M/s Kohli Builders and Developers Private Limited vs M/s VISA Steel Limited

Arindam Sinha, J

Mr. Das, learned senior advocate appears on behalf of appellant and submits, impugned judgment of the learned District Judge in setting aside the

award is to be reversed. Ground for upholding the challenge was attributed to provision in sub-section (2A) under section 34, Arbitration and

Conciliation Act, 1996. He draws attention to impugned judgment, paragraph-9 onwards in particular. On query from Court he submits, the contract

was in respect of Guest house and thereafter extended for construction of administrative building. The work under the contract could not be

completed. The Tribunal had held, time is not the essence of contract and awarded claims in favour of his client. Findings of the Tribunal cannot be

said to be perverse for finding patent illegality on face of the award.

It appears the Court below has said that so far as administrative building is concerned, there is no proper agreement and the same is undertaken

under mutual understanding between the parties. Furthermore, said Court found that the respondent reposing confidence upon appellant assured him to

entrust the work for civil construction of administrative building on same rate, terms and conditions. Nevertheless, the Court relied on contractual

terms providing for liquidated damages to hold that time was essence of the contract.

Respondent will be heard, including on above observations made by Court and what is perversity, in view of findings of the Tribunal if can be said to

be a possible view.

By consent, list on 3rd March, 2022.

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