SWAN GOLD MINING LIMITED Vs. HINDUSTAN COPPER LTD.

JUDGEMENT

(1.) THIS is an application filed under Section 34 of the 1996 Act to set aside the Award dated 24th July, 2009.

(2.) THE case of the petitioner is that a notice inviting tender (NIT) was issued by Hindustan Copper Ltd. (HCL) inviting offers for operation of its Surda Mine and Mosabani Concentrator Plant. The Price Bid was exclusive of all taxes as per the terms of the NIT and on basis thereof the offer was submitted. Such offer was subsequently modified and in such modified offer too taxes were excluded. The letter of intent was issued on 3rd March, 2007 and the contract was signed on 26th March, 2007. As disputes arose between the parties with regard to payment of taxes the arbitration clause was invoked and dispute referred to arbitration. The Arbitrator has based his Award on a case not pleaded, has decided on an issue not before him and the case not put to the witness. Reliance is placed on : 2003 4 SCC 161 for the proposition that case which was not pleaded cannot be dealt with nor relied on. In : 2003 10 SCC 653 and : AIR 1961 Cal 359 it has been held that the case not suggested to the witness cannot be relied on. Regarding the proceedings before the Tender Evaluation Committee the case was not suggested by the Arbitral Tribunal which has proceeded solely on the basis of the proceedings before the Tender Evaluation Committee. Therefore, the Arbitral Tribunal has acted contrary to the laws of the land and for the said reasons the Award be set -aside.

(3.) THE argument made now was not argued before the Arbitrator. As exclusion of tax was in issue Mr. Ahlawat should have been called by the claimant as he made some writings in his handwriting at the time of consideration of the price bid. On 7th March, 2009 documents was disclosed by the respondent. An affidavit of evidence was also filed by Mr. Rothery on 19th March, 2009 and by virtue of paragraph -5 the inclusion or exclusion of taxes was brought in issue by the claimant's witness. Therefore, the only issue raised was with regard to inclusion or exclusion of taxes and by not calling Mr. Ahlawat the claimant took a risk. In the Techno Commercial Bid deviation was permitted but the price bid was as per the format enclosed with the NIT. An authorized person was to be present to take spot decisions and Mr. Ahlawat was the petitioner's representative. In the price bid tax was added separately but subsequently Mr. Ahlawat gave it up in his hand writing and confined the price bid to the base price plus 55 per cent. Mr. Rothery is the only witness of the claimant. The Minutes of the 14th meeting of the Tender Evaluation Committee on 8th June, 2009 although not enclosed with the counter statement was disclosed subsequently as the Arbitrator called for it. Mr. Rothery has denied the authority of Mr. Ahlawat in his affidavit of evidence but he was not before the Tender Evaluation Committee. This will be evident from the answers of Mr. Rothery in cross -examination to Questions 12 and 13. It is not the case of the petitioner that Mr. Ahlawat did not sign and for the same, the answers to questions 20 and 21 should be looked into. In case of deviation Form -F was to be filed but no such form was filed, as there was no deviation from Clause 4.9.1 which will be evident from the answers to questions 38, 56 and 59. The contract is dated 26th March, 2007 and has been signed by Mr. Ahlawat and subsequent thereto the work order was issued on 14th April, 2007. By not calling any witness besides Mr. Rothery the petitioner took a risk. In case Mr. Ahlawat was called he too like Mr. Rothery could have said that he lacked authority.