 and Food Corporation of India v. Chandu Construction
(2007) 4 SCC 697.
26. The first issue which was considered by the learned Arbitrator was about
the representations made by Bisquare and Mr. Baoni on the basis of which the
MOU and TSSA were executed. The case of CNPL specifically was that
despite knowing that they failed to possess the requisite technology and know-
how for commercially developing the STBs, Bisquare and Mr. Baoni
dishonestly and fraudulently induced CNPL into parting with money. In the
reply to the statement of claim, the assertions made on behalf of Bisquare and
Mr. Baoni inter alia were as under:
"In nutshell, the respondent company has provided the claimant,
in terms of the Agreement, STB Technology with was tested,
DVB compliant, found to be of excellent standards and the same
has been appreciated widely in the market."
"The STB technology developed by the respondent no. 1 was
tested and ready for commercial exploitation and was DVB
compliant. It is submitted that customization is part of technical
assistance as it is specific to the requirements of every customer
at a given time and depends upon several factors. It is denied as
false that the respondent no. 2 allured the claimant/its promoter/
director to invest in the venture of respondent no. 2. It is denied
as false that the respondent no. 2 offered to sell other
technologies to be developed."
"It is being dishonestly and falsely sought to be projected in the
para under reply as well as the statement of claim, as if it was the
res no. 2 who had personally given representations etc. regarding
the STB Technology."
"It is respectfully submitted that the STB Technology was
demonstrated by the respondent no.1 through a prototype Set Top
Box developed by the respondent no. 1 based on Integra 1000
chip set from LSI Logic."
"During the course of the presentations, the prototypes of the
STBs were even demonstrated by the respondent company to the
claimant to their entire satisfaction. Moreover, the STB
technology was widely appreciate."
27. The above assertions were found by the learned Arbitrator to be not
substantiated by the evidence on record. In arriving at the said conclusion the
learned Arbitrator referred to the documents placed on record in the form of e-
mails exchanged between the parties and the evidence of Mr. Kainth, Mr. Ravi
Sharma and Mr. Baoni.
28. Learned counsel for the parties have extensively referred to the evidence
on record. The reply statement filed by Bisquare and Mr. Baoni before the
learned Arbitrator contained the admission that the STB technology
demonstrated by Bisquare "was a prototype Set Top Box developed by
Bisquare on Integra 1000 chipset developed by LSI logic." Mr. Sanjiv Kainth
confirmed in his affidavit by way of evidence as under:
"20. In October/November 1999 when Mr. Ramendra S. Baoni
gave a presentation as well as demonstration to the Claimant, I
was also present with him. Mr. Ramendra S. Baoni demonstrated
Manufacturing Kit MK 1000 given to them by LSI Logic and
represented the same to be the design developed by him. Mr.
Ramendra S. Baoni was hopeful of having an agreement with the
Claimant and had planned that once the agreement was in place,
Mr. Ramendra S. Baoni would require the Claimant to purchase
the test equipment as well as RTOS (PSOS) compatible with
Integra 1000 chip set and then the Respondents would be able to
develop a set top box based on Integra 1000 chipset with its
software development platform in due course of time using the
test equipment and RTOS to be procured by the Claimant. This,
however, could not take place till the time I was associated with
the Claimant and the Respondents as the test equipment referred
to above was not available with the Respondents. The Claimant
had purchased PSOS and given to the Respondents based on the
Respondents requirements."
29. There was no cross-examination of Mr. Kainth on the above aspect. Mr.
Baoni in his cross-examination confirmed that Bisquare had acquired two MK
reference design kits of LSI logic. The assertions of Mr. Baoni that he had
never represented that the technology developed was DVB compliant was
contrary to the express warranties in the TSSA. In fact Annexure-A to the
TSSA sets out the features as well as essential performance specifications of
DTO. The first feature specified is that the STB is "DVB/MPEG 2 compliant."
Mr. Kainth further states in his evidence that "the Respondents had sent the
same manufacturing kit MK 1000 to Zee TV also, which was seen by Zee TV
on their digital satellite transmission using MPEG 2 standard of compression
as this was a manufacturing kit, it could receive the transmission". It was
further categorically stated by him that "Bisquare Technologies Private
Limited could not design and develop a Set Top Box from the software
development platform SDP 1000 of LSI logic based on Integra 1000 chipset as
it did not have the requisite infrastructure, for example, test equipment referred
to above and RTOS (PSOS)."
30. The attempt by the learned counsel for Bisquare and Mr. Baoni to discredit
the evidence of Mr. Kainth by relying on the decision in Juwaharsingh v.
State of Madhya Pradesh (supra) is a desperate attempt that should fail. That
decision was in the context of a criminal case and is plainly distinguishable on
facts. Mr. Kainth was a person employed by Bisquare during the period 1st
February 2000 to 14th May 2000 and had specifically dealt with CNPL on the
STB matters. He was fully in the know of what transpired. His
uncontroverted evidence was fatal the case of Bisquare and Mr. Baoni. He
stated thus:
"27. I state that during the period of my employment with the
companies under the management and control of Shri Ramendra S.
Baoni:
a) they could not develop a set top box based on Integra 1000 chipset
from LSI Logic. Even a lab prototype of STB could not be produced.
b) they did not have the requisite test equipment and RTOS to carry out
the development of STB based on Integra 1000 chipset.
c) Shri Ramendra S. Baoni or the companies under his management
never outsourced development of STB based on Integra 1000 chipset.
d) the question of testing any STB or technology in STB by Shri
Ramendra S. Baoni or companies under his management for compliance
with Digital Video Broadcasting Standards (DVB) never arose."
31. In fact while dealing with Issue No.4, the learned Arbitrator observed:
"the fact that while the evidence of Mr. R.S. Baoni relies on the
fact that his man Mr. Sanjiv Kainth had been deputed for
assisting the Claimant with the Pilot production, but the evidence
of Mr. Sanjiv Kainth himself goes against the case of the
Respondent and categorically establishes the fact that they do not
have full-fledged tested developed technology, as claimed by the
Respondent during discussions with Mr. Pradeep Jain, the
Claimant."
"Relying upon the evidence of Mr. Ravi Sharma, whose
testimony has not been impeached in any manner and evidence of
Mr. Sanjiv Kainth and other documents referred in course of my
discussions, I hold that the STB Technology supplied by
Respondent No.1 to the Claimant was undoubtedly defective and
was neither DVB Compliant nor was it commercially viable."
32. Consequently, the conclusion of the learned Arbitrator that "even the
documents do not reveal that the Respondent No.1 (Bisquare) did possess all
the required machineries for testing the so called technology they have for the
manufacture of Set Top Boxes and its commercial exploitation" cannot be
faulted.
33. However, the further finding of the learned Arbitrator to the effect that "in
view of several documents, particularly E-mails from different sources and
even the E-mails, alleged to have been sent by Mr. Ravi Sharma, it is difficult
for me to come to the conclusion that the Respondent No. 2 did not in fact
have any technology of his own for manufacture of Set Top Boxes", is
contrary to what emerges from those very documents. In other words, the
finding to suggest that Mr. Baoni did have some technology to manufacture
STBs is contrary to the evidence on record and to the express terms of the
MOU and TSSA which clearly stated that he held the technology for DVB
compliant STBs that could be commercially produced. There was no evidence
to indicate that Mr. Baoni did possess at any time such technology as was
represented by him.
34. The learned Arbitrator appears to have accepted the plea of Bisquare and
Mr. Baoni that the failure to examine Mr. Pradeep Jain who was present
during the negotiation with Mr. Baoni was fatal to the plea of CNPL that there
was wrongful inducement of CNPL by Mr. Baoni to enter into the MOU and
TSAA. The e-mails of Mr. Ravi Sharma dated 1st March 2000 to Mr. Gupta
provide details on the progress of project talks of a presentation made by Mr.
Baoni to BPL and Motorola. They also mention that Mr. Kainth had gone to
Chennai for a demo. What appears to have been missed by the learned
Arbitrator is that the STB used in these demonstrations, as pointed out by Mr.
Kainth, was based on a reference design from LSI logic. It was in fact based
on the MK 1000 chipset. The E-mails from Mr. Jason Buyers from the USA
and the report of Zee TV all referred to this one prototype which was not
based on the technology developed by Mr. Baoni. It is surprising that the
learned Arbitrator has, in coming to the above conclusion, overlooked the
evidence of Mr. Kainth which in fact he refers to in the earlier portion of the
Award. The non-examination of Mr. Pradeep Jain cannot wipe away the clear
and cogent evidence of the three witnesses examined on behalf of CNPL i.e.
Mr. Kainth, Mr. Rakesh Sharma and Mr. Ravi Sharma. On the other hand, the
fact that Mr. Kainth was not cross-examined should have been sufficient to
disbelieve the defence of Bisquare and Mr. Baoni.
35. Bisquare and Mr. Baoni asserted in their defence that they had successfully
completed the pilot project for production of 38 STBs. However, in his cross-
examination, Mr. Baoni was unable to produce any proof that the pilot STBs
were tested. His answers were at best vague and ambiguous. He stated that
"the pilot production of STB had not taken place under Bisquare supervision
or instructions" and also that "I do not think the pilot production had taken
place within Cybernetics Network factory." There was no evidence that could
have persuaded the learned Arbitrator to conclude that Mr. Baoni did in fact
possess the technology to commercially produce DVB complaint STBs. The
evidence on record proves the case of CNPL that Bisquare and Mr. Baoni
falsely induced it to enter into the MOU and TSSA. The very basis of the
MOU was that Mr. Baoni had developed a fully tested DVB compliant
technology for manufacturing STB on commercial basis. The evidence clearly
showed that he had not developed any such technology and had thus made a
false representation in that behalf to CNPL.
36. Consequently, that portion of the impugned Award in relation to the
second part of Issue No.1 where it is held that there is only "some
misrepresentation" on the part of Mr. Baoni and further that there has been "no
wrongful inducement by Mr. Baoni to CNPL for entering into the agreement"
are held to be based on no evidence, contrary to the express provisions of the
contract and therefore patently illegal. The impugned Award to that extent is
unsustainable in law.
Erroneous rejection of some of CNPL's claims by the Arbitrator
37. The above finding of the learned Arbitrator appears to have been the
foundation for the further decision not to allow some of the claims of CNPL.
This part of the impugned Award is contrary to the evidence on record. In fact,
while discussing Issue Nos.2 and 3, the learned Arbitrator observed:
"Mr. Baoni also agreed in his cross examination that Cybernetics
paid Rs.17,37,000/- towards holding 30% Equity in the company
of Respondent No.1 at a premium of Rs.80/- per share. The
M.O.U. is completely silent with regard to charge of premium by
the Respondent No.1 for the shares held by the Claimant. The
documents produced in course of the arbitral proceedings by the
Respondent No.1 or Respondent No.2 do not indicate that the
claimant knew about the so called premium has been charged for
the shares held by the Claimant in Respondent's company. This
act of charging premium to the Claimant for holding shares to the
extent of 30% of Equity in Bisquare, constitutes a violation to the
terms of Agreement of Clause 2.1 of the M.O.U. It has been also
established on record that between July to November 2000 the
Claimant paid Rs.82.50 Lakhs towards the Share Application
Money."
"In terms of Clause 2.1 the Respondents were required to
contribute 70% which workout at Rs.192.50 lakhs, but in fact that
contribution had not been made. It is interesting to note that
though the Claimant paid Rs.82.50 lakhs as Share Application
Money, the Respondents not only did not issue shares and
adjusted a sum of Rs.15 lakhs from the same without even
intimating to the Claimant, which the Claimant knew on receipt
of notice of the Annual General Meeting in December 2001. This
act of the Respondent on the face appears to me to be a breach of
the terms of Agreement between the parties in the Memorandum
of Understanding."
"According to Respondent since Rs.82.5 Lakhs was subscribed
by the Claimant and they were further required to pay a sum of
Rs.15 lakhs towards their 30% Equity in the Bisquare
Technologies and they had not paid the same, the Respondents
were entitled to adjust the same and such act does not constitute
infraction of the terms of M.O.U. It is difficult for me to accept
this contention, once the Respondents admit that the Claimant
paid Rs.82.5 lakhs as Share Application Money. I also do not
find any force in the submission of the Respondent that in the
design business it was only the Claimant who was required to
make payment and not the Respondents." (Q to Q Page 65 to be
confirmed)
"I am persuaded to hold that there has been an infraction of the
terms and conditions of the M.O.U. by the Respondent and not by
the Claimant."
38. While discussing Issue No.5, the learned Arbitrator noticed the
contradiction in the evidence of Mr. Baoni and the fact that he had not been
able to produce any proof of handing over of documents of deliverables to
CNPL. It was then concluded that "the Respondents have not handed over to
the claimant the deliverables, technical information and the technology of the
commercial DVB compliant STB in terms of the Technology Agreement." It
was further concluded as under:
"The evidence of Mr. Sanjiv Kainth in this context appears to be
more plausible that PSOS is unquestionably required by the
technology developer for development of the S.T.B. technology
and they being in possession of that software the Respondent
could not have claimed to have developed the STB technology of
DVB Compliant, as asserted in S.T.B. technology itself. In the
aforesaid premises I answer the Issue No.5 in favour of the
Claimant and against Respondent No.1 and hold that there has
been failure on its part to transfer and deliver to the Claimant the
deliverables, technical information, technology for commercially
viable D.V.B. Compliant S.T.B. in terms of the technology
agreement."
39. Yet, the learned Arbitrator declined to direct refund of the payments made
by CNPL to Bisquare and Mr. Baoni on the ground that the case of CNPL, that
Bisquare and Mr. Baoni did not have any technology of their own was only
"partially true", because, "the Respondents did have some technology, which
might not be a tested technology of DVB compliant" and since they had partly
started the manufacturing process of STBs as pilot production "with the
technical assistance" rendered by the Respondents. What was missed by the
learned Arbitrator was the fact that the MOU and the TSSA was based on the
assertions made by Bisquare and Mr. Baoni that they possessed technology to
commercially produce STBs that were DVB complaint. Once that
representation was found to be untrue the very basis of the MOU and TSSA
disappeared. There was no question of CNPL parting with money just for any
technology for STBs. It was specifically for a technology for commercially
producing DVB complaint STBs. The only conclusion that could have been
drawn in the circumstances was that the representation was a fraudulent one.
40. Likewise, the evidence produced by CNPL substantiated its case of failure
on the part of Bisquare to effect technology transfer and falsely inducing
CNPL into parting with the technical assistance fee. Again, on the ground that
"the Respondent did have some technology" it was held that these amounts
could not be ordered to be refunded. For the reasons explained hereinabove the
denial of these amounts to the CNPL in the impugned Award was not justified.
In doing so the learned Arbitrator appears to have completely overlooked the
evidence on record.
41. While the amount of Rs.16,77,672/- for PSOS software has been directed
to be refunded to CNPL, the refund of the amount incurred in the pilot
production of 38 STBs was denied. Under Section 73 of the Contract Act,
CNPL was entitled to restitution upon the finding by the learned Arbitrator of
breach of contract by Bisquare and Mr. Baoni. This has been recently
reiterated by the Supreme Court in Phool Chand v. Union of India (2011) 10
SCC 300. CNPL was entitled to be restituted to the position it was in prior to
the MOU and the TSSA. The claim of CNPL even in regard to the expenditure
incurred by it in the pilot project as well as renting out the factory at Gurgaon
including the costs of the raw materials and import were required to be
allowed.
42. As regards establishing proof of having incurred costs, the learned
Arbitrator observed that "the claimant has been able to establish the factum of
payment made towards testing equipments and raw materials as well as
towards overheads, as claimed." However, the claim for compensation and
damages was denied on the ground that there was an "absence of any positive
case and proof of negligence on the part of the Respondents." Since fraud
unravels everything, nothing more was required to be proved to sustain the
claims of CNPL.
43. As regards of the rejection of the counter claims of Bisquare and Mr.
Baoni, indeed nothing has been produced in regard to sustain a counter claim
for an exorbitant sum of over Rs. 15 crores. The claim for the unpaid
consideration for transfer of technology or technical support and assistance
against CNPL had to fail in light of the clear finding that Bisquare and Mr.
Baoni were in breach of the MOU and TSSA. Their case that CNPL was to
invest more monies in the design business was not supported by any cogent
evidence. In the circumstances, the impugned Award to the extent it rejects the
counter claims of Bisquare and Mr. Baoni does not call for interference.
Resultant position
44. The result is that the impugned Award is upheld to the extent it has
allowed the claims of CNPL. Thus the following claims of CNPL as allowed
by the impugned Award are upheld:
(i) Refund of the sum of Rs.82.50 lakh towards share application money.
(ii) Refund of Rs.16,77,672/- towards price of the PSOS software.
(iii) Interest on the aforementioned sums at 9% p.a. pendente lite.
(iv) Post award interest at 18% p.a. till date of payment.
(v) Costs of Rs. 5,00,000.
45. The rejection by the impugned Award of the counter claims of Bisquare
and Mr. Baoni is upheld.
46. The impugned Award to the extent it has rejected the other claims of
CNPL as set out in paras 54 e & f of CNPL's statement of claim is set aside.
These are CNPL's claim for refund of Rs.1,01,82,000 towards technology
transfer fee, the claim for refund of Rs.21.60 lakh paid as technology
assistance charges, the expenditure for setting up the facility at Gurgaon for
pilot production including a claim for Rs.8,88,629 towards rent and incidental
charges of the factory, claim for Rs. 14,07,547 towards raw material cost for
pilot production of 38 STBs, claim for a sum of Rs.67,70,697 being the
amount paid for raw material at port for TV Today order, claim for
Rs.39,18,821 being the advance paid against testing equipment and raw
materials, claim for Rs.50,17,147 towards overheads and various other
expenses and the claim for refund of the sum of Rs.17.37 lakh paid by CNPL
towards share capital to Bisquare and Mr. Baoni.
Scope of Section 34(4) of the Act
47. The next question that arises is whether the above claims as mentioned in
para 44 that have been erroneously rejected by the learned Arbitrator can be
allowed by this Court in exercise of its powers under Section 34(4) of the Act?
48. Under Section 34(4) of the Act, the Court while deciding a challenge to an
arbitral award, can either "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".
This necessarily envisages the Court having to remit the matter to the Arbitral
Tribunal. This is subject to the Court finding it appropriate to do so and a party
requesting it to do so.
49. In Union of India v. Arctic India 2007(4) Arb LR 524 (Bom), a learned
Single Judge of the Bombay High Court opined that the Court can modify the
Award even if there is no express provision in the Act permitting it. The Court
followed the decision of the Supreme Court in Krishna Bhagya Jala Nigam
Ltd. v. Harischandra Reddy (2007) 2 SCC 720. A similar view has been taken
by a learned Single Judge of this Court in Union of India v. Modern
Laminators 2008 (3) Arb LR 489 (Del). There the question was whether in
light of the arbitrator having failed to decide the counter claim of the
respondent in that case the Court could itself decide the counter claim. After
discussing the case law, the Court concluded that it could modify the award
but only to a limited extent. It held (Arb LR, p. 496):
"Such modification of award will be a species of 'setting aside' only and
would be 'setting aside to a limited extent'. However, if the courts were
to find that they cannot within the confines of interference permissible
or on the material before the arbitrator are unable to modify and if the
same would include further fact finding or adjudication of intricate
questions of law, the parties ought to be left to the forum of their choice
i.e. to be relegated under Section 34(4) of the Act to further arbitration
or other civil remedies."
50. However, none of the above decisions categorically hold that where certain
claims have been erroneously rejected by the Arbitrator, the Court can in
exercise of its powers under Section 34(4) of the Act itself decide those
claims. The Allahabad High Court has in Managing Director v. Asha Talwar
2009 (5) ALJ 397, held that while exercising the powers to set aside an Award
under Section 34 of the Act, the Court does not have the jurisdiction to grant
the original relief which was prayed for before the Arbitrator. The Allahabad
High Court referred to the decision of the Supreme Court in McDermott
International Inc. v. Burn Standard Co. Ltd. (2006) 11 SCC 181, where it
was observed (SCC @ p. 208):
"52. The 1996 Act makes provision for the supervisory role of
courts, for the review of the arbitral award only to ensure fairness.
Intervention of the court is envisaged in few circumstances only,
like, in case of fraud or bias by the arbitrators, violation of natural
justice, etc. The court cannot correct errors of the arbitrators. It
can only quash the award leaving the parties free to begin the
arbitration again if it is desired. So, scheme of the provision
aims at keeping the supervisory role of the court at minimum
level and this can be justified as parties to the agreement make a
conscious decision to exclude the court's jurisdiction by opting
for arbitration as they prefer the expediency and finality offered
by it." (emphasis supplied).
51. The view of the Allahabad High Court in Managing Director v. Asha
Talwar appears to be consistent with the scheme of the Act, and in particular
Section 34 thereof which is a departure from the scheme of Section 16 of the
1940 Act which perhaps gave the Court a wider amplitude of powers. Under
Section 34(2) of the Act, the Court is empowered to set aside an arbitral award
on the grounds specified therein. The remand to the Arbitrator under Section
34(4) is to a limited extent of requiring the Arbitral Tribunal "to eliminate the
grounds for setting aside the arbitral award". There is no specific power
granted to the Court to itself allow the claims originally made before the
Arbitral Tribunal where it finds the Arbitral Tribunal erred in rejecting such
claims. If such a power is recognised as falling within the ambit of Section 34
(4) of the Act, then the Court will be acting no different from an appellate
court which would be contrary to the legislative intent behind Section 34 of
the Act. Accordingly, this Court declines to itself decide the claims of CNPL
that have been wrongly rejected by the learned Arbitrator.
Consequential directions
52. Consequently, as regards the above items of claims of the CNPL which
have been rejected by the impugned Award, and which rejection is held to be
erroneous, this Court holds that it will be open to the CNPL to approach the
learned Arbitrator to decide those claims in accordance with law and pass a
fresh Award.
53. O.M.P. Nos. 282 and 283 of 2005 are dismissed and O.M.P. No. 267 of
2005 is disposed of in the above terms with costs of Rs.30,000/- which will be
paid by Bisquare and Mr. Baoni in equal halves to CNPL, within four weeks.
S. MURALIDHAR, J.
February 24, 2012
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