Orissa High Court
M/S. Engineers India Ltd vs Shyam Sunder Agarwal And on 6 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBA No.11 Of 2011
(Through hybrid mode)
M/s. Engineers India Ltd. .... Appellant
Mr. S.P. Mishra, Senior Advocate
-versus-
Shyam Sunder Agarwal and .... Opposite parties
another
Mr. Y.Dash, Senior Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
Order 06.12.2021
No.
14. 1. Mr. Mishra, learned senior advocate appears on behalf of
appellant and submits, challenge of his client to set aside award passed
under Arbitration Act, 1940 is on ground (a) in section 30. In other
words, the arbitrator has misconducted himself and the proceedings by
awarding on claims beyond scope of the contract. The arbitrator could
not have moved beyond four corners of the contract. He submits, the
contract had special conditions. He relies on clause-7 in the special
conditions, reproduced below:
"7. The contractor agrees that he has visited the site
and acquainted himself fully with the site conditions
and that no claims other than those stipulated herein,
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shall be entertained by the Company on the plea of
ignorance of difficulties or hardships involved in
providing the services."
2. Mr. Dash, learned senior advocate appears on behalf of
respondent-claimant he submits, admittedly the award is non-speaking
one. Details of claims are given at page-25 of the application for setting
aside the award. He submits, 19 claims were made for agreegate
Rs.1,14,74,180/- and interest at Rs.41,30,704/- taking the total to
Rs.1,56,04,884/-. Of this claim, the arbitrator awarded Rs.52,00,000/-.
Hence, less than 1/3rd of the total claim was awarded. He relies on
order dated 5th August, 2015 of the Supreme Court in Civil Appeal
no(s). 3209 of 2007 ( Indian Rare Earths Ltd. v. Unique Builders
Ltd.) to submit, there should be no interference. The award should be
made judgment of Court and decree drawn up accordingly.
3. In Indian Rare Earths (supra), contention of appellant seeking
to challenge the award finds record in the order, extracted and
reproduced below:
"Mr. Vinoo Bhagat, learned cousnel appearing for the
appellant, assailed the said Award and the impugned
order passed by the High Court on various grounds
inter alia the jurisdiction of the Arbitrator in passing a
non-speaking Award when arbitrability of the disputes
was questioned. Mr. Bhagat, learned counsel, also
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submits that in absence of any specific provision, the
claim against the escalation of prices ought not to have
been awarded. In this connection, Mr. Bhagat relied
upon various decisions of this Court in the case of T.N.
Electricity Board vs. Bridge Tunnel Constructions &
Ors. - (1997) 4 SCC 121; V.G. George vs. Indian Rare
Earths Ltd. & Anr. - (1999) 3 SCC 762; and
Associated Engineering Co. vs. Government of Andhra
Pradesh & Anr. - (1991) 4 SCC 93."
The Court dealt with the challenge in the manner reproduced below:
"As noticeed above, although the respondent claimed a
sum of Rs.97,54,143.78/- but the Arbitrator only
awarded a sum of Rs.19,55,368/- (Rupees nineteen
lakh fifty five thousand three hundred and sixty eight
only) with pendente lite interest at the rate of 15% per
annum from the date of institution of the suit till the
date of the Award. Admittedly, the Award is a non-
speaking award. Hence, it is not permissible for the
Court to probe into the mental process of the learned
Arbitrator especially when the Arbitrator rejected
major portion of the claim made by the respondent.
In the background of all these facts, we do not
find any reason to interfere either with the Award
passed by the learned Arbitrator or with the impugned
order passed by the High Court. Hence, this appeal is
dismissed."
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4. Adjournment is granted for appellant to be heard in contest of
record in today's order.
5. List on 17th December, 2021 as prayed for.
(Arindam Sinha)
Judge
Sks
