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SUPREME COURT OF INDIA
UDAY UMESH LALIT, VINEET SARAN, JJ.
Quippo Construction Equipment Limited – Appellant
Versus
Janardan Nirman Pvt. Limited – Respondent
Civil Appeal No.2378 of 2020 [Arising Out of Special Leave Petition (C) No.11011 of 2019]
Decide On : 29-04-2020
Arbitration and Conciliation Act, 1996 – Sections 4, 16, 20, 34 and 37 – Challenge to arbitral award – By ex-parte award Arbitrator accepted claim preferred by appellant – Award was a common award covering claims in respect of all four agreements – At no stage, objections were raised by respondent before Arbitrator and respondent let arbitral proceedings conclude and culminate in an ex-parte award – Arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate Arbitrator – It is not as if there were completely different mechanisms for appointment of Arbitrator in each of agreements – Only distinction is that according to one of agreements venue was to be at Kolkata – Specification of “place of arbitration” may have special significance in an International Commercial Arbitration, where “place of arbitration” may determine which curial law would apply – However, in present case, applicable substantive as well as curial law would be the same – Considering facts that respondent failed to participate in proceedings before Arbitrator and did not raise any submission that Arbitrator did not have jurisdiction or that he was exceeding scope of his authority, respondent must be deemed to have waived all such objections – In the circumstances, respondent is now precluded from raising any submission or objection as to venue of arbitration – Judgment and Order passed by High Court under appeal set aside and Order passed by Court in Miscellaneous Case restored. (Paras 8, 16, 22, 23, 24 and 25)
Facts of the Case:
In this appeal the Original Claimant challenges the final judgment and order dated 14.02.2019 passed by the High Court at Calcutta in CAN No.10094 of 2018. respondent company who is engaged in the business of infrastructure development activities approached the claimant company who is also dealing in the business of providing equipments for infrastructure activities to provide on rent two Piing Rig HR-180 and (1) 300 CPM compressor (equipments) for carrying out the work as per the respondent’s instructions.
Findings of the Court:
It was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata, the arbitration proceedings be conducted accordingly. Considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority, respondent must be deemed to have waived all such objections.
Result : Appeal allowed.
JUDGMENT :
UDAY UMESH LALIT, J.
1. Leave granted.
2. In this appeal the Original Claimant challenges the final judgment and order dated 14.02.2019 passed by the High Court at Calcutta in CAN No.10094 of 2018.
3. The basic facts culled out from the award dated 24.03.2015 passed by the Arbitrator in the present case are:-
“That the respondent company who is engaged in the business of infrastructure development activities approached the claimant company who is also dealing in the business of providing equipments for infrastructure activities to provide on rent two Piing Rig HR-180 and (1) 300 CPM compressor (equipments) for carrying out the work as per the respondent’s instructions. After deliberations and negotiations, an agreement dated 1.8.2010 was entered into between the parties in respect of the abovesaid construction equipments for its work site C/o Janardhan Nirman Pvt. Ltd. L & TECC site, NTPC BARH site, BARH, Distt. Patna, Bihar. Being satisfied with the equipment services provided by the claimant company, the respondent further approached the claimant company for taking on rent another one (1) Pilling Rig-MAIT HR 180 (equipment) for its same abovesaid work site, along with double set of crew/operator for each equipment for carrying out the works as per the respondent’s instructions. After deliberations and negotiations, an agreement 2.10.2010 was entered into between the parties herein in respect of the abovesaid equipments. Thereafter, the respondent further entered into agreements dated 19.3.2011 and 14.4.2011 for taking on rent one (1) Pilling Rig HR 180 vide each of the said agreements for carrying out the work as per the respondent’s instructions for its work site at C/o Janardhan Nirman Pvt. Ltd., SAIL, DSP, Durgapur, West Bengal and C/o Janardhan Nirman Pvt. Ltd., NH-34, Farakka-Dafkhola Road Project, Near Kaliachak, Distt. Malda, West Bengal, respectively.”
4. In General Terms and Conditions appended to the aforesaid Agreements, resolution of disputes between the parties was provided for as under:-
4.1 The relevant clauses in respect of the agreement dated 01.08.2010 were to the following effect:-
“24. Governing Law Jurisdiction & Arbitration: The parties hereto agree that the courts and tribunals at New Delhi shall have the exclusive jurisdiction and shall be governed in accordance with the law in India.
24.1 Arbitration: In the event of any claim, dispute or difference arising out of or in connection with the interpretation or implementation of the agreement or out of or in connection with any breach, or alleged breach of the Agreement (hereinafter referred to as “the dispute”) between the parties, the parties hereby agreed to refer such dispute to Arbitration under Construction Industry Arbitration Association (CIAA) Rules and Regulations save and except that on behalf of both the parties to the Agreement. The owners shall be entitled to select the sole Arbitrator out of the panel of CIAA. The proceedings shall be governed by the Arbitration and Conciliation Act, 1996 with any statutory modification thereto or re-enactment thereof. The venue for holding such arbitration proceedings would be New Delhi.”
4.2 On the other hand, the relevant arbitration clause in the agreement dated 14.04.2011 was to the following effect:-
“24. Governing Law Jurisdiction & Arbitration: All and any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Kolkata in accordance with the arbitration Rules of the Construction Industry Arbitration Council (“CIAC Arbitration Rules”) for the time being in force at the commencement of the arbitration, which rules are deemed to be incorporated by reference in this Clause. The owner shall be entitled to select the sole Arbitrator out of the panel of CIAC. This agreement is governed by the laws of India and the parties hereto agree that only that courts and tr
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