Sri B Vishnu Vardhana Rao Vs the Chief Administrative Officer (Con)

SHRI.B.VISHNU VARDHANA RAO, S/O KASAIAH, AGED ABOUT 62 YEARS, OCC. CONTRACTOR, R/O 12-7-133/81/2, RAGHAVENDRA NAGAR OPP. HUDA TRUCK PARKING, KUKKATPALLY, HYDERABAD-560 072.

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…PETITIONER

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(BY SRI.BAPAT SAMPATH VINAYAKA RAO, ADVOCATE)

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AND:

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Digitally signed by K G RENUKAMBA Location: High Court of Karnataka

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THE CHIEF ADMINISTRATIVE OFFICER (CON), SOUTH WESTERN RAILWAY, 18, MILLERS ROAD, BENGALURU-560 046.

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M.RAMAHCHANDRAN IRAS, FA AND CAO (CN), SOUTH WESTERN RAILWAY, 18, MILLERS ROAD, BENGALURU-560 046.

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…RESPONDENTS

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(R1 SERVED AND UN-REPPRESENTED, V/O DTD.17/12/2024, NOTICE TO R2 DISPENSED WITH)

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THIS REVIEW PETITION IS FILED UNDER SECTION 114 R/W ORDER 47 RULE 1 OF CPC, PRAYING TO CALL FOR THE RECORDS IN M.F.A. NO.40/2016(AA) ON THE FILE OF THIS HON’BLE COURT AND REVIEW THE JUDGMENT DATED 08.04.2021 AND RESTORE M.F.A.NO.40/2016(AA) TO THE FILE AND GRANT SUCH OTHER RELIEFS IN THE INTEREST OF JUSTICE.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO AND HON'BLE MR JUSTICE S RACHAIAH

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

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This is the Review Petition filed by the appellant seeking review of the order passed by this Court on 08.04.2021 in MFA No.40/2016 under Section 37(1) of the Arbitration and Conciliation Act 1996, challenging the order dated 26.09.2015 passed by the learned X Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit in A.S. No.104/2010, which was filed under Section 34 of the Act of 1996, challenging the award.

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2. The review has been filed on a limited ground

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that, the Ground (J) of the appeal filed under Section 37 of the Act of 1996 has been over-looked.

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3. Suffice to state that, this Court in the aforesaid

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order has in Paragraphs No.16 to 19, stated as under:

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“16. The variation statement furnished by the railways before the Arbitral Tribunal would disclose that Rs.55,22,459.74 was the amount related to L2 K.V.S.Reddy whereas Rs.8311574.73 was the amount related to L1 B.V.V.Rao. Accordingly, the vitiation has been determined at 3115844.30. The same has been deducted by the learned arbitrator. Indisputedly, both the parties have not submitted any arguments before the Trial Court. The grounds urged before the Trial Court also do not reflect this issue inasmuch as vitiation clause. However, the learned counsel for the appellant made an endeavour to contend that the ground at [J] would indicate the challenge to the vitiation clause. The same is excerpted hereunder for ready reference:

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“J. The Arbitral Tribunal ought to have taken into consideration the contractual clauses governing the variations of quantities. The Arbitral Tribunal failed to consider the documents

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filed by the petitioner/claimant in respect of claim No.1 and erroneously replied on the oral submissions of the Railways ignoring the factual aspects.”

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17. Clause 2.1 of the agreement for works (Ex.C2) deals with variation in quantities. Clause 2.1 reads thus:

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“2.1 The railway reserves the right to alter the designs and drawings. If due to change in drawing or design or any other reasons, if there be any variations [either increase or decrease in quantities], payment will be made only for the actual quantities executed at the accepted rates. If there be sufficient cause, the railway may grant extension of the date of completion suitably. Such circumstances, shall, in no way affect or vitiate the contract or alter the character thereof, or entitle the contractor to damages or compensation therefore except as provided for in this contract.”

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18. A reading of this agreement in the background of the pleadings and in the absence of any arguments adduced before the Trial Court on this point, entertaining a new ground of challenge is

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not justifiable while exercising the power under Section 37(1)(C) of the Act.

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19. It is well settled principle that the scope of judicial scrutiny and interference by the Court under Section 37 of the Act is limited. An error relates to interpretation of the contract by an arbitrator is an error within the jurisdiction and such an error is not amenable to correction by the Courts. Merely on the reason that the arbitrator has reached a wrong conclusion in interpreting the agreement, it is not permissible to interfere with the conclusion of the arbitrator, the same being plausible view of the matter. As the court of appeal under Section 37 of the Act, there is no scope for re-assigning or reappreciating the evidence. It is trite that an award which is injudicious or vitiated by an apparently untenable reasons, shocking the conscience of the Court would be amenable to judicial review under Section 37 of the Act. Mere attempt to reargue and reinterpret the clauses of the agreement adjudicated before the arbitral Tribunal, confirmed by the learned Trial Judge, would not call for any interference on the grounds now urged by the appellant before this Court.

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For the reasons aforesaid, the appeal stands dismissed.

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The amount deposited by the railways before the Trial Court, if any, shall be disbursed to the appellant.”

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Suffice to state, the conclusion of this Court is also that, in the absence of any argument adduced before the Trial Court on this point, no new ground of challenge can be entertained while exercising the power under Section 37 of the Act of 1996.

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During the course of hearing, learned counsel for the appellant did concede that, though the Ground (J) was pleaded, but the same was not urged while arguing the petition under Section 34 of the Act of 1996. We do not agree with the said submission, because a reference to ground (J) has been made in paragraph 16 of the order, of which review is being sought.

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Even otherwise, we do not see that the conclusion drawn by this Court in Paragraphs 16 to 19 above is an error apparent on the face of the record for us to continue with the Review Petition.

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