The judgment emphasizes that an award in an international commercial arbitration cannot be challenged on the ground of perversity and that the Court will not interfere with the award unless there is a violation of fundamental principles of justice that shocks the conscience of the Court.

JUDGMENT :

K.R.MOHAPATRA, J.

This Petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Arbitration Act’) has been filed assailing the award dated 7th September, 2020 (corrected on 17th November, 2020) passed by a three member Arbitral Tribunal. The matter is heard on the question of admission.

2. The Petitioner, GMR Kamalanga Energy Limited (for convenience ‘GKEL’) entered into an agreement with Opposite Party-SEPCO Electric Power Construction Corporation (for convenience ‘SEPCO’) in 2008 for construction and operation of a Coal Fired Thermal Power Plant at Kamalanga village in Dhenkanal district of Odisha. In that process, GKEL and SEPCO entered into four agreements, which were amended subsequently. Dispute arose between the parties for delay in construction as well as on other technical issues relating to the construction and operation of the plant. On 30th March, 2015, SEPCO served a notice of dispute on GKEL and initiated arbitration proceeding serving notice of arbitration dated 18th June, 2015. An Arbitral Tribunal was constituted to adjudicate upon the dispute between the parties. As per the agreement, arbitration was to be made in accordance with the provisions of the Arbitration Act. The seat of Arbitration was India though the venue was at Singapore. As per the provisions of the Arbitration Act, the Arbitration is an international commercial arbitration governed by Part-1 of the said Act. The three member Arbitral Tribunal passed the impugned award on 7th September, 2020, which was unanimous. However, both SEPCO and GKEL filed applications for correction of the award under Section 33 of the Arbitration Act and the Arbitral Tribunal passed a corrected award on 17th November, 2020. As per the impugned award, the GKEL has been directed to pay Rs.995 crores (approximately) to SEPCO (this figure has been arrived at by converting the amount awarded in different currencies to INR at contemporaneous rates). The GKEL being aggrieved has filed present petition under Section 34 of the Arbitration Act on 15th February, 2021.

2.1 The matter was argued at length by learned counsel for the parties on the question of admissibility of the petition. In one hand, learned counsel for the Petitioner made an endeavour to encompass the argument raised within the scope of Section 34 of the Arbitration Act, learned counsel for the Opposite Party, on the other hand, made efforts to persuade this Court by arguing that the issues raised by learned counsel for the Petitioner are not within the scope and ambit of Section 34 of the Arbitration Act.

3. For convenience and appreciation of respective cases of the parties, GKEL filed convenience compilation on 17th April, 2021 as well as additional compilation on 26th July, 2021. Likewise, SEPCO filed compilation of case laws on 19th July, 2021 and additional compilation of case laws on 19th July, 2021, 21st July, 2021, 16th August, 2021 as well as on 31st August, 2021. Mr. Salve, learned Senior Advocate as well as Dr. Singhvi, learned Senior Advocate vehemently argued that the Tribunal has treated the parties unequally and tried to make out a third case which was not even the case of either of the parties. It is also argued on behalf of the Petitioner that by virtue of the impugned award, the Tribunal has effectively modified the contract between the parties by holding that the parties have waived the requirements to issue contractual notices. Dr. Singhvi, learned Senior Advocate, also made elaborate submission in response to the submission made by Mr. Mehta, learned Senior Advocate for SEPCO.

4. It is submitted by learned counsel for GKEL that although issuance of notice was a condition precedent for SEPCO to make any claim for changes in the contract price or for seeking extension of time, but the Tribunal has erroneously held that the GKEL is estopped from seeking compliance of contractual notice relying upon its email dated 18th March, 2012 without appreciating the co