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2018 Supreme(Del) 2183
IN THE HIGH COURT OF DELHI AT NEW DELHI
NAVIN CHAWLA, J.
Anand Rao Infrastructure Pvt. Ltd. - Petitioner
Versus
ABB India Limited - Respondent
O.M.P. (COMM.) 32 of 2016 & I.A. 1567 of 2016
Decided On : 26-07-2018
For the Petitioner: Mr. Aakash Sherwal, Mr. Faheem Shah, Mr. Rohan Sharma, Mr. Sidharth Agarwal and Mr. Apurv, Advs.
For the Respondent: Ms. Ekta K. Sikri and Mr. Junaid H. Nahvi, Advs.
The main legal point established in the judgment is that evidence presented in arbitration proceedings should be admissible, procedural defects should not defeat a just cause, and findings relevant to the issues raised by the parties are crucial in reaching a decision.
Headnote:
Arbitration - Designing, Installation and Commissioning of Power Transformers - Arbitration and Conciliation Act, 1996, Section 34 - Summary: The court dismissed the petition challenging the Arbitral Award, holding that the evidence presented by the respondent was admissible, the work was completed by the respondent, and the petitioner's contentions lacked merit.
Fact of the Case:
The petitioner filed a petition challenging the Arbitral Award regarding the disputes arising from the Designing, Installation, and Commissioning of Power Transformers. The respondent claimed the work was completed but payments were not made, leading to the arbitration.
Finding of the Court:
The court found that the evidence presented by the respondent was admissible, the work was completed by the respondent, and the petitioner's contentions lacked merit.
Issues: The issues included the completion of work, quantification of the claim, and authorization for filing the claim before the Arbitrator.
Ratio Decidendi: The court held that the evidence presented by the respondent was admissible, the work was completed by the respondent, and the petitioner's contentions lacked merit. The court also emphasized that procedural defects should not defeat a just cause and that the findings made by the Arbitrator were relevant to the issues raised by the petitioner.
Final Decision: The petition was dismissed with costs quantified at Rs.1 lac.
NAVIN CHAWLA, J.
1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) has been filed by the petitioner challenging the Arbitral Award dated 12.10.2015 passed by the Sole Arbitrator adjudicating the disputes that have arisen between the parties in relation to the work of Designing, Installation and Commissioning of two Power Transformers for 220KV Station in two phases on turnkey basis awarded by the petitioner to the respondent.
2. The work had been awarded by the petitioner to the respondent under the Letter of Intent dated 12.11.2008 which resulted in two Work Orders and one Purchase Order, all dated 27.11.2008, being placed by the petitioner on the respondent. Thereafter three separate Agreements were executed between the parties on 08.06.2009; one for supply of extension of existing Switchyard Equipment; second for Civil Work of the aforesaid extension and; the third for Erection, Testing and Commissioning of the said extension. The stipulated time for completion of the work was 20.07.2009. It may be noted that this was a sub-contract as the work was to be completed for Maharashtra State Electricity Transmission Company Limited (MSETCL), which had awarded the work of installing a 100 MV Wind Farm in District Satara, Maharashtra to R.S. India Wind Energy Pvt. Ltd. (R.S. India). R.S. India in turn had awarded the work to the petitioner which, in turn, awarded the work to the respondent.
3. The respondent claiming that the work had been duly completed as far as the supply of Extension and the Civil Work on 22.02.2010 and with respect to the Commissioning on 27.08.2010, however, as the petitioner had not made payments for the work to the respondent, filed a petition under Section 11 of the Act before this Court being Arb.P. 11/2013. This Court vide order dated 15.05.2014 appointed a Sole Arbitrator who has passed the Impugned Award inter alia granting the following relief in favour of the respondent:-
“46. For the reasons stated herein above, the award is made as follows:-
(i) The counter-claim filed by the respondent is dismissed.
(ii) An award is hereby made in favour of the petitioner/claimant and against the respondent for an amount of 4,58,55,499/- as the principal sum. The petitioner/claimant is also awarded a sum of Rs.3,19,70,095/- as interest till 31st August, 2015.
(iii) The claimant/petitioner is further awarded interest @ 12% per annum on the principal amount of Rs4,58,55,499/- w.e.f. 1.9.2015 till realisation of the said amount.
(iv) The petitioner/claimant shall also be entitled to recover the cost of arbitration proceedings amounting to Rs.5,60,760/- and the secretarial expenses amounting to Rs4,500/-, from the respondent.”
4. The learned counsel for the petitioner submits that the Arbitrator has placed reliance on various e-mails filed by the respondent in the Arbitral record, though the same had not been proved in accordance with Section 65(B) of the Indian Evidence Act 1872. In this regard he has placed reliance on the cross-examination of Mr. Pradeep Mehandiratta (PW-4), a witness produced by the respondent. He submits that the said witness admitted in his cross-examination that he was not aware of the contents of the e-mails filed in the case and that he had not personally printed the said e-mails.
5. I have considered the submission made by the learned counsel for the petitioner. The said submission has to be appreciated keeping in view Section 19(1) of the Act which provides that the Arbitral Tribunal shall not be bound by the Indian Evidence Act, 1872. In any case, the Arbitrator has considered this issue in detail and has held as under:-
“..... However, in the present case, the claimant has filed the affidavit of Shri Pradeep Mendiratta, Manager (Information Systems) with the claimant company. In his affidavit by way of evidence Mr. Mendiratta, inter alia, stated that abb.com/@abb are domain name of the claimant company and every employee
