The Commandant vs M/S. Polytan Sportsattenbau ...
2022 Latest Caselaw 2018 Kant

                          -1-        MFA NO. 8227 OF 2019


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                       PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                         AND

     THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

             MFA NO.8227 OF 2019 (AA)

BETWEEN:

1. THE COMMANDANT
   MADRAS ENGINEER GROUP &
   CENTRE
   SHIVAN CHETTY GARDEN POST
   BENGALURU-560042

2. UNION OF INDIA
   REPRESENTED BY SECRETARY
   MINISTRY OF DEFENCE
   RAKSHA BHAVAN
   NEW DELHI-110001
                                             ...APPELLANTS
(BY SRI. KUMAR.M.N, ADVOCATE)

AND:

1.   M/S POLYTAN SPORTSATTENBAU GUMBH
     INDERJIT MEHTA CONSTRUCTIONS PVT. LTD
     NO.44-C/9, IST FLOOR, KISHANGARH
     P.O VASANTKUNJ, NEW DELHI-110070

2.   SRI. SUDESH KUMAR GUPTA
     CHIEF ENGINEER (QS & C)
     SOLE ARBITRATOR
     STANDING PANEL OF ARBITRATORS
     PUNE CWE PUNE COMPLEX
     GENERAL CARIAPPA MARG
     PUNE-411001
                                           ... RESPONDENTS
(BY SRI. GANESH BHAT.Y.H, ADVOCATE FOR C/R1;
  V/O DATED 18.12.2019, NOTICE TO R2 IS DISPENSED WITH)
                                -2-           MFA NO. 8227 OF 2019




     THIS MFA IS FILED UNDER SECTION 37(1)(C) OF
ARBITRATION AND CONCILIATION ACT, 1996 AGAINST THE
JUDGMENT AND DECREE DATED 03.07.2019 PASSED IN A.S NO.
93/2013 ON THE FILE OF THE VI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-11), DISMISSING THE
SUIT FILED UNDER SECTION 34 OF ARBITRATION AND
CONCILIATION ACT AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION THROUGH
PHYSICAL HEARING THIS DAY, SURAJ GOVINDARAJ J MADE
THE FOLLOWING:


                          JUDGMENT

1. The appellant is before this Court seeking for the following reliefs:

a. Call for records in A.S.No.93/2013 on the file of the Hon'ble VI Additional City Civil & Sessions Judge (CCH-

11) at Bengaluru;

b. Set aside the judgment and decree dated 03/07/2019 passed by the Hon'ble VI Additional City Civil & Sessions Judge (CCH-11) at Bengaluru in A.S. No.93/2013;

c. Set aside the arbitral award dated 01/08/2013 published by the sole Arbitral Tribunal consisting of Mr.Sudesh Kumar Gupta i.e. Respondent No.2;

d. Allow the counter claims of the appellants;

e. Allow the appeal;

f. Award the costs throughout.

2. Appellant No.1 is the respondent and respondent

No.1 is the claimant in the arbitral proceedings. The

parties are referred to by their ranking before the

Arbitrator.

3. A.S. No.93/2013 had been filed under Section 34 of

the Arbitration and Conciliation Act, 1996 ('A&C Act'

-3- MFA NO. 8227 OF 2019

for short) challenging arbitral award passed by the

sole Arbitrator.

4. The arbitral proceedings were initiated on account of

the dispute which arose out of a contract entered into

between the Claimant and the Respondent. The

arbitrator having been appointed by the Respondent.

5. Respondent No.1 was the claimant in the said

proceedings, the contract entered into between the

parties is relating to providing and laying of Global

Category (unfilled) Synthetic Hockey Surface,

approved by FIH, including construction of sub-case,

peripheral and sub soil drainage system, providing,

paying, testing and commissioning of sprinkler

system, Bore well, alternate watering system and

providing fencing with plastic coated chain link, gates,

goal posts and lighting at corners at MEG and Centre

Bangalore, Karnataka. Contractual amount stated to

be USD 3,52,000 plus Rs.1,57,34,400.00.

6. There is no particular dispute as regards the

execution of the works or performance of obligation of

any of the parties relating to the works. The only

-4- MFA NO. 8227 OF 2019

dispute is as regards the exchange rate of USD

amount agreed upon between the parties to be paid

for the work to be carried out.

7. Appellant No.1 was the respondent before the

Arbitrator had contended that the dollar exchange

rate had been fixed at Rs.39.675 per dollar as on

29.09.2007 and as such, payments were made as

regards USD 3,52,000 at that rate, and there being

excess amount paid, on reconciliation of accounts, it

was found that there is additional amount lying with

claimant and therefore, it was contended that no

amount was due by the respondent.

8. It is also required to be observed that appellant No.2-

Union of India is not a party to the proceedings

before the learned Arbitrator, however, was made a

party before the Section 34 Court and before this

Court. In our considered opinion, appellant No.2 is

not a necessary party. Respondent No.2 to the

appeal is the learned Arbitrator and is only a formal

party to the proceedings.

-5- MFA NO. 8227 OF 2019

9. The claimant had contended that though amounts

were paid by the respondent to the claimant from

time to time, the entire amounts had not been paid

and therefore, claim petition was filed seeking for

recovery of the balance amounts. The claimant

contended that insofar as the amount of USD

3,52,000, is concerned, payment was released in

three stages, initially for a sum of USD 1,40,800 on

15.11.2008, USD 88,000 on 20.11.2009 and USD

1,23,200 on 20.09.2010, totalling to USD 3,52,000.

10. The claimant contended the said amount of Rs.39.675

per Dollar as sought to be relied upon is completely

misconstrued. The respondent itself has not given

any credence to the said amount, but has made

payment of the actual value of USD as on the date of

payment taking into account the fluctuation in the

dollar rate.

11. It is contended that the sum of USD 1,40,800 paid on

11.012.2008 was so paid calculating the USD value at

Rs.48.715, in pursuance of which Rs.68,59,072/- was

paid, sum of USD 88000 was paid on 23.11.2009 at

-6- MFA NO. 8227 OF 2019

the rate of Rs.46.575 amounting to Rs.40,98,600/-

and USD 1,23,200 was paid on 20.09.2010 at the

rate of Rs.45.87 amounting to Rs.56,51,184/-,

totalling to Rs.1,66,08,856/-.

12. Having paid the said amounts, it was contended that

the respondent could not have thereafter contended

that the value of USD was pegged at Rs.39.675 and

claim that there was an excess payment of

Rs.26,43,256/- which had been made, in fact the

balance required to be returned by the respondent

amounting to Rs.24,93,355/-.

13. The learned Arbitrator after going through all the

records and appreciating the evidence on record came

to a conclusion that there is no such agreement

arrived at pegging the value of USD at Rs.39.675.

The respondent had made payment as per the

fluctuating exchange rate. The respondent had also

amended the 'Letter of Credit' which had been initially

issued taking into consideration the prevalent

exchange rate which would establish that the

contention of the respondent was false and as such,

-7- MFA NO. 8227 OF 2019

the learned Arbitrator allowed the claim while

dismissing the counter claim.

14. The learned Arbitrator awarded the claim amount of

Rs.24,93,355/- with interest at 12% prior to entering

of reference, pendente lite interest at the rate of 12%

and future interest at the rare of 12% till receipt of

the amounts. The counter claim being dismissed no

costs were awarded either to the appellants or the

respondents.

15. This award having been challenged before the VI

Addl. City Civil and Sessions Judge and under Section

34 Court of the A&C Act, the said Court vide its

Judgment dated 3.07.2019 in A.S.No.93/2013

dismissed the challenge made by the respondent

holding that the respondent was aware of the

fluctuating rate of dollar in the international market

and made payments of the said amount in rupees as

per the prevailing market rate of the dollar and

thereafter the respondent could not seek to contend

that there was excess payment made which aspect

has been considered by the learned Arbitrator. The

only ground which had been raised as regards the

-8- MFA NO. 8227 OF 2019

alleged agreement not being sustainable, the learned

Arbitrator having appreciated the evidence on record,

the Section 34 Court held that no grounds were made

out for interference. It is challenging this Judgment

of the Section 34 Court, that the respondent is before

this Court.

16. Sri.M.N.Kumar, learned counsel appearing for

respondent would once again submit that there was

an agreement between the parties agreeing to make

payment of monies per USD 39.675. This being part

of contract arrived at between the parties, the

Arbitrator acted contrary to the agreement and

therefore, the award which has been rendered

contrary to the contractual terms is amenable to

challenge under Section 34 of the A&C Act. Section

34 Court has not considered these aspects in a proper

and just manner and he therefore submits that the

award is required to be set-aside. He relies upon the

decisions of the Apex Court in:

a) ASSOCIATE BUILDERS -V- DELHI DEVELOPMENT AUTHORITY [(2015) 3 SCC 49] paragraphs 33, 36, 39 and 42 which are reproduced hereunder for easy reference;

-9- MFA NO. 8227 OF 2019

33. It must clearly be understood that when a court is applying the "public policy" test to an arbitration award, it does not act as a court of appeal and consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score [ Very often an arbitrator is a lay person not necessarily trained in law. Lord Mansfield, a famous English Judge, once advised a high military officer in Jamaica who needed to act as a Judge as follows: "General, you have a sound head, and a good heart; take courage and you will do very well, in your occupation, in a court of equity. My advice is, to make your decrees as your head and your heart dictate, to hear both sides patiently, to decide with firmness in the best manner you can; but be careful not to assign your reasons, since your determination may be substantially right, although your reasons may be very bad, or essentially wrong". It is very important to bear this in mind when awards of lay arbitrators are challenged.] . Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts. In P.R. Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H. Securities (P) Ltd. [(2012) 1 SCC 594 : (2012) 1 SCC (Civ) 342] , this Court held: (SCC pp. 601-02, para 21)

"21. A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or reappreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34(2) of the Act. The Arbitral Tribunal has examined the facts and held that both the second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye-law 248, in a claim against a non- member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of the second respondent and is

- 10 - MFA NO. 8227 OF 2019

therefore, liable along with the second respondent. Therefore, in the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at."

Justice

36. The third ground of public policy is, if an award is against justice or morality. These are two different concepts in law. An award can be said to be against justice only when it shocks the conscience of the court. An illustration of this can be given. A claimant is content with restricting his claim, let us say to Rs 30 lakhs in a statement of claim before the arbitrator and at no point does he seek to claim anything more. The arbitral award ultimately awards him Rs 45 lakhs without any acceptable reason or justification. Obviously, this would shock the conscience of the court and the arbitral award would be liable to be set aside on the ground that it is contrary to "justice".

39. This Court has confined morality to sexual morality so far as Section 23 of the Contract Act, 1872 is concerned, which in the context of an arbitral award would mean the enforcement of an award say for specific performance of a contract involving prostitution. "Morality" would, if it is to go beyond sexual morality necessarily cover such agreements as are not illegal but would not be enforced given the prevailing mores of the day. However, interference on this ground would also be only if something shocks the court's conscience.

42. In the 1996 Act, this principle is substituted by the "patent illegality" principle which, in turn, contains three subheads:

42.1. (a) A contravention of the substantive law of India would result in the death knell of an arbitral award. This must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature. This again is really a contravention of Section 28(1)(a) of the Act, which reads as under:

"28.Rules applicable to substance of dispute.--(1) Where the place of arbitration is situated in India--

(a) in an arbitration other than an international commercial arbitration, the Arbitral Tribunal shall decide the dispute submitted to arbitration

- 11 - MFA NO. 8227 OF 2019

in accordance with the substantive law for the time being in force in India;"

42.2. (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality -- for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside.

42.3. (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:

"28.Rules applicable to substance of dispute.--(1)-(2)***

(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction."

This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do.

b) SSANGYONG ENGINEERING AND CONSTRUCTION COMPANY LIMITED -V- NATIONAL HIGHWAYS AUTHORITY OF INDIA (NHAI) [(2019) 15 SCC 131] paragraphs 68, 69 and 76 which are reproduced hereunder for easy reference;

68. A conspectus of the above authorities would show that where an Arbitral Tribunal has rendered an award which decides matters either beyond the scope of the arbitration agreement or beyond the disputes referred to the Arbitral Tribunal, as understood in Praveen Enterprises [State of Goa v. Praveen Enterprises, (2012) 12 SCC 581], the arbitral award could be said to have dealt

- 12 - MFA NO. 8227 OF 2019

with decisions on matters beyond the scope of submission to arbitration.

69. We therefore hold, following the aforesaid authorities, that in the guise of misinterpretation of the contract, and consequent "errors of jurisdiction", it is not possible to state that the arbitral award would be beyond the scope of submission to arbitration if otherwise the aforesaid misinterpretation (which would include going beyond the terms of the contract), could be said to have been fairly comprehended as "disputes" within the arbitration agreement, or which were referred to the decision of the arbitrators as understood by the authorities above. If an arbitrator is alleged to have wandered outside the contract and dealt with matters not allotted to him, this would be a jurisdictional error which could be corrected on the ground of "patent illegality", which, as we have seen, would not apply to international commercial arbitrations that are decided under Part II of the 1996 Act. To bring in by the backdoor grounds relatable to Section 28(3) of the 1996 Act to be matters beyond the scope of submission to arbitration under Section 34(2)(a)(iv) would not be permissible as this ground must be construed narrowly and so construed, must refer only to matters which are beyond the arbitration agreement or beyond the reference to the arbitral tribunal.

48. However, when it comes to the public policy of India argument based upon "most basic notions of justice", it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. It can be seen that the formula that was applied by the agreement continued to be applied till February, 2013 - in short, it is not correct to say that the formula under the agreement could not be

- 13 - MFA NO. 8227 OF 2019

applied in view of the Ministry's change in the base indices from 1993-94 to 2004-05. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other party's consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula de hors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any Court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment.

c) PSA SICAL TERMINALS PVT. LTD., V-

THE BOARD OF TRUSTEES OF V.O.CHIDAMBRANAR PORT TRUST [Civil

- 14 - MFA NO. 8227 OF 2019

Appeal Nos.3699-3700 of 2018 DD 28.07.2021] paragraphs 87 and 88 which are reproduced hereunder for easy reference:

87. It has been held that an Arbitral Tribunal is not a Court of law. Its orders are not judicial orders. Its functions are not judicial functions. It cannot exercise its powers ex debito justitiae. It has been held that the jurisdiction of the arbitrator being confined to the four corners of the agreement, he can only pass such an order which may be the subject matter of reference.

88. In that view of the matter, we are of the considered view, that the impugned Award would come under the realm of 'patent illegality' and therefore, has been rightly set aside by the High Court.

d) INDIAN     OIL    CORPORATION         LTD.
   THROUGH ITS SENIOR MANAGER -V-
   M/S    SHREE     GANESH      PETROLEUM
   RAJGURUNAGAR          THROUGH          ITS

PROPRIETOR Mr.LAXMAN DAGDU THITE [CIVIL APPEAL Nos.837-838 OF 2022 DD 1.02.2022] paragraph 54 which is reproduced hereunder for easy reference:

"54. In Satyanarayana Construction Company v. Union of India and Others", a Bench of this Court of coordinate strength held that once a rate had been fixed in a contract, it was not open to the Arbitrator to rewrite the terms of the contract and award a higher rate. Where an Arbitrator had in effect rewritten the contract and awarded a rate, higher than that agreed in the contract, the High Court was held not to commit any error in setting aside the award."

- 15 - MFA NO. 8227 OF 2019

17. Relying on the aforesaid decisions Sri.M.N.Kumar,

learned counsel for the respondent would submit

that the agreement being for payment of USD at

the rate of Rs. 39.675, the Arbitrator has erred in

not considering the same, travelling beyond the

said agreement and considering the payment

which has been made at the prevalent US Dollar

rate, would amount to rewriting of the agreement

between the parties to make payment as per the

fluctuating US Dollar rate and as such, the award

is liable to be set-aside. Section 34 court not

having considered this, the Judgment of the

Section 34 Court as also the award is liable to be

set-aside and the counter claim filed by the

respondent is required to be allowed.

18. Per contra, Sri.Ganesh Bhat, learned counsel for

the claimant would submit that the learned

Arbitrator has taken into consideration the

agreement arrived at between the parties and the

action taken by the respondent in making payment

of the amounts as per the prevailing dollar rate as

- 16 - MFA NO. 8227 OF 2019

on the date of payment. The said payment itself

would indicate and establish the contention of the

respondent that the US Dollar rate was pegged at

Rs.39.675 to be incorrect. He further submits that

it was always agreed between the parties that the

payment would be made as per the prevalent US

Dollar value, more so when the payments were

made over for a period of time. On the basis of

the said actions of the respondent itself, he

submits that there is no such agreement which

was entered into between the parties and even if

entered into, the same has been novated and the

payments having been made as per the prevalent

value, the arbitral award is proper and correct.

19. Heard Sri.Kumar.M.N, learned counsel for the

appellant and Sri.Ganesh Bhat.Y.H., learned

counsel for respondent No.1. Perused records.

20. The only ground which has been urged to

challenge the arbitral award which is required to

be considered by this Court is, whether there was

- 17 - MFA NO. 8227 OF 2019

an agreement between the parties for payment of

amounts at the rate of Rs.39.675 per USD and if

so, by allowing the claim petition of the claimant

and rejecting the counter claim of the respondent,

the learned Arbitrator has acted contrary to the

alleged agreement entered into between the

parties requiring the Section 34 Court to exercise

its jurisdiction under the said provision to set-aside

the Arbitral award?

21. It is contended by the claimant that the agreement

arrived at between the parties is that the

payments towards Dollar part of the contract

would be at the rate of Rs.39.675 per dollar. In

this regard, it is a matter of fact and record that

the respondent has made payment of the amounts

due as under:

    Sl. Date           US $         Rate      INR
    No

    1    12/11/2008 1,40,800 48.715 68,59,072.00

    2    23/11/2009       88,000    46.575 40,98,600.00

    3    20/09/2010 1,23,200 45.87            56,51,184.00
                           - 18 -       MFA NO. 8227 OF 2019

22. It is only after the work was completed by the

claimant and the final bill submitted, that the

respondent turned around and contended that

there is an excess amount which has been paid

and instead of making payment of the amount,

the claimant contended that excess amount has

to be returned which was subject matter of the

counter claim before the learned Arbitrator.

23. On enquiry as to on what basis amounts were

paid Sri. M.N. Kumar., learned counsel for the

respondent would submit that the payment was

made by mistake and such payment made by

mistake cannot overwrite the contract. On

further enquiry as to whether any action has

been taken against the persons who have made

payment by mistake, Sri. M.N.Kumar, submitted

that no action has been taken.

24. As afore observed, payments to the claimants

were made as regards to the USD amount from

- 19 - MFA NO. 8227 OF 2019

2008 to 2010 i.e., over a period of three years,

three different payments were made and in all

the said payments, US Dollar value was

calculated as per the prevalent market rate of a

USD. In none of the payments made on said

account, payment was made at Rs.39.675 nor

during the said three years of payment any effort

made by the respondent to inform the claimant

that there was a wrong payment made and same

is liable to be adjusted.

25. It is also relevant to take into consideration that

these payments were made in three different

financial years and the accounts of the

respondent are also required to be audited.

26. The respondent having paid the aforesaid amount

at the prevalent market value USD over a period

of three years cannot now contend that the

agreement between the parties pegged the USD

value at Rs.39.675 and/or that the learned

- 20 - MFA NO. 8227 OF 2019

Arbitrator ought to have considered that amount

to be the agreed amount.

27. The respondent having made payment as per the

prevalent market value, the learned Arbitrator

having come to a conclusion that the

quantification of US Dollar value was only for

purposes of submission of tender and not an

agreement between the parties to peg the US

Dollar value at 39.675 for payment. The said

conclusion of the learned Arbitrator was arrived

at after evidence being conducted.

28. It is trite law that Section 34 Court nor this Court

acting under section 37 of A&C Act can

reappreciate the evidence. The jurisdiction of the

section 34 Court as also this court is restricted by

the scope and ambit of Section 34 of the A&C

Act. The Apex Court in Associate Builders' case

(supra) which has been referred to by Sri. M.N.

Kumar, has also held that the jurisdiction of the

Section 34 Court is limited.

- 21 - MFA NO. 8227 OF 2019

29. The only ground urged in this appeal as also the

Petition filed under Section 34 of the A & C Act is

as regards the rate of USD being agreed upon the

parties would be pegged at 36.675 and not as per

the market value is not a issue which would come

within the ambit of Section 34 in asmuch as the

same after evidence being led has been held

otherwise by the learned Arbitrator.

30. The other decisions relied upon by Sri. M.N.

Kumar in SSangyong Engineering and

construction company Limited's case would

also not apply for the reason that the award of

the learned Arbitrator is not beyond the scope of

the agreement or the parties' submission, since

admittedly the respondent made payment as per

the prevalent market value over a period of three

years.

31. The decision in PSA Sical Terminals Pvt.

Limited's case is also not appliable for the

reason that four corners of the agreement would

- 22 - MFA NO. 8227 OF 2019

also include subsequent actions of the parties. In

this case it would include the action of the

Respondent in making payments made as per the

prevalent market value.

32. The decision in Indian oil corporation

Limited's case is also not applicable for the

reasons that no contract or terms thereof is

rewritten by the learned Arbitrator as sought to

be contended by Sri.M.N.Kumar.

33. In view of the above, we are of the considered

opinion that the learned Arbitrator having

considered the evidence on record has held that

there is no pegging of value of US Dollar at

Rs.39.675, that the agreement was to make

payment of USD amount as per the prevalent

market value which is evidenced by the

respondent having enhanced the value of 'Letter

of Credit', as per the prevalent US dollar value.

34. In the above circumstances, there being no

grounds made out which would come within the

- 23 - MFA NO. 8227 OF 2019

purview and ambit of Section 34 of the A & C Act

we pass the following:

ORDER

The appeal as filed is dismissed.

In view of dismissal of the appeal, all the pending applications stands disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

Ln