NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. SSANGYONG

JUDGEMENT

(1.) THIS order disposes of I. A. No. 7657/2008 an application under Section 34 (4) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act, for short) filed by M/s Ssangyong " OSE (JV) (hereinafter referred to as the applicant, for short ).

(2.) DURING the course of arguments, M/s National Highways Authority of india, objector-non applicant had submitted that the impugned award passed by the Arbitral Tribunal dated 18th April, 2006 is incomplete and, therefore, liable to be set aside. My attention was drawn to the findings given by the learned Arbitrators in respect of claim No. 1 and counter claim No. 2 and other claims. It was pointed out that learned Arbitrators have allowed or rejected the claims of the parties but have not quantified and calculated the amount due, e. g. the applicant has been held entitled to cost of idling of plant and equipment and cost of overheads to cover manpower etc under claim No. 1 and counter claim No. 2, but the amount payable have not been worked out and quantified. Learned Arbitrators have merely held that the aforesaid amounts would be worked out in terms of paragraphs 2. 6. 2. 1 and 2. 6. 2. 2 respectively. It was, thus, stated that the award is incomplete and the learned Arbitrators have not made complete and full adjudication. It was stated that it is not possible to work out and quantify the amount merely on the basis of the award as there will be disputes and differences on the amount payable. My attention in this regard was drawn to the judgment of a Division Bench of this Court in National highways Authority of India versus ITD Cementation India Limited, reported in 2008 (100) DRJ 431 (DB), wherein it has been observed as under:-"determination of these disputed questions of fact was absolutely essential for quantification of the amount and its reimbursement. That determination was permissible only at the hands of the arbitrators. The same could not be delegated to any other person or authority. Inasmuch as the arbitrators not only left the issues regarding quantification of the amount open but required the same to be decided by the appellant who was a party to dispute, they committed a mistake. To make the payment of the amount to the claimant by the respondent dependent upon the satisfaction of the appellant who has to make such a payment was not a workable solution. We say so because the award does not provide for any remedy to the claimant in case the appellant were to reject the claim in toto or accept the same only in part. We asked Mr. Thomas whether his client was prepared to make a statement that it would accept without any demur the determination of the amount by the appellant and seek no relief against it. He declined to make that statement. All that he argued was that such a situation may be hypothetical and the court could not set aside the award on the assumption that there would be an unfair refusal of the amount by the appellant. We are not impressed by that submission. If it was not necessary to quantify the amount for an effective and final adjudication of the dispute between the parties, we may have ruled in favour of the respondent and given quietus to the controversy, but quantification of the amount is, in our opinion, a major area of controversy between the parties. We are therefore, of the view that even when the claim made by the respondents may not have been rejected in toto simply because the material produced was not sufficient for the arbitrators to quantify the amount, it was necessary that the amount was quantified instead of being left open for determination by the Appellant. "

(3.) THE applicant in the present application had stated that the award is not incomplete and learned Arbitrators have decided the disputes and also the claims and counter claims. What is "left" and "remains to be worked out" are mere arithmetical calculations as per the formula determined by the Arbitrators. This requires substitution of figures and applying the formula laid down by the arbitrators.