Dismissed

M/S Bharat Coking Coal Limited v. M/S Annapurna Cosntruction

Jharkhand HC9 Dec 2019Arb. Appeal/9/2010

Case brief

AI extract

What is this about?

The High Court dismissed an arbitration appeal challenging an award where a contractor claimed losses due to delay. The court held that the arbitrator properly applied the Hudson's formula and was not required to award specific proof of lost profits, as the scope of interference under the Arbitration Act, 1940 is limited.

What did the court decide?

The arbitration appeal was dismissed; the amount deposited was directed to be released in favour of the claimant.

M/S Bharat Coking Coal Limited Vs M/S Annapurna Cosntruction — Arbitration | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Arbitration Appeal No. 09 of 2010

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M/s. Bharat Coking Coal Limited, Koyla Bhawan, P.O. Koyla Nagar, P.S. Saraidhella, district- Dhanbad

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… … Defendant/Appellant

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Versus

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M/s. Annapurna Construction, J.C. Mallick Road, Hirapur, P.O.P.S. and district- Dhanbad

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --For the Appellant : Mr. Anoop Kumar Mehta, Advocate For the Respondent : Mr. P. K. Bhattacharya, Advocate ---

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24 /09.12.2019 Heard Mr. Anoop Kumar Mehta, Learned Counsel appearing on behalf of the appellant.

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2. Heard Mr. P. K. Bhattacharya, Learned Counsel appearing on behalf of the respondent.

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3. This appeal has been filed under Arbitration Act, 1940 for setting aside the judgment dated 13.05.2010 (decree sealed and signed on 22.05.2010) passed by the learned Subordinate JudgeI, Dhanbad in Title (Arb.) Suit No. 11/90/109/1994 by which the learned court below has been pleased to reject the objection filed by the appellant under Section 30 of the Arbitration Act, 1940 for setting aside the Award dated 02.09.2005.

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4. The respondent was awarded contract for construction of 140 units of temporary hutments at Block-II Area valued at Rs. 49 lakhs and odd and the contract was to be completed within a period of four months. The period for completion of contract was from 02.05.1986 to 01.09.1986. However, on account of noncompletion of contract within the stipulated time-frame, extension was granted for a period of 16 months and 14 days.

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5. Dispute and differences arose between the parties which led to invocation of arbitration clause and the Chief Engineer of the Appellant Company was appointed as the sole Arbitrator,

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who passed an Award dated 13.07.1994 which was made the Rule of the Court on 03.06.1995. Against the award, a miscellaneous appeal was filed which was dismissed vide judgment dated 29.04.1997. The judgment dated 29.04.1997, was challenged in Civil Appeal No. 5647-48/1997 which was decided on 29.08.2003 which is reported in (2003) 8 SCC 154 and the Hon’ble Supreme Court of India referred the dispute in relation to claim Nos. 3, 7 and 11 for adjudication to Hon’ble Mr. Justice D. N. Prasad, a retired Judge of this Court. The operative portion of the aforesaid judgment is as follows: -

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“We are, therefore, of the opinion that the matter requires reconsideration. Having regard to the facts and circumstances of this case and particularly keeping in view the fact that the matter relates to pure interpretation of document which gives rise to question of law and instead and in place of remitting the matter to the named arbitrator, we would direct that the disputes in relation to Claim Items 3, 7 and 11 be referred to the Hon’ble Mr Justice D.N. Prasad, a retired Judge of the Jharkhand High Court on such terms and conditions as may be mutually agreed upon by the parties. The learned arbitrator is requested to consider the desirability of making his award as expeditiously as possible keeping in view the fact that the matter has been pending for a long time.”

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6. Upon remand, the learned Arbitrator disallowed claim

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no. 3 and allowed claim nos. 7 and 11 to the extent of Rs. 12,20,289.00 and 90,005.00 respectively. The appellant filed objection to the Award with respect to claim Nos. 7 and 11 and the objection of the appellant was rejected by the impugned judgment dated 13.05.2010. The claimant did not file any objection to the award and accordingly the issue in relation to claim no. 3 stands closed.

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Arguments of the appellant

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7. The learned counsel for the appellant, while referring to the Award submits that so far as the claim under item no. 7 is concerned, it was relating to alleged losses suffered by the claimant due prolongation of work and it was in three parts i.e. compensation for

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(a) 4% of the contract value on account of over-head and establishment etc.,

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(b)10% of the contract value on account of loss of profit due to loss of turnover stipulated in monthly turnover anticipated ,

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The total claim amount under aforesaid three sub-heads was Rs. 27,77,714/-.

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The claim on account of labour for idle period was rejected by the learned arbitrator on account of non-production of relevant proof i.e. wage register etc. and the claimant never raised any grievance in that regards and accordingly the said point has been closed. So far as other two heads are concerned, the same were partly allowed.

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8. So far as the claim item no. 11 is concerned, it related to material escalation and was allowed only to the extent of Rs. 90,005.00 only.

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9. The objection was filed by the appellant in connection with award of the remaining two heads under claim no. 7 and also against claim no. 11.

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10. The learned counsel for the appellant while assailing the award submits as under:-

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A. While awarding the amount under claim Nos. 7 and 11, the learned arbitrator has ignored the clause 13 of the contract, which specifically provides that no claim on the part of the claimant will be admissible, if there is delay in supply of steel and cement and accordingly the award suffers from error apparent on the face of record. The learned counsel has relied upon judgement reported in (2007) 4 SCC 697 (Food Corporation of India vs. Chandu Construction and Another) para 11 to 15. He also submits that the claim was excessive and exorbitant.

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B. In order to claim loss of profit, the condition precedent is that the claimant has to plead and prove that, had he

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received the amount due under the contract, he could have utilized the same for some business in which he could have earned profit. He submits that in the present case there is no such proof before the learned arbitrator that any alternative work was available with the claimant for execution during the period when delay was caused by the appellant and the claim is based solely on Hudson’s formula. He relies upon judgement passed by the Hon’ble Supreme Court reported in (2004) 5 SCC 109, para 24.

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C. So far as the claim on account of over-head and establishment are concerned, the same is based on Hudson’s formula and referring to the same from the award, he submits that the same clearly provided for “overhead inclusive of preparatory and estimation for” and in the present case preparation and estimation was already done and therefore there was no occasion to award any amount under this head.

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D. Learned counsel for the appellant, submits that the Arbitrator had erroneously considered the statement of hindrance to hold that the delay was attributable to the appellant and to further hold that the claimant was entitled to claim for loss of profit and overhead and calculated the payable amount as under:

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(i) Overhead 2% of 49,45,447.81 x 16.45 (months) - Rs. 4,06,763.08 4

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(ii) Loss of profit

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4% of 49,45,447.81 x 16.45 (months) - Rs. 8,13,526.16 4 Total - Rs. 12,20,289.24

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The aforesaid amount was the amount under claim item no. 7.

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So far as the claim item no. 11 is concerned, the learned Arbitrator had allowed the escalation @ 5% which

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amounted to Rs. 90,005.00. The learned counsel submits that this Award of Rs. 90,005.00 against material escalation for claim item no. 11 has also not been passed in accordance with law.

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E. The learned court below has not appreciated the aforesaid aspects of the matter and hence the award as well as the order of the learned court below are fit to be set-aside to the extent the award was challenged before the learned court below.

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Arguments of the respondent

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11. The learned counsel appearing on behalf of the respondent, on the other hand, submits that the scope of interference in Arbitration award is very limited and the same has to be confined to grounds mentioned in Section 37 of the aforesaid Act of 1940. He further submits that the Court does not sit in appeal while considering the prayer for setting aside the Award and the Court does not embark upon reappreciation of evidence led before the learned Arbitrator. The learned counsel has extensively placed the award to submit that the award is a well-reasoned award on every aspect of the matter which has been properly considered by the learned court below on well-defined parameters. He submits that neither the award nor the order passed by the learned court below calls for any interference by this Court.

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12. The learned counsel for the respondent has relied upon a judgment passed by this Court in Arbitration Appeal No. 01 of 2006 where in the law laid down by the Hon’ble Supreme Court reported in (2016) 9 SCC 478 has been followed. The learned counsel has also relied upon judgement passed by Hon’ble Supreme Court reported in (2018) 15 SCC 230 and submits that in the said case the matter before the Hon’ble Supreme Court also related to loss on account of over heads and profits and the awarded amount under such head was sustained by the Judgement of the Hon’ble Supreme Court.

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13. The learned counsel for the claimant submits that the learned Arbitrator has relied upon Hudson’s formula which was an accepted formula by both the parties and they only differed with respect to the percentages which could be awarded and the appellant gave their own percentage. The Arbitrator has taken percentages which are much less than what was submitted by the appellant.

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Findings of this Court

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14. There is no dispute that the scope of interference in the award under the provisions of Arbitration & Conciliation Act, 1940 is limited and the law in this regard is well-settled and reiterated by the Hon’ble Supreme Court in the judgment reported in (2016) 9 SCC 478 (Harish Chandra & Company vs. State of Uttar Pradesh) , wherein it has interalia been held as under: -

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“25. One cannot, therefore, dispute the legal proposition, which is now fairly settled keeping in view the aforementioned law laid down by this Court that an award can be set aside only on the grounds specified in clauses (a), (b) and (c) of Section 30 of the 1940 Act and on no other grounds. Indeed this is clear from the opening words of Section 30 itself which starts with the words “An award shall not be set aside except on one or more of the following grounds”. A fortiori, a reasoned award cannot be set aside unless it falls in any of the three clauses (a), (b) and (c) of Section 30 of the 1940 Act.

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26. The grounds such as inadequacy of reasons in support of an award, error committed by the arbitrator on facts, alternate and/or more plausible view could be taken then what is taken by the arbitrator, improper appreciation of evidence done by the arbitrator in recording any finding, etc. are not the grounds on which any award much less a reasoned award can be set aside. In other words, none of these grounds can be made the foundation for setting aside the award because they do not fall within the four corners of any of the three sub-clauses of Section 30 of the 1940 Act.

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29. With respect, we can neither agree nor can uphold the approach and the reasoning of the High Court. In our considered view, such approach is wholly against the law laid down by this Court in the decisions quoted supra.

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29.1. In the first place, the High Court did not apply the law laid down by this Court while deciding the appeal and

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hence, committed a jurisdictional error.

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29.2. Secondly, the High Court acted like an appellate court and virtually treated as if the appeal arose directly against the award and then proceeded to examine all factual findings of the arbitrator by appreciating the evidence. It was not permissible in law.

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29.3. Thirdly, the High Court should have confined its inquiry to find out as to whether any legal misconduct was committed by the arbitrator and, if so, how and in what manner. It was, however, not done.”

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This Court has followed the judgment of the Hon’ble Supreme Court in judgment dated 04.02.2019 passed in Arbitration Appeal No. 01 of 2006.

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15. There is no dispute so far as the claim item No. 3 is concerned, it was rejected in totality. Upon perusal of the award, this Court finds that the claim item No.-7 relating to loss due to idle wages for idle period, loss of profit and overheads, was partly allowed to the extent of Rs. 12,20,289.00 out of claim of Rs. 27,77,714.00. The claim item No.-11 on account of material escalation was partly allowed to the extent of Rs. 90,005.00, out of claim of Rs. 16 lakhs.

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16. So far as the claim item NO.-7 is concerned, it itself consisted of three parts: - (a) overhead and establishment etc. @ 10% (b) loss of profit due to loss of turn over @ 5% (c) ideal labour for ideal period when there was no supply of cement. Item No. (c) was rejected by the learned Arbitrator.

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17. It further appears from the award that the statement of claim was based on Hudson’s Formula and as per the claimant, an amount 10% would be adequate for the claimant’s expenses on supervisory establishment, field office etc., after completing the work during the stipulated period and the claimant would have earned profit as estimated minimum, if the claimant was free from obligation within time and would have executed further new work during prolonged period.

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18. While objecting to claim on account of item Nos. 7 and 11, the appellant had submitted before the learned Arbitrator that

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the claim is speculative and highly inflated and had also submitted that without prejudice to the said contention, in normal parlance break up of 100% component of a contract work as under: -

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Material Component	60%
Labour Component	25%
Petroleum Oil Lubricants	5%
(P.O.L.) Component
Profit Component	5%
Overhead inclusive of	4% (2%+2%)
Preparatory & estimation for

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It was also submitted before the learned Arbitrator that the claimant had placed hindrance statement under misconception and the case of Bharat Coking Coal Limited vs. L. K. Ahuja which is reported in (2004) 5 SCC 109 was relied upon by the appellant to submit that the claimant is not entitled for the claim under item No. 7.

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19. The learned Arbitrator, after considering the arguments of the parties with respect to the claim no. 7 held in para 31 and 32 of the Award that it is an admitted position that there was delay in completion of the work and the statement of hindrance was prepared by the Deptt./BCCL itself . The learned arbitrator also held that on perusal of the Hindrance statement, it is apparent that there was a delay due to irregular supply of cement and steel by the appellant and no stock of cement at the site store, delay due to land dispute at the construction site and delay due to damage caused by gale storm and heavy rain. The learned arbitrator also considered that admittedly no notice was ever given to the claimant to stop the work or for termination of the contract and it is clear that the appellant was responsible to supply the cement and steel to the contractor as laid down under clause 13 of the terms and conditions of the agreement and ultimately held that the work was prolonged owing to

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latches on the part of the appellant which is supported by the statement of Hindrance.

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20. The learned Arbitrator while dealing with claim on account of loss of profit and overhead, was of the view that the claimant is entitled for prolongation of work on the basis of statement of Hindrance, for which the claimant is entitled to get the claim for loss of profit and overhead and the learned Arbitrator relied upon Hudson’s Formula and held that award of 2% for overhead and 4% for loss of profit on the basis of Hudson’s Formula is reasonable and proper, and awarded the amount. It is worth noting that as per the Hudson’s Formula which was placed by the appellant, the loss of profit component was to the extent of 5% and overhead inclusive of preparatory and estimation was to the extent of 4% (2%+2%), but the learned Arbitrator had awarded 4% of loss of profit and 2% for overhead and also observed that Hudson’s Formula was accepted formula. The learned arbitrator had also considered clause 13 of the contract while considering the claims. This court also finds that delay in execution of the work, as recorded by the learned arbitrator was not only due to delay in supply of steel and cement but also due to other reasons as was mentioned in the hinderance statement submitted by the appellant before the learned arbitrator.

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21. From the perusal of the award, it is clear that the claimant as well as the appellant had relied upon Hudson’s Formula, though the percentage under each component as submitted by each party was different and the learned Arbitrator had awarded lesser amount in terms of percentage, when seen in comparison with the percentage in Hudson’s formula given by the appellant. However, it is not clear from the award as to how the learned Arbitrator has reached at the percentage for which the award was allowed i.e. 2% for overhead and 4% for loss of profit.

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22. This Court finds that the judgment which has been relied upon by the learned counsel for the appellant reported in (2004) 5 SCC 109 (Bharat Coking Coal Limited vs. L. K. Ahuja), the Hon’ble Supreme Court has held in Para-24 as under: -

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“24. Here when claim for escalation of wage bills and price for materials compensation has been paid and compensation for delay in the payment of the amount payable under the contract or for other extra works is to be paid with interest thereon, it is rather difficult for us to accept the proposition that in addition 15% of the total profit should be computed under the heading “Loss and Profit”. It is not unusual for the contractors to claim loss of profit arising out of diminution in turnover on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilized the same for some other business in which he could have earned profit. Unless such a plea is raised and established, claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same. This aspect was very well settled in Sunley (B) & Co. Ltd. v. Cunard White Star Ltd. by the Court of Appeal in England. Therefore, we have no hesitation in deleting a sum of Rs. 6,00,000 awarded to the claimant.”

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23. In the aforesaid judgment, it has been held by the Hon’ble Supreme Court that in order to claim loss of profit arising out of diminution in turnover on account of delay in the matter of completion of the work, what the claimant is required to establish in such a situation is, that had he received the amount due under the contract, he could have utilized the same for some other business in which he could have earned profit. It was also held that unless such a plea is raised and established, claim for loss of profits could not have been granted.

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24. This Court further finds that in the judgment passed by the Hon’ble Supreme Court which is reported in (2016) 11 SCC 181(MCDERMOTT INTERNATIONAL INC. VS. BURN STANDARD CO. LTD. AND OTHERS) , it has been held in Para109 that Sections 55 and 73 of the Indian Contract Act do not lay down the mode and manner as to how and in what manner the computation of damages or compensation has to be made. There is nothing in Indian law to show that any of the formula adopted in other countries is prohibited in law or the same would be inconsistent with the law prevailing in India. It has also been held in Para-110 of the said judgment that as computation depends on circumstances and methods to compute damages, how the quantum thereof should be determined, is a matter which would fall for the decision of the arbitrator and the Hon’ble Supreme Court in the said judgment refused to interfere with that part of the award, which was based on a formula evolved over the years and accepted internationally and, therefore, it was held that such award cannot be said to be wholly contrary to the provisions of the Indian law.

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25. In Para-112 of the aforesaid judgment which is reported in ( 2016) 11 SCC 181(supra), it has been held by the Hon’ble Supreme Court that the terms of the contract can be expressed or implied. The conduct of the parties would also be a relevant factor in the matter of construction of the contract. It has also been held that the construction of the contract agreement is within the jurisdiction of the arbitrators having regard to the wide nature, scope and ambit of the arbitration agreement and they cannot be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties. It has also been held that interpretation of a contract is a matter for the arbitrator to determine, even if it gives rise to determination of a question of law, and ultimately, in Para-115 of the aforesaid judgment, the Hon’ble Supreme Court held that

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a court of law or an arbitrator may insist on some proof of actual damages, and may not allow the parties to take recourse to one formula or the other or an arbitrator may even prefer one formula as against another. But, only because the learned arbitrator in the facts and circumstances of the case has allowed one of the parties to prove its claim relying on or on the basis of a Formula, the same by itself, would not lead to the conclusion that it was in breach of Section 55 or Section 73 of the Indian Contract Act. The judgment passed by the Hon’ble Supreme Court which is reported in (2004) 5 SCC 109 (supra) was also considered in the judgment reported in (2006) 11 SCC 181 (supra) at para-119 and the Hon’ble Supreme Court observed that the Supreme Court was not concerned with such a case as was involved in the case reported in (2004) 5 SCC 109 (supra) .

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26. In the instant case, this Court finds that the Hudson’s formula was relied upon by both the parties. The point that the claim was excessive was within the jurisdiction of the learned Arbitrator. This Court is also of the considered view that the interpretation of the contract between the parties was also exclusively within the domain of the learned Arbitrator.

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27. This Court finds that in the facts of the said judgment which is reported in (2004) 5 SCC 109 (supra), there was no plea of any formula relied upon by any of the parties for the purpose of assessment of claim under any head, much less Hudson’s Formula which was relied upon by the claimant as well as the appellant in the instant case, before the learned arbitrator. In this view of the matter the aforesaid judgement relied upon by the appellant does not apply to the facts and circumstances of the case.

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28. This Court is of the considered view that the aforesaid judgment passed by the Hon’ble Supreme Court reported in (2004) 5 SCC 109 (supra), does not apply to the facts and circumstances of this case also. In the present case, both the parties had relied upon the Hudson’s formula and the learned

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Arbitrator also relied upon the Hudson’s formula, but awarded the percentage, which was less than the percentage, which was mentioned by the appellant in their Hudson’s formula. The claim of the claimant was to the extent of 7% and 10%, so far as the overhead and loss of profit respectively are concerned, but the learned Arbitrator has awarded the same only 2% and 4% respectively. So far as the percentage is concerned, the learned Arbitrator has not given any calculation as to how the learned Arbitrator has arrived at 2% and 4% under the respective two heads. Considering the scope of interference in an award passed under the provisions of Arbitration and Conciliation Act, 1940, such exercise which has been undertaken by the leaned Arbitrator cannot be interfered. Accordingly, this Court is of the considered view that the learned court below was right in not interfering with the award and in making it.

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29. The other judgment relied upon by the appellant is reported in (2007) 4 SCC 697 (Food Corporation of India vs. Chandu Construction and Another) para 11 to 15 as follows: -

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” 11. It is trite to say that the arbitrator being a creature of the agreement between the parties, he has to operate within the four corners of the agreement and if he ignores the specific terms of the contract, it would be a question of jurisdictional error on the face of the award, falling within the ambit of legal misconduct which could be corrected by the court. We may, however, hasten to add that if the arbitrator commits an error in the construction of contract, that is an error within his jurisdiction. But, if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error (see Associated Engg. Co. v. Govt. of A.P. and Rajasthan State Mines & Minerals Ltd. v. Eastern Engg. Enterprises).

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12. In this context, a reference can usefully be made to the observations of this Court in Alopi Parshad & Sons Ltd. v. Union of India wherein it was observed that the Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The Court went on to say that in India, in the codified law of contracts, there is nothing which justifies the view that a change of circumstances, “completely outside the contemplation of parties” at the time when the contract was entered into will justify a court, while holding the parties bound by the contract, in departing from the

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express terms thereof. Similarly, in Naihati Jute Mills Ltd. v. Khyaliram Jagannath this Court had observed that where there is an express term, the court cannot find, on construction of the contract, an implied term inconsistent with such express term.

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13. In Continental Construction Co. Ltd. v. State of M.P. it was emphasised that not being a conciliator, an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the court provided his error appears on the face of the award.

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14. In Bharat Coking Coal Ltd. v. Annapurna Construction while inter alia, observing that the arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract, it was observed, thus: (SCC pp. 161-62, para 22)

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“22. There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record.”

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15. Therefore, it needs little emphasis that an arbitrator derives his authority from the contract and if he acts in disregard of the contract, he acts without jurisdiction. A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action (also see Associated Engg. Co. v. Govt. of A.P.).

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30. So far as the claim on account of material escalation is concerned, not much argument has been advanced by the learned counsel for the appellant, considering the small amount which was awarded by the learned Arbitrator, which was only to the extent of Rs. 90,005.00 out of the claim of Rs. 16 lakhs. This Court further finds that the learned Arbitrator had passed a speaking award on this point.

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31. Upon going through the award, this Court finds that the agreement between the parties including claim 13 of the agreement was duly considered by the learned arbitrator and it cannot be said that the learned arbitrator has ignored any terms of the agreement between the parties. Thus, the judgment

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reported in (2004) 4 SCC 697 (supra) , does not help the appellant in any manner whatsoever.

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32. This Court finds that the learned court below, while considering the challenge to the Award, has framed the following issues :

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“(i) Whether the claim item no. 7 Awarded to the extent of Rs. 4,06,763.08 as over head establishment and loss of profit awarded to the tune of Rs. 8,13,526.16 is justified and not hit by any terms and condition of the contract between the parties?

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(ii) Whether the Award with respect of item no. 11 for escalation of material to the tune of Rs. 90,005/- is justifiable? (iii) Whether the objection of M/s. BCCL is not tenable and the Award in question is fit to be made rule of the Court?”

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33. This Court finds that all the aforesaid issues were considered by the learned court below within the limited scope of challenge to arbitration award under the provisions of Arbitration Act, 1940 who has dismissed the case by a wellreasoned judgement which does not call for any interference by this Court.

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34. The amount deposited by the appellant, is directed to be released in favour of the claimant.

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35. Pending interlocutory application, if any, is also dismissed as not pressed.

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36. This arbitration appeal is accordingly dismissed.

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37. Let a copy of this order be communicated to the learned court below through ‘FAX’.

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(Anubha Rawat Choudhary, J.)

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Pankaj/Mukul

M/S Bharat Coking Coal Limited v. M/S Annapurna Cosntruction

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M/S Bharat Coking Coal Limited v. M/S Annapurna Cosntruction

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