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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, KRISHNAN RAMASAMY, JJ.
The Government of Tamil Nadu, Rep. by the Project Director, Chennai - Appellant
Versus
M/s. Amar Constructions Company, Vadodhara & Others - Respondents
O.S.A. No.221 of 2012 & M.P. Nos. 1 & 2 of 2012
Decided On : 09-04-2019
The Court held that the Arbitral Tribunal has considered the evidence and the materials placed before them in arriving at a just conclusion and the first respondent is liable to be compensated by the appellant, which is a plausible and reasonable conclusion. This is precisely what has been held by the learned Single Judge while exercising jurisdiction under Section 34 of the Arbitration and Conciliation Act, and therefore, the Court cannot re-appreciate the evidence to give contrary findings and the Court is not sitting as an appellate authority over the award of the Arbitral Tribunal and the order passed under Section 34 of the said Act is the subject matter of challenge before the Court. Absolutely, the appellant has not made out any case for interference with the order passed by the learned Single Judge. The Court did not find any scope or ground to interfere in the award passed by the Arbitral Tribunal as well as the order passed by the learned Single Judge.
Fact of the Case:
The Government of Tamil Nadu contemplated upgradation of roads to higher standards to improve quality and serviceability. Based on the request made by the Government, the World Bank had agreed to fund the Tamil Nadu Road Sector Project at a cost of Rs.2,160 Crores, and under this major component, a sub-component of enhanced periodical maintenance of Government roads in various Districts of the State had also been taken up for implementation. Under this sub-component, the tender for enhanced periodical maintenance of Government roads in Nagapattinam and Tiruvarur Districts: Tharangambady-Myladuthurai Km 11/2-29/6, Thanjavur-Mannargudi-Thiruthuraipoondi-Vedaranyam-Kodiyakkarai Road Km 15/7 - 30/3 and Nagore-Vettar Road Km 15/0-23/0 (Contract MC 4) covering 41.00 Km, was invited, fixing the date of receipt of tender as 09.02.2004. The tender of the first respondent-Company, namely, M/s.Amar Construction Company, was found to be responsive and therefore, the tender amounting to Rs.17,32,80,247/- was accepted and communicated on 30.07.2004. An agreement (Agreement No.13/2004-05) setting out the terms and conditions, was concluded on 01.09.2004.
Finding of the Court:
The Court held that the Arbitral Tribunal has considered the evidence and the materials placed before them in arriving at a just conclusion and the first respondent is liable to be compensated by the appellant, which is a plausible and reasonable conclusion. This is precisely what has been held by the learned Single Judge while exercising jurisdiction under Section 34 of the Arbitration and Conciliation Act, and therefore, the Court cannot re-appreciate the evidence to give contrary findings and the Court is not sitting as an appellate authority over the award of the Arbitral Tribunal and the order passed under Section 34 of the said Act is the subject matter of challenge before the Court. Absolutely, the appellant has not made out any case for interference with the order passed by the learned Single Judge. The Court did not find any scope or ground to interfere in the award passed by the Arbitral Tribunal as well as the order passed by the learned Single Judge.
Issues: Whether the Court can interfere in the award passed by the Arbitral Tribunal and the order passed by the learned Single Judge.
Ratio Decidendi: The Court held that it cannot interfere in the award passed by the Arbitral Tribunal and the order passed by the learned Single Judge as the appellant has not made out any case for interference with the order passed by the learned Single Judge. The Court did not find any scope or ground to interfere in the award passed by the Arbitral Tribunal as well as the order passed by the learned Single Judge.
Final Decision: The Court dismissed the O.S.A. with no costs.
R. Subbiah, J.
1. This Original Side Appeal (O.S.A) has been filed as against the order dated 09.04.2011 passed by the learned Single Judge in O.P.No.766 of 2008, dismissing the said O.P. filed by the appellant herein under Section 34 of the Arbitration and Conciliation Act, which was filed to set aside the award passed by the Arbitral Tribunal, dated 20.02.2008 and subsequent modified arbitration award, dated 18.04.2008.
2. Brief facts which are necessary to decide the issue in this appeal, are as follows:
(a) The Government of Tamil Nadu contemplated upgradation of roads to higher standards to improve quality and serviceability. Based on the request made by the Government, the World Bank had agreed to fund the Tamil Nadu Road Sector Project at a cost of Rs.2,160 Crores, and under this major component, a sub-component of enhanced periodical maintenance of Government roads in various Districts of the State had also been taken up for implementation. Under this sub-component, the tender for enhanced periodical maintenance of Government roads in Nagapattinam and Tiruvarur Districts: Tharangambady-Myladuthurai Km 11/2-29/6, Thanjavur-Mannargudi-Thiruthuraipoondi-Vedaranyam-Kodiyakkarai Road Km 15/7 - 30/3 and Nagore-Vettar Road Km 15/0-23/0 (Contract MC 4) covering 41.00 Km, was invited, fixing the date of receipt of tender as 09.02.2004. The tender of the first respondent-Company, namely, M/s.Amar Construction Company, was found to be responsive and therefore, the tender amounting to Rs.17,32,80,247/- was accepted and communicated on 30.07.2004. An agreement (Agreement No.13/2004-05) setting out the terms and conditions, was concluded on 01.09.2004.
(b) As per the terms of contract, the contract period is 12 months from the date of handing over of the site. The site was handed over on 07.09.2004. The first respondent ought to have completed the work on 06.09.2005. However, the first respondent completed the work only on 13.04.2006 with a delay of six months.
(c) During the performance of the contract, disputes arose between the parties and at the request of the first respondent, the disputes were referred to arbitration to the Arbitral Tribunal consisting of respondents 2 to 4. Before the Arbitral Tribunal, the first respondent-claimant made various claims and the Arbitral Tribunal had passed an award. After the award was passed, the appellant sought for certain clarification and on that basis, modified award was passed as follows:
Claim No.
Claim
Claim Amount in Rs.
Arbitration Award in Rs.
Modified Arbitration Award in Rs.
1
Claim towards increase in bid price as per clause 15.3 of instruction to bidders
21,02,671/-
19,46,436/-
19,46,436/-
2
Claim towards loss of profit and idling charges due to over stay in the project site
2,23,12,798/-
22,31,280/-
20,79,363/-
3
Claim towards price escalation
62,15,780/-
62,15,780/-
62,15,780/-
4
Interest on amount withheld beyond intended completion date and upto actual completion date
7,87,396/-
4,37,442/-
4,37,442/-
5
Interest on the amount deposited for bank guarantee and bank commission
41,630/-
23,116/-
23,116/-
6
Refund of recovery made for additional items
6,28,679/-
6,28,679/-
6,28,679/-
7
Claim towards interest for the delay in making payment for the final bill
2,38,341/-
1,63,470/-
1,44,752/-
8
Interest on pending claims from the cause of action to date of payment
a
Pre reference period
49,17,149/-
10,47,411/-
8,40,726/-
b
Interest for pendent lite
to be quantified
9,04,202/-
8,77,325/-
9
Cost of arbitration
to be quantified
2,94,500/-
2,94,500/-
Total
1,38,92,316/-
1,34,88,119/-
Interest for the post award period
to be quantifie
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