CENTRAL WARE HOUSING CORPORATION, PANCHKULA Vs. JASWINDER SINGH, EX H&T CONTRACTOR, RESIDENT OF KRISHNA COLONY, INDRI ROAD, LADWA, DISTRICT KURUKSHETRA & ANOTHER

JUDGEMENT

(1.) Appellant-Central Ware Housing Corporation (hereinafter referred as "the Corporation") is aggrieved of the dismissal of the objections filed under Section 34 of the Arbitration and Conciliation Act, 1996 for setting-aside of the award dated 25.5.2008. Ms.Ritu Pathak, learned counsel for the appellant- Corporation submits that vide tender dated 9.8.2002, handling and transport contract was awarded to respondent No.1 for a period of two years. Respondent No.1 was required to execute an agreement by visiting the Regional Office at Panchkula within a period of one week from the allotment of the tender, but he did not appear for execution of the agreement and, thus, failed to carry out handling and transport contract. Numerous letters/reminders were issued to him but yielded no result. The contract awarded was, therefore, rescinded and temporary contract was awarded to another contractor, therefore, in view of the arbitration clause, the matter was referred to the arbitration.

(2.) The Arbitrator failed to notice that the respondent failed to carry out the handling and transport contract by providing vehicles, labour and other required equipments. It also failed to notice that respondent No.1 was in judicial custody w.e.f. 1.9.2002 to mid March, 2003. No such application at the behest of respondent No.1 for taking him to the Stamp Vendor for execution of the GPA moved before the Sessions Court at Kurukshetra has been placed on record. Clause 5(A) of the contents of tender specifically provides that the successful tenderer, within a week of acceptance of his/their tender, will execute an agreement at the Regional Office in the form annexed at Appendix-VIII and in the event of failure of the successful tenderer to execute the contract within the aforementioned period, the contract was liable to be rescinded at the risk and cost of the tenderer and the earnest money forfeited, therefore, Court ought not to have ordered for refund of the earnest money. The Objecting Court also failed to even mention the aforesaid facts, though the objections were falling with the realm of Section 34 of 1996 Act. The respondent failed to lead any evidence with regard to the actual loss suffered by him and in the absence of the same, the compensation awarded is without basis or reasoning.

(3.) It is now a settled law that in what circumstances, the award has to be interfered with. The question, which is now raised in the aforementioned appeal, has already been answered by the Hon'ble Supreme Court in catena of judgments, wherein it has been laid down that until and unless the award suffers from illegality as statutorily prescribed under Section 34 of the Act, the same cannot be interfered with. In this context, I intend to refer the judgments of Hon'ble Supreme Court in Associate Builders Vs. Delhi Development Authority, 2015 3 SCC 49 and Navodaya Mass Entertainment Ltd. Vs. J. M. Combines, 2015 5 SCC 698 . In the aforementioned judgments, the Hon'ble Supreme Court had culled out the ratio decidendi by holding that until and unless there is error apparent on the face of record or the arbitrator has not followed statutory legal position, it is only in these circumstances, it would be justified interfering with the award. The High Court should not act as a Court of appeal and reappraise the material/evidence and embark on a path by substituting its own view in support of the Arbitrator's view. It is not the case of the appellant that the award is against the public policy or has violated the principles of judicial approach, much less against the statute and other provisions of Section 34 of the Act. The Arbitrator has dealt with the dispute, which was contemplated and was within its scope. The parties to the lis had participated in the proceedings and were given proper notice not only with regard to the appointment of the Arbitrator but vis-a-vis proceedings. In my view, the award of the Arbitrator does not suffer from any illegality in as much as the Arbitrator, who is expert, has dealt with the matter and decided the claims of respective parties to the lis.