You One Maharia - JV and Another vs Bhandari Engineers and Builders Pvt. Ltd.

Vipin Sanghi, J.

C.M. No. 16809-810/2012 (for exemption)

Exemptions allowed, subject to all just exceptions.

C.M. No. 16808/2012

Since the relevant records to be referred have been filed along with the petition, the application is not pressed and is, accordingly, disposed of.

FAO (OS) No. 466/2012 & C.M. Nos. 16806/2012 (for stay) & 16807/2012 (for condonation of delay in filing the appeal)

We have heard learned counsel for the appellants. He submits that though the appellants seek to assail the original order dated 23.11.2011

passed by the learned Single Judge, the present appeal is, in fact, directed against the subsequent order dated 20.03.2012 passed by the learned

Single Judge in I.A. No. 3795/2012 in O.M.P. No. 189/2006, since the order dated 23.11.2011 had earlier been assailed vide F.A.O. (O.S.)

No. 40/2012, which was disposed of on 25.01.2012. While passing the said order, the Division Bench had permitted the appellants to raise the

issue of termination, addressed by the Arbitrator in paragraph 3.1.3.1 onwards, before the learned Single Judge, if it had been raised earlier but

had not been discussed in the order dated 23.11.2011, while dismissing the appeal on all other grounds. The appeal is barred by limitation even

qua the order dated 20.03.2012. The certified copy of the impugned order dated 20.03.2012 of the learned Single Judge was applied for by the

appellants only on 12.04.2012. The certified copy was ready for delivery on 31.05.2012, however, the appellants collected the same on

11.07.2012. The period of limitation started to run against the appellants on 21.03.2012 and stopped when the application for obtaining certified

copy was made on 12.04.2012, thereby consuming about 22 days. After the certified copy was readied on 31.05.2012, the limitation once against

started to run against the appellants on 01.06.2012 and would have expired on 08.06.2012. Since that day fell during Summer Vacations, the

limitation expired on the reopening of the Court, i.e., on 02.07.2012. The appeal was filed for the first time on 16.08.2012. Therefore, it was

delayed by over 45 days, for which we find no justification.

We may note that the appellants also seek condonation of delay in respect of the challenge to the earlier order dated 23.11.2011. However, in

view of the fact that the appeal in respect of that order already stands dismissed and the said challenge is not maintainable, we are not considering

the delay in filing the appeal in relation to the earlier order dated 23.11.2011.

The explanation furnished for the delay in filing of the appeal qua the order dated 20.03.2011 is only that due to Summer Vacations the

appellants could not approach the Lawyer up to 02.07.2012 and that the managing partner of appellant No. 1, who is the authorized signatory was

in bad health, due to which he could contact his advocate only on 15.07.2012. The aforesaid explanation is no explanation in the eyes of law. The

same is wholly unsubstantiated and vague. No particulars or evidence have been placed before the Court in support of the said ground. Even

otherwise, it is not explained as to why it has taken one month to file the appeal for the first time, from the date when the counsel for the appellants

was approached on 15.07.2012 for the purpose of filing the appeal.

For the aforesaid reasons, there is no merit in the application to seek condonation of delay, which stands dismissed. In any event, we have heard

learned counsel for the appellants on the merits and proceed to dispose of the appeal on merits as well. Even on merits, there is no force in the

present challenge.

As aforesaid, the challenge to the original order dated 23.11.2011 dismissing the objections of the appellants was disposed of in F.A.O. (O.S.)

No. 40/2012. The order passed by the Court in the said first appeal dated 25.01.2001 reads as follows:

FAO(OS) No. 40/2012 and CM Nos. 1554-1555/2012

Learned senior counsel for the appellants contends that the real issue which is required to be examined is qua the issue of termination which was

addressed by the arbitrator at page 104 in para 3.1.3.1. He, however, concedes that there is no discussion on this aspect in the impugned order of

the learned single Judge dated 23.11.2011.

We put to learned senior counsel for the appellants that in that eventuality we would have to presume that such a plea was never urged before the

learned single Judge.

Learned senior counsel for the appellants, faced with the aforesaid position, seeks to withdraw the appeal and the applications as he would like to

move the learned single Judge in case such a plea was urged and not adjudicated upon.

Dismissed with the aforesaid liberty to the appellants to move the learned single Judge.

SANJAY KISHAN KAUL, J

RAJIV SHAKDHER, J

The appellants approached the learned Single Judge on the basis of the said order, who has passed the following impugned order rejecting the

appellants'' I.A. No. 3795/2012 in O.M.P. No. 189/2006 and I.A. No. 3798/2012 in O.M.P. No. 202/2006:

Pursuant to the order dated 25th January 2012 passed by the Division Bench in FAO (OS) No. 40 of 2012 permitting the Petitioners to

withdraw the said appeal to urge the plea concerning the finding of the Arbitrator in para 3.1.3.1. of the Award dated 10th January 2006 which,

according to the Petitioner, was not discussed by this Court in the judgment dated 23rd November 2011 dismissing O.M.P. Nos. 189 of 2006

and 220 of 2006 filed by the Petitioner u/s 34 of the Arbitration and Conciliation Act 1996, the Petitioner has filed these applications styled as

''applications for recall'' of the said order dated 23rd November 2011. In fact, they are review petitions.

This Court has heard the submissions of Mr. Ramesh P. Bhatt, Senior Advocate and has also considered the documents filed as a separate

compilation by the Petitioner on 16th March 2012. The Court has also considered the judgment of the Supreme Court in ONGC Ltd. Vs.

Garware Shipping Corpn. Ltd., .

This Court has, in light of the said documents examined once again Para 3.1.3.1 to para 3.1.3.9 of the impugned Award. This Court does not

find any ground having been made out by the Petitioner for interference with the impugned Award even in relation to para 3.1.3.1 to 3.1.3.9.

Both these applications, which are in effect review petitions, are dismissed.

The first submission of learned counsel for the appellants is that the learned Single Judge has not examined the matter in the light of the order of

the Division Bench dated 25.01.2012. He submits that there is no finding returned by the learned Single Judge as to whether or not the appellants

had raised the issue with regard to the finding of the Arbitrator in paragraphs 3.1.3.1 onwards at the time of hearing of arguments when the order

dated 23.11.2011 was passed. He further submits that the order of the learned Single Judge is cryptic as it does not contain any reasons

whatsoever, apart from stating that the Court has examined, once again, paragraphs 3.1.3.1 to paragraphs 3.1.3.9 of the impugned award and the

Court does not find any ground having been made out for interference with the impugned award in relation to the said paragraphs.

A perusal of the order of the Division Bench dated 25.01.2012 as well as the order of the learned Single Judge shows that this grievance of the

appellants may be justified. We have, therefore, ourselves gone into the relevant paragraphs of the impugned award with learned counsel for the

appellants and heard his submissions thereon. The Arbitral Tribunal while dealing with the issue of breach of the sub-contract and the termination

thereof rejected the appellants'' contention that the construction drawings were to be prepared by the respondent and were then required to be

submitted for approval. The Tribunal observed that the drawings issued to the respondent had a lot of variation from the site conditions. The

appellant itself had sent a communication dated 14.09.2002 (Exhibit C-30) to the employer-NHAI stating:

On the examination of the drawings for culverts, bridges and under passes it was observed that there is gross difference in the quantities as well as

grades of concrete in the above mentioned package.

The appellant also sent another communication dated 28.11.2002 (Exhibit C-31) to the employer-NHAI, inter alia, stating:

the survey points and good for construction drawings has not been given to us so far.....

And it is also stated therein that:-

And further, on receiving the drawings issued by the Consultant, it was found that either the total drawings were not issued to us or there was a lot

of discrepancies in the drawings when compared to the site conditions.....

The Tribunal on the basis of the aforesaid documents, which were admitted documents, concluded that it was not the obligation of the

respondent to prepare the ""good for construction"" drawings and there was delay in supply of these drawings to the respondent.

Learned counsel for the appellants has sought to draw our attention to Exhibit C-30 and Exhibit C-31 with the plea that the Arbitral Tribunal

has only partially extracted portions from these letters and the extracts do not convey the true meaning and intent of these communications. We

have perused these communications ourselves and do not find any merit in the appellant''s submissions. Firstly, it is within the domain of the Arbitral

Tribunal to appreciate the evidence laid before it and it is not for the Court-while hearing objections u/s 34 of the Arbitration & Conciliation Act,

1996, much less for this Court while hearing the appeal, to re-appreciate the evidence. Secondly, even on a perusal of these documents, it is clear

that the Arbitral Tribunal has correctly read these communications and extracted the relevant portions which completely belie the appellants'' stance

that the obligation to prepare the construction drawings was that of the respondent.

So far as the aspect of dismantling of the existing structures and deviation of effluent/industrial waste is concerned, the Tribunal has examined

and interpreted the contractual terms, namely the BOQ-5 and concluded that it was not the obligation of the respondent under the contract to

carry out the said work. Same is the position with regard to the respondent''s alleged obligation to supply data/information for getting the approval

of the employer-NHAI to sub-contract a part of the work under the main contract as per Clause 18 of the main contract. The Tribunal has

referred to Clause 7.1 of the principal contract between the appellants and the NHAI to conclude that it was the responsibility of the appellants to

obtain approvals in terms of Clause 18. The Tribunal has observed that the failure was on the part of the appellants in not making payments of the

respondents for the work done by them. It is the backbone of any commercial contract between the parties that payments should be made in time

for the work done.

We may note that in the present case the appellants received the payments for the work done by the respondent from the employer-NHAI but

passed on only a part of the said amount and pocketed the rest. The Tribunal observes that the respondent had refuted the allegations of the

appellant made while issuing the termination notice. However, the appellants did not meet the stand taken by the respondent. The Tribunal has also

interpreted the contractual terms contained in Clauses 24-25 and rejected the appellants'' submission that the disputes could not have been

resolved by referring the same to the Dispute Resolution Board and thereafter through the process of arbitration. In this respect, the Tribunal has

interpreted Clause 3 of the subcontract between the parties.

All the aforesaid findings of the Tribunal are clearly based on evidence, and appear to be not only plausible, but reasonable. It cannot be said

that these findings are not based on evidence or are contrary to the evidence. It also cannot be said that these findings are perverse or such that no

person could reasonably have arrived at. These are all findings of fact arrived at upon appreciation and evaluation of evidence and on interpretation

of the contractual terms. We find no reason to interfere with the award or with the impugned order passed by the learned Single Judge on

20.03.2012. For the aforesaid reasons, the present appeal stands dismissed. Since we have dismissed the appeal, the application for stay of the

impugned judgement does not survive and the same is also dismissed.