The burden of proof on the question of waiver lies with the party asserting it, and the task of appreciation of evidence is within the province of the arbitrator.

JUDGMENT

Prateek Jalan, J. (Oral)

1. By way of this petition under Section 34 of the Arbitration and Conciliation Act, 1996 ["the Act"], the petitioner challenges an award dated 12.07.2019, passed by a learned sole arbitrator, adjudicating disputes between the parties under agreements dated 27.11.1993 and 13.12.1994 ["the Agreements"].

2. The Agreements were for acquiring, transfer and sale of land in Mangar, Delhi-Haryana Border and in Village Chakkarpur, District Gurgaon, Haryana. The detailed terms of the Agreements need not detain us as the question raised by Mr. Rakesh Tiku, learned Senior Counsel for the petitioner, is confined to one point - whether the learned arbitrator has correctly found that the petitioner had waived a claim for interest upon an amount of Rs. 8.05 crores due from respondent No.1.

3. The learned arbitrator formulated the following three issues for his consideration:

"Points to be determined

19. The learned counsel on both sides stated and submitted that the question of interest was the only issue which requires determination by this Tribunal. In this context and the basis of the arguments advanced by the learned Counsel for the parties, it is essentially to be determined as to:

(i) Whether ADPL was under a liability to refund the amounts advanced to it by DCM along with interest thereon?

(ii) If so, has the interest been waived on account of the letter dated 09.11.2005 and the two letters dated 20.03.2006?

(iii) If not waived, at what rate and till what date(s) the interest is to be paid by ADPL to DCM?"

4. On issue No (i), the learned arbitrator found in favour of the petitioner that respondent No.1 was liable to refund an amount of Rs. 8.05 cores alongwith interest thereupon @ 18% per annum. However, the petitioner was found disentitled to an award in these terms, on the basis of a finding against it on issue No (ii). The learned arbitrator found that interest had been waived by the petitioner by virtue of a letter dated 09.11.2005, addressed to a director of respondent No.1 (arrayed as respondent No.2 to this petition) by Dr. Vinay Bharat Ram, who was then the Chairman and Managing Director of the petitioner-company.

5. Mr. Tiku submits that the aforesaid conclusion of the learned arbitrator is patently illegal and based on a complete misreading of the evidence of Dr. Vinay Bharat Ram, who was examined as CW-3. He submits that the petitioner, in its pleadings before the learned arbitrator, and Dr. Vinay Bharat Ram, in his affidavit by way of examination-in-chief, had unequivocally denied the aforesaid letter. According to Mr. Tiku, the burden of proof on the question of waiver ought to have been placed upon the respondents, who failed to establish it to any plausible degree of satisfaction. Mr. Tiku submits that the cross-examination of Dr. Vinay Bharat Ram does not bear out an unequivocal admission so as to constitute waiver on the part of the petitioner.

6. Mr. Sanjay Manchanda, learned counsel for respondent Nos. 1 and 2 and Mr. PL.S. Bindra, learned Senior Counsel for respondent No. 3, submit that the aforesaid contentions are beyond the scope of consideration under Section 34 of the Act, as they call for re- appreciation of evidence. They point out that the petitioner did not take a categorical position in pleadings that the letter dated 09.11.2005 relied upon by the respondents was forged or fabricated, and neither was such a position taken in the examination-in-chief of Dr. Vinay Bharat Ram. To the contrary, they submit that the cross-examination of Dr. Vinay Bharat Ram bears out the conclusion recorded by the learned arbitrator.

7. Having heard learned counsel for parties, I am of the view that the impugned award does not call for interference in the limited scope afforded by Section 34 of the Act. The case of the respondents with regard to waiver turns upon a letter dated 09.11.2005, addressed by the Chairman and Managing Director of the petitioner to a Director of respondent No.1. The