Back
1991 Supreme(Cal) 119
High Court Of Calcutta
P.K. Majumdar, J.
West Bengal Power Development Co Ltd : Appellant
Versus
B.B.M. Enterprise : Respondent
Award Case 18 Of 1990
Decided On : March 06,1991
P.K. Roy, Sandip Ghosh, Bhaskar Gupta, Abhijit Chatterji
An arbitrator's award cannot be set aside merely because the arbitrator made an erroneous decision on facts or law, or because the arbitrator failed to consider oral evidence or give the parties an opportunity to lead evidence on certain documents, unless the arbitrator misconducted himself or misconducted the proceedings.
Headnote:
ARBITRATION - SETTING ASIDE AWARD - GROUNDS - NON-CONSIDERATION OF ORAL EVIDENCE - NON-CONSIDERATION OF COUNTER CLAIM - RELIANCE ON DOCUMENTS WITHOUT GIVING OPPORTUNITY TO LEAD EVIDENCE - ARBITRATOR'S CONDUCT - INTERPRETATION OF AWARD - PRESUMPTION OF CONSIDERATION OF CLAIMS AND COUNTER CLAIMS - ERROR OF LAW OR FACT - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, West Bengal Power Development Corporation Ltd., challenged an arbitral award on several grounds, including the Umpire's failure to consider oral evidence in support of the claimant's claim for damages, failure to consider the petitioner's counterclaim, reliance on documents without giving the petitioner an opportunity to lead evidence, and alleged misconduct or misconducted proceedings by the Umpire.
Finding of the Court:
The court found that the Umpire had considered both the claimant's claim and the petitioner's counterclaim, as stated in the award. The court also found that the Umpire had taken into consideration the documents relied upon by the parties and other materials, including the claim of the claimant and the counterclaim of the respondent, while making the award. The court held that it was not open to the court to probe the Umpire's mind to find out whether there was sufficient evidence to support the Umpire's conclusion or whether the Umpire could have taken such conclusion based on the evidence.
Issues: 1. Whether the Umpire considered the petitioner's counterclaim. 2. Whether the Umpire considered oral evidence in support of the claimant's claim for damages. 3. Whether the Umpire relied on documents without giving the petitioner an opportunity to lead evidence. 4. Whether the Umpire misconducted himself or misconducted the proceedings.
Ratio Decidendi: 1. The court held that the Umpire had considered the petitioner's counterclaim, as stated in the award. The court relied on the Supreme Court decisions in Santa Sila Devi v. Dhirendra Nath Sen and Union of India v. Jainarayan Mishra, which held that when a final award professes to be made on and concerning the matters referred to the arbitrator, it must be presumed that the arbitrator has taken into consideration the claims and counterclaims. 2. The court held that it was not open to the court to probe the Umpire's mind to find out whether there was sufficient evidence to support the Umpire's conclusion or whether the Umpire could have taken such conclusion based on the evidence. The court relied on the Supreme Court decision in Food Corporation of India v. Joginder Pal and Mohinder Pal, which held that an error of fact or law by the arbitrator does not amount to misconduct on the part of the arbitrator.
Final Decision: The court dismissed the petitioner's application to set aside the arbitral award.
P.K. Majumdar, J.
1. THIS application is taken out on behalf of the West Bengal Power Development Corporation Ltd. for setting aside the award dated 22nd December, 1989 passed by Mr. A.K. Mitra, the Umpire. The petitioner has taken several grounds challenging the said award.
2. AT the hearing of the application Mr. P. K. Roy the learned Counsel appearing with Mr. Sandip Ghose for the petitioner has submitted that the impugned award being the award for damages mainly should be set aside inasmuch as no oral evidence has been adduced by the claimant to sustain its claim for damages. The next submission on behalf of the petitioner is that the petitioner had raised a counter-claim and the learned Umpire has not considered the counter claim and it will not appear from the award whether the learned Umpire has rejected the counter-claim raised by the petitioner. The further submission on behalf of the petitioner is that the learned Umpire has relied on certain documents in coming to his conclusion and he has not given an opportunity to the petitioner to lead evidence on the documents. As such, according to the petitioner, the impugned award suffers from perversity. Mr. Roy, the learned Counsel for the petitioner has referred to schedule of claims at page 54 of the petition and he has referred to, in particular the Claim Nos. 3, 4 and 5. The Claim No. 3 is for reimbursement of establishment charges. The Claim No.4 is for deprivation of the claimants lawful dues arising out of the agreement at 25% of the unexecuted portion of the contract as, according to the claimant, the work under the contract could not be completed by the claimant due to breach of terms committed by the respondent in alloting the whole of the work site and in making payment of bill in terms of the contract and Claim No. 5 is on damages directly flowing from the contract.
Mr. Roy has contended, referring to the said claims, that the learned Umpire has not entertained any evidence in support of the claimant's said claims and he has made an award not on the basis of any evidence and none of the claims raised by the claimant was proved before the Umpire. Mr. P. K. Roy has also submitted that the award is bad and is liable to be set aside as the learned Umpire has not considered the counter claim raised on behalf of the petitioner before the learned Umpire.
3. MR. P. K. Roy has relied on a decision of the Supreme Court in the case of K. V. George v. The Secretary to Government Water and Power Department, Trivandrum, AIR 1990 SC 53. It is observed by the Supreme Court that it is the duty of the Arbitrator while considering the claims of the appellant to consider also the counter-claim made on behalf of the respondent and to make the award after considering both the claims and counter claims. The learned Counsel for the petitioner has also referred to another decision of the Supreme Court in the case of Dandasi Sahu v. State of Orissa reported in AIR 1990 SC 1128. The decision of the Supreme Court in this case is that though the arbitrator is not bound to disclose as to what interpretation he has made and what inference he has derived from the documentary evidence, he is bound to refer in the award that he had considered all the documents placed before him, no matter whether he relies on them or discards them from consideration.
4. MR. Roy, therefore, submits that the learned Umpire has misconducted himself or misconducted proceedings in not sustaining his award by evidence and in not considering the counter claims raised by the petitioner
Mr. Bhaskar Gupta appearing with Mr. Abhijit Chatterjee for the respondent has submitted that the impugned award is a non-speaking award and it is the settled law that unless there is an error of law appearing on the face of the award, the Court cannot interfere with the award and the Court cannot also speculate as to what impelled the Arbitrator to arrive at his conclusion, if reasons are not given in the award Mr. Gupta has also
