South Delhi Municipal ... vs M/S Pkss Infrastructure Pvt Ltd
2018 Latest Caselaw 142 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+              OMP 715/2014

                                  Reserved on: 23rd November,2017
                                  Date of decision: 8th January, 2018

SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner

                         Through:      Mr.Anil Airi, Sr. Adv. with
                                       Ms.Kamakshi Verma, Ms.Biji
                                       Rajesh, Mr.AmineshBhardwaj and
                                       Mr.Gaurang Kanth, Advs.

                         versus

M/S PKSS INFRASTRUCTURE PVT LTD                     ..... Respondent

                         Through:      Mr.Kirti Uppal, Sr. Adv. with
                                       Mr.Pawan Kr. Bansal, Adv.

CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA

1. The present petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") has been filed by the Petitioner challenging the Arbitral Award dated 19th March, 2014 passed by the Sole Arbitrator (hereinafter referred to as the "Impugned Award").

2. The disputes between the parties arose out of a contract of work of procurement of a contractor by M.C.D for Toll Collection at border points from specified commercial vehicles entering Delhi at M.C.D approved rates for a specified period of three calendar years. The contract contemplated the payment of pre-decided sum of money as Toll

OMP 715/2014 Page 1 Collection to the Petitioner divided into thirty six equal installments and the payment of the said sum was irrespective of the actual collection generated by the contractor.

3. The Consortium of Companies under the name and style of M/s P.K. Hospitality Services Private Limited JV emerged as the highest bidder for an amount of Rs. 606,60,78,660/- and was issued a provisional award letter dated 15th May, 2008.

4. A formal agreement dated 13th May, 2009 was later executed between the Petitioner and the Respondent, the Respondent being incorporated by the consortium.

5. Disputes having arisen between the parties in performance of the obligation under the above agreement, the same were referred to the Sole Arbitrator for adjudication resulting in the impugned award.

6. The first challenge of the Petitioner is to the grant of a sum of Rs. 15 Lakhs to the Respondent on account of Petitioner's failure to remove the infrastructure left by M/s Banas Sands, the erstwhile contractor and/or in acquiring the said infrastructure and handing it over to the Respondent. The Sole Arbitrator, in its Impugned Award, has found the Petitioner to be in breach of its obligation to remove the infrastructure of the erstwhile contractor namely, M/s Banas Sands and has therefore, awarded a sum of Rs. 15 Lakhs to the Respondent as damages against a claim of Rs. 35,46,68,116/-.

7. It is submitted by the learned senior counsel for the Petitioner that the Arbitrator has wrongly rejected the reports and photographs filed by the Petitioner showing that the infrastructure of the erstwhile contractor was being used by the Respondent thereby resulting in gain to the

OMP 715/2014 Page 2 Respondent inasmuch as otherwise the Respondent was under a contractual obligation to develop the Toll Plazas. It is further submitted that, initially the Petitioner may have been in default in insuring removal of the infrastructure by the erstwhile contractor, however, later when it sought to remove the same, it was the Respondent who requested the Petitioner not to do so as it was negotiated with the erstwhile contractor for purchase of the existing infrastructure. It was further submitted that the Arbitrator having found that the Respondent had failed to prove the loss suffered by it on account of the default of the Petitioner, could not have awarded a sum of Rs. 15 Lakhs to the Respondent without such evidence of loss.

8. I have considered the submission of the learned senior counsel for the Petitioner, however, I am unable to accept the same. It is not disputed that as per Addendum Item No. 3 to Clause 11.1 (Provision of Facilities), the duty to take away the existing assets of the erstwhile contractor, M/s Banas Sands, was that of the Petitioner. It is further not disputed that the said infrastructure was not removed till April 2009 by the Petitioner and / or M/s Banas Sands, in spite of complaints by the Respondent. The breach of the contract, therefore, cannot be disputed by the Petitioner.

9. As far as the Report and the Photographs relied upon by the Petitioner to show that such infrastructure was being used by the Respondent, the Sole Arbitrator has held that the same were not proved. The Arbitrator further observed that Mr. Jamwal (RW-4) who was purportedly entrusted with the task of carrying out inspection had admitted that he had not personally visited the site and had no knowledge as to what was in existence at the time of the agreement and what was

OMP 715/2014 Page 3 subsequently erected by the Respondent in any of the sites. The Arbitrator having judged the worth of the document and the evidence led before him, it is not for this Court to re-appreciate the same so as to arrive at a different conclusion. Mere production of certain documents in the form of photographs and/or reports would not show that the infrastructure of the erstwhile contractor was being used by the Respondent.

10. As far as the reliance of the Petitioner on various letters from the Respondent to show that it was the Respondent who had requested the Petitioner not to remove the infrastructure as it was negotiating with M/s Banas Sands for purchase of the same, the Arbitrator has rightly held that the said correspondence is only from April, 2009 i.e. much later after the award of the work/contract to the Respondent and merely because the Respondent, in good faith and in light of repeated breach by the Petitioner, entered upon such negotiation with the erstwhile contractor, it would not mean that the Petitioner would be discharged of its earlier breach of contractual obligations.

11. As far as the amount of Rs. 15 Lakhs being awarded as damages in favour of the Respondent, it may only be noted that the Petitioner was in breach of the agreement. The breach extended to eight sites of Toll Collection. The bid amount, as observed above, was Rs. 606,60,78,660/- and the breach continued for almost a year. It cannot , therefore, be said that the damages awarded were fanciful or exorbitant. The above were merely nominal damages. In Highway Engineering Pvt. Ltd. v. Union Of India & Anr. 1996 63 DLT 833, this Court had held as under:-

OMP 715/2014 Page 4 "8. As regards the award of Rs. 25,000 as "token damages" in favour of the Union of India is concerned, learned Counsel for the petitioner submitted that the Arbitrator was not entitled to award the same in view of the finding that the Union of India had failed to establish that it had taken all reasonable steps for mitigating the damages. I have considered the submission of the learned Counsel for the petitioner. It is true that one who has suffered loss from a breach of contract must take reasonable steps that are available to him to mitigate the extent of damages but in case he fails to take such steps he may still be entitled to receive nominal damages from the defaulting party. There is good authority to hold that where a person has suffered loss due to breach of contract by the other party he is entitled to nominal damages in case he fails to prove actual or special damage.

9. Situation for awarding nominal damages arises in the event of the infringement of the contract by the defendant which has in fact caused no loss to the plaintiff and it also arises when the plaintiff fails to prove the loss that he may have suffered from the breach of the contract.

10. The principle relating to award of nominal damages has been stated in the treatise 'Chitty on Contracts', Twenty- fourth Edition, Vol. 1, at page 1554, thus:

"Wherever a party is liable for a breach of contract, either express or implied, the plaintiff is in general entitled to nominal damages although no actual damage is proved; the violation of a right at common law will often entitle the plaintiff to nominal damages, even without proof of special damage. Usually this situation arises when the defendant's breach of contract has in fact caused no loss to the plaintiff, but it may also arise when the plaintiff, although he has in fact suffered loss, fails to prove any loss flowing from the breach of contract, or fails to prove the actual amount of his loss....See Columbus & Co. Ltd. v. Clows, [1903] 1 K.B. 244;Weld-Blundell v. Stephens[1920] A.C. 956; Taylor & Sons Ltd. v. Bank of Ahtnes, (1922) 91 L.J.K.B.

776; James v. Hutton and J. Cook & Sons Ltd., [1950] 1 K.B.

OMP 715/2014 Page 5 9; Sykes v. Midland Bank Executor and Trustee Co. Ltd., [1917] 1 Q.B. 113.

Erie County Natural Gas and Fuel Co. Ltd. v. Carroll, [1911] A.C. 105; Cf. Government of Ceylon v. Chandris, [1965] 3 All E.R. 48."

11. In Brahmdeo Narain Singh v. Members of the Notified Area Committee, AIR 1965 Patna 179, it was held that in a case of breach of contract the plaintiff is entitled to at least nominal damages which does not mean that a trifling amount is always to be assessed. The principle relating to the award of nominal damages was stated by the Court as follows: "In that view, the plaintiff entitled to at least nominal damages. Nominal damages do not connote that a trifling amount is always to be assessed. In the cases of Rolin v. Steward, (1954) 14 CB 595, and Wilson v. United Counties Bank Ltd., (1920) AC 102, substantial nominal damages were awarded. The Calcutta High Court, in the above mentioned case, adopted that principle and awarded Rs. 8,000/- as nominal damages to the plaintiff of that case. The measure of damages will vary according to the special circumstances of a particular case. Contracts may be of different types. When it is not possible to calculate accurately or in a reasonable manner the actual amount of loss incurred or when the plaintiff has not been able to prove the actual loss suffered, he (the plaintiff) will be, at the same, entitled to recover nominal damages for a breach of contract."

12. In Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705, it was reiterated that the Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract.

13. The Arbitrator having awarded only nominal damages, this Court, in exercise of its power under Section 34 of the Act cannot reassess the same.

OMP 715/2014 Page 6

14. The next challenge is to the award of Rs. 15 Lakhs as damages for the Petitioner's failure to provide infrastructure/land at eight locations for developing Toll Plazas in terms of Schedule 7.2, Vol. II. Connected to this is the challenge to the rejection of counter claim No. 1 of the Petitioner towards liquidated damages for non-development of Toll Plaza's infrastructure by the Respondent.

15. It is contended by the learned senior counsel for the Petitioner that while five out of eight locations could not be made available to the respondent, even for the three locations where land/ space was made available to the Respondent, the Respondent failed to perform its obligations under Clause 7.2 of the contract in building up the requisite infrastructure and therefore, liquidated damages were rightly levied on the Respondent and have been wrongly disallowed by the Sole Arbitrator. For the five locations where land/ space was not handed over, it is submitted that as the Sole Arbitrator found that the Respondent had not led any evidence on damages suffered by it, the Arbitrator could not have granted damages of Rs. 15 Lakhs in favour of the Respondent.

16. I am unable to accept the arguments of the learned senior counsel for the Petitioner. Once it is admitted that land/ space could not be provided to the Respondent by the Petitioner in five out of eight locations, admittedly, the Petitioner was in breach of its obligations under the agreement. As observed above, even in absence of formal proof of loss, the Arbitrator was within its jurisdiction to award nominal damages in favour of the Respondent and the Award to this extent cannot be challenged.

OMP 715/2014 Page 7

17. As far as non-development of infrastructure at the three locations where land/space was claimed to have been handed over to the Respondent by the Petitioner, the Sole Arbitrator has discussed the evidence led before him as follows:

"380. Claimant had repeatedly written letters Respondent pointing out that the land was neither demarcated nor handed over by the Respondent. Therefore, the Claimant could not have possibly started construction of Toll plazas at any of the border points without clearly demarcated sites being formally handed over to them by the Respondent. As in the case of the handing over of the rest of the facilities, the land at these three borders was also required to be demarcated and formally handed over to the Claimant for the purpose of construction of the toll plazas and the records reveal that it was being insistently demanded by the Claimant that the Respondent should take necessary action in that regard before the Claimant can be called upon to discharge their obligation. It can be seen that RW-1 admitted in his cross examination in some of the toll posts there was scarcity of land and some posts are rented.

381. It is worth mentioning that the Claimant, by its letters dated 12/08/2009 and 16/02/2010 categorically informed the Respondent that the erection of the canopies was not possible unless the land required for the same is demarcated, as most of the sites were rented. However, there was no response from the side of the Respondent. The Respondent did not even choose to dispute that it had not been able to demarcate the land for the canopies and as such the toll posts at these sites were in a similar condition as they stood even before the Claimant took over the contract. Several questions were put to RW-1 during the course of his cross examination. However, the said witness chose not to answer any such questions.

When asked about the deficiency in installation of canopies at the posts which were rented by the Respondent from private owners, RW-1 stated that he would not be able to answer the said question. A further question was put to RW-1 whether the

OMP 715/2014 Page 8 Respondent has any record of any permissions obtained from the owners of these rented sites for the erection of the canopies as desired by the Respondent despite request from the Claimant. The said witness once again said that he would not be able to answer this question. RW-1 was specifically asked whether the Respondent had any record to indicate that the land for the erection of canopies at these rented posts was ever provided, demarcated or handed over to the Claimant. The said witness again chose not to answer this question. The Claimant even asked whether the subsequent contractor had been able to erect the canopies, though required under the current agreement, the witness again did not answer this question. In fact, it may be mentioned here that no records to contradict any of the above questions of deficiency on the part of the Claimant were subsequently produced by the Respondent.

382. Apart from alleging that the land was available at these borders, the Respondent was unable to state anything further. In fact, a specific question was put to RW-1 whether he had any land records to indicate that the Respondent was the owner of the land at these borders or had the land available through some other government agency. The said witness could not produce any such records to show that the Respondent was the owners of or in control of the land at the said three borders.

383. It is further admitted by RW-2 in his cross examination that at all the three borders, there was only two lanes in existence and no additional land was provided apart from what was existing.

384. The Tribunal finds force in the submission of the Claimant that Schedule 7.2 does not prescribe for conversion at any of the Toll Posts. Therefore the allegations of the Respondent in its Show Cause Notice dated 22/11/2010 alleging failure on the part to convert "Temporary Toll Posts" into" permanent Manual Toll Post Structure" are completely misplaced.

385. Importantly, when RW-1 was put a question during his cross examination as to who has prepared the comparative

OMP 715/2014 Page 9 chart and by referring to which records, the said witness simply stated that it was prepared by his office but he does not remember the official who prepared it. This was prepared after a joint inspection of the sites by the Claimant as well as the officials of the MCD.

386. Thereafter, RW-1 was asked to point out the precise nature of deficiency from a reading of the joint inspection. After, going through the inspection report for some time, the said witness ultimately stated that he is unable to point out the deficiencies from the joint inspection report. Thus, it can be seen RW-1 has evaded the most pertinent question, i.e. of pointing out the precise nature of alleged deficiency committed by the Claimant.

387. It has been pointed out by the Claimant that the alleged deficiency of "Establishment of Computerized Control Room at Toll Tax (HQ)" cannot be attributed in any way to the Claimant. As has already been recorded, the Respondent had failed to provide the existing locations in possession of the erstwhile contractor to the Claimant. Similarly, the Respondent failed to provide the land/space to develop the new toll plazas and also failed to obtain the consent of the landlord in respect of the rented locations. In the opinion of the Tribunal, the breaches if any, were on the part of the Respondent. The Tribunal finds credence in the plea of the Claimant that the computerized control room was set up but the same was not made operational as the Claimant had not been provided the land to set up all the computerized toll plazas and in the absence of being able to link up all computerized Toll plazas, the Control Room could not be made operational. It is seen from the record that the Respondent was aware of this fact but chose not to pay any heed to the complaints made by the Claimant from time to time in that regard. It is pertinent to note that this issue has been raised only belatedly, long after the expiry of the contract."

18. The Arbitrator has therefore, discussed the evidence led before him with respect to the three locations and found the Respondent to be not in

OMP 715/2014 Page 10 breach of its obligations under the agreement. This is a pure finding of fact and cannot be interfered with, while exercising jurisdiction under Section 34 of the Act. In Associate Builders v. DDA 2014 (13) Scale 226, it was reiterated that when a Court is applying "Public Policy" test to an Arbitration Award, it does not act as a Court of appeal and consequently errors of fact cannot be corrected; the Arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his Arbitral Award. Once it is found that the Arbitrator's finding is not arbitratory or capricious, then he is the last word of facts. A Court does not sit in appeal over the Award of a Arbitral Tribunal by re-assessing or re-appreciating the evidence. In the present case, no error can be found in the reasoning of the Sole Arbitrator while allowing the claim in favour of the Respondent and rejecting the counter claim of the Petitioner.

19. The next ground of challenge to the impugned award is to the grant of interest on the refund of cash security deposit awarded by the Sole Arbitrator. It is contended that in terms of Clause 6.4 (a) of the agreement, such cash security was not to carry any interest and therefore, the Arbitrator could not have awarded interest on the same in the Impugned Award.

20. The submissions of the learned senior counsel for the Petitioner cannot be accepted as the Arbitrator has not awarded interest on the refund of the security amount for the period of the contract but only after the expiry of the same. The agreement does not forbid grant of interest after the expiry of the contract, on the other hand, Clause 6.3 (d) states that the security amount shall be refunded within two months of the

OMP 715/2014 Page 11 expiry of the agreement. The agreement expired on 16 th May, 2011 and therefore, cash security should have been refunded by 16 th July, 2011, having been not refunded, the Arbitrator was within its power to award interest on the same with effect from 16th July, 2011 till the date of payment.

21. It is further contended by the learned senior counsel for the Petitioner that the Arbitrator erred in awarding interest even on the Bank Guarantee amount and that too from 16th July, 2011. Again relying upon Clause 6.4 (a) of the agreement, it is submitted that the Contract Performance Guarantee was not to carry any interest. It is further submitted that the Performance Guarantee as not having been encashed by the Petitioner, no interest could have been awarded in favour of the Respondent as it was not a case of refund of money wrongly withheld by the Petitioner. It is also contended that in terms of Clause 6.3 (b), the Contract Performance Guarantee was to remain in force for a period of six months immediately following the expiry date of the agreement, therefore, even otherwise, the interest could have been awarded only with effect from 16th November, 2011 and not from 16th July, 2011 as had been done under the Impugned Award. The Arbitrator while awarding interest on the Bank Guarantee has observed as under:

"398. The Tribunal is of the considered opinion that this a gross case where a Respondent, which is a public body raised false claims in order to cover its own breaches of contract and retained the Cash Deposit of Rs.47,00,00,000/- and the Contract Performance Guarantee of Rs.46,96,00,000/- even after the expiry of the agreement. The said conduct of the Respondent has caused severe losses and prejudice to the Claimant herein.

OMP 715/2014 Page 12

399. In view of the above, it cannot be denied that the Claimant has suffered substantial financial losses on account of the unreasonable withholding of the total amount of Rs.93,96,00,000/- from 16/5.2011.

400. The Claimant has made a threefold claim for damages/compensation on account of withholding of the cash security and performance bank guarantee, i.e. (1) interest at the rate of 24% per annum on the amount of Rs.93,96,00,000/-, viz. cash security of Rs. 47,00,00,000/- and contract performance guarantee of Rs.46,96,00,000/-; (2) bank charges incurred by the Claimant to keep the bank guarantee alive after the contract period; and (3) damages to the extent of Rs. 1,00,00,000/- per month from 16/05/2011 till the date of return of the aforesaid cash security deposit and contract performance guarantee.

401. In view of the findings hereinbefore, the Respondent is liable to forthwith return the cash deposits and the original Bank Guarantee furnished by the Claimant. In so far as the claim for damages/compensation is concerned, the Claimant has not adduced any justification for arriving at the claim of damages of Rs.1 crores per month. This is however, according to the Tribunal, a fit case to grant the interest at 15% per annum as damages on account of the wrongful withholding of the cash security deposit and the contract performance guarantee. The interest of 15% per annum shall be payable on the cash security deposit, with effect from 16.07.2011 till the date of payment. As regards the contract performance guarantee in the form of bank guarantee, the interest at the rate of 15% shall be payable from 16.07.2011 till the date of expiry of the bank guarantee, i.e. 12.02.2012 (the bank guarantee was renewed only upto 12.02.2012). In addition to this, the Respondent under the said circumstances is also liable to pay to the Claimant, the bank charges of Rs.44,71,286/- with interest at the rate of 15% per annum from 16.07.2011 till payment. The CW-2 has proved the payment of bank charges and a certificate of the Chartered Accountants in that regard is also placed at Annexure-CW-2/5."

OMP 715/2014 Page 13

22. In my opinion, the submission made by the learned senior counsel for the Petitioner would generally be correct that as the Bank Guarantee had been encashed by the Petitioner and the amount of Bank Guarantee was not in the hands of the Petitioner, therefore, the question of granting interest over such amount of Bank Guarantee could not arise especially when the Respondent has also been compensated in form of Bank Charges for keeping the Bank Guarantee alive. However, in the present case, this may still not be sufficient to interfere with the Award inasmuch as the interest on the Bank Guarantee has been awarded as damages on account of wrongful withholding of the same by the Petitioner. The Respondent had claimed that it had to suffer the blocking of its assets to the tune of Rs. 150 crores provided as collateral security to the Bank so as to sustain the said Bank Guarantee. The Arbitrator has found the Petitioner guilty of having raised false claims in order to cover its own breaches of contract and retaining the Performance Guarantee even after expiry of the agreement. The Arbitrator has further found that the Respondent had suffered substantial financial losses on account of such unreasonable withholding of the Performance Bank Guarantee. The interest has therefore been granted as damages rather than as compensation for withholding of any money. In my view, therefore, challenge to the Award of interest on the Contract Performance Guarantee cannot be accepted.

23. It is further submitted by the learned senior counsel for the Petitioner that, in any case, Award of interest @ 15% on the amounts of cash security deposited, Contract Performance Guarantee and Bank Charges is unreasonable. He further submits that as far as Award of

OMP 715/2014 Page 14 Damages on the default of non-removal of infrastructure by the erstwhile contractor and non-handing over of land/ space on the five locations is concerned, the Arbitrator has awarded interest @ 9% per annum and, therefore, there is no justification for awarding interest @ 15% on the above claims.

24. Section 31 (7) (a) of the Act empowers the Arbitral Tribunal to award interest at such rate as it deems reasonable, on the amount directed to be paid by one party to another under the Award. In the present case, as noted above, award of interest on the amount ordered to be refunded was in form of damages. A reading of the above would show that the Arbitrator applied his mind on the rate of interest to be awarded in favour of the Respondent. The certificate of the Chartered Accountant (CW-2/5) relied upon by the Arbitrator also certified that the Respondent had paid [email protected]% p.a. to banks and various other parties. It is also to be noted that till amendment of Section 31 (7)(b) of the Act by the Arbitration and Conciliation(Amendment) Act, 2015, interest @ 18% per annum was provided even in cases where the Award remained silent on the grant of interest. This clearly indicated that even 18% per annum was considered by the legislatue as a reasonable rate of interest. Of course, this has undergone a change by the amendment in the Act, however, in the present case, the pre-amendment Act would apply and it cannot be said that grant of interest @ 15% per annum was unreasonable.

25. The last ground of challenge to the Arbitral Award is to the Award of cost of Arbitration in favour of the Respondent. It is submitted that an amount of Rs. 32 Lakhs has been awarded as costs in favour of the Respondent and the same is totally unreasonable.

OMP 715/2014 Page 15

26. I am unable to agree with the above challenge. The Arbitrator has elaborately dealt with the question of costs in paragraph 405 of the Award, which is quoted herein below:

"Cost of the Arbitration

405. Both the Parties have claimed costs from the opposite side and have accordingly submitted their respective bills of expenses. This is a case where the Tribunal has been inclined to grant the claims of the Claimant partially. On the other hand, only a small amount of the counter claim has been granted. The counter claim raised by the Respondent is clearly false, imaginary and without any basis. The Claimant is put to severe losses and hardships on account of the highhanded and unreasonable conduct of the Respondent by withholding the cash security deposit and contract performance guarantee. Therefore, the Tribunal is inclined to direct the Respondent to pay 50% of the costs incurred by the Claimant and bear its own costs. The Claimant has claimed a sum of Rs.64,15,142/- (rounded off to Rs. 64 Lakhs) towards the cost of arbitral tribunal and legal expenses. Accordingly, the Tribunal directs the Respondent to pay a sum of Rs. 32 Lakhs to the Claimant by way of costs of the arbitration and legal expenses."

27. Section 31 (8) of the Act ( prior to its amendment) reads as follows:

"(8) Unless otherwise agreed by the parties,--

(a) the costs of an arbitration shall be fixed by the arbitral tribunal;

(b) the arbitral tribunal shall specify--

(i) the party entitled to costs,

(ii) the party who shall pay the costs,

(iii) the amount of costs or method of determining that amount, and

OMP 715/2014 Page 16

(iv) the manner in which the costs shall be paid.

Explanation.--For the purpose of clause (a), "costs" means reasonable costs relating to--

(i) the fees and expenses of the arbitrators and witnesses,

(ii) legal fees and expenses,

(iii) any administration fees of the institution supervising the arbitration, and

(iv) any other expenses incurred in connection with the arbitral proceedings and the arbitral award."

The cost of the Arbitration is therefore, to be fixed at the discretion of the Arbitrator keeping in mind the parameters that are mentioned in the Explanation to Section 31 (8) of the Act (prior to its amendment).

28. In the present case, the Arbitrator was alive to the cost that are being awarded in favour of the Respondent and against the Petitioner. He was also alive to the fact that the claims of the Respondent had been partially allowed and some of the Counter Claims of the Petitioner were also allowed. The Arbitrator thereafter exercised his discretion to award the costs of Rs. 32 Lakhs in favour of the Respondent. The said Award cannot be said to be against "Public Policy of India" or liable to be set aside.

29. In view of the above, I find no merit in the present petition and the same is accordingly dismissed with costs quantified at Rs. 50,000/-.

                                                        NAVIN CHAWLA, J

JANUARY 08, 2018
Nk




OMP 715/2014                                                             Page 17