PURE PHARMA LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner seeks the setting aside of the award dated 22. 09. 2003 made by Justice C. L. Chaudhary, a former Judge of this Court, in his capacity as the sole arbitrator. Although, several grounds have been taken in the petition, mr Shiv Khorana, the learned counsel appearing on behalf of the petitioner, pressed for the setting aside of the award on three grounds.

(2.) THE first ground taken by him is that the learned Arbitrator had placed reliance on the decision of the Supreme Court in the case of Oil and Natural Gas corporation Ltd. V. Saw Pipes Ltd. : (2003) 5 SCC 705, which was a decision that was not available to the parties prior to the date when arguments had concluded and the learned arbitrator had reserved the award. It is contended that the award is based, inter alia, on the said decision of the Supreme Court which was decided in May, 2003, whereas the arguments had concluded and the written submissions of the parties had already been submitted much prior to that date. Consequently, it is submitted that the parties did not have the opportunity to make their submissions in respect of the said decision of the Supreme Court so as to bring out the distinction between the present case and the one which was before the Supreme Court. It was, therefore, contended that as the arbitrator did not give the parties such an opportunity, the award which is based on the said decision, is liable to be set aside.

(3.) THE second ground taken by Mr Khorana is that time was not the essence of the contract and, therefore, the clause of liquidated damages cannot be invoked in view of Section 55 (2) of the Indian Contract Act, 1872, unless and until the exact extent of the loss is proved.