2024:MHC:2513 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.06.2024 CORAM THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI O.S.A. (CAD) No. 37 of 2024 Chennai Port Trust rep. By its Traffic Manager, Rajaji Salai, Chennai – 1. .. Appellant Vs

1.M/s.T.Arumaidurai & Co., rep. By its Chief Executive Joachim Robert, DIVA, 5, II Cross Street, Kasturibai Nagar, Adyar, Chennai – 20.

2.Justice R.Balasubramaniam, No.157/17, P.S.Kumarasamy Raja Road, Raja Annamalaipuram, Chennai – 28.

3.Justice A.Ramamoorthy, No.9, 32nd Main Road, Mogappair, Chennai.

4.K.Ramasamy, Retired District Judge, No.138, LB Road, Judges Avenue, Kamarajar Nagar, Chennai – 41. .. Respondents (R2 to R4 deleted vide order dated 19.09.2023 made in C.M.P. No.18105 of 2023 in O.S.A. (CAD) SR. No.91602 of 2021)

Appeal filed under Section 13 of Commercial Courts Act, 2015 r/w Clause 15 of Letters Patent against the order and decretal order dated 31.10.2019 in O.P.No.97 of 2010.

For Appellant : Mr.S.Haja Mohideen Gisthi

JUDGMENT

(Judgment of the Court was delivered by M.Sundar, J.

Captioned intra-court appeal i.e., 'Original Side Appeal'

(hereinafter 'OSA' for the sake of brevity) has been presented in this 'Commercial Appellate Division' ('CAD' for the sake of brevity) on 05.10.2021 by 'Chennai Port Trust' (hereinafter 'CPT' for the sake of brevity).

2. Captioned OSA is a statutory appeal under Section 37 of 'The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)'

(hereinafter 'A and C Act' for the sake of convenience and clarity).

3. Captioned OSA is listed under the cause list caption 'ADJOURNED ADMISSION' today.

4. Mr.S.Haja Mohideen Gisthi, learned standing counsel for CPT submitted that the captioned OSA is directed against an order dated 31.10.2019 made in O.P.No.97 of 2010. To be noted, O.P.No.97 of 2010 is a petition under Section 34 of A and C Act which was filed by CPT assailing an 'arbitral award dated 26.01.2009' (hereinafter 'impugned award' for the sake of convenience and clarity) made by a three member Arbitral Tribunal. Section 34 Court dismissed O.P.No.97 of 2010 in and by aforementioned 'order dated 31.10.2019' (hereinafter 'impugned order' for the sake of convenience and clarity). As already alluded to supra, captioned OSA has been filed by CPT assailing the impugned order of Section 34 Court.

5. Considering the limited legal landscape or limited legal perimeter within which a legal drill under Section 37 of A and C Act has to perambulate, we are of the view that short facts (shorn of elaboration) will suffice. In other words, short facts imperative for appreciating this order will suffice.

6.Factual matrix in a nutshell is that the nucleus of the dispute between CPT and a licensee is an agreement dated

04.03.1998 (Ex.C7 before the Arbitral Tribunal); that it is to be noted that in this narrative, the reference to exhibits will be as before the Arbitral Tribunal, which shall be referred to as 'AT' for the sake of convenience and clarity; that the license agreement is for a period of 20 years from the date of commencement; that the subject matter of license is JD1 Berth (one of the berths in CPT); that the license was terminated in the 4^th year of operation; that on and from 25.08.2001, the licensee was not permitted to use the berth; that under the license agreement, the licensee was required to make two kinds of payment, one is Berth Hire Charges (BHC) and the other is Berth Reservation Charges (BRC); that the central lis pertains to alleged non-payment of BRC by licensee and consequential termination; that license agreement (Ex.C7) provides for BRC to be paid at the equivalent of one day's average BHC or at 25% of the BHC of the vessels total stay in the berth whichever is higher; that according to CPT, it is entitled to revise BRC as per directions of the Government in applicable scheme; that CPT as per directions of the Government vide Ex.C8 (letter dated 01.04.1999) revised BRC from 25% of BHC to 50% thereof f