India Tourism Development Corporation vs M/S. C.P. & Associates Pvt. Ltd & Ors

Sanjeev Narula, J

REV. PET. No. 84/2020 & 85/2020

I.As. 2817-2819/2020 (exemption)

Allowed, subject to all just exceptions.

I.As. 2816-2818/2020 (delay)

There is a delay of 133 days in filing the review petitions. For the reasons stated in the applications, the delay is condoned.

The applications are allowed.

REV. PET. No. 84/2020 & 85/2020

The present petitions have been filed seeking review of the common judgment and final order dated 03.09.2019 [hereinafter referred to as the

‘Impugned Order’] delivered by this Court in OMP (COMM) 252/2019 and OMP (COMM) 257/2019 filed under section 34 of the Arbitration

and Conciliation Act, 1996. The Impugned Order dismissed the challenge made by the Petitioners (i.e. the Review Petitioners herein) to Arbitral

Awards dated 06.05.2019 [in OMP (COMM) 252/2019] and dated 05.02.2019 [in OMP (COMM) 257/2019]. The liberty for filing the present review

was granted vide common order dated 14.01.2020 of the Division Bench of this Court in FAO(OS)(COMM) 4/2020 and FAO(OS)(COMM) 5/2020,

which the Petitioner/Review Petitioner had moved to assail the Impugned Order. Relevant portion of the order dated 14.01.2020 is extracted herein

below:

“1. The appellant/ITDC has filed the present appeals being aggrieved by a common judgment dated 03.09.2019, passed by the learned

Single Judge in OMP (COMM) 252/2019 and 257/2019 filed by it under Section 34 of the Arbitration and Conciliation Act, assailing the

Arbitral Award dated 06.02.2019 [subject matter of OMP(COMM) 257/2019] and Arbitral Award dated 05.02.2019 [subject matter of

OMP(COMM) 252/2019].

Mr. Patnaik, learned counsel for the appellant/ITDC commences his arguments by referring to para 6 of the impugned judgment and

states that the appellant/ITDC had assailed the Award passed by the Arbitral Tribunal on three counts, namely, recovery of liquidated

damages due to delay in supply of furniture, obligations cast on the respondent under the MOD's dated 07.07.2010 and 31.07.2010 and the

payment of material lying in the warehouse adjoining the project site. However, the learned Single Judge has erred in not dealing with the

grounds taken to assail the impugned Award on the last head, though arguments were duly advanced on the aforesaid aspect before the

learned Single Judge.

In view of the submission made hereinabove, we have enquired from learned the counsel for the appellant/ITDC as to whether any steps

were taken to invoke the review jurisdiction of the court and point out the aforesaid error, which as per him, is an error apparent on the

face of the judgment. Learned counsel concedes that no such steps have been taken so far and requests for some time to file a review

petition in this regard.

At the request of the counsel for the appellant, preliminary arguments on the present appeals are deferred for 23.04.2020.

It is made clear that while granting liberty to the appellant/ITDC to file the review application, we have not made any observations on the

merits/demerits or the maintainability of the review application proposed to be filed by it. It is left to the learned Single Judge to consider the

review petition as and when the same is filed by the appellant/ITDC and decide the same in accordance with law.â€​

Mr. Sangram Patnaik, learned counsel for the Review Petitioner submits that in the Impugned Order, while deciding the objection petitions, this

Court specifically took note of the issues raised before the sole arbitrator in the Arbitral Award(s), and extracted the same at paragraph number 6 of

the Impugned Order, but failed to deal with the same. The same is reproduced as follows:

“6. On 28th September 2012, learned Arbitrator entered upon reference. Petitioner urged before the Arbitrator that since Respondent

No. 2 is a party to the MoU, he should also be made a party to the proceedings. On 24 October 2013, Respondent No. 2 filed an application

for impleadment and the same was allowed. During the arbitral proceedings, Petitioner objected to separate Statement of Claims being filed

by Respondent No. 1 and 2. The objection was sustained and the Learned Arbitrator directed Respondent No. 2 to file a joint Statement of

Claim along with Respondent No. 1. On the basis of Pleadings of the parties, learned Arbitrator summarized the issues for adjudicating the

disputes between the parties, as noted in the impugned award. The same reads as follows:-

(A) “Recovery of liquidated damages due to delay in supply of furniture.

(B) The Obligation of the Respondent towards the MoU (Memorandum of Understanding) dated 07.07.2010 & dated 31.07.2010 which

were entered into between M/s C. P. Associates (the Claimant) through its Managing Director Sh. Chander Pal Singh Sisodia and M/s IET

(M/ s India Exports Today) through Sh. Rajiv Kumar Saxena proprietor of M.s India Exports Today in the presence of the officers of ITDC

(India Tourism Development Corporation Ltd.)

(C) Payment of the material (including the rent of the warehouses, their watch & ward, expenditure on insurance etc.) which is lying in the

warehouses at Nangal Dewat adjoining the project site at Vasant Kunj New Delhi.â€​

Mr. Patnaik argues that as the issue enumerated at paragraph number 6(C) above has not been traversed by this Court in the Impugned Order,

therefore, he stresses that this Court has erred in not dealing with the grounds urged in the objection petitions to assail the arbitral awards on the

above-noted issue. He further submits that he had agitated the grounds urged in the petition in respect of the said issue, while addressing oral

arguments. To support his submissions, he refers to the grounds raised in the petitions. He urges that this court dealt with only two issues, and the

main issue viz paragraph 6(C) has been overlooked. However, he candidly admits that in the written submissions filed before this Court, after the

conclusion of the oral arguments, no contentions were advanced or raised on the said issue. He submits that this was an inadvertent mistake or

oversight on his part, and, as a matter of fact, contentions on the said issue were advanced before this Court. Mr. Patnaik also sought to make

submissions on the merits of the said issue.

Mr. Sanyat Lodha, Advocate for Respondents No. 1 and 2, and Mr. Pawan Mathur, learned standing counsel for Respondent-DDA, strongly

oppose the present petitions and raise a preliminary objection regarding the maintainability of the review petitions. They submit that there is no error

apparent in the Impugned Order and that the Petitioner’s plea is false, contrary to the record, and should not be entertained. Mr. Lodha argues

that, as a matter of fact, the grounds relating to the issue enumerated at paragraph number 6(C) above were given up , never urged during the course

of the oral arguments. For this precise reason, the written submissions also do not contain any averments on the said issue. He submits that in the

written submissions filed by the respondents, a categorical statement has been made to this effect. He further draws support from the observations

made by this court in paragraph number 7 of the Impugned Order, which reads as follows:

“7. (…) The Petitioner has challenged the findings of the Arbitrator on issue nos. 1 and 2, on the grounds discussed hereinafter.â€​

I have heard the learned counsels for the parties at sufficient length. The submissions advanced by Mr. Patnaik with respect to the merits of the

issue are not required to be examined, as I find merit in the preliminary objection raised by the respondents qua the maintainability of the Review

Petition.

In my recollection, the Petitioner had not made any oral submissions on the issue enumerated at paragraph number 6(C) and this ground was given

up, as contended by Respondent’s counsel. However, as substantial time has lapsed since the matter was last heard, I would not reject the

contention of the Petitioner solely on the basis of my memory. Pertinently, in the instant case, since elaborate written submission of the parties are on

record, which were filed after the conclusion of the oral arguments, there cannot be any misgivings about what transpired in the Court. The written

submissions of the Petitioner are detailed and run into five pages. The opening paragraph spells out the three issues decided by the learned Arbitrator,

including the issue enumerated at paragraph number 6(C) above, which is in controversy in the present review petitions. Thereafter, the contentions

are summarized under specific heads, which relate to issues enumerated at paragraph numbers 6(A) and 6(B) only. It is thus evident that no

contentions were urged with respect to the issue enumerated at paragraph number 6(C). Today, Mr. Patnaik also seeks to contend that the issue

enumerated at paragraph number 6(C) is fundamental, and therefore there was no reason for him to give up the same and should be considered afresh

by this Court. However, if this was indeed the case, then there was no reason for the Petitioner to have ignored the same in their written submissions.

The plea that the ground was inadvertently not taken up in the written submissions, is therefore, clearly an afterthought. It is a common practice that

the counsels, during the course of arguments, urge only selective grounds and/or give up or not press some of the grounds. Thus, the only plausible

reason for the Petitioner not making any written submissions in this regard, is that during the course of the oral arguments, the grounds regarding the

issue enumerated at paragraph number 6(C) above were not pressed. Further it is also significant to note that the written submissions filed by the

respondents also make a mention of the hearings dated 05.07.2019 and 09.07.2019, in the following terms:

“3. At the outset, it is submitted that the present written submissions are being filed opposing the captioned Petitions in their entirety and

no part of the challenge sought to be made by way of the captioned Petitions may be deemed to have been admitted by the Respondents

herein for the sake of specific denial or traversal.

However, in the hearings dated 05.07.2019 and 09.07.2019 respectively in the captioned petitions before this Hon'ble Court, the Petitioner

had sought to challenge the awards on the following premise:

3.1. That the Awards suffer from non-joinder of necessary party inasmuch as the DDA was not impleaded as a party during the arbitral

proceedings.

3.2. That the Awards in favour of Respondent No. 2 were erroneous inasmuch as Respondent No. 2 not being a party to the Arbitration

Agreement could not have been impleaded as a party in the arbitral proceedings on the basis of the MoU between Respondent No. 1 and

Respondent No. 2.

3.3. That the finding of delay on the part of the ITDC was erroneous and that the delay was on the part of the Respondents in supplying the

furniture. In that view, the counter claim filed by ITDC was erroneously rejected by the Ld. Arbitrator.â€​

(Emphasis supplied)

Further, in paragraph number 4 of the said written submissions, the respondents have categorically stated that apart from the contentions urged in

the written submissions, the remaining grounds raised therein have not been argued before this Court and would be deemed to have been given up by

the Petitioner. The respondent also did not give any response to the same in their written submissions. The said paragraph reads as under:-

“4. It is submitted that the present written submissions, apart from placing the settled position of law on the scope of interference with an

arbitral award under Section 34 of the Act before this Hon'ble Court, seeks to deal with the aforementioned contentions raised by the

Petitioner in particular. It is submitted that the remaining grounds as sought to be raised in the Petition, not having been argued before this

Hon'ble Court, may be deemed to have been given up by the Petitioner. It is submitted that the same deserve no response, and are

accordingly not being specifically dealt with in the present written submissions.â€​

(Emphasis supplied)

In this factual background, as the Petitioner had given up the grounds relating to issue 6(C), as noted above, the Petitioner cannot invoke the

review jurisdiction of this Court to urge that it is an error apparent on the face of the record. Therefore, there is no merit in the present review

petitions. Accordingly, the same are dismissed.