Madras High Court
The Board Of Trustees vs M/S.Seaport Logistics Pvt Limited on 8 May, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.M.A.(MD)Nos.472 and 530 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.01.2025
Pronounced on : 08.05.2025
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MS.JUSTICE R.POORNIMA
C.M.A.(MD)Nos.472 and 530 of 2022
and
C.M.P.(MD)No.4149 of 2022
C.M.A.(MD)No.472 of 2022:-
The Board of Trustees,
V.O.Chidambaranar Port Trust,
Rep. by its Chairman,
Tuticorin. ... Appellant
Vs.
M/s.Seaport Logistics Pvt Limited,
Through its Managing Director,
B32, World Trade Avenue,
Harbour Estate,
Tuticorin - 628 004. ... Respondent
Prayer : Civil Miscellaneous Appeal is filed under section 37 of the
Arbitration and Conciliation Act to submits the following Memorandum of
Civil Miscellaneous Appeal to set aside the order dated 15.02.2022
made in Ar.O.P. No.42 of 2019 on the file of Principal District Judge,
Thoothukudi in A.F.No.105 of 2017 on the file of the Arbitral Tribunal,
Chennai.
1/40
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C.M.A.(MD)Nos.472 and 530 of 2022
For Appellant : Mr.Yashodh Vardhan, Senior Counsel,
For Mr.VR.Shanmuganathan.
For Respondent : Mr.K.Kabir, Senior Counsel,
For Mr.L.Siva.
C.M.A.(MD)No.530 of 2022:-
M/s.Seaport Logistics Private Limited,
Rep. by its Director,
B32, World Trade Vanue,
Harbour Estate,
Tuticorin - 628 004. ... Appellant
Vs.
The Board of Trustees,
V.O.C. Chidambaranar Port Trust,
Tuticorin,
Rep. by its Chairman. ... Respondent
Prayer : Civil Miscellaneous Appeal is filed under Section 37 (1) and (2)
of Arbitration and Conciliation Act to set aside the order dated
15.02.2022 in Ar.O.P. No.46 of 2019 on the file of the Principal District
Judge, Thoothukudi and allow Ar.O.P. No. 46 of 2019.
For Appellant : Mr.K.Kabir, Senior Counsel,
For Mr.L.Siva.
For Respondent : Mr.Yashodh Vardhan, Senior Counsel,
For Mr.VR.Shanmuganathan.
2/40
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C.M.A.(MD)Nos.472 and 530 of 2022
COMMON JUDGMENT
(Judgment of the court was delivered by G.R.SWAMINATHAN, J.)
These civil miscellaneous appeals are directed against the
common order dated 15.02.2022 passed by the learned Principal District
Judge, Thoothukudi dismissing Ar O.P Nos.42 and 46 of 2019.
2.V.O.Chidambaranar Port Trust (VOCPT) located at 8 kms from
Thoothukudi City is a major port. The port then had a draught restriction
of 12.8 meters. As a result, vessels requiring draught of more than 12.8
meters could not enter the port as they would get grounded. Hence, they
had to lighten their weight at the outer anchorage itself. The lightening
process was carried out by discharging the cargo by using the ship's
crane, if available, and putting them in the barge alongside the vessel.
The barge will thereafter bring the cargo to the berth. There will be a
shore excavator which will unload the cargo from the barge and put
them into the wharf for the purpose of clearing the same. This unloading
operation from the vessel to the barge and from the barge to the berth
and from the berth to the shore and to any other place is called
“anchorage operation”.
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3.It was suggested to VOC Port that the loading/unloading of
cargo using a floating crane would be an improved method. The
claimant vide letter dated 03.08.2013 sought in-principle approval for
operating floating crane as the anchorage handling had dwindled on
account of increasing of draught from 10.70 meters to 12.80 meters and
that importers were interested in bringing bigger vessels if off-shore
facilities were created. The Tuticorin Stevedores Association, Indian
Chamber of Commerce and Industries and All India Chambers of
Commerce and Industries also made similar requests. After getting
approval from the Ministry of Shipping, Government of India vide letter
dated 20.11.2013, the Port Trust issued tender notification dated
08.10.2013 inviting tenders for grant of license for deployment of floating
cranes for a period of ten years on a revenue sharing basis at a
minimum of 32 percent on tariff charged per mt. Since Kandla Port had
fixed 32% as the sharing formula for the floating crane contract, the
same figure was adopted by Tuticorin Port Trust also.
4.The tariff for cargo handling using floating crane was fixed by
the Tariff Authority for Major Ports (TAMP) on 23.12.2013. On
06.01.2014, M/s.Seaports Logistics Private Limited, Tuticorin submitted
their technical and price bids. They were the sole bidders. Interestingly,
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they had offered a revenue share of 50%. On 31.01.2014, the bid was
accepted and work order was issued. On 01.03.2014, license
agreement was entered into between the parties. The contract value
was fixed at Rs.70.71 crores. The period of contract was ten years.
The licensee was required to supply, install and commission minimum
one number of floating crane or more within six months from the date of
issue of letter of intent. The floating crane was to be brand new or less
than five years old. Section IV of the agreement sets out the scope of
work in full with specifications. The licensee could, however, commence
commercial operations only on 16.12.2014.
5.The licensee sought certain concessions from the Port Trust to
facilitate the business operations. Accordingly, on 17.10.2015, the Port
Trust granted approval for exemption from pilotage charges for barges
and labour levy. On 31.05.2016, the tariff was also reduced to attract
more traffic.
6.The licensee did not own any floating crane. They hired one
from Goa. They had entered into a hire purchase agreement on
03.10.2014 for a period of ten years. On 26.09.2016, the licensee wrote
to the Port seeking permission to sail the floating crane out of Tuticorin
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to Goa for dry docking since the crane had developed some major
technical snag and could not be locally repaired. It was also admitted
that the floating crane encountered some minor collisions with the
mother vessels during rough weather conditions. The licensee reiterated
their request vide letter dated 18.10.2016 and undertook to abide by the
extant rules.
7.On 19.10.2016, the Port gave the permission sought for on
condition that the existing floating crane be replaced by another floating
crane of similar specification before it was taken out. The licensee was
reminded that as per the agreement condition, 90% availability of the
crane should have been ensured. The licensee replied on 20.10.2016
that they could not effect replacement and reiterated their request for
taking the crane for dry docking. On 26.10.2016, they agreed that the
Port may collect penalty as per the agreement. Thereupon, permission
was granted vide certificate dated 27.10.2016 on condition that the
floating crane must be brought back after completion of dry docking
repairs ; it was also to be subject to levy of penalty. On 20.12.2016, the
Port Trust called upon the licensee to inform the date of arrival of the
floating crane. The licensee had earlier stated that the floating crane
would be back on 28.12.2016. However, on 22.12.2016, the licensee
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informed the Port Trust that the owners of the floating crane had told
them that they would not be able to return the floating crane that was
given on hire. On 03.01.2017, the licensee sought time till 28.02.2017
to procure an alternative crane. On 11.01.2017, the Port Trust made it
clear that either an alternative arrangement should be made on or
before 15.02.2017 or the consequences would follow.
8.On 09.02.2017, the licensee informed the Port Trust that there
were no takers for floating crane and contended that the contract had
become impossible of performance. Pleading frustration, they sought
temporary suspension of the floating crane operation without disturbing
anchorage operations by using barges and excavators. On 17.02.2017,
the Port Trust raised a demand for payment of Rs.1,73,64,821/- towards
revenue share and penalty. On 15.03.2017, the Port Trust formally
terminated the agreement and also invoked the performance guarantee
of Rs.3.53 crores furnished by the licensee when the agreement was
entered into. On 20.03.2017, the bank guarantee was encashed by the
Port Trust.
9.The licensee invoked the arbitration clause in the agreement. A
three member Arbitral Tribunal was constituted on 30.03.2017. The
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licensee filed claim statement to declare the agreement dated
01.03.2014 as void due to mutual mistakes and frustration. They also
wanted the termination notice dated 15.03.2017 to be declared as
illegal. Damages to the tune of Rs.34,97,78,702/- was sought. The
break-up of the claim was as follows:-
(a) Revenue share refund = Rs. 4,55,04,721/-
(b) Bank guarantee refund = Rs. 3,81,37,540/-
(c) Damages = Rs.26,61,36,441/-
The Port Trust denied the claim and lodged counter claim. During the
period when the floating crane was not in operation, the licensee had
rendered service to the vessels by using barges and excavators and
thus collected a sum of Rs.2,02,37,204/-. The port claimed
Rs.1,01,18,602/- representing 50% of the said revenue. It also claimed
damages to the tune of Rs.20,46,65,833/- together with interest.
10.The Arbitral Tribunal after going through the pleadings on
either side, framed the following issues:-
“1) Whether the claimant proves that the agreement
dated 01.03.14 is void due to mutual mistake?
2) Whether the claimant proves that the agreement
dated 01.03.14 is void due to frustration?
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3) Whether the claimant proves that the termination of
the agreement dated 01.03.14 by the respondent’s notice
dated 15.03.17 is illegal?
4) Whether the claimant proves that the respondent
has committed breach of the agreement dated 01.03.14?
5) Whether the respondent’s action of invoking the
Bank Guarantee furnished by the claimant is illegal?
6) Whether the claimant proves that it has suffered
damages of Rs.25,48,95,368/- which is entitled to recover
from the respondent?
7) Whether the respondent proves that the claimant is
liable to pay the respondent the balance revenue share of
Rs.1,01,18,602?
8) Whether the respondent proves that the claimant is
liable to pay the respondent the loss of earnings of Rs.
20,46,65,833/-?
9) What is the rate of interest payable on the sums
awarded, for the preference period, the period pending
Arbitral proceedings and for the post award period?
10) Which party is entitled to costs or arbitration?
11) To what other relief?”
11.The claimant / licensee examined two witnesses on its side
and marked Exs.C1 to C48. The port trust examined one of their
officers as R.W.1 and marked Exs.R1 to R40. The Arbitral Tribunal vide
award dated 20.11.2018 answered Issue Nos.1, 2, 3, 4 and 6 against
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the claimant. Issue No.5 was answered against the port trust and it was
held that encashing bank guarantee for a sum of Rs.3.53 crores was
erroneous and that the said sum was liable to be returned to the
claimant / licensee with interest at the rate of 18% per annum. Issue
No.7 was also decided against the port trust. Issue No.8 was also
decided against the port trust and it was held that the trust has not
proved their claim for damages. Issue No.9 was answered by granting
interest at the rate of 18% per annum for Rs.3.53 crores of the bank
guarantee amount. It was held that the withheld amount of
Rs.1,01,18,602/- should be returned to the claimant with 18% per
annum from the date of withholding till the date of actual payment. The
cost of proceedings was ordered to be borne equally.
12.The port trust filed Ar.O.P.No.42 of 2019 under Section 34 of
the Arbitration and Conciliation Act, 1996 before the Principal District
Judge, Thoothukudi for setting aside the award. The licensee also filed
Ar.O.P.No.46 of 2019 questioning the award insofar as it denied claim
against them. Both Ar.O.Ps were heard together and both were
dismissed vide common order dated 15.02.2022. Challenging the
same, port trust filed C.M.A.(MD)No.472 of 2022 and the licensee filed
C.M.A.(MD)No.530 of 2022.
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13.The learned Senior Counsel for the port trust submitted that
the award passed by the Arbitral Tribunal suffers from an internal
inconsistency. After rightly holding that the agreement dated 01.03.2014
was not void and that the termination of the same was justified, it could
not have been held that invocation of bank guarantee was not lawful.
He submitted that the finding of the Arbitral Tribunal in this regard was
patently illegal. He took us through the relevant clauses in the license
agreement and contended that the port trust rightly forfeited the
performance security and called upon this Court to set aside this part of
the award. Since the award had dealt with the various claims separately
and distinctly, this Court can set aside the impugned award in respect of
Claim No.5. He relied on the decision of the Hon'ble Supreme Court
reported in (2011) 5 SCC 758 (J.G.Engineers Private Limited v.
Union of India). He also submitted that this Division Bench, exercising
appellate jurisdiction under Section 37 of the Arbitration and Conciliation
Act, 1996, can exercise the powers as are exercisable under Section 34
of the Act. He submitted that the learned Principal District Judge failed
to exercise the jurisdiction conferred on her under Section 34 of the Act.
Written submissions were filed on behalf of the port trust and the
learned Senior Counsel took us through its contents. He submitted that
the port trust had suffered huge loss and by invoking bank guarantee, it
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was only partially offset. He relied on a catena of judgments and called
upon this Court to allow C.M.A.(MD)No.472 of 2022 and dismiss the
appeal filed by the licensee.
14.The contentions of the Port Trust were vehemently contested
by the learned Senior Counsel for the claimant / licensee. Even though
the licensee had also filed an independent appeal under Section 37 of
the Act, we are of the view that it is only a mock appeal and not a real
appeal. Just as in elections, dummy candidates are put up, the licensee
has mounted a dummy challenge to the arbitral award. From the
manner in which the learned Senior Counsel for the licensee put forth
his arguments, we could discern that he was more interested in
upholding the arbitral award. He relied on a catena of decisions. He
strongly contended that the licensee had been misled in entering into
contract by the projections held forth by the port trust. The licensee had
made considerable capital investments and suffered huge loss by
entering into the agreement. On the other hand, the port trust has not at
all suffered any loss. The clause relating to forfeiture of bank guarantee
was in the nature of penalty and therefore, Section 74 of the Indian
Contract Act, 1874 will come into play. The Arbitral Tribunal rightly held
that invocation of bank guarantee was unlawful. The view taken by the
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Arbitral Tribunal was both a plausible and proper view. When the
learned Principal District Judge in exercise of jurisdiction under Section
34 of the Act did not interfere with the award, the question of
interference with the arbitral award in exercise of appellate jurisdiction
under Section 37 of the Act will not arise at all. He explained the nature
of challenge mounted under Section 34 of the Act ; it was neither a
original proceeding nor an appeal. Therefore, the scope for exercising
the power under Section 37 of the Act becomes all the more constricted.
He also submitted that in view of the judgment of the Hon'ble Supreme
Court reported in (2021) 9 SCC 1 (NHAI v. M.Hakeem), there cannot be
partial setting aside of the award. He called upon this Court to dismiss
the appeal filed by the port trust.
15.We carefully considered the rival contentions and went through
the evidence on record. The following issues arise for consideration : -
(a) What is the scope and extent of the proceeding under
Section 37 of the Arbitration and Conciliation Act, 1996?
(b) Whether the finding of the Arbitral Tribunal that invocation
of bank guarantee by the port trust was unlawful suffers from
patent illegality?
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(c) Whether this Court can set aside the finding of the Arbitral
Tribunal with regard to invocation of bank guarantee alone
and sustain the rest of the award?
16.Issue No. (a) : - Section 37 of the Arbitration and Conciliation
Act, 1996 catalogues the appealable orders. An appeal under Section
37 of the Act shall lie from an order setting aside or refusing to set aside
an arbitral award under Section 34. An appeal is normally understood as
a continuation of the original proceedings. In other words, the first
appellate court can do what the original court can and there is a
re-appreciation of the entire evidence on record. But the proceedings
under Section 34 cannot be said to be a original proceeding. Under
Section 34, an arbitral award is put to challenge on the grounds set out
in the petition. It is more in the nature of a challenge procedure. That is
why, in Deep Industries Limited vs. ONGC (2020) 15 SCC 706, it was
observed that Section 37 grants a constricted right of first appeal. A
three Judges bench of the Hon'ble Supreme Court in DMRC Ltd. v.
Delhi Airport Metro Express (P) Ltd., (2024) 6 SCC 357 clarified that
the jurisdiction under Section 37 of the Act is akin to the jurisdiction of
the court under Section 34 and restricted to the same grounds of
challenge as Section 34. In Punjab State Civil Supplies Corporation
Limited vs. Sanman Rice Mills and Others (2024 SCC OnLine SC
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2632), it was reiterated that the appellate power under Section 37 of the
Act is not akin to the normal appellate jurisdiction vested in the civil
courts for the reason that the scope of interference of the courts with
arbitral proceedings or award is very limited. It was specifically held that
the appellate power under Section 37 is exercisable only to find out if
the court exercising power under Section 34 of the Act has acted within
its limits as prescribed therein or has exceeded or failed to exercise the
power so conferred. The appellate court cannot engage in re-appraisal
of evidence as if it is sitting in an ordinary court of appeal. In Bombay
Slum Redevelopment Corporation (P) Ltd. vs. Samir Narain
Bhojwani (2024) 7 SCC 218, it was observed that the jurisdiction of the
appellate court dealing with an appeal under Section 37 is more
constrained than the jurisdiction of the court dealing with a petition under
Section 34. The function of the appellate court is to decide whether the
jurisdiction under Section 34 has been exercised rightly or wrongly.
While doing so, the appellate court can exercise the same power and
jurisdiction that Section 34 Court possesses with the same constraint.
In view of the aforesaid decisions, all that we need to do is to see if the
learned District Judge while exercising jurisdiction under Section 34 of
the Act was right in holding that the grounds of challenge have not been
established.
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17.Issue No.(b) : - The Arbitral Tribunal gave the following reasons
for coming to the conclusion that invocation of bank guarantee was
illegal :
(i) The claimant factually proved that there was no
demand to lighten the ships by lifting the cargo through
floating crane and that the said fact was not disputed by the
Port Trust by filing material evidence.
(ii) It was an admitted case of the parties that there was
little or no demand for using floating crane to unload the
cargo.
(iii) In the absence of proof about demand for using the
floating cranes and the admitted fact that during the contract
period, more than 90% of the business did not fructify, the
non-availability of the floating crane from 29.10.2016 to
14.02.2017 makes no difference.
(iv) Though the claimant issued trade notice dated
01.07.2016, still the business did not pick up. There were
factors such as world economic slump, crude oil price crash
and no cost benefit in anchorage lightening.
(v) The project indisputably is a failure and unviable.
18.The Arbitral Tribunal could not have used the expression
“admitted”. Nowhere, the Port Trust conceded the case of the claimant.
The agreement between the parties contained a clause enabling the
Port Trust to invoke the bank guarantee for a sum of Rs.3.53 crores in
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the event of termination on the ground of default by the licensee. The
question that calls for consideration is whether the finding of the Arbitral
Tribunal that as a result of the breach of contract, the Port Trust did not
suffer any loss can be characterised as perverse. The Arbitral Tribunal
had already held that the agreement between the parties was not void
due to mutual mistake. It noted that the licensee has been a stevedore
for several years and was already carrying on lightening operations at
the anchorage using ship gears and barges. He was not a stranger to
the Port. He had gone through the tender notification, participated in the
pre-bid hearings, accepted the TAMP order, submitted the bid and
signed the agreement. The Arbitral Tribunal remarked that having
initially proposed to the Port Trust that floating crane facility will attract
more volume of cargo to the Port the claimant was not justified in
pleading subsequently that the contract was void.
19.The Arbitral Tribunal also rejected the argument of the licensee
that the agreement had become void on account of frustration. The
tribunal noted that the licensee upon acceptance of the agreement
terms and conditions had hired a floating crane. He had to pay the hire
charges as well as incur operating cost. The tribunal noted that the Port
Trust had not assured any minimum guarantee. On the other hand, they
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extended full cooperation to continue the contract. But the performance
of the contract had become onerous for the licensee. The tribunal
concluded that such commercial failure cannot be treated as an
unforeseen circumstance so as to attract the doctrine of frustration.
20.The Arbitral Tribunal also negatived the claim of the licensee
that the termination of the agreement by the Port Trust on 15.03.2017
was illegal. The tribunal carefully analysed the correspondence between
the parties. It noted that the licensee while seeking permission to move
the floating crane for dry docking vide letter dated 26.09.2016,
undertook to bring it back immediately on completion of repairs or within
sixty days of release, whichever was earlier. The licensee also
undertook to pay the penalty for the non-availability of the floating crane
to achieve the minimum guaranteed availability. The Arbitral Tribunal
went on to record a finding that the licensee could not bring back the
floating crane as the crane owner declined to return it. The licensee
could not arrange an alternative crane also. An unambiguous finding
was rendered that failure to deploy the floating crane amounted to
breach of the terms of the license agreement. It was clearly found that
the licensee's failure led to termination of the agreement and that
therefore, the Port Trust could not be faulted. Issue No.4 was also
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answered against the licensee. The Arbitral Tribunal was of the view that
the parties were bound by the license agreement and revenue share
was the consideration for granting license to the licensee and that the
Port never promised or agreed or guaranteed any volume of business.
21.After thus answering Issue Nos.1 to 4, the Arbitral Tribunal,
proceeded to hold that the Port Trust erred in invoking the bank
guarantee only on the ground that it did not suffer any loss. It relied on
the decision reported in (2015) 4 SCC 136 (Kailash Nath Associates
vs. DDA) in which it was held that damage or loss caused is sine qua
non for award of reasonable compensation under Section 74 of the
Indian Contract Act, 1872. According to the Tribunal, since no loss was
caused to the Port Trust, it could not have forfeited the bank guarantee
furnished by the licensee. The award relies only on paragraph 29 of the
Kailash Nath Associates judgment. Para 29 of the judgment is in two
parts. It holds that there was no breach of contract on the part of the
appellant. Secondly, DDA was not put to any loss. Therefore, it was
held that it would be arbitrary to allow DDA as a public authority to
appropriate Rs.78.00 lakhs without any loss being caused. In fact, DDA
made a substantial gain by re-auctioning the plots. In the case on hand,
even according to the Tribunal, the licensee had breached the contract.
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The Port Trust was not at fault. Notwithstanding the distinguishability of
facts, we may now proceed to analyze if the principles laid down therein
regarding interpretation of Section 74 of the Indian Contract Act are
applicable to the case on hand.
22.Section 74 of the Indian Contract Act, 1872 is as follows :
“74. Compensation for breach of contract where penalty
stipulated for.—1 [When a contract has been broken, if a sum is
named in the contract as the amount to be paid in case of such
breach, or if the contract contains any other stipulation by way of
penalty, the party complaining of the breach is entitled, whether or
not actual damage or loss is proved to have been caused thereby, to
receive from the party who has broken the contract reasonable
compensation not exceeding the amount so named or, as the case
may be, the penalty stipulated for.”
The agreement between the parties contained penalty clauses as well
as a forfeiture clause. The forfeiture clause specified a named sum of
Rs.3.53 crores. Therefore, Section 74 of the Indian Contract Act
becomes applicable. This provision has been interpreted in a host of
decisions by the Hon'ble Supreme Court. In ONGC Ltd. v. Saw Pipes
Ltd., (2003) 5 SCC 705, it was held as follows :
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“64.....Section 74 emphasizes that in case of breach of
contract, the party complaining of the breach is entitled to
receive reasonable compensation whether or not actual loss
is proved to have been caused by such breach. Therefore, the
emphasis is on reasonable compensation. If the
compensation named in the contract is by way of penalty,
consideration would be different and the party is only entitled
to reasonable compensation for the loss suffered. But if the
compensation named in the contract for such breach is
genuine pre-estimate of loss which the parties knew when
they made the contract to be likely to result from the breach of
it, there is no question of proving such loss or such party is
not required to lead evidence to prove actual loss suffered by
him. Burden is on the other party to lead evidence for proving
that no loss is likely to occur by such breach....”
The aforesaid ratio was applied in a recent decision reported in (2023) 3
SCC 714 (Desh Raj v. Rohtash Singh) and it was held as follows :
“43. Hence, in a scenario where the contractual terms
clearly provide the factum of the pre-estimated amount
being in the nature of “earnest money”, the onus to prove
that the same was “penal” in nature squarely lies on the
party seeking refund of the same. Failure to discharge such
burden would treat any pre-estimated amount stipulated in
the contract as a “genuine pre-estimate of loss”.”
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In Ashwini Kumar Handa v. UOI (2018) 3 SCC 322, the following
principles laid down in ONGC Ltd vs. Saw Pipes Ltd were quoted ;
“68. From the aforesaid discussions, it can be held that:
(1) Terms of the contract are required to be taken into
consideration before arriving at the conclusion whether the
party claiming damages is entitled to the same.
(2) If the terms are clear and unambiguous stipulating the
liquidated damages in case of the breach of the contract
unless it is held that such estimate of damages/compensation
is unreasonable or is by way of penalty, party who has
committed the breach is required to pay such compensation
and that is what is provided in Section 73 of the Contract Act.
(3) Section 74 is to be read along with Section 73 and,
therefore, in every case of breach of contract, the person
aggrieved by the breach is not required to prove actual loss or
damage suffered by him before he can claim a decree. 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.
(4) In some contracts, it would be impossible for the court to
assess the compensation arising from breach and if the
compensation contemplated is not by way of penalty or
unreasonable, the court can award the same if it is genuine
pre-estimate by the parties as the measure of reasonable
compensation.”
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In Construction and Design Services v. DDA (2015) 14 SCC 263, the
Hon'ble Supreme Court adopted the approach in ONGC Ltd v. Saw
Pipes Ltd wherein it was held that where it would be difficult to prove
exact loss or damage which the parties suffer because of breach of
contract, if the parties have pre-estimated such loss after clear
understanding, it would be totally unjustified to arrive at the conclusion
that the party who has committed breach of the contract is not liable to
pay compensation. Where evidence of precise amount of loss may not
be possible but in the absence of any evidence by the party committing
breach that no loss was suffered by the party complaining of breach, the
court has to proceed on guess work as to the quantum of compensation
to be allowed in the given circumstances.
In Kailash Nath Associates vs. DDA (2015) 4 SCC 136, it was held as
follows :
“43.1. Where a sum is named in a contract as a
liquidated amount payable by way of damages, the party
complaining of a breach can receive as reasonable
compensation such liquidated amount only if it is a
genuine pre-estimate of damages fixed by both parties
and found to be such by the court. In other cases, where a
sum is named in a contract as a liquidated amount
payable by way of damages, only reasonable
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compensation can be awarded not exceeding the amount
so stated. Similarly, in cases where the amount fixed is in
the nature of penalty, only reasonable compensation can
be awarded not exceeding the penalty so stated. In both
cases, the liquidated amount or penalty is the upper limit
beyond which the court cannot grant reasonable
compensation.
43.2. Reasonable compensation will be fixed on well-
known principles that are applicable to the law of contract,
which are to be found inter alia in Section 73 of the
Contract Act.
43.3. Since Section 74 awards reasonable compensation
for damage or loss caused by a breach of contract,
damage or loss caused is a sine qua non for the
applicability of the section.
43.4. The section applies whether a person is a plaintiff or
a defendant in a suit.
43.5. The sum spoken of may already be paid or be
payable in future.
43.6. The expression “whether or not actual damage or
loss is proved to have been caused thereby” means that
where it is possible to prove actual damage or loss, such
proof is not dispensed with. It is only in cases where
damage or loss is difficult or impossible to prove that the
liquidated amount named in the contract, if a genuine pre-
estimate of damage or loss, can be awarded.
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43.7. Section 74 will apply to cases of forfeiture of earnest
money under a contract. Where, however, forfeiture takes
place under the terms and conditions of a public
auction before agreement is reached, Section 74 would
have no application.”
23.Section 74 of the Indian Contract Act, 1872 will not have the
same manner of application irrespective of the nature of contract. There
is no single yardstick to arrive at a finding whether there was loss or no
loss. The approach to be adopted by the court or the tribunal would
depend on the nature of transaction. In the case of a contract for
delivery of goods, if breached, it is very easy to determine the
compensation payable to the innocent party. All that needs to be done is
to deduct the contract price from the market price on the date of breach.
In the case of engineering contracts, damages are assessed by applying
Hudson formula or Emden formula or Eichleay formula. The formula
applicable will depend on the factual matrix. The licensing agreements
on the other hand would be in a different category altogether.
Apparently, the licensor who merely grants license may not appear to
have suffered any loss as such. But when a revenue share or a fixed
fee is the consideration, the premature exit by the licensee would
definitely cause loss to the licensor.
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24.The case on hand pertains to a licensing agreement. The Port
Trust gave license to the claimant to deploy floating cranes to aid their
anchorage operations to lighten cargo in the visiting vessels. The
Arbitral Tribunal itself noted that the revenue share offered to be paid by
the licensee was the consideration. If only the licensee had stayed in the
field and the contract lasted for its full period of ten years, the port trust
would have earned a substantial sum. It is relevant to note that even
though the licensee had performed their contractual obligations only for
the period up to October 2016, they had earned Rs.6,92,94,797/- and
paid a sum of Rs.3,60,12,874/- to the port trust. If twenty three months
of license period would fetch Rs.3.60 crores for the port trust, the
revenue, that could have been earned by the port trust if the contract
had run its full course, would be several times over.
25.The Arbitral Tribunal came to the conclusion that there was no
demand for floating cranes and that the project was a failure and
unviable and that consequently there was no loss to the Port Trust only
based on the business results of the licensee. In other words, the data
generated on account of the manner in which the licensee operated their
business led the Tribunal to arrive at the aforesaid finding.
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26.The case involves a clear inter-sectionality between law and
economics. Long ago, the great American Judge O.W Holmes remarked
“for the rational study of law, the black – letter man may be the man of
the present, but the man of the future is the man of statistics and the
master of economics...”. In quite a few academic articles, one notices
reference to game theory in auction. Game theory focusses on
situations where individuals or entities interact strategically, meaning
their choices and actions are influenced by the anticipated actions of
others. Games can involve conflict situations or can be based on
cooperation. The former is called as zero-sum game. One profits at the
cost of another. But there are games based on cooperation which are
called as positive-sum games. When a licensor grants license based on
a revenue sharing agreement, it is a classic instance of positive-sum
game resulting in a win-win situation for both. That is why, when the
licensee approached the port trust for some accommodation and
concession to increase the traffic, it was readily accepted.
27.We noted at the very outset that the suggestion to start floating
crane operation came from the licensee and the trade bodies. The
licensee is not a novice. They had been in the field of stevedoring for a
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quarter of a century when the agreement was entered into. The Port
Trust had not guaranteed any definite volume of business. The licensee
had made a strategic calculation while entering into the contract. Even
though in the agreement, the minimum share payable to the Port Trust
was fixed at 32%, the licensee voluntarily chose to offer 50%. It is not
as if an entirely novel idea of deploying floating cranes was conceived
only in Tuticorin Port Trust. As per the evidence on record, it was
already in operation in Kandla Port Trust.
28.The licensee ought to have adopted an effective marketing
strategy. Whenever a new product or service is introduced in the
market, there will be an effective advertisement to reach out to the
prospective customers. In fact, through advertisements, a need is
created even where there was none. It all depends on the manner of
conducting the business operations. If the anchorage operations by
deploying floating cranes could be successfully carried out elsewhere,
there is no reason as to why the business model could not have been
replicated in Tuticorin. The claimant has not demonstrated that the very
idea of floating cranes was an absurd one. It is true that the licensee
was not able to carry on beyond a point. But the finding that the project
itself was unviable is perverse. Merely because the licensee suffered
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loss, one cannot conclude that the Port trust did not suffer any loss. If
the licensee had performed their part of the contract, the Port Trust
would have definitely earned its revenue share.
29.The business model envisaged that the parties conduct their
business in an efficient manner. Suppose one party handles the affairs
inefficiently leading to the termination of contract, the results generated
by such inefficient conduct cannot be the basis to infer that the project
itself was unviable. The Arbitral Tribunal came to the abrupt conclusion
that the project was a failure. From the fact that the breaching party had
suffered loss, the Arbitral Tribunal could not have concluded that the
project was unviable. In one part of the award, the tribunal held that the
licensee cannot plead that the contract had become impossible of
performance or frustrated merely because it became onerous to
perform. But while dealing with claim No.5, the issue is answered in
favour of the claimant for the reason that the claimant took a risky
contract which became onerous to perform. The award thus suffers from
a patent internal contradiction. The finding of the Arbitral Tribunal in this
regard is perverse.
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30.The conclusion of the Arbitral Tribunal on the issue of
invocation of bank guarantee could not have been a possible view at
all. The perverse finding goes to the root of the matter and is the basis
for the conclusion in respect of Issue No.5. Hence, the final award
suffers from patent illegality on this score. The learned District Judge,
Tuticorin adopted a totally hands-off approach. While in matters relating
to Arbitration, there is scope only for limited judicial intervention, it is not
altogether shut off. Section 73 of the Indian Contract Act, 1872 provides
for award of reasonable compensation for loss or damage caused by
breach of contract. Section 74 kicks in where liquidated damages or
penalty has been stipulated. If the agreement contains a pre-estimated
figure of liquidated damages or a sum has been named as penalty, that
would operate as the ceiling. What should be awarded as compensation
would depend upon the quantification of loss. But there could be
certain contracts where it is not possible to exactly quantify the loss
occurred. In such cases, if the court comes to the conclusion that the
figure mentioned in the agreement is a genuine pre-estimate, the said
sum can be awarded (vide Kailash Nath Associates v. DDA).
31.The case on hand is not a contract for delivery of goods. It is
not a contract for completing a project. In such cases, it is fairly easy to
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quantify the loss caused as a result of the breach of the contract. The
Port Trust and Seaport Logistics Private Limited entered into a licensing
agreement. The licensee commenced their commercial operations on
16.12.2014 and gave up in October 2016. The contract was to last for
ten years. It was a long term contract. The contract value was more
than 70 crores. The bank guarantee amount represented just 5% of the
contract value. The licensee was not able to procure a floating crane of
their own. They had taken one on hire purchase basis for ten years. As
per the contract specifications, the crane was to be in a good working
condition but the crane developed a big defect. As a result, it even
collided with the mother vessels. The crane was taken out on an
express undertaking that it will be brought back after the repairs were
carried out. But the crane owner detained the crane and the hire
purchase agreement between the owner and the licensee was
prematurely terminated. There are certain commercial projects that
yield returns only in the long run. They are not meant for those players
who want to make quick gains and exit early. Justice Ujjal Bhuyan while
advising law students made the following remark :
“Legal profession is not a 20-20 IPL match, it is not
even an ODI. It is more like a Test match. You must be
technically sound to play a long long innings. You must be
able to face the spinners, fast bowlers and even the
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bouncers. Therefore, stick to basics. Law is not rocket
science. It only requires hard work and perseverance.”
What applies to legal professionals would apply with equal force to
commercial players too.
32.Admittedly, the licensee violated the contract. That is why, the
Arbitral Tribunal rightly held that the termination of the contract by the
Port cannot be faulted. Having come to this conclusion, the Tribunal
could not have allowed the licensee to wriggle out of their contractual
obligations. Once a party to the contract agrees to adhere to certain
performance standards, in the event of their failure to do so, there will
certainly be some consequence to the other party who was not at fault.
In Construction and Designs Services vs. DDA (AIR 2015 SC 1282),
it was held that burden to prove that no loss was likely to be suffered is
on the party committing the breach. Considering the long period of
contract and the high contract value, the sum of Rs.3.53 crores which
represents 5% of the contract value, is definitely a genuine pre-estimate
of damages.
33.In DMRC Ltd v. Delhi Airport Metro Express (P) Ltd., (2024)
6 SCC 357, it was held as follows :
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“34. The contours of the power of the competent court to set aside
an award under Section 34 has been explored in several decisions
of this Court. In addition to the grounds on which an arbitral
award can be assailed laid down in Section 34(2), there is another
ground for challenge against domestic awards, such as the award
in the present case. Under Section 34(2-A) of the Arbitration Act,
a domestic award may be set aside if the Court finds that it is
vitiated by “patent illegality” appearing on the face of the award.
35. In Associate Builders v. DDA [Associate Builders v. DDA,
(2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] , a two-Judge Bench
of this Court held that although the interpretation of a contract is
exclusively within the domain of the arbitrator, construction of a
contract in a manner that no fair-minded or reasonable person
would take, is impermissible. A patent illegality arises where the
arbitrator adopts a view which is not a possible view. A view can
be regarded as not even a possible view where no reasonable
body of persons could possibly have taken it. This Court held
with reference to Sections 28(1)(a) and 28(3), that the arbitrator
must take into account the terms of the contract and the usages of
trade applicable to the transaction. The decision or award should
not be perverse or irrational. An award is rendered perverse or
irrational where the findings are:
(i) based on no evidence;
(ii) based on irrelevant material; or
(iii) ignores vital evidence.
36. Patent illegality may also arise where the award is in breach
of the provisions of the arbitration statute, as when for instance
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the award contains no reasons at all, so as to be described as
unreasoned.
37. A fundamental breach of the principles of natural justice will
result in a patent illegality, where for instance the arbitrator has
let in evidence behind the back of a party. In the above decision,
this Court in Associate Builders v. DDA [Associate
Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204]
observed : (SCC pp. 75 & 81, paras 31 & 42)
“31. The third juristic principle is that a decision which is
perverse or so irrational that no reasonable person would have
arrived at the same is important and requires some degree of
explanation. It is settled law that where:
(i) a finding is based on no evidence, or
(ii) an Arbitral Tribunal takes into account something irrelevant
to the decision which it arrives at; or
(iii) ignores vital evidence in arriving at its decision, such
decision would necessarily be perverse.
42.1. … 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.”
....
39. In essence, the ground of patent illegality is available for
setting aside a domestic award, if the decision of the arbitrator is
found to be perverse, or so irrational that no reasonable person
would have arrived at it; or the construction of the contract is
such that no fair or reasonable person would take; or, that the
view of the arbitrator is not even a possible view. [Patel Engg.
Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC
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167 : (2020) 4 SCC (Civ) 149.] A “finding” based on no evidence
at all or an award which ignores vital evidence in arriving at its
decision would be perverse and liable to be set aside under the
head of “patent illegality”. An award without reasons would
suffer from patent illegality. The arbitrator commits a patent
illegality by deciding a matter not within his jurisdiction or
violating a fundamental principle of natural justice.”
34.The Arbitral Tribunal had failed to note that the floating crane
was deployed from December 2014 till October 2016 and during this
period, business to the tune of Rs.6.00 crores was conducted. The
licensee had abandoned the contract post October 2016. That during
this period of 23 months, the contract generated substantial revenue
was a vital piece of evidence which was ignored by the tribunal. The
conclusion that the port trust did not suffer any loss is based on no
evidence. The tribunal failed to take into account the contractual
clauses as mandated by Section 28(3) of the Arbitration and Conciliation
Act, 1996. Even though all these grounds were projected, the District
Court failed to exercise its jurisdiction under Section 34 of the Arbitration
and Conciliation Act. Hence, it is our duty while exercising appellate
power to interfere in the matter.
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35.Even while setting aside the arbitral award insofar as it held
that the invocation of bank guarantee by the Port Trust was illegal, we
are of the view that the rest of the award has to be confirmed. By doing
so, we are not modifying the award. Issue No.5 stands independently
and on its own and setting aside the award in respect of Issue No.5
would not affect the operation of the remaining part of the award.
36.Question arose if an arbitral award can be partially set aside
and whether it would amount to modification of the award. The learned
Senior Counsel for the port trust relied on J.C. Budhraja v. Chairman,
Orissa Mining Corpn. Ltd., (2008) 2 SCC 444 and J.G. Engineers (P)
Ltd. v. Union of India, (2011) 5 SCC 758 in support of his contention
that partial setting aside of the award would not amount to modification.
He drew our attention to the following passage occurring in Union of
India v. Alcon Builders & Engineer (P) Ltd., (2023) 1 HCC (Del) 134 :
“32. When the arbitrator's decisions on multiple
claims and counterclaims are severable and not
interdependent, the court is empowered under Section 34
to set aside or uphold the arbitrator's decisions on
individual and severable claims or counterclaims; without
having to set aside the entire arbitral award. That would
not amount to modification of the arbitral award.”
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On the other hand, the learned Senior Counsel appearing for the
contractor relied on NHAI v. M. Hakeem, (2021) 9 SCC 1 in support of
his contentions that modification of award is impermissible. We took
note of the decision of the Kerala High Court in Navayuga Engg. Co.
Ltd. v. Union of India, 2021 SCC OnLine Ker 5197 for the proposition
that partial setting aside would not constitute modification and that the
doctrine of separability can be applied to proceedings under Section 34
of the Act. We also intended to rely on the decision of the Bombay High
Court in R.S.Jiwani v. Ircon International Ltd., 2009 SCC OnLine
Bom 2021. After we made ready our order, we came to know that this
was one of the issues raised in Gayatri Balasami v. ISG Novasoft
Technologies Ltd and that orders have been reserved in the third week
of February, 2025. We therefore decided to defer our judgment and
await the ruling from the Hon'ble Supreme Court. Now, all the
discussions before us have become academic. The Hon'ble Supreme
Court in the aforesaid decision reported in 2025 INSC 605 has held that
the authority to sever the “invalid” portion of an arbitral award from the
“valid” portion, while remaining within the narrow confines of Section 34
is inherent in the court's jurisdiction when setting aside an award.
Invoking the doctrine of omne majus continet in se minus – the greater
power includes the lesser, the Hon'ble Supreme Court held that the
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authority to set aside an arbitral award necessarily encompasses the
power to set it aside in part, rather than in its entirety. It was further
clarified that the power of partial setting aside should be exercised only
when the valid and invalid parts of the award can be clearly segregated
– particularly, in relation to liability and quantum and without any
correlation between valid and invalid parts.
37.We are clearly of the view that Claim No.5 portion of the
impugned award alone is invalid and that the rest of the award is valid.
They can be clearly segregated. The parameters laid down in Gayatri
Balasami v. ISG Novasoft Technologies Ltd are very much fulfilled in
this case.
38.In the above case, the Hon'ble Supreme Court also held that
Section 37 permits an appeal against any order setting aside or refusing
to set aside an arbitral award under Section 34. To this extent, the
appellate jurisdiction under Section 37 is coterminous with, and as broad
as, the jurisdiction of the court deciding objections under Section 34. Of
course, the court's authority under Sections 34 and 37 of the 1996 Act
is limited by the silhouette of Section 34.
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39.In this view of the matter, we set aside the order passed by the
court below to the extent it failed to interfere with the impugned Arbital
Award in respect of Issue No.5 concerning invocation of bank guarantee
by the Port Trust. We hold that the invocation of bank guarantee by the
port trust is legal and valid. CMA(MD)No.472 of 2022 filed by the Port
Trust is allowed to that extent. CMA(MD)No.530 of 2022 filed by the
licensee is dismissed. No costs.
(G.R.S. J.,) & (R.P. J.,)
08.05.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
SKM
To:-
1.The Principal District Court,
Thoothukudi.
2.The Arbitral Tribunal,
Chennai.
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C.M.A.(MD)Nos.472 and 530 of 2022
G.R.SWAMINATHAN, J.
and
R.POORNIMA, J.
SKM
C.M.A.(MD)Nos.472 and 530 of 2022
08.05.2025
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