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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
The Superintending Engineer, National Highways, Salem - Appellant
Versus
M/s. Gowpatt Associates, Represented by its Proprietor, P. Arun Kumar, Chennai - Respondent
O.P.Nos. 456, 457 of 2018 & A.Nos. 4317, 4318 of 2018
Decided On : 02-04-2019
Arbitration and Conciliation Act, 1996 – Section 34 – Directed against impugned award - contract agreement work of widening and strengthening – Court is informed that this stretch is in Coimbatore – Mettupalayam Highway directed against impugned award – Court proceeds further deemed pertinent to make it clear and C Act is slotted of A and C Act which is captioned RECOURSE AGAINST ARBITRAL AWARD reading of Act reveals that recourse to a Court against an arbitral award shall be made by an application be noted caption to Section 34 itself reads Application for setting aside arbitral award regard to recourse to this Court against an arbitral award nomenclature Original Petition is being assigned to such recourses and Senior and junior O.Ps are being referred to as O.Ps in plural and O.P in singular for sake of convenience and clarity – Held, Question as to whether there is any patent illegality on face of award – Before this court proceeds further, it is to be made clear that in considered view of this Court, the expression patent illegality appearing on face of award, occurring in and C Act necessarily means a illegality which is so obvious that no inferential process need to be applied for detecting words an illegality which is so patent and obvious which does not require any inferential process to be applied to arrive at a conclusion that it is illegal will fall in category of patent illegality appearing on face of careful reading of impugned awards leads this court to a conclusion that this court is unable to find any such patent illegality on face of the award – Trajectory of march of law with regard which have been alluded to supra (including the supplementary to 246th Law Commission Report dealing with Development post considered view that section itself is a very delicate and fine balance between sanctity of finality of arbitral awards and sacrosanctity of judicial review. To put it differently, it is fine and delicate balance between need to give finality to arbitral awards, Alternate Disputes Resolution Mechanism (ADR Mechanism for brevity) and one of most sacrosanct functions of Courts – Appeal dismissed.
1. This common order will govern both the aforesaid 'Original Petitions' ('O.Ps' for brevity) which have been filed under Section 34 of 'The Arbitration and Conciliation Act, 1996' ('A and C Act' for brevity) assailing two arbitral awards, both dated 27.10.2017 (hereinafter 'impugned awards' for brevity). To be noted, 'O.Ps' and 'impugned awards' are references in plural and therefore, wherever it become necessary to these terms in singular, the same shall be referred to as 'O.P' and 'impugned award' respectively.
2. O.P.No.456 of 2018 is directed against impugned award dated 27.10.2017 arising out of contract agreement No.2/2010-11 dated 04.05.2010 for the work of widening and strengthening Km 340/0 – Km 345/2 and Km 345/8 to 360 of NH 67 (Extn). This Court is informed that this stretch is in Coimbatore – Mettupalayam Highway. O.P.No.457 of 2018 is directed against impugned award dated 27.10.2017 arising out of contract agreement No.26/2010-11 dated 23.09.2010 for the work of widening and strengthening (with paved shoulders) of the road connecting Salem-Cochin at KM 105/0 of Nagapattinam-Gudalur-Mysore Road, Km 289/6 via Nallur and Peruntholuvu Km 0/0-10/4.
3. For the purpose of clarity, based on the sequential numbers assigned, 'O.P.No.456 of 2018' shall be referred to as 'senior O.P' and 'O.P.No.457 of 2018' shall be referred to as 'junior O.P' and the impugned award in senior O.P shall be referred to as 'impugned award-I' and the impugned award in junior O.P shall be referred to as 'impugned award-II'. 'Impugned awards I and II' shall collectively be referred to as 'impugned awards' as mentioned supra. Impugned awards have been made by an 'Arbitral Tribunal' ('AT' for brevity) constituted by a sole arbitrator.
4. Before this Court proceeds further, it is deemed pertinent to make it clear that Section 34 of A and C Act is slotted under Chapter VII of A and C Act, which is captioned 'RECOURSE AGAINST ARBITRAL AWARD'. A reading of section 34 of A and C Act reveals that recourse to a Court against an arbitral award shall be made by an 'application'. To be noted, caption to Section 34 itself reads 'Application for setting aside arbitral award'. However, with regard to recourse to this Court against an arbitral award, the nomenclature 'Original Petition' is being assigned to such recourses and therefore, senior and junior O.Ps are being referred to as 'O.Ps' in plural and 'O.P' in singular for the sake of convenience and clarity.
5. Superintending Engineer, National Highways, Salem Circle, who was the sole respondent before AT is the petitioner in both senior and junior O.Ps before this Court. This Court is informed that one P.Arun Kumar is carrying on business as sole proprietor in the name and style 'Gowpatt Associates', i.e., claimant before AT and sole respondent in both senior and junior O.Ps before this Court. 'Petitioner before this Court' in both O.Ps (sole respondent before AT in impugned awards) shall be referred to as 'NHAI' and 'respondent before this Court' in both O.Ps (claimant before AT in both impugned awards) shall be referred to as 'contractor' for the sake of convenience and clarity.
6. In the hearing, learned Additional Solicitor General Mr.G.Rajagopalan on behalf of Mr.Su.Srinivasan, counsel on record for NHAI and Mr.Sharath Chandran, representing the counsel on record for Caveator (Contractor had lodged caveat for both O.Ps) were before this Court. It was submitted by learned Solicitor that issues before AT with regard to both impugned awards are the same. It was, therefore, submitted that senior O.P will be argued and arguments therein shall be treated as arguments in junior O.P also. Learned counsel for Caveator agreed to such a course being adopted. Therefore, facts as in senior O.P shall be set out on the agreed premise that arguments/issues that arise for consideration are common. However, refer
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