IMPORTANT POINTS
Issues not raised before the High Court, cannot be raised before Supreme Court.
Interference with arbitral award u/s 34 is permissible only and only in case of error apparent on the face of the record or the Arbitrator not following the statutory legal position.
Even if two views are possible, view taken by the Arbitrator would prevail.

Judgment

Pinaki Chandra Ghose, J.

1. These appeals have been filed assailing the common judgment and order dated 1.9.2009 passed by the Madras High Court in O.S.A. Nos.34 of 2009 and 140 of 2009 by which the High Court while allowing O.S.A. No.34 of 2009 filed by Respondent No.1, dismissed O.S.A. No.140 of 2009 filed by the appellant herein. The facts of the case briefly stated are as follows:

2. The appellant offered a business proposal to the first respondent herein and they entered into an agreement on July 30, 1998, whereby it was agreed that the first respondent shall procure, install and operate an amusement ride for both adults and children called “SLAMBOB” in the amusement park “Kishkinta” which was maintained by the appellant. The Agreement also provided that the first respondent shall maintain the equipment by effecting necessary repairs etc. The Agreement further provided that the collection from the ride would be shared in the ratio of 60:40 by the first Respondent and the appellant in the first year of its operation, and thereafter in the ratio of 50:50 in the subsequent years. It also provided for a guaranteed minimum gross collection of Rs.10 lakhs for the first year and Rs.8.33 lakhs for the subsequent 9 years. The Agreement was in force for a period of 10 years and could be renewed/terminated as per the terms thereof. Pursuant to the Agreement, the first respondent installed the equipment on 16.04.1999 and it started functioning from the said date. The appellant defaulted in making the payments from the year 2000-2001 onwards. Despite repeated demands, the appellant failed to make the payments, hence notice was served to the appellant calling upon the appellant to pay the outstanding amount, along with interest at the rate of 24% per annum.

3. In these circumstances, dispute arose between the parties which was covered under the said Agreement by arbitration clause and accordingly an Arbitrator was appointed. The first respondent filed a claim for a sum of Rs.13,94,240/-together with interest on 16.10.2006. The Arbitrator published his award allowing the claim to the tune of Rs.13,94,240/-with interest at the rate of 12% per annum, but disallowed the Minimum Guaranteed amount of Rs.69,416/-per month for the remaining 69 months, commencing from July, 2003. Aggrieved by the award in respect of the disallowed claim, the first respondent challenged the award before the Madras High Court under by filing O.P. No.37 of 2007 and aggrieved over the entire award, the appellant challenged the same before the Madras High Court by filing O.P. No.362 of 2007 under Section 34 of the Arbitration and Conciliation Act, 1996. The learned Single Judge of the Madras High Court dismissed both these applications. Aggrieved by the order passed by the learned Single Judge of the High Court, appeals were filed by both the parties before the Division Bench of the High Court. The High Court by a common judgment and order dated 1.9.2009 dismissed the appeal filed by the appellant but allowed the appeal filed by the first respondent herein. The High Court after scrutinizing all the materials placed before it came to the conclusion that it is not in controversy that the Agreement was entered into between the parties on July 30, 1998. The parties also agreed to the ratio in which the collection of the amusement ride was to be shared and the said Agreement was in force for a period of 10 years and was also renewable. The Agreement also stipulated for a guaranteed minimum gross collection of Rs.10 lakhs for the first year and Rs.8.33 lakhs for the subsequent 9 years.

4. The Division Bench of the High Court affirmed the award of the Arbitrator. The High Court particularly held that the appellant having failed to make the payment of the dues, as agreed to between the parties, cannot deny the lawful claim of the respondent and accordingly the High Court upheld the reasoning of the Arbitrator and dismissed the appeal filed by the appellant. The Division