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2009 Supreme(Bom) 1697
IN THE HIGH COURT OF BOMBAY
Anoop V. Mohta, J.
ANUPAM ENGINEERS, MUMBAI
Versus
INDIA OIL CORPORATION LTD. , MUMBAI
Arbitration Petition No. 31 of 2009
Decided On : DECEMBER 10, 2009
NAUSHAD ENGINIR, Shilpa Kapil, SUNIL GANGAN
The main legal point established is that a petition to modify an arbitral award under section 34 of the Arbitration Act is maintainable, but the court may dismiss the petition if the petitioner fails to provide supporting material for their claims.
Headnote:
Arbitration Act - Challenge to Arbitral Award - Section 34
Fact of the Case:
The petitioner challenged the award by invoking section 34 of the Arbitration and Conciliation Act, 1996, specifically challenging certain claims not awarded by the arbitrator.
Finding of the Court:
The court found that the petition to modify the award was maintainable, citing relevant judgments of the Supreme Court and High Courts. However, the court ultimately dismissed the petition, stating that no case was made out to interfere with the award.
Issues: The issues revolved around the maintainability of the petition to modify the arbitral award and the petitioner's failure to support their claims with material and evidence.
Ratio Decidendi: The court held that the petition to modify the award was maintainable under section 34 of the Arbitration Act, but ultimately dismissed the petition due to the lack of supporting material for the petitioner's claims.
Final Decision: The petition was dismissed with no order as to costs.
( 2 ) THE petitioner has challenged the award dated 30th September, 2008, by invoking section 34 of the Arbitration and Conciliation Act, 1996 (for short, the arbitration Act ).
( 3 ) THE challenge is restricted to the claims not awarded i. e. claim Nos. 2, 3, 6, 7, 8, 11, 12 and 14. The learned Arbitrator has given reason, based upon the material available on record. By observing that "all other claims are found not tenable as the same are not substantiated by proof/evidence", not granted claim no. 10 as final bill was accepted by the party, without any objection, at any point of time. In view "of this, rejected the claim Nos. 3, 6 and 7. As no material was brought on record, to justify claim No. 8 as nothing was brought to site, therefore, the compensation towards the loss of interest and non-payment of material advance was also denied. The claim for compensation towards legal charges and mental torture were also dismissed for oral and substantiate evidence. The claims, so awarded, are not challenged by the respondents.
( 4 ) THE learned counsel appearing for the respondents submitted that such petition to modify the award is not maintainable in view of a Judgment of division Bench in Appeal No. 981 of 2001 in Arbitration Petition No. 432 of 1998, Mrs. Pushpa P. Mulchandani and ors. vs. Admiral Radhakrishin Tahiliani (Retd.) and ors. also. The learned single Judge, in 2009 (2) Mh. L. J. 758 = 2009 (3) Bom. C R. 446, IRCON International Ltd. vs. R. S. Jiwani, has also followed the same.
( 5 ) STRIKINGLY, the Apex Court has been modifying the award on merit, as well as on the issue/ rate of interest under section 34 of the Arbitration Act and even maintaining the partial modified award passed by the High Courts, since long. Some of the cases are as under :-1. Tata Hydro-Electric Power Supply Co. Ltd. vs. Union of India, 2003 (4) SCC 172, 2. Hindustan Zinc Ltd. vs. Friends Coal carbonisation, 2006 (5) Mh. L. J. (SC) 1 = (2006) 4 S. C. C. 445, 3. Mcdermott International Inc. vs. Burn Standard Co. Ltd. and ors. , (2006) 11 S. C. C. 181, 4. Krishna Bhagya Jala Nigam Ltd. vs. Harischandra Reddy and anr. (2007) AIR SCW 527, 5. Numaligarh refinery Ltd. vs. Daquelim Industrial Co. Ltd. , (2007) 8 SCC 466, 6 Delhi Development Authority vs. R. S. Sharma and Co. , New Delhi, (2008) 13 SCC 80, 7. Royal Education Society vs. Lis (India)Construction Company Pvt. Ltd. , (2009) 2 SCC 261.
( 6 ) THE Division Bench has relied upon the Apex Court decision Mcdermott international Inc. vs. Burn Standard Co. Ltd. and ors. , JT 2006 (11) SC 376. The apex Court in (Mcdermott) (Supra) itself, has modified the award.
( 7 ) I have already modified the awards in following cases, based upon the apex Court's Judgments. Some are as under :- (a) Union of India vs. Arctic india, 2007 (6) Bom. CR. 384, (b) Sai Enterprises vs. Mahanagar Telephone nigam Ltd. and anr. 2007 (6) Bom. CR. 390, (c) Arbitration Petition No. 494 of 2004 in The Board of Trustees of the Port of Mumbai vs. M/s Mohinder Singh and Company.
( 8 ) THE Judgments of the Supreme Court are binding on the High Courts. It appears that the above Apex Court Judgments might not have been placed before the Court at the relevant time. The Apex Court, considering the scope and purpose of section 34 of the Arbitration Act and as there is no bar, the Courts have modified the Arbitral Awards. In view of above, in my view, there is no substance in the contention that the Petition under section 34 of the Arbitration act, itself is not maintainable. Any such Application/petition under section 34 of the Arbitration Act for partial or modification of the award is maintainable.
( 9 ) THE parties, even otherwise, can restrict or waive their claim and/or challenge at any stage of the proceedings. There is no such bar. The Arbitrator can also grant full or partial award by rejecting or restricting the claims. As all these are within the framework of law, there is no rea
