Karnataka High Court
M Venkatesh vs The Commissioner Bruhut ... on 4 March, 2022
Bench: Chief Justice, S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
COMMERCIAL APPEAL NO.105 OF 2022
BETWEEN:
M.VENKATESH,
S/O MUNISWAMY REDDY,
AGED ABOUT 61 YEARS,
RESIDING AT No.1809,
21ST MAIN ROAD,
13TH CROSS, HSR LAYOUT,
BENGALURU - 560 102.
... APPELLANT
(BY SRI. D.R.RAVISHANKAR, SENIOR ADVOCATE FOR
SRI. SANJAY.G., ADVOCATE)
AND:
THE COMMISSIONER,
BRUHUT BENGALURU
MAHANAGARA PALIKE,
N.R.SQUARE,
BENGALURU - 560 002.
... RESPONDENT
(BY SRI. RAMU S., ADVOCATE FOR C/RESPONDENT)
---
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 37
OF THE ARBITRATION AND CONCILIATION ACT READ WITH
SECTION 13(1)(A) OF THE COMMERCIAL COURTS ACT, PRAYING
TO SET ASIDE THE ORDERS DATED 13.12.2021 PASSED IN
COM.A.P.No.20/2020 ON THE FILE OF THE LXXXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-83) AND
CONSEQUENTLY SET ASIDE THE ARBITRAL AWARD DATED
07.03.2017 PASSED IN A.C.No.12/2016 BY THE LEARNED SOLE
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ARBITRATOR TO THE EXTENT OF THE CLAIM DENIED TO THE
APPELLANT AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
The personal affidavit of Sri G.Sanjay, advocate filed
along with the memo is taken on record.
2. We have gone through the affidavit. The
advocate appearing for the appellant Sri G.Sanjay has
submitted that he has admitted his mistake and it is for the
first time that he has committed such a mistake and learnt
a lesson and solemnly assures the Court that such
instances will not occur in future and he tenders his
unconditional and profuse apologies in this regard.
3. Considering the young age of the advocate and
the assurance given by Sri D.R.Ravishankar, learned Senior
Advocate appearing for the appellant that in future,
Sri G.Sanjay would be more careful and will not commit any
such mistake, we do not propose to proceed any further
against Sri G.Sanjay, advocate and drop the proceedings at
this stage.
4. Heard Sri D.R.Ravishankar, learned Senior
Advocate for Sri G.Sanjay, learned advocate for the
appellant and Sri Ramu S, learned advocate for the
respondent.
5. The above appeal is filed under Section 37 of
the Arbitration and Conciliation Act, 1996 challenging the
order passed by the LXXXII Additional City Civil & Sessions
Judge, Bengaluru dated 13.12.2021 in
Com.A.P.No.20/2020. The said Com.A.P.No.20/2020 had
been filed challenging the arbitral award passed by learned
Sole Arbitrator in A.C.No.12/2016.
6. The appellant herein was the claimant before
the learned Sole Arbitrator. The learned Sole Arbitrator has
partially allowed the claim petition filed by the appellant. It
is aggrieved by certain claims not being allowed that
Com.A.P.No.20/2020 had been filed by the appellant before
the Commercial Court under Section 34 of the Arbitration
and Conciliation Act, 1996 (for short 'A & C Act').
7. The grievance of the appellant as could be seen
from the appeal memo is that the learned Sole Arbitrator
had committed an error in not considering certain invoices
and bills while calculating the total mileage covered by each
one of the vehicles on a daily basis. If the said mileage had
been properly calculated, the appellant would have been
entitled to a higher amount.
8. The second ground raised is that the learned
Sole Arbitrator has committed an error in drawing adverse
interference that the claimant not having disputed the log
books maintained by the respondent, the said log books
would have to be taken as correct and proper.
9. Thirdly, it is contended that escalation has not
been granted in favour of the petitioner. It is submitted that
the contract being a commercial contract, escalation ought
to have been granted.
10. The fourth ground is that the variations as
regards ESI and PF have not been taken into account by
the learned Sole Arbitrator.
11. The fifth ground is that the Bata charges have
not been taken into consideration.
12. The sixth ground is that interest has not been
awarded in respect of the claim prior to the same being
made.
13. These being the grounds to challenge the
Arbitral Award dated 07.03.2017, it is contended that the
Commercial Court, exercising jurisdiction under Section 34
of the said Act, ought to have appreciated the above
contentions and set aside the award and should have
allowed the portion of the claim petition which had not been
allowed by the learned Sole Arbitrator.
14. There is a very limited jurisdiction under the A
& C Act both under Section 34 and under Section 37 in
respect of a challenge to an Arbitral award for interference
either by the Section 34 Court or the Section 37 Court.
15. The ground being circumscribed and contained
under Section 34 of the A & C Act, neither the Section 34
Court can act as the First Appellate Court nor the Section
37 Court can act as the Second Appellate Court and
interfere in respect of an arbitral award passed.
16. The grounds which have been raised by the
appellant before the Section 34 Court which are reproduced
hereinabove are mainly relating to the appreciation of
evidence which is not a ground which is available under
Section 34 of the Act nor can the Section 34 Court, as
observed above, appreciate or re-appreciate the evidence
which is on record. The only grounds which are available
are those which are circumscribed under Section 34 of the
said Act as held by the Apex Court in the case of
ASSOCIATE BUILDERS VS. DELHI DEVELOPMENT
AUTHORITY1
17. The grounds which are relevant to challenge the
arbitral award is that the award should be patently illegal
and contrary to the public policy as per Section 34(2) of the
said Act. Neither before the Commercial Court nor before
this Court, the appellant has been able to establish any
patent illegality except to contend that factual aspects have
not been taken into consideration by the learned Sole
(2015) 3 SCC 49
Arbitrator. The manner in which the allegations have been
made against the Arbitrator also needs to be deprecated.
18. The appellant not being able to make out any
ground either before the Section 34 Court or before this
Court, we find that there is no error or infirmity in the
award passed by the learned Sole Arbitrator or the Section
34 Court. The order passed in Com.A.P.No.20/2020 is
proper and correct and does not require any interference.
19. The appeal stands dismissed.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
KPS
