Dismissed

Smt. Geeta Lall v. Ashinana Amar Developers and Ors.

Rajasthan HC2 Nov 2018CMA/2882/2017

Case brief

AI extract

What is this about?

Appeal against rejection of an application under Section 34 of the Arbitration and Conciliation Act, 1996, upholding an arbitral award that dismissed the appellant's maintenance-agreement claim and allowed the respondents' counter-claim. The court held the counter-claim was within the scope of reference and not time-barred, found no perversity in the award, and dismissed the appeal.

What the court decided

AI extract

Smt. Geeta Lall Vs Ashinana Amar Developers and Ors. — Arbitration | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 2882/2017

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Smt. Geeta Lall Wife of Shri D.k. Lall, Resident of E-18, Ashiana Amar Bagh, Kudi Village, Pali Road, Jodhpur, through Power of Attorney Holder Shri D.k. Lall.

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----Appellant

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Versus

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Ashinana Amar Developers, A Partnership firm situated at Unit No. 4 & 5, 3rd Floor, Plot No. D-2, Saket District Centre, New Delhi-110 017

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Vatika Marketing Limited, 5-F, Everest, 46-C, Chowringhee Road, Kolkata- 700071

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Vatika Marketing Limited, Ashiana Amar Developers, Kudi Bhagtasani, Jodhpur.

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Shri J.K. Kaushik, Advocate & Sole Arbitrator, 2, Vidhya Park, Air Force Area, Jodhpur-342001

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----Respondents

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For Appellant(s) : Ms. Rekha Borana For Respondent(s) : Mr. Devendra Mahalana

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HON'BLE MR. JUSTICE P.K. LOHRA

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Judgment

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02/11/2018

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Appellant, by the instant appeal, has assailed arbitral award as well as subsequent order ratifying the award by way of rejection of her application under Section 34 of the Arbitration & Conciliation Act, 1996 (for short, ‘Act’).

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At the threshold, the sole arbitrator, on 5^th of March, 2016, passed the award rejecting claim of the appellant and allowing counter-claim of the respondents. When the appellant made endeavour to seek modification/setting aside of the arbitral award,

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her efforts proved abortive and the District Judge, Jodhpur Metropolitan (for short, ‘learned Court below’) declined her prayer vide order dated 22^nd of April, 2017.

¶20

Succinctly stated, the facts of the case are that appellant purchased Villa No.E-18, having 1562 sqft area, located at Ashiana Amar Baug, Kuri Bhagtasni, Pali Road, Jodhpur. At the time of purchase of Villa, maintenance agreement alongwith tripartite Memorandum of Understanding for maintenance (MOU) came into offing. Initially, in terms of MOU, every house owner in the complex was asked to deposit a sum of Rs.60,000 towards laying down pipeline for supply of water through Public Health & Engineering Department. It so happened that, as per appellant’s version, for quite some time, respondents in adherence of the agreement carried out maintenance satisfactorily but subsequently neglected and when the omissions were brought to their notice, she was threatened. Appellant also noticed that despite charging Rs.200 per mensem, pipeline is not laid for supply of water. While in occupation of the Villa, appellant also faced serious problems in use of club house facilities despite realizing from her Rs.33,000 as common recreation facility charges. Facing many other problems erupted due to non-adherence of the terms of the agreement, appellant served a notice on respondents by invoking Article 9 of the maintenance agreement on 18^th of August, 2014 through her counsel.

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The aforesaid notice is replied by the counsel for respondents on 22^nd of September, 2014 repudiating all the allegations contained therein besides claiming outstanding amount from her

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amounting to Rs.33,343 & Rs.3,733 respectively. Be that as it may, considering it to be an aribtrable dispute, appellant approached this Court by laying application under Section 11 of the Act for referring the matter to Arbitrator. The application submitted by appellant for appointment of Arbitrator was replied by respondents and finally the Court by its order dated 7^th of July, 2015 accepted the application and appointed Mr. J.K. Kaushik, Advocate as sole Arbitrator to resolve the dispute between rival parties.

¶25

The sole arbitrator, thereafter, commenced arbitral proceedings and on behalf of appellant claim is submitted. In her claim application, appellant reiterated all her afflictions with a specific allegation that respondents have shown total callousness and apathy to the maintenance agreement. In the relief clause, appellant craved for rescinding maintenance agreement dated 15^th of March, 2011 and further sought direction against respondents to carry out maintenance work of the units at their expenses. Apart from this relief, some other ancillary reliefs were also claimed including the relief of utilizing Rs.60,000 deposited by her exclusively for laying pipeline.

¶26

The claim submitted by the appellant is replied by the respondents. In the return, respondents also incorporated preliminary objection. In substance, all the insinuations hurled in the claim petition by the appellant are refuted by the respondents. It is also averred in the reply by the respondents that maintenance work is being carried out by skilled and trained mechanics and plumbers. While referring to water supply, it is

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averred in the return that laying of pipeline is under process and therefore water is being supplied through tankers as per MOU. Apart from disputing the claim, on behalf of respondents, a counter-claim is also raised claiming a sum of Rs.85,941 from appellant as maintenance charges, as per agreement.

¶30

The reply submitted on behalf of respondents is countered by the appellant in the form of subsequent pleadings. In her rejoinder, besides reiterating her claim, appellant also contested counter-claim of the respondents by simply urging that counterclaim is beyond the terms of reference as per order passed by this Court under Section 11 of the Act.

¶31

The parties led their documentary and oral evidence and thereafter the sole Arbitrator heard final arguments and by its award dated 5^th of March, 2016 rejected claim of the appellant but accepted counter-claim of the respondents. Thus, the arbitral award instead redressing grievances of the appellant has perpetrated her vows inasmuch as the counter-claim is allowed against her.

¶32

Being aggrieved by the arbitral award, appellant approached learned Court below by laying application under Section 34 of the Act seeking modification/setting aside of the award to the extent her claim is rejected by the sole Arbitrator and also for rescinding of the award as far as counter-claim allowed by the Arbitrator is concerned. The learned Court below, after hearing rival submissions and scanning materials available on record, including

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arbitral award, declined to interfere with the same which entailed rejection of the appellant’s application under Section 34 of the Act.

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Ms. Rekha Borana, learned counsel for the appellant, has strenuously urged that the sole Arbitrator and learned Court below have seriously erred in allowing the counter-claim of respondents. Elaborating her submissions in this behalf, it is urged by learned counsel that in absence of any notice by the respondents agitating their claim, counter-claim was not at all maintainable. Learned counsel further submits that the respondents have not whispered anything about counter-claim while submitting its reply to the appellant’s application under Section 11 of the Act and therefore the sole Arbitrator has overstepped its jurisdiction in adjudicating counter-claim which was beyond the scope of dispute referred by the Court. Learned counsel would contend that an Arbitator is bound by the terms of reference and cannot travel beyond it.

¶37

It is also submitted by Ms. Borana that order dated 7^th of July, 2015 is clear and unequivocal inasmuch as its operative part refers to notice dated 18^th of August, 2014 served by the appellant. Learned counsel has also argued that the question of limitation as well as maintainability of counter-claim is decided by the sole Arbitrator without affording reasonable opportunity to the appellant. Challenging the arbitral award to the extent of allowing counter-claim, it is also urged by learned counsel that respondents have not tendered any tangible evidence to substantiate the counter-claim.

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While adverting to the claim, it is submitted by learned counsel that sole arbitrator has not at all cared to decide the claim of the appellant. Learned counsel has vehemently argued that to her dismay the learned Court below too has not cared to examine patent infirmities and fallacies in the arbitral award while rejecting the application under Section 34 of the Act.

¶41

Lastly, learned counsel has contended that the learned Court below has failed to examined the arbitral award on the anvil of it being against public policy.

¶42

In support of her arguments, learned counsel has placed reliance on following judgments:

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1. P. Radhakrishna Murthy Vs. National Building Construction[2013(1) Arb. LR 562]

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1. Sikkim Subba Associates Vs. State of Sikkim [2001 (2) Arb. LR 17]

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1. ONGC Vs. Saw Pipes [2003 (2) Arb. LR 5]. 4) Batra Construction Co. Vs. DDA & Anr. [1999 (1) Arb. LR 347]

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1. Charuvil Koshy Varghese Vs. State of Goa [1998(2) Arb. LR 157]

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1. State of U.P. Vs. M/s. Ram Nath International Construction (P) Ltd. [1995(2) Arb. LR 577]

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1. Tamil Nadu Electricity Board Vs. Bridge Tunnel, Constructions & Ors. [1997(2) Arb. LR 1]

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1. Union of India Vs. M/s. G.S. Atwal & Co. (Asansole) [(1996) 3 SCC 568]

¶50

Per contra, Mr. Devendra Mahalana, learned counsel for the respondents, has countered all the arguments with full emphasis. It is argued by learned counsel that as per Section 21 of the Act, arbitral proceeding commences when a request for referring dispute to arbitration is received. Elaborating his submission in

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this behalf, it is urged by learned counsel that upon receipt of notice dated 18^th of August, 2014 respondents have clearly and unequivocally agitated counter-claim, is sufficient to repel the contention of the appellant.

¶54

It is also submitted by learned counsel that under Section 11 of the Act, while accepting application of the appellant, the Court has simply referred the dispute to be resolved by arbitrator and before that the respondents have staked counter-claim, therefore, contention of the appellant in this behalf if bereft of any merit. Learned counsel further submits that reply to notice Annex.6 dated 22^nd of September 2014 is clear and unequivocal containing recitals about counter-claim and therefore in terms of Section 21 of the Act, the sole Arbitrator has rightly adjudicated the same. Learned counsel in this behalf has also relied upon order dated 7^th July 2015 passed by the Court for referring dispute to the sole Arbitrator. With these contentions, learned counsel while defending the impugned order argued that the learned Court below has not committed any error much less manifest error in rejecting the application of the appellant under Section 34 of the Act.

¶55

Lastly, learned counsel would urge that after passing of the arbitral award and rejection of application under Section 34 of the Act, there is hardly any scope for interference in the instant appeal inasmuch as judicial review in such appeals is not akin to regular first appeals.

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In support of his arguments, learned counsel for the respondents has placed reliance on undermentioned decisions:

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1. Hindustan Zinc Limited Vs. Friends Coal Carbonisation [2006 Law Suit (SC) 275]

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1. State of Rajasthan Vs. Nav Bharat Construction Company (2001 Law Suit (SC) 1546]

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1. M/s. J.G. Engineers Pvt. Ltd. Vs. Union of India & Anr. [2011 (4) Supreme 531]

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1. Delhi Jal Board & Ors. Vs. M/s. Khub Chand Tyagi [2013 Supreme (Del) 683]

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1. Mumtaz Ahmed Vs. Prime Products Limited [2014 Law Suit (Cal) 853]

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1. Sahyadri Earthmovers Vs. L&T Finance Ltd. & Anr. [2011 Law Suit (Bom) 690]

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1. State of Goa Vs. Praveen Enterprises [2011 Law Suit (SC) 1037]

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1. Nandani Medical Laboratories Pvt. Ltd. Vs. M.P. Laghu Udyog Nigam Maryadit [2016 Law Suit (MP)622]

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1. Voltas Limited & Ors. Vs. Rolta India Limited & Ors. [2014 Law Suit (SC) 93]

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1. M/s. S.B.P. Company Vs. M/s. Patel Engineering Ltd. & Anr. [2005(7) Supreme 610]

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1. Konkan Railway Corporation Ltd. Vs. Rani Construction P Ltd. [2002 Law Suit (SC) 138].

¶69

Heard learned counsel for the parties and perused the materials available on record.

¶70

While it is true that at the threshold appellant made endeavour to commence arbitral proceedings by serving a notice on the respondents complaining about non-adherence of the terms of the agreement but the issue relating to maintainability of the counter-claim of the respondents cannot be examined in isolation to the available material. Section 21 of the Act envisage commencement of arbitral proceedings, and therefore, if the notice served by the appellant ventilating grievances regarding

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non-observance of agreement and MOU by the respondents are tested in the backdrop of reply to notice by respondents, then, there remains no iota of doubt that at their behest specific plea about counter-claim is raised. Subsequent to receipt of reply to notice, appellant submitted an application before this Court under Section 11 of the Act for appointment of Arbitrator to resolve the dispute being fully abreast about counter-claim of the respondents. Receipt of reply to notice from respondents also finds mention in the application submitted by the appellant for appointment of Arbitrator before this Court. Therefore, it is rather difficult to comprehend that appellant was unaware about the counter-claim of the respondents before the sole Arbitrator. In response to the claim submitted by the appellant, the respondents in their reply not only repudiated her claim but also reiterated their counter-claim in consonance and in conformity with reply to appellant’s notice dated 22^nd of September, 2014 (Annex.6).

¶74

Thus, I am constrained to observe that counter-claim of the respondents was not beyond the scope of reference to the sole Arbitrator by the Court. In this regard, following recitals of order dated 7^th July, 2015, on which learned Court below has placed reliance, are also significant:

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“The Arbitrator appointed shall be entitled for fee, remuneration and other perquisites in accordance with the Alternative Dispute Resolution 2009 prescribed by the Rajasthan High Court. Mr. J.K. Kaushik, Advocate, the Arbitrator appointed present in the court states that the parties be directed to submit their respective claims within a period of six weeks. Learned counsel for the applicant is having no objection for that.”

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The sole Arbitrator, in the backdrop of facts and circumstances of the case, therefore, rightly concluded that counter-claim of the respondents is maintainable and consequently its adjudication by the sole Arbitrator cannot be faulted. The learned Court below, thereafter, made sincere endeavour to analyze the objection of the appellant on this crucial issue and discussing the law in detail concluded in favour of respondents by thwarting plea of the appellant. The period of limitation for commencing an arbitration runs from the date on which the cause of arbitration accrues, that is to say, from the date when claimant first acquired either a right of action or a right to require that an arbitration takes place upon the dispute concerned. If the impugned order passed by the learned Court below is scrutinized in the light of Section 21 and Section 11 of the Act, then, in my considered opinion, it cannot be said that the order warrants interference within the limited scope of judicial review under Section 37 of the Act.

¶79

In Batra Construction Co. (supra), a judgment of Delhi High Court, the counter-claim was referred to the Arbitrator by appointing authority after three years and therefore, it was found to be barred by limitation. Likewise, in Charuvil Koshy Varghese (supra), same view was taken by the Bombay High Court. Therefore, in the facts and circumstances of the instant case, both the judgments are clearly distinguishable.

¶80

In case of Ram Nath International Construction (P) Ltd. (supra), Supreme Court held that Arbitrator cannot entertain and decide any dispute which has not been referred to him. True it is

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that Court while accepting application of the appellant, referred the matter for resolving dispute to the sole Arbitrator without making mention of counter-claim, however, from the tenor of the order it is abundantly clear that court was very much abreast about counter-claim of the respondents. Therefore, once a dispute is referred to arbitration, the Arbitrator has the jurisdiction to decide all the disputes raised in the proceedings.

¶84

My aforesaid view find support of the decision in Praveen Enterprises (supra), wherein the Court held:

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“Reference to arbitration can be in respect of all disputes between the parties or all disputes regarding a contract or in respect of specific enumerated disputes. Where 'all disputes' are referred, the arbitrator has the jurisdiction to decide all disputes raised in the pleadings (both claims and counter claims) subject to any limitations placed by the arbitration agreement. Where the arbitration agreement provides that all disputes shall be settled by arbitration but excludes certain matters from arbitration, then, the arbitrator will exclude the excepted matter and decide only those disputes which are arbitrable. But where the reference to the arbitrator is to decide specific disputes enumerated by the parties/court/appointing authority, the arbitrator's jurisdiction is circumscribed by the specific reference and the arbitrator can decide only those specific disputes.”

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Dilating on limitation, the Court further held:

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“As far as counter claims are concerned, there is No. room for ambiguity in regard to the relevant date for determining the limitation. Section 3(2)(b) of Limitation Act, 1963 provides that in regard to a counter claim in suits, the date on which the counter claim is made in court shall be deemed to be the date of institution of the counter claim. As Limitation Act, 1963 is made applicable to arbitrations, in the case of a counter claim by a Respondent in an arbitral proceedings, the date on which the counter claim is made before the arbitrator will be the date of

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"institution" in so far as counter claim is concerned. There is, therefore, No. need to provide a date of 'commencement' as in the case of claims of a claimant. Section 21 of the Act is therefore not relevant for counter claiMs. There is however one exception. Where the Respondent against whom a claim is made, had also made a claim against the claimant and sought arbitration by serving a notice to the claimant but subsequently raises that claim as a counter claim in the arbitration proceedings initiated by the claimant, instead of filing a separate application under Section 11 of the Act, the limitation for such counter claim should be computed, as on the date of service of notice of such claim on the claimant and not on the date of filing of the counter claim.”

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Similarly, while relying on Section 23 of the Act and while reading the same in conjunction with Section 2(9) of the Act, the Court held:

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“Section 23 relating to filing of statements of claim and defence reads thus:

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Statements of claim and defence.-

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(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the Respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.

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(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.

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(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.

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(Emphasis supplied)

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Section 2 contains the definitions. Sub-section (9) clarifies that except in Sections 25(a) and 32(2)(a),

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any reference in the Act to a 'claim' will apply to a 'counter-claim'. The said Sub-section reads thus:

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(9) Where this Part, other than Clause (a) of Section 25 or Clause (a) of Sub-section (2) of Section 32, refers to a claim, it shall also apply to a counterclaim, and where it refers to a defence, it shall also apply to a defence to that counterclaim.”

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x x x x x x x x x

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“Section 23 of the Act makes it clear that when the arbitrator is appointed, the claimant is required to file the statement and the Respondent has to file his defence statement before the Arbitrator. The claimant is not bound to restrict his statement of claim to the claims already raised by him by notice, "unless the parties have otherwise agreed as to the required elements" of such claim statement. It is also made clear that "unless otherwise agreed by the parties" the claimant can also subsequently amend or supplement the claims in the claim statement. That is, unless the arbitration agreement requires the Arbitrator to decide only the specifically referred disputes, the claimant can while filing the statement of claim or thereafter, amend or add to the claims already made. Similarly Section 23 read with Section 2(9) makes it clear that a Respondent is entitled to raise a counter claim "unless the parties have otherwise agreed" and also add to or amend the counter claim, "unless otherwise agreed". In short, unless the arbitration agreement requires the Arbitrator to decide only the specifically referred disputes, the Respondent can file counter claims and amend or add to the same, except where the arbitration agreement restricts the arbitration to only those disputes which are specifically referred to arbitration, both the claimant and Respondent are entitled to make any claims or counter claims and further entitled to add to or amend such claims and counter claims provided they are arbitrable and within limitation.”

¶105

I am also fortified in my view by a later decision of Supreme Court in case of Voltas Limited & Ors. (supra) wherein the Court has reiterated the same principles. The Court held:

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“On a careful reading of the verdict in Praveen Enterprises, we find that the two-Judge Bench, after referring to, as we have stated hereinbefore, Sections 21 and 43 of the Act and Section 3 of the Limitation Act has opined, regard being had to the language employed in Section 21, that an exception has to be carved out. It saves the limitation for filing a counter claim if a Respondent against whom a claim has been made satisfies the twin test, namely, he had made a claim against the claimant and sought arbitration by serving a notice to the claimant. In our considered opinion the said exception squarely applies to the case at hand inasmuch as the Appellant had raised the counter claim and sought arbitration by expressing its intention on number of occasions. That apart, it is also perceptible that the Appellant had assured for appointment of an arbitrator. Thus, the counter claim was instituted on 17.4.2006 and hence, the irresistible conclusion is that it is within limitation.

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Presently to the alternative submission of Mr. Venugopal, learned senior Counsel for the Appellant. It basically pertains to the nature, scope and gamut of applicability of the exception carved out in Praveen Enterprises (supra) for the purpose of saving a counter claim being barred by limitation. The learned senior Counsel would submit that the Respondent had crystallized its claims by letter dated 17.4.2006 amounting to Rs. 68,63,72,743.08 whereas in the counter claim dated 26.9.2011 filed before the learned Arbitrator amounts to Rs. 333,73,35,026/which is impermissible. In essence, the submission of Mr. Venugopal is that the claims which were not raised in the letter dated 17.4.2006 have to be treated as being barred by limitation. Mr. R.F. Nariman, learned senior Counsel for the Respondent, on the contrary, has referred to paragraph 11 of the Praveen Enterprises (supra) to buttress his submission that when all the disputes are referred to the arbitrator, he has the jurisdiction to decide all the disputes, i.e., both the claims and counter claims. That apart, the Respondent had reserved its rights to quantify the claim. In this regard, he has also drawn inspiration from McDermott International Inc. (supra) wherein this Court has stated that while claiming damages, the amount therefor is not required to be quantified, for quantification of a claim is merely a matter of proof. Mr. Nariman has also commended us to the decision in Bharat Sanchar Nigam Limited and Anr. v. Motorola India Private Limited : (2009) 2 SCC 337 wherein it has been ruled that the question of holding a person liable for liquidated damages and the question of quantifying the amount to be paid by way of liquidated damages are entirely different. Fixing of

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liability is primary while the quantification is secondary to it.

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In our considered opinion, the aforesaid decisions do not render any assistance to the proposition canvassed by the learned senior Counsel for the Respondent. We are inclined to think so on two counts. First, in Praveen Enterprises (supra) the Court has carved out an exception and, while carving out an exception, has clearly stated that the limitation for "such counter claim" should be computed as on the "date of service of notice" of "such claim on the claimant" and not on the date of final counter claim. We are absolutely conscious that a judgment is not to be read as a statute but to understand the correct ratio stated in the case it is necessary to appreciate the repetitive use of the words. That apart, if the counter claim filed after the prescribed period of limitation before the arbitrator is saved in entirety solely on the ground that a party had vaguely stated that it would be claiming liquidated damages, it would not attract the conceptual exception carved out in Praveen Enterprises (supra). In fact, it would be contrary to the law laid down not only in the said case, but also to the basic principle that a time barred claim cannot be asserted after the prescribed period of limitation.

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Mr. Nariman, learned senior Counsel, has also contended that the counter claims filed before the learned Arbitrator is an elaboration of the amount stated in the notice and, in fact, it is an amendment of the claim of the Respondent which deserved to be dealt with by the learned Arbitrator. In this context, we may refer with profit to the ruling in K. Raheja Constructions Ltd. and Anr. v. Alliance Ministries and Ors. : 1995 Supp (3) SCC 17 wherein the Plaintiff had filed a suit for permanent injunction and sought an amendment for grant of relief of specific performance. The said prayer was rejected by the learned trial court. A contention was canvassed that the Appellant had not come forward with new plea and, in fact, there were material allegations in the plaint to sustain the amendment of the plaint. The Court observed that having allowed the period of seven years to elapse from the date of filing the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accruing to the Respondent. The said principle has been reiterated in South Konkan Distilleries and Anr. v. Prabhakar Gajanan Naik and Ors. : (2008) 14 SCC 632 and Van Vibhag Karamchari

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Griha Nirman Sahkari Sanstha Maryadit (Registered) v. Ramesh Chander and Ors., (2010) 14 SCC 596.

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In substance, the learned Court below has discussed threadbare law on the subject while rejecting the application of appellant under Section 34 of the Act, and therefore, I am unable to find any manifest error in the arbitral award as well as impugned order.

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Now adverting to the rejection of appellant’s claim, suffice it to observe that initially the sole Arbitrator examined her afflictions in the light of available material and repudiated her claim by recording reasons. Thereafter, the learned Court below also made sincere endeavour to examine the arbitral award and fully concurred with the same without finding any ground to set aside the same within the four corners of sub-section (2) of Section 34 of the Act. There remains no quarrel that Court while exercising power under Section 34 of the Act is not expected to ordinarily substitute its interpretation for that of the Arbitrator. An Arbitrator is a Judge appointed by the parties and therefore parties are bound by his decision. The decision of Arbitrator is final unless the reasons spelt out in the arbitral award are totally perverse or award is based on wrong proposition of law. If the Court comes to the conclusion that the view of Arbitrator is a plausible one, obviously, it is not desirable to reverse it by interfering with the award. Appellant’s contention that Arbitrator has not decided her claim appears to be quite alluring but being bereft of any substance is not tenable. The sole Arbitrator has made endeavour to appreciate grievances and prayers of the

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appellant with objectivity is clearly apparent upon perusal of the award. Moreover, learned Court below has also made judicial scrutiny of the award in this behalf to repel contention of the appellant. Thus, it cannot be gainsaid that claim of the appellant escaped notice of the sole Arbitrator for adjudication simply because arbitral award not being upto her expectation. As in the instant case, firstly, the sole Arbitrator adjudicated the dispute and thereafter while concurring with the same learned Court below has rejected application of the appellant, it would not be appropriate for this Court to interfere in exercise of appellate jurisdiction under Section 37.

¶123

Supreme Court, in Nav Bharat Construction Company (supra) and M/s. J.G. Engineers Pvt. Ltd. (supra), while dilating on the scope of interference under Section 34 of the Act, categorized the said jurisdiction as akin to supervisory and not appellate. In case of M/s. J.G. Engineers Pvt. Ltd. (supra), the Court held:

¶124

“A Civil Court examining the validity of an arbitral award under Section 34 of the Act exercises supervisory and not appellate jurisdiction over the awards of an arbitral tribunal. A court can set aside an arbitral award, only if any of the grounds mentioned in Sections 34(2)(a)(i) to (v) or Section 34(2)(b)(i) and (ii), or Section 28(1)(a) or 28(3) read with Section 34(2)(b)(ii) of the Act, are made out. An award adjudicating claims which are `excepted matters' excluded from the scope of arbitration, would violate Section 34(2)(a)(iv) and 34(2)(b) of the Act. Making an award allowing or granting a claim, contrary to any provision of the contract, would violate Section 34(2)(b)(ii) read with Section 28(3) of the Act.”

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Upon overall scrutiny of the arbitral award, reasoning of the Arbitrator could not be said to be perverse to the extent that no man with ordinary prudence could take such view and nor any finding of the Arbitrator be construed in contravention of any provision of law or dehors any of the clauses of the agreement. That apart, the learned Court below too did not find any infirmity in the award within the mischief envisaged under sub-section (2) of Section 34 of the Act has dissuaded me to upset arbitral award as well as the impugned order.

¶128

Resultantly, the instant appeal fails and the same is hereby

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rejected.

Smt. Geeta Lall v. Ashinana Amar Developers and Ors.

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Smt. Geeta Lall v. Ashinana Amar Developers and Ors.

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