Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 989 of 1990 Appellant :- The State Of U.P. And Others Respondent :- Om Prakash Singh Counsel for Appellant :- S.K. Mehrotra, S.C.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri S.K. Mehrotra, learned Standing Counsel. Several times, notices were sent to the respondent but Sri Om Prakash Singh, respondent No.2, has chosen not to appear before this Court. Fresh notice was sent to him. He is now deemed to be served.
2. This First Appeal From Order has been filed under section 39 of Indian Arbitration Act, 1940 (hereinafter referred to 'Act, 1940') by the appellants, being aggrieved by judgment and award dated 18.08.1986 passed by Civil Judge, Gorakhpur in Original Suit No.18 of 1984 (Om Prakash Singh Vs. State of U.P.).
3. The valuation of the appeal in the year 1987 was Rs.2,10,427/-. The impugned order of the District Court quashing the award is under challenge. Certain disputes arose and the matter was referred to the sole Arbitrator who held and gave his verdict which was objected by the opponent herein. The signed copy of the judgment rather award was before the Court below. The counsel for the appellant has submitted that the Court below has adjudicated the dispute as if it was sitting in appeal over the arbitral award. The arbitral award was a well reasoned award and, therefore, unless it was proved that the award was undreasoned or that the Arbitrator has misconducted himself then only the Court could have interfered. It has reappreciated the entire award which was not permissible.
4. The contours for interfering with the arbitral award under the Arbitration Act, 1940 are well defined. The reasons given are not such which are germane as held by the Apex Court in recent judgments cited below:
(i) Steel Authority of India Ltd Vs. Gupta Brothers Steel Tubes Ltd. (2009) 10 SCC 63 .
“...... The courts below have currently held that the arbitrator has gone into the issues of facts thoroughly, applied his mind to the pleadings, evidence before him and the terms of the contract and then passed duly considered award and no ground for setting aside the award within the four corners of Section 30 has been made out......... In what we have already discussed above, the view of the arbitrator in this regard is a possible view. Consequently, appeal has no merit and costs.”
(ii) Sumitomo Heavy Industries Ltd Vs. Oil & Natural Gas Commission of India (2010) 11 SCC 296 “.... award was not only a plausible one but a well reasoned award. In the circumstance the interference by the High Court was not called for. In that view of the matter we allow this appeal and set aside the judgment of the learned Single Judge, as well as that of the Division Bench. ”
(iii) Rashtriya Ispat Nigam Ltd. Vs. M/s Dewan Chand Ram Saran reported as 2012 (5) SCC 306 “.... There was no reason for the High Court to interfere in the view taken by the arbitrator which was based, in any case on a possible interpretation of clause 9.3. The learned single Judge as well as the Division Bench clearly erred in interfering with the award rendered by the arbitrator. Both those judgments will, therefore, have to be set-aside. Accordingly, the appeal is allowed and the impugned judgments of the learned Single Judge as well as of the Division Bench, are hereby set aside ”
(iv) Reported as 2011 (5) SCC 758, in the case of J.G. Engineers Pvt. Ltd. Vs./ Union of India & Anr.
(v) First Appeal No.137 of 1992, in the case of State of Gujarat & Anr. Vs. Nitin Construction Company, judgment dated 22.03.2013 of the Hon'ble High Court of Gujarat.
(vi) Reported as 2000 (4) GLR 3652 in the case of Oil & Natural Gas Corporation Limited V/s. Essar Steel Limited, (Paragraph-8).
(vii) Reported in 1999(9)SCC 449, Arosan Enterprises Limited V/s. Union of India & Anr.
(viii) Reported in 2003 (8) SCC 4, Continental Construction Limited V/s. State of U.P., Assam State Electricity Board V. Buildworth (P) Ltd., AIR 2017 ,Gujarat Water Supply & Sewerage Board V. Unique Erectors (Gujarat) (P) Ltd., 1989 (1) SCC 532: Irrigation Department, State Of Orissa V. G.C. Roy, 1992 1 SCC 508 : Jugal Kishore Prabhatilal Sharma V. Vijayendra Prabhatilal Sharma, AIR 1993 SC 864 and Smt. Aruna Kumari V. Government Of Andhra Pradesh, AIR 1988 SC 873.
(ix) Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd, 2006 (7) SCC 700.
5 Recently in Rajasthan State Road Transport Corporation ( supra), it is held that that the award can be set aside on the ground of misconduct if relevant documents are not considered by the Arbitrator.
6. While going through the arbitral award, it is clear that the Arbtrator has considered each and every items and has justified by giving his reasons. The learned Civil Judge, Gorakhpur has reappreciated that fact and come to a different conclusion than the Arbitrator. The Aribral award is upheld. The Judgment of the Court below cannot be upheld and the same is quashed and set aside. No elaborate reasons are necessary as the order itself is bad in the eye of law and against the contours of arbitral proceedings.
6. In view of the above, this appeal is allowed.
Order Date :- 30.7.2019 DKS