Delhi High Court
Indraprastha Gas Limited vs M/S Pawan Castings on 1 June, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 01.06.2021
+ O.M.P. (COMM.) 99/2021 & IA No. 3614/2021
INDRAPRASTHA GAS LIMITED (IGL) ..... Petitioner
versus
M/S PAWAN CASTING ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Saurav Agarwal, Mr Shantanu
Agarwal, Mr Sharad Kumar, Mr Harshit
Malik, Ms Akansha Dixit, Mr Ananvay
Anandvardhan, Ms Devpriya Singh, Mr
Sai Abhishek, Mr Anshuman Chowdhury,
Advocates.
For the Respondent :
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. Indraprastha Gas Limited (hereinafter „IGL‟) has filed the
present petition under Section 34 of the Arbitration and Conciliation
Act, 1996 (hereinafter the „A&C Act‟) impugning an arbitral award
dated 10.12.2019 (hereinafter „the impugned award‟) delivered by the
Arbitral Tribunal constituted of Justice (Retd.) Dilip Raoshaeb
Deshmukh, former Judge of the Chhattisgarh High Court, as the Sole
Arbitrator.
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RAWAL
2. Pawan Castings (hereinafter „the respondent') is a proprietorship
concern of Mr. Deepak Dhuper. He is engaged in the business of
manufacturing of Aluminium Pressure Dye Castings under the said
name. IGL is a company incorporated under the Companies Act, 1956
and is the only supplier of natural gas in Delhi. IGL was the claimant
before the Arbitral Tribunal. The impugned award was rendered in
the context of disputes that have arisen between the parties in relation
to a Gas Sales Agreements (GSAs) dated 10.11.2009 and 1.11.2014.
Factual context
3. On 10.11.2009, the parties (IGL and the respondent, Pawan
Castings) entered into a Gas Sales Agreement (GSA) under the
category of Large Industrial Customer for the supply of Piped Natural
Gas (hereafter PNG). IGL agreed to supply 1,56,000 SCM of PNG
annually and 500 SCM daily under the aforesaid GSA.
4. Thereafter, on 01.11.2014, the respondent requested IGL to
change his category to Small Industrial Customer and executed a fresh
GSA (2014 GSA). In terms of the said 2014 GSA, the daily contract
quantity of PNG was reduced to 250 SCM per day.
5. On 04.12.2014, officials of IGL, conducted an inspection at the
premises of the respondent. IGL alleges that they found unauthorised
tapping of PNG and claims that the said officials took photographs
and also a video recording of the unauthorised tapping. Thereafter, on
05.12.2014, IGL filed a complaint and pursuant thereto an FIR bearing
no. 1425 of 2014 under Sections 336/379 of the Indian Penal Code,
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1860 was registered against the respondent. The said FIR recorded
that an unauthorised CS/MS pipeline had been laid with the covering
of PVC pipe in the factory of the respondent. The said pipeline was
connected to the first floor of the factory premises and an unauthorised
regulator was installed inside a shelf of a desk. Further, the same
pipeline was connected to a downstream pipeline bypassing the meter
of IGL. Thus, the respondent had sourced PNG from an unauthorised
tapping point.
6. By a notice dated 11.12.2014, IGL terminated the 2014 GSA in
terms of Article 25(ii) of the said GSA. It alleged that during the
inspection conducted on 04.12.2014, an unauthorised connection in
IGL‟s 32mm MDPE pipeline with continuous high pressure natural
gas of 4 bar was found. According to IGL, this amounted to theft of
IGL‟s gas.
7. On 20.12.2014, the respondent responded to the aforesaid letter
and denied the allegation that he had tapped IGL‟s gas pipeline. He
stated that PNG was consumed in terms of the GSA and he had not
defaulted in making payment of bills. The respondent further
requested IGL to resume the supply of PNG with immediate effect as
the production was suffering for want of gas supply. He further put
IGL to notice that he would claim compensation for any loss caused
due to suspension of the supply of gas.
8. On 05.02.2015, IGL sent a notice informing the respondent that
the total unauthorised overdrawal quantity of natural gas for the period
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of April, 2010 till November, 2014 was 347 SQM and raised a
provisional demand of ₹1,52,51,669. The said amount was to be paid
within three working days with effect from 09.02.2016.
9. Thereafter, on 14.02.2015, in view of non-payment of the
aforesaid amount, IGL invoked the Bank Guarantee of ₹6,04,050
issued by Canara Bank. On 20.02.2015, the Canara Bank made the
payment against the said Bank Guarantee.
10. In view of the disputes between the parties, by a letter dated
12.03.2015, IGL invoked the Arbitration Clauses (Article 15.3 of the
GSA dated 10.11.2009 and Article 23(iii) of the GSA dated
01.11.2014) and nominated Mr. P.K. Pandey, Vice President (CNG
O&M) of IGL as the Sole Arbitrator.
11. On 15.04.2015, the respondent filed an application under
Section 13 of the A&C Act challenging the appointment of the Sole
Arbitrator. The learned Arbitrator dismissed the aforesaid application
on 11.08.2015.
12. On 11.05.2015, IGL filed a petition under Section 9 of the A&C
Act (being O.M.P. (I) 217 of 2015), inter alia, praying for the
appointment of a Court Commissioner to visit the factory premises to
collect the relevant information. This Court allowed the aforesaid
prayer and by an order dated 15.05.2015, appointed Mr. S.K. Sharma,
a former Registrar of this Court, as the Court Commissioner to visit
the factory premises of the respondent and collect the relevant
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information. The operative part of the said order indicating the scope
of the work to be performed by the Commissioner is set out below :
"9. In light of the above submissions, the Court considers it
appropriate to issue the following directions:
(i) The Court appoints Mr. S.K. Shatma, a former Registrar
of this Court, residing at WZ-321, Sri Nagar, Shakur Basti,
Delhi-110034 (Mob.No. 9818103888) as Court
Commissioner. The CC will inform the parties at least one
day in advance of his proposed visit to the sites.
ii) The CC will inspect the factory premises of the four
Respondents to ascertain the gas pipes running from the point
where the meter of the Petitioner was installed; take
photographs of the pipeline and the equipments to which the
pipelines may have been or are now connected
(iii) Prepare an inventory of all the equipments installed in
the premises including the furnace and take photographs
thereof. The details of the equipments including dimensions,
capacity etc. and any relevant documents in relation to such
equipments will be furnished to the CC by the concerned
Respondent.
(iv) Each of the Respondents will make available to the CC
documents pertaining to production of the final product,
payment of excise duty, vouchers reflecting sales of the final
product and registers showing the stocks on hand. The above
figures shall be produced for the billing period as may be
specified by the representatives of the Petitioner who will be
present at the site. It is clarified that whatever records are
unable to be produced by the concerned Respondent, the CC
will make note to that effect. The CC in his report shall make
note of whatever is pointed out by the Respondents at the
site.
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(v) The memo of the proceedings drawn up by the CC shall
be got signed by the representatives of the Petitioner and the
Respondents
(vi) One copy of the CC's report of his visit enclosing the
proceedings, documents, photographs etc., shall be filed in
the Court in these proceedings within two weeks of the
completion of the visits and another copy thereof shall be
filed by the Petitioner before the learned Arbitrator. Copies of
the CC's report be made available to all the parties.
(vii) The fee of CC is fixed at Rs.2 lakhs which should be
paid by the Petitioner to him in two instalments. 50% of fee
be paid within one week from today and the balance within a
week of the submission of the report. This is apart from all
incidental expenses towards travel, secretarial assistance,
photography, etc. which shall be paid by the Petitioner as per
acutals.
(vii) The CC should complete the above exercise preferably
on or before 10th June 2015.
13. On 30.05.2015, the Court Commissioner inspected the factory
premises of the respondent. During the course of the inspection, he
recorded the contentions advanced by Mr. Deepak Dhuper (sole
proprietor of the respondent). The respondent stated that one furnace
and two dye casting machines were shifted to Bawana in first week of
May, 2015. He claimed that after disconnection of the gas supply from
IGL, he was using Diesel/Low Density Oil for melting aluminium in
the existing furnace. Mr. Dhuper could not produce any documents
regarding capacity of the equipment or the excise records. He stated
that the records were not available as the unit (Pawan Castings) was
not registered with the Excise Authorities because its sales were
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exempted. A list of documents required to be submitted by Mr.
Deepak Dhuper was handed over to him and the proceedings were
adjourned to 03.06.2015.
14. On 03.06.2015, Mr. Deepak Dhuper handed over a note
regarding the process of aluminium pressure die casting and the
invoices of Kamal Gas Service and Bharat Gas Service to the Court
Commissioner along with his covering letter. The said covering letter
recorded that "As the (LPG Commercia) Gas was the fuel we were
using just prior to PNG (IGL). At the time in December '14 the
pipeline of this medium were installed in the premises which may have
been confused as that of PNG kindly note". The Court Commissioner
also recorded the statement of the counsel for IGL to the effect that no
such pipeline as mentioned in the aforesaid letter existed at the time of
installation of the PNG connection on 04.12.2014. Mr. Deepak
Dhuper had provided copies of the documents as per the list and the
Court Commissioner also noted the same.
15. The aforesaid report by the Court Commissioner was filed
before this Court on 29.06.2015.
16. On 05.09.2015, IGL filed its Statement of Claims and the
respondent filed its Statement of Defence and Counter Claims on
04.11.2015. In view of the rival stands, the Arbitral Tribunal revised
the issues framed on 23.02.2016 and framed the following issues, on
08.04.2016:-
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"1. Whether the invocation of the present Arbitration
by the Claimant is valid as per the provisions of the
Arbitration and Conciliation Act, 1996?
2. Whether the Claimant is entitled to claim any
amount in respect to the Gas Supply Agreement dated
10.11.2009 in these proceedings in view of the
objection taken by the Respondent in the Preliminary
Objection-III of its Statement of Defence?
3. Whether there was any unauthorized and illegal
consumption of gas by the Respondent as on
04.12.2014 as contended by the Claimant?
4. Whether the Claimant is entitled to recover a sum of
Rs.1,46,47 ,619 I - from the Respondent towards
unauthorized and illegal consumption of gas as
claimed in the Statement of Claim?
5. Whether either of the Party is entitled to interest @
18% on the amount claimed?
6. Whether the Claimant was justified in enchasing the
Bank Guarantee of the Respondent worth Rs.6,04,050
7. Whether Respondent is entitled to recover the
amount from the Claimant as claimed in his Counter
Claim?"
17. Thereafter, the learned Arbitrator resigned and on 19.12.2016,
IGL appointed Justice (Retd.) Dilip Raosaheb Deshmuk, former judge
of Chhattisgarh High Court as the Sole Arbitrator to adjudicate the
disputes.
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18. On 20.12.2016, the respondent filed a petition under Section 11
of the A&C Act (ARB. P. 815/2016) seeking appointment of an
Arbitrator to adjudicate the disputes as the arbitrator appointed earlier,
Mr. PK Pandey, had resigned. This Court by an order dated
22.12.2016 confirmed the appointment of Justice (Retd.) Dilip
Raosaheb Deshmukh, as the Sole Arbitrator to adjudicate the disputes
and further directed that the arbitration be conducted under the aegis
of the Delhi International Arbitration Centre (DIAC).
19. On 10.12.2019, the Arbitral Tribunal made the impugned award
rejecting IGL‟s claims. It found that IGL had failed to prove
tampering of the pipeline or the unauthorised consumption of PNG,
inside the respondent‟s factory. The Arbitral Tribunal also held that
the encashment of the Bank Guarantee submitted by the respondent,
was illegal. The Tribunal did not accept his prayer for refund of the
amount received by IGL on invocation of the Bank Guarantee because
he had not paid any fee for the said claim. However, the Arbitral
Tribunal held that IGL was liable to bear the entire cost of the
arbitration.
20. Aggrieved by the impugned award, IGL has filed the present
petition.
Submissions
21. Mr. Saurav Agarwal, learned counsel appearing for IGL,
submitted that the finding of the Arbitral Tribunal that IGL had failed
to establish that there was any tampering of IGL‟s facilities in the
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premises of the respondent is patently erroneous. He submitted that
the said finding is perverse and based on assumptions, which are
contrary to record. He drew the attention of this Court to the finding of
the Arbitral Tribunal that "there is no photograph or video on record
to show that an illegal tapping point existed before the MRS" and
contended that the said finding is patently erroneous as the
photographs placed on record clearly show an illegal tapping point.
He referred to the photograph exhibited as CW-1/17 and submitted
that the said photograph clearly evidenced that IGL‟s pipeline for
supply of gas had been tapped before the Metering and Regulation
Station (MRS).
22. Next, he submitted that the entire approach of the Arbitral
Tribunal in rejecting the evidence led by IGL is perverse and indicated
a pre-existent disposition to reject the evidence. He further pointed
out that the Arbitral Tribunal had rejected the electronic evidence on
the ground that an affidavit under Section 65B of the Indian Evidence
Act, 1872 had not been filed. He stated that no such objection had
been taken at the material time.
Reasons and conclusion
23. I have heard Mr. Agarwal, learned counsel appearing for IGL at
some length.
24. IGL‟s claim for a sum of ₹1,46,47,619/- is premised on the
assumption that the respondent had consumed 3,17,822.09 SCM of
PNG without the said supply being recorded by the Metering and
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Regulation Station (MRS). The said consumption was calculated on
the basis of the respondent‟s maximum monthly consumption during
the period of supply. In August 2010, the respondent had consumed
16,686 SCM of PNG, which the maximum consumption in any moth
and IGL quantified its claim on the assumption that the respondent
was consuming at least the said quantum of PNG every month.
According to IGL, the difference between the said consumption and
that recorded by the MRS and invoiced by IGL, would be the bare
minimum consumption that had escaped being metered. And, the
respondent was liable to pay for the same. The said claim was
premised on the basis that IGL‟s facilities (supply pipelines) before
MRS had been tapped by the respondent and bulk of the PNG for its
consumption had been drawn from the illegal tapping point. IGL
claimed that only a small fraction of PNG supply was drawn from
beyond the metering system and therefore, only that part of the
consumption was recorded and invoiced by IGL to the respondent.
25. As is apparent from the above, IGL was required to, essentially,
prove that the respondent had in fact tapped IGL‟s pipeline before the
MRS and had drawn the gas from the said pipeline for his
consumption.
26. The respondent had contested the aforesaid claim on two fronts.
First of all, it disputed that the inspection carried out at the factory
premises had resulted in discovery of any illegal or unauthorized
tapping point. The respondent claimed that PNG supplied by IGL had
not been consumed unauthorizedly or without the same being recorded
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at the MRS. The respondent also contested IGL‟s assumption that the
reduction in the metered PNG consumption was a result of the
respondent tapping the said supply before the metering point. The
respondent claimed that he was also using oil for its production and
relied upon the Court Commissioner‟s report, which confirmed the
existence of overhead oil tanks for storing oil for use as fuel to carry
on the manufacturing process. It was also submitted that in terms of
the GSAs, the respondent had agreed to not depend on a single fuel.
The respondent had also produced certain bills showing purchases of
oil.
27. The Arbitral Tribunal considered the rival contentions and had
held that the onus of proving the following facts rested on IGL:
(i) that an inspection at the factory premises of the respondent
was conducted by an authorized officer of IGL;
(ii) that the respondent had laid an unauthorized CS/MS pipeline
with a covering of PVC pipe in its factory and had sourced
PNG from the unauthorized tapping point before the MRS;
and
(iii) that an unauthorized regulator had been installed inside a
shelf of the desk located at the first floor of the factory
premises, to regulate the flow of PNG.
28. The Arbitral Tribunal examined the evidence and concluded
that IGL had failed to prove the above. The reasons for the same as
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RAWAL
articulated by the Arbitral Tribunal in the impugned award are set out
below:
"(iv) The inspection report dated 06.07.2015 by
Mr. S.K. Sharma Local Commissioner appointed by the
High Court and the photographs taken are of no avail to
the Claimant and prove nothing as none of the
incriminating material alleged to have been found at the
Respondent‟s premises is seen in the photographs. Such
incriminating material was not even found by the police
on 05.12.2014 as admitted by Mr. Dileep Kumar (CW-
1).
(v) The Claimant has led the evidence of Mr.
Dileep Kumar (CW- 1) and Mr. Narendra Nath Pandey
(CW-2) officials of the Claimant to prove the above
allegations and has also filed the photographs and video
stated to have been taken inside the factory of the
Respondent. There were two affidavits in evidence of the
witness Mr. Dileep Kumar (CW-1). The first one was
dated 13.04.2016 while the second was dated
24.05.2016. While the first affidavit does not even
whisper that Mr. Dileep Kumar (CW-1) an official of the
Claimant had inspected the premises of the Respondent
on 04.12.2014 the second affidavit is also totally silent
about the name of any other official of the Claimant who
was present in the factory premises of the Respondent
during such inspection. It was for the first time in the
Rejoinder by the Claimant that it was stated that one Mr.
Dilip and Mr. Pranav Uppal officials of the Claimant had
inspected the factory premises of the Respondent on
04.12.2014. Mr. Pranav Uppal was not examined by the
Claimant. Presence of Mr. Narendra Nath Pandey at the
inspection is not mentioned therein. During cross-
examination Mr. Narendra Nath Pandey (CW-2) in
answer to Q.No.30 stated that besides Mr. Dileep Kumar
Mr. Shashank had carried the initial inspection on
04.12.2014 in the premises of the Respondent. He
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further stated that Mr. Somil Garg, Mr. Rakesh Agarwal
and Mr. Sushil Kumar also joined the inspection on
being informed by Mr. Dileep Kumar. Thus firstly, none
of the witnesses corroborate the presence of Mr. Pranav
Uppal during the inspection. The names of Mr.
Shashank, Mr. Somil Garg, Mr. Rakesh Agarwal and
Mr. Sushil Kumar are also absent in the Rejoinder by the
Claimant. None of these witnesses have been examined
by the Claimant. So far as Para 10 of the affidavit in
evidence of Mr. Narendra Nath Pandey is concerned, it
does not even whisper about his presence at the factory
premises of the Respondent during such inspection on
04.12.2014. Even during cross-examination he admitted
that he did not accompany Mr. Dileep Kumar to the
Respondent‟s factory premises but reached there only
after Mr. Dileep Kumar called him. At what stage of the
inspection was he called is not known. His testimony
being evasive to material questions does not in any
manner prove either his presence during inspection or
any of the essential elements of alleged tampering by the
Respondent.
(vi) Mr. Dileep Kumar (CW-1) has testified about
some of the photographs C 1/8, 10, 12, 13 and 17 as
proof of tampering done by the Respondent in its
premises to facilitate flow of PNG from the illegal
tapping point done by the Respondent before the
metering unit provided by the Claimant in the factory
premises. However, there is no photograph or video on
record to show that an illegal tapping point existed
before the MRS. There is no photograph which shows
the location or the existence of the MRS.
(vii) As regards the photographs and videos on
record while the first affidavit of Mr. Dileep Kumar is
silent, the second affidavit states as under in Para 23:
"23. All the videos had been prepared and
photographs using the mobile phone of
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different employees of IGL who were
present at the site at the time when the
above stated incident was taking place.
These videos and photos were then copied
and stored on their computers by the
respective employees, which computer was
working properly and was used regularly to
store or process information for the
purposes of activities regularly carried on
by the concerned employee and the
photographs and the videos stored in the
CD are reproduced from what was stored in
the said computers."
(viii) No such inference can be drawn from the
above evidence that any photographs or videos were
taken by Mr. Dileep Kumar (CW-1). In answer to
Q.No.80 he admits his inability to identify which of the
photographs on record were taken by which of the
officials. One CD on record was displayed before the
tribunal. The witness stated that he was seen taking
videos in the CD. It naturally follows from it that the CD
on record was not made by Mr. Dileep Kumar but by
some unidentified person. The evidence of Mr. Dileep
Kumar is completely discredited by his admission in
answer to Q.No.81 that his statement regarding taking
photographs and videos during inspection at the
Respondent‟s factory is incorrect while what was stated
in Para 23 of his additional affidavit (quoted above) is
correct. This leads to the inescapable conclusion that the
photographs and videos on record cannot be read in
evidence for three reasons, firstly because their author
has not been examined, their source is not known and
lastly because of total non-compliance of Section 65-B
of the Evidence Act. In Anvar P. V. vs. P.K. Basheer and
Ors. (2014) 10 SCC 473 it was held that an electronic
record by way of photograph, CD etc. shall not be
admitted in evidence unless the requirements under
section 65-B of the Evidence Act are satisfied. In the
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absence of a certificate in terms of Sec. 65-B of the
Evidence Act by the author of such electronic record
such secondary evidence of photographs and CDs is
wholly inadmissible.
(ix) What shocks the conscience is that Mr. Dileep
Kumar (CW-1) admits that no panchnama or inspection
report was prepared during or after the inspection at the
factory of the Respondent. He mentions the presence of
some labourers of the Respondent during the inspection
and asserts that if called they may confirm the facts.
However, no such labourer has been examined. He
admits that on 04.12.2014 he had first inspected a
factory „Mangla Handles‟ adjacent to the Respondent‟s
factory but stated that he does not remember if he had
prepared any inspection report there or not. On being
directed the witness was unable to produce such
inspection report. The testimony of Mr. Dileep Kumar in
cross-examination is so evasive that it fails to inspire
confidence. In answer to Q.No.18 he stated that he did
not prepare any inspection report on 04.12.2014 but had
informed his boss Mr. Somil Garg, the then Chief
Manager and requested him to come to the premises. Mr.
Somil Garg has not been examined. He volunteered that
he had only given an oral information to his high
officials and did not remember if any inspection report
was made. According to him (Q.No.25) Mr. Pawan
Dhuper, brother of Mr. Deepak Dhuper was present
during inspection. It was therefore incumbent that an
inspection report or panchnama was prepared at the
factory premises of the respondent and got duly signed
by Mr. Pawan Dhuper or any of the labourers present.
His testimony is replete with evasive replies.
(x) Mr. Dileep Kumar had lodged FIR on
05.12.2014 at PS Samaypur Badli regarding the incident.
The said FIR shows that four number of photographs
during the cause of action, copy of disconnection notice
dated 05.12.2014 and CD containing the video of
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excavation of unauthorized tapping with softcopy of
photographs were also handed over. None of the above
material and primary evidence has been requisition
before this tribunal.
(xi) Mr. Dileep Kumar admits in answer to a
tribunal question that he visited the police station in the
night of 04.12.2014 at around 01.00 a.m. i.e. on
05.12.2014. In Rejoinder it is admitted by the Claimant
that the possession of the Respondent‟s factory was with
the police from 05.12.2014 onwards till 07.12.2014.
Therefore, if the police officials had visited the factory
premises on 05.12.2014 after the FIR being lodged and
had taken possession thereof, such police officials were
material witnesses who ought to have been examined.
What is equally shocking is that no incriminating article
evidencing any tampering by the Respondent with the
seller‟s facilities was found in the factory premises when
Mr. Dileep Kumar returned to the factory with the police
after lodging FIR. In answer to Q.No.31, the witness
stated that "When we visited the premises with the
police after lodging the FIR in the next morning i.e.
05.12.2014 such regulator was not found at the premises
as it was removed by the customer." This in my opinion
is completely fallacious. One photograph CWl/17 shows
a yellow pipeline with a „T‟ junction which according to
the witness is the unauthorized tapping point. However,
in answer to Q.No.46 & 48 he admitted that no such
unauthorized point was removed during or after the
inspection. If the officials of the Claimant were working
at the factory premises of the Respondent late beyond
midnight on 04.12.2014, had lodged a prompt FIR on the
morning of 05.12.2014 and the police had sealed the
premises on the same day (Q.No.50) it is impossible that
incriminating material like „T‟ junction, tapping point,
regulator etc. would not be found when the police
reached the spot with Mr. Dileep Kumar. In answer to
Q.No.62 the witness stated that he had not removed any
such incriminating material from the Respondent‟s
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premises before reporting to the police on 05.12.2014
and in answer to Q.No.64 he stated that the „T‟ junction
and some pipeline as well as the regulator was also
missing from the site at the time of the visit by the
Police. No panchnama or inspection report was prepared
during inspection. An oral report only was made to the
high officials in Dec. 2014. No record was maintained
regarding the inspection. No acknowledgement was
obtained from the representative of the Respondent or
labourers alleged to be present during inspection. In
reply to Q.No.69 the witness admits that no independent
witness was either present or called during his
inspection. His first affidavit dated 13.04.2016 is wholly
silent if Mr. Dileep Kumar conducted the inspection.
Therefore, it is difficult to fathom that the additional
affidavit dated 24.05.2016 was prepared by Mr. Dileep
Kumar from his memory or by simply seeing the
photographs or video. Even the map Ex.CW-1/7 is
totally unsupported by any evidence. There is nothing in
the photographs on record to rule out that these were not
taken during inspection of other factory premises as none
of the photos show the name of Pawan Casting or the
presence of Mr. Deepak Dhuper who was absent during
such inspection. Several premises were inspected and
several photos and videos were taken by different
officials whose identity is not known. This completely
demolishes the testimony of Mr. Dileep Kumar (CW-1).
(xii) An application dated 24.04.2018 was filed by
the Respondent stating that the averments made by Mr.
Dileep Kumar in the affidavit dated 23.05.2016 were
beyond the pleadings and therefore paragraphs 6 to 19 of
the said affidavit should not be read in evidence. Mr.
Dileep Kumar was specifically asked in cross
examination why he did not mention the facts contained
in his additional affidavit in his first affidavit to which he
replied that "Since I did not think that the above
mentioned facts, photographs and videos could be
material they did not form part of my first affidavit." In
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view of the most evasive manner in which the witness
testified before this tribunal, the fact that no
incriminating article evidencing tampering of gas supply
by the Respondent were found in the premises on the
early morning of 05.12.2014 and for the reasons
aforesaid no reliance can be placed on what is stated in
para 6 to 19 of the additional affidavit of Mr. Dileep
Kumar as he has not only been completely discredited in
cross-examination but also his testimony has elements of
admitted falsehood."
29. It is evident from the above that the finding of the Arbitral
Tribunal that IGL had failed to prove that there was any unauthorized
tapping from the PNG pipeline before the MRS and, that PNG had
been sourced from the said tapping point, is based on evaluation of
evidence that was led before the Arbitral Tribunal. The fact that IGL
had not filed any affidavit in terms of Section 65B of the Indian
Evidence Act, 1872 is not the only ground on which the evidence
(photographs and video) produced by IGL‟s witness, CW-1, was
rejected. It was also noticed that the person who had made the video
recording had not been examined. CW-1 could not have been the
person who had recorded the video as apparently, he is visible in that
video recording. The Arbitral Tribunal thus, found that the source of
the video recording and the photographs produced was not known
because the person who had made the video recording or captured the
photograph had not been examined.
30. The contention that the finding of the Arbitral Tribunal that the
photographs and the video on record do not show that there was any
illegal tapping point before the MRS must be read in its context. CW
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by:DUSHYANT
RAWAL
1/17 is a photograph that shows a dug-out pit with an exposed pipeline
below the surface. It also shows that another pipe has been joined to
that pipe. However, that photograph does not show any metering
system. Mr. Agarwal submitted that photograph CW-1/8 shows the
metering system (MRS). That may be correct but it is apparent that
there is no photograph that shows both the tapping point and the MRS,
which would clearly show that the tapping point was before the MRS.
It was possible for the Arbitral Tribunal to examine both the
photographs (CW 1/17 and CW 1/8) and other photographs to evaluate
whether the alleged tapping point shown in the photograph (CW 1/17)
was before the MRS. However, as a matter of fact, there is no
photograph, which shows the illegal tapping point before the MRS
since there is no single photograph that shows both, the tapping point
as well as the MRS. In order to make the photographs meaningful,
IGL would have to establish the location of the alleged tapping point
and the MRS. The matter clearly is one of appreciation of evidence. It
cannot be stated that the statement that there is no such photograph,
which shows tapping before the MRS, is incorrect.
31. It is also evident from the above that the entire controversy
sought to be raised before this Court revolves on the question whether
the Arbitral Tribunal had correctly appreciated the evidence.
Essentially, IGL seeks that this Court once again re-evaluate the
evidence and examine the merits of the dispute. Clearly, this is
beyond the scope of examination under Section 34 of the A&C Act.
Perhaps, on evaluation and reappreciation of evidence, this Court may
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RAWAL
have not concurred with the decision of the Arbitral Tribunal.
However, it is well settled and, has been reiterated by the Supreme
Court in several decisions that the examination under Section 34 of the
A&C Act does not entail re-evaluation of the evidence as a first
appellate court and this Court cannot supplant its opinion in place of
that of the Arbitral Tribunal. (See P.R. Shah, Share & Stock Brokers
(P) Ltd. v. B.H.H. Securities (P) Ltd: (2012) 1 SCC 594).
32. In Associated Builders v. Delhi Development Authority: (2015)
3 SCC 49, the Supreme court had observed that "Once it is found that
the arbitrators approach is not arbitrary or capricious, then he is the
last word on facts"
33. In the present case, none of the grounds as set out in Section
34(2) or 34(2A) of the A&C Act are established and therefore, the
impugned awards cannot be set aside.
34. The petition is accordingly, dismissed. The pending application
is also disposed of.
VIBHU BAKHRU, J
JUNE 1, 2021
RK
Signature Not Verified
by:DUSHYANT
RAWAL
