Sri A L Satish Kumar vs The Commissioner Bruhut ...
2022 Latest Caselaw 3862 Kant

                             -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 7TH 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.100 OF 2022


BETWEEN:

SRI.A.L.SATISH KUMAR
S/O. LATE ANCHILLINGAPPA
AGED ABOUT 47 YEARS
R/AT. NO.369, 7TH CROSS
LAKSHMI ROAD, SHANTHINAGAR
BENGALURU - 560 027
                                          ...APPELLANT

(BY SRI SANJAY G, ADVOCATE)


AND

THE COMMISSIONER
BRUHUT BENGALURU MAHANAGARA PALIKE
N.R.SQUARE, BENGALURU-560 002
                                         ...RESPONDENT

(By SRI RAMU .S, ADVOCATE)


      THIS COMAP IS FILED UNDER SECTION 37 OF THE
ARBITRATION AND CONCILIATION ACT R/W SECTION 13(1)(A)
OF THE COMMERCIAL COURTS ACT, PRAYING TO SET ASIDE THE
ORDERS DATED 13/12/2021 PASSED IN COM.A.S.NO.184/2017
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.1/2016 BY THE LEARNED SOLE ARBITRATOR TO THE
EXTENT OF THE CLAIM DENIED TO THE APPELLANT.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
CHIEF JUSTICE DELIVERED THE FOLLOWING:
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                           JUDGMENT

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.S.No.184/2017. The

said Com.A.S.No.184/2017 had been filed challenging the

arbitral award passed by learned Sole Arbitrator in

A.C.No.1/2016.

2. 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.S.No.184/2017 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').

3. 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.

4. 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.

5. 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.

6. The fourth ground is that the variations as

regards ESI and PF have not been taken into account by

the learned Sole Arbitrator.

7. The fifth ground is that the Bata charges have

not been taken into consideration.

8. The sixth ground is that interest has not been

awarded in respect of the claim prior to the same being

made.

9. 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.

10. 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.

11. 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.

12. 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 Authority"

reported in (2015) 3 SCC 49.

13. 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

Arbitrator. The manner in which the allegations have been

made against the Arbitrator also needs to be deprecated.

14. 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.S.No.184/2017 is proper and correct and does not

require any interference.

15. The appeal stands dismissed.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

VM