By a letter dated 28th October,2009 the minutes of the above meeting held on 20th October,2009 were forwarded to the Appellant's Chief Manager and Secretary, by the Respondent. Thereafter, this letter alongwith the minutes of the meeting were forwarded by the Deputy Manager (Legal) of the Appellant to Mr.S.K.Kaul, Chief Manager (Admn) & Secretary, to Mr.D.S.Garde, Senior Manager (CT) and to Mr.B.V.Rao, Manager (Finance) and same was duly received by them. Things did not stop at this, but further correspondence was exchanged between the parties on the basis of this meeting. All these documents formed part of the record before the learned Arbitrator in the additional affidavit of evidence filed on behalf of the Respondent. As can be seen from the record admittedly these were subsequent developments which had taken placed during the pendency of the arbitration proceedings. It is, thus, not the case that these documents could be placed on record before the learned Arbitrator at the threshold, alongwith the statement of claim.
Further, the Appellant did not in any manner dispute these documents as placed on record in the additional affidavit of evidence as filed on behalf of the Respondent. Admittedly at no point of time, till the arbitration proceedings were closed, for an Award to be delivered, the Appellant neither disputed the minutes of the meeting and the settled claim as offered to be paid on behalf of the Appellant. Further at no point of time an opportunity to cross examine the witness of the Respondent was sought for by the Appellant. If this be the case, then, in our opinion, it was not in any manner inappropriate for the learned Arbitrator to proceed to decide the dispute on the basis of these facts which stood uncontroverted. The minutes of the meeting dated 20 th October,2009 and the correspondence in relation thereto which includes even internal letters of the Appellant, remain uncontroverted and the facts contained therein being not disputed became available to the learned Arbitrator for pronouncing the Award. We, thus, do not find any substance in the contention as urged on behalf of the learned Counsel for the Appellant that in the fact situation there was a burden on the Respondents to prove these documents and/or that the Respondent has failed to discharge the said burden namely to prove the said minutes of the meeting, and the correspondence in relation thereto and thus these documents were not admissible in evidence. In our opinion, the submission is wholly unfounded as it is clear from the facts of the present case, that the Appellant never disputed the affidavit of evidence alongwith the annexed documents. The Appellant's contention cannot be accepted also for the reason that the Appellant did not, in any manner known to law, controvert the deposition as contained in the additional affidavit of evidence of the Respondents and/or sought an opportunity to cross examine the deponent and/or disputed any of the documents which were annexed to the same and which were part of the record before the learned Arbitrator. What could therefore be clearly inferred by the learned Arbitrator, was the admission of these facts by the Appellant. Non traverse of these facts clearly makes applicable the doctrine of implied admission as would flow from Section 58 of the Evidence Act. Further it is also not a case that the Appellant has placed on record any evidence to the contrary. Thus it is a case where the principles as contained inSection 58 of the Indian Evidence Act would get clearly attracted being one of the basic rules of evidence. The learned Arbitrator had correctly proceeded on the ground that the Appellant had admitted the facts in regard to the minutes of meeting dated 20th October,2009 and the documents in relation thereto.
Bombay High Court
Jawaharlal Nehru Port Trust vs Ornate Multi Model Carriers Pvt. ... on 5 July, 2016
CORAM : ANOOP V. MOHTA & G.S. KULKARNI, JJ.
Citation:2016(6) MHLJ742
1. This appeal by the Appellant (original Respondent before the learned Arbitrator) under Section 37 of the Arbitration and Conciliation Act,1996 (for short 'the Act'), is directed against the judgment and order dated 9th March,2016 whereby the learned Single Judge has rejected the Appellant's Petition filed under Section 34 of the Act, assailing the arbitral Award dated 10th December,2014 of the learned sole Arbitrator.
In nutshell the facts are:
2. The Appellant had issued a tender notice inviting bids "for hiring services for operation of 58 tractors / trailers for transportation of ISO freight tenderers within the container terminal of the Appellant." The Respondent was a successful bidder and accordingly, a contract was awarded to the Respondent. An agreement dated 6 th September,2000 came to be entered between the Appellant and the Respondent. The contract period was for three years i.e. from 1 st September,2000 to 31st August,2003. As per the tender conditions a successful tenderer wasPVR 3/17 appl201-16.doc required to furnish a bank guarantee towards security deposit equivalent to Rs.65 lakhs and was entitled to raise monthly bills towards containers handled by it during the contract period. Payment of bills, for the work to be executed by the contractor, was required to be settled by the Appellant within thirty days from the date of submissions of the bills.
3. As seen from the pleadings and the award, there was no issue between the parties till July,2003. The Appellant had made payments of the bills raised by the Respondent for the contractual work. A dispute arose between the parties after completion of the contract. The Respondent raised claims under different heads and initially made a money claim of Rs.1,87,17,444.62 with further interest at 18% per annum which amount was later reduced by the Respondent to Rs.1,39,17,644.62.
4. The Respondent had approached this Court in Arbitration Application No.134 of 2006. The learned Single Judge by an order dated 6th October, 2006 held that the dispute between the parties as urged in the said Arbitration Application was not arbitrable and accordingly, rejected the arbitration application. The Respondent thereafter approached the Supreme Court. By an order dated 16 th February,2009 the Supreme Court appointed a retired Hon'ble Judge of the Karnataka High Court as the sole PVR 4/17 appl201-16.doc Arbitrator.
5. Before the learned Arbitrator in support of its claim, the Respondent asserted that in pursuance of a representation made by the Respondent, a meeting was held on 20 th October,2009 in the Chamber of Mr.S.K.Kaul, Chief Manager (Admn.) & Secretary, of the Appellant, for discussing the claims of the Respondent and the counterclaims of the Appellant, to resolve the disputes amicably, as pending before the learned Arbitrator. According to the Respondent in the said meeting Mr.S.K.Kaul, Chief Manager (Admn.) & Secretary of the Appellant alongwith other officers on behalf of the Appellant, offered a proposal based on a summary prepared by the Appellant dated 31st May,2005. A total sum of Rs.77,47,991/- was agreed as payable to the Respondent on the condition that the Respondent withdraws its claim for refund of breakdown charges, which the Respondent agreed in the said meeting so as to amicably resolve the dispute. By a letter of the Respondent dated 28 th October,2009, the minutes of the said meeting dated 20 th October,2009 were forwarded by the Respondent to the Chief Manager (Admn.) & Secretary of the Appellant.
6. By a letter of the Deputy Manager (Legal) dated 10 th PVR 5/17 appl201-16.doc November,2010 the said minutes of the meeting were forwarded to the Chief Manager (Admn) and Secretary as also the Senior Manager (CT) and the Manager (Finance). Thus the Appellants cannot dispute that the Appellants were not aware about this settlement. Admittedly, these developments had taken place during the pendency of the arbitration proceedings.
7. Before the learned Arbitrator, the Respondent filed an additional affidavit of evidence of its Director Mr.Jameel Jalali dated 13 th January,2014 by which the above referred documents pertaining to the meeting held on 20th October,2009 and the minutes of the same were placed on record. It may be useful to refer to paragraphs 2 to 6 of this affidavit as the entire issue in the present appeal revolves on these facts.
"2. The claimant is filing the additional evidence by way of affidavit since these evidences are very relevant for just decision of the instant Petition.
3. I say that the respondent has taken a decision to constitute the Committee composed of Shri.S.K.Kaul, Chief Manager (Admn.) & Secretary, Shri.D.S.Garde, Sr.Manager, and Shri.B.V.Rao, Manager (Finance), JNPT, to scrutinise the claim submitted by the Claimant before the ld.Tribunal. A letter was sent by the respondent on 9.10.2009 informing the claimant about the fixation of preliminary meeting on 16.10.2009. True copy of the respondent's letter dated 9.10.2009 is annexed hereto and marked as Exhibit CW1/21 (page 4-5)
4. But instead of 16.10.2009, on 20th October 2009, a meeting PVR 6/17 appl201-16.doc was held by the said Committee wherein the Claimant was also present. In the said meeting the claimant withdrew its claim for Break down charges of Rs.47,75,800/-. After taking into account the total claims of the Claimant, including the bank guarantee, amount received by the Claimant under indemnity, and the withdrawal of claim of the Claimant for release of breakdown charges, the Committee decided that the amount as mentioned in the following table is due to the Claimant.
Sr.N Particulars Amount
o.
1 Penalty under clause 20 of the contract Rs.1,98,000.00
i.e. for non-availability of tractor-
trailers
2 Penal interest due Rs.5,42,644.00
3 Cost of spares Rs.49,65,950.00
4 Service tax deducted Rs.9,34,392.00
5 Fuel Escalation invoices not settled Rs.2,07,005.00
6 Amount held back for Workmen Rs.4,50,000.00
compensation policy
7 Amount held up towards accident claim Rs.4,50,000.00
8 Residue of real estate dues to be Rs. Nil
refunded after deducting all amount due
to JNPT
Total amount Rs.77,47,991.00
The true copy of the minutes of the meeting dated 20.10.2009 held in the office of Mr.S.K.Kaul, Chief Manager (Admn.) & Secy.JNPT to discuss the claim of the claimant is annexed hereto and marked as Exhibit CW 1/22 (page 6-7)
5. I say that the Claimant as a gesture of cooperation and keeping in mind their longstanding goodwill, accepted the decision of the Committee except for the item no.8 in the above table to resolve the disputes pending before this ld. Tribunal and the PVR 7/17 appl201-16.doc claimant wrote a letter dated 28.10.2009 to the respondent to that effect. The true copy of the letter dated 28.10.2009 by the claimant to the respondent is annexed hereto and marked as Exhibit CW 1/23 (page 8-9).
6. I say that the above act on the part of the claimant shows his readiness and willingness to settle the matter with the respondent but still the respondent is not doing anything, therefore, I submit that in view of the facts and circumstances of this case, this Hon'ble Tribunal may allow the Claim of the claimant."
Perusal of the above averments of the Respondent in the additional affidavit of evidence makes it clear that the documents pertaining to the minutes of meeting as forwarded by the Respondent were part of the record before the learned Arbitrator. Not only that but as noted above the Deputy Manager (Legal) by letter dated 19th November,2010 had forwarded the same for record and information of Mr.S.K.Kaul, Chief Manager (Admn.) & Secretary.
8. It is an admitted position, that before the learned Arbitrator, the Appellant did not in any manner dispute the minutes of the meeting dated 20th October,2009 or the other documents as forming part of the affidavit of evidence. The Appellant also did not avail of an opportunity to cross examine Mr.Jameel Jalali, the deponent of the said additional affidavit of evidence.
PVR 8/17 appl201-16.doc
9. The learned Arbitrator in his Award recorded that though the Respondent had earlier made a claim of Rs.1,39,41,644.62, however, relying on the subsequent additional affidavit of evidence, held that the claim of the Respondent would be Rs.77,47,991/- as agreed between the parties in the meeting held on 20 th October,2009 and as recorded in the minutes of the meeting. It would be useful to refer to the observations of the learned Arbitrator in the Award in this regard which read thus:
"
From the proceedings of the meeting held on 20.10.2009 which was produced as Ex.CW 1/22 by the claimant along with the additional affidavit of Shri.Jaleem Jalali, it is clear that the respondent has offered to pay sum of Rs.77,44,991/- (Seventy Seven lakhs Forty Seven Thousand Nine Hundred and Ninety One). As against the total claim of Rs.1,87,17,444.62/- (One Crore Eighty Seven Lakhs Seventeen Thousand four Hundred and Forty Four and Sixty Two paise) made by the claimant in his claim petition and the claimant has agreed to accept the said sum of Rs.77,44,991/- (Seventy Seven Lakhs Forty Seven Thousand Nine Hundred and Ninety One) and also has agreed for settlement of his claim for residue of real estate due to be refunded after deducting all amount due by the claimant to the respondent. According to the proceedings of the said meeting, no amount was due on the said account to be paid by the respondent to the claimant. However, so far as item 8 regarding residue of real estate due claimed by the claimant is concerned, claimant expressed his reservation with regard to PVR 9/17 appl201-16.doc the stand taken by the respondent that it is not liable to pay any amount on the account to the claimant and made a request to refer the matter to the Estate Department of the respondent for reconciliation.
In light of the discussion made above and the materials available on record. I am of the view that the claimant is entitled for judgment and award directing the respondent to pay sum of Rs.77,44,991/- (Seventy Seven lakhs Forty Seven Thousand Nine Hundred and Ninety One). So far as the claim of the respondent for the residue of real estate dues is concerned, I find considerable force in the submission of Sri. Ajay Sharma that since the claimant has failed to establish the said claim with cogent evidence, he is not entitled for the said claim. Therefore, I am of the opinion that it is not just and proper to make any award directing the respondent to pay any amount towards the residue of the real estate dues as claimed by the claimant from the Respondent."
10. The learned Single Judge by the impugned judgment has rejected the Appellant's challenge to the Award inter alia observing that the conclusion as drawn by the learned sole Arbitrator was clearly on evidence. It was observed that there was no material on record to accept the contention as urged on behalf of the Appellant that the learned sole Arbitrator ought not to have accepted the minutes of the meeting dated 20th October,2009 to allow the claim of Rs.77,47,991/-. On perusal of the entire record the learned Judge observed that the Appellant had not PVR 10/17 appl201-16.doc sought any opportunity to cross examine the witness of the Respondent nor the document of the minutes of the meeting dated 20 th October,2009 and the other documents in relation thereto as annexed to the additional affidavit of evidence, were disputed by the Appellant by any objection in writing. Accordingly, the learned Judge dismissedSection 34 petition filed by the Appellant.
11. In assailing the impugned order the only contention as urged on behalf of the learned Senior Counsel for the Appellant is that there is failure on the part of the Respondent to prove the document of the minutes of meeting dated 20th October,2009 as annexed to the additional affidavit of evidence and filed on behalf of the Respondent. It is submitted that the said document is not proved by the respondent. The burden to prove the said document under Section 101 of the Indian Evidence Act was on the Respondent and as the burden is not discharged by the Respondent, the question of the Appellant disputing the said document and/or calling the Respondent's witness for cross examination did not arise. In support of his submission, the learned Senior Counsel for the Appellant has placed reliance on the decision in the case "Om Prakash Berlia & Anr. Vs. Unit Trust of India & Ors, (AIR 1983 Bombay 1)", "Indian Oil Corporation Ltd. Vs. M/s.Kadbrotee Engineering Industries" in Arbitration Petition No.212 of 2007 decided on 14 th January,2011, Bi-water PVR 11/17 appl201-16.doc Penstocks Ltd. Vs. Municipal Corporation of Greater Bombay & Anr., (2011(1)Bom.C.R. 622)", "M/s.Bareilly Electricity Supply Co.Ltd. Vs. The Workmen and others, (AIR 1972 Supreme Court 330)".
12. On the other hand, the learned Senior Counsel appearing for the Respondent has supported the Award of the learned Arbitrator and the observations as made by the learned Single Judge in confirming the Award. The learned Senior Counsel for the Respondent submits that the Appellant is not correct in contending that the Respondent had not proved the document of the minutes of the meeting. It is submitted that the Appellant neither disputed the document which formed part of the deposition in the additional affidavit of evidence nor the Appellant availed of an opportunity to cross examine witness of the respondent. It is submitted that this position amounted to clear admission of the facts pertaining to the minutes of the meeting and the contents of the said document of the minutes of the meeting as placed on record for consideration of the learned Arbitrator. It is submitted that in any event, the learned Arbitrator has extensively considered the facts and circumstances including the non denial on the part of the Appellant of the minutes of the meeting dated 20 th October,2009 and accordingly made the Award. It is contended that the learned Single Judge has extensively examined all these issues in rejecting the Section 34petition. It is PVR 12/17 appl201-16.doc therefore submitted that the Appeal is wholly devoid of merit.
13. We have heard the learned Counsel for the parties as also we have gone through the impugned Award as also the impugned order passed by the learned Single Judge and the other documents as placed on record in the paper book. On examining the relevant documents what is revealed is that the Respondent had initially made a claim of Rs.1,87,17,444.62 with interest at the rate of 18% p.a. Subsequently as recorded by the learned Arbitrator, the Respondent had given up the claim of Rs.47,75,800/- being a claim made for refund of break down charges.
During the pendency of the arbitration proceedings, in pursuance of a representation which was made by the Respondent, the Appellant had fixed a meeting for discussing the claim made by the Respondent.
Accordingly, a letter was addressed by the Appellant to the Respondent in this regard dated 9th October,2009 informing the Respondent about fixing of a preliminary meeting on 16th October,2009. This meeting was, however, held on 20th October,2009. The meeting was held in the chamber of Mr.S.K.Kaul, Chief Manager (Admn.) & Secretary to discuss / settle amicably the dispute between the Respondent and the Appellant which was pending before the learned Arbitrator. It was attended by three senior officers of the Appellant namely Mr.S.K.Kaul, Chief Manager PVR 13/17 appl201-16.doc (Admn.) & Secretary, Mr.D.S.Garde, Senior Manager and Mr.B.V.Rao, Manager (Finance) and Mr.Jameel Jalali, Director of the Respondent alongwith the other representatives. In this meeting various claims were discussed and on behalf of the Appellant an offer of Rs.77,47,991/- was made, to be paid to the Respondent on the condition that the Respondent withdraws their claim for refund of break down charges for which the Respondent's representative agreed to withdraw as a gesture of co-
operation to amicably resolve the dispute.
14. By a letter dated 28th October,2009 the minutes of the above meeting held on 20th October,2009 were forwarded to the Appellant's Chief Manager and Secretary, by the Respondent. Thereafter, this letter alongwith the minutes of the meeting were forwarded by the Deputy Manager (Legal) of the Appellant to Mr.S.K.Kaul, Chief Manager (Admn) & Secretary, to Mr.D.S.Garde, Senior Manager (CT) and to Mr.B.V.Rao, Manager (Finance) and same was duly received by them. Things did not stop at this, but further correspondence was exchanged between the parties on the basis of this meeting. All these documents formed part of the record before the learned Arbitrator in the additional affidavit of evidence filed on behalf of the Respondent. As can be seen from the record admittedly these were subsequent developments which had taken placed during the pendency of the arbitration proceedings. It is, thus, not PVR 14/17 appl201-16.doc the case that these documents could be placed on record before the learned Arbitrator at the threshold, alongwith the statement of claim.
Further, the Appellant did not in any manner dispute these documents as placed on record in the additional affidavit of evidence as filed on behalf of the Respondent. Admittedly at no point of time, till the arbitration proceedings were closed, for an Award to be delivered, the Appellant neither disputed the minutes of the meeting and the settled claim as offered to be paid on behalf of the Appellant. Further at no point of time an opportunity to cross examine the witness of the Respondent was sought for by the Appellant. If this be the case, then, in our opinion, it was not in any manner inappropriate for the learned Arbitrator to proceed to decide the dispute on the basis of these facts which stood uncontroverted. The minutes of the meeting dated 20 th October,2009 and the correspondence in relation thereto which includes even internal letters of the Appellant, remain uncontroverted and the facts contained therein being not disputed became available to the learned Arbitrator for pronouncing the Award. We, thus, do not find any substance in the contention as urged on behalf of the learned Counsel for the Appellant that in the fact situation there was a burden on the Respondents to prove these documents and/or that the Respondent has failed to discharge the said burden namely to prove the said minutes of the meeting, and thePVR 15/17 appl201-16.doc correspondence in relation thereto and thus these documents were not admissible in evidence. In our opinion, the submission is wholly unfounded as it is clear from the facts of the present case, that the Appellant never disputed the affidavit of evidence alongwith the annexed documents. The Appellant's contention cannot be accepted also for the reason that the Appellant did not, in any manner known to law, controvert the deposition as contained in the additional affidavit of evidence of the Respondents and/or sought an opportunity to cross examine the deponent and/or disputed any of the documents which were annexed to the same and which were part of the record before the learned Arbitrator. What could therefore be clearly inferred by the learned Arbitrator, was the admission of these facts by the Appellant. Non traverse of these facts clearly makes applicable the doctrine of implied admission as would flow from Section 58 of the Evidence Act. Further it is also not a case that the Appellant has placed on record any evidence to the contrary. Thus it is a case where the principles as contained inSection 58 of the Indian Evidence Act would get clearly attracted being one of the basic rules of evidence. The learned Arbitrator had correctly proceeded on the ground that the Appellant had admitted the facts in regard to the minutes of meeting dated 20th October,2009 and the documents in relation thereto.
The approach adopted by the learned Arbitrator in appreciation of this PVR 16/17 appl201-16.doc evidentiary position cannot be faulted on any count. It is well settled that the learned Arbitrator is the ultimate master of the quality and the quantity of evidence.
15. The Appellant raised an issue to assail the minutes of the meeting dated 20th October,2009 for the first time in the Section 34 petition before the learned Single Judge. In our opinion, the entire approach of the Appellant in raising such a challenge is wholly untenable.
As seen from the record, the officers of the Appellant were completely aware about the offer of the Appellant of Rs.77,47,991/- and the same being accepted by the Respondent as recorded in the minutes of the meeting dated 20th October,2009. The Appellant never disputed the documents as observed above and, therefore, it was wholly permissible and appropriate for the learned Arbitrator to proceed and pronounce an Award on the basis of the settlement as arrived and recorded in the minutes of the meeting, in the absence of any contradictory material.
16. The learned Single Judge, in our opinion, has correctly rejected the challenge as raised by the Appellant. In view of the above discussion, we are of the clear opinion that the reliance on behalf of the Appellant to the decisions as referred above are wholly misconceived as in all these cases there was admittedly a dispute/objection to the documents,or an assertion on the part of the litigant, of a denial of an PVR 17/17 appl201-16.doc opportunity to cross examine which is admittedly not the situation in the present case, in which there was no contest by the Appellants as noted above.
17. It is now well settled as laid down in the decision of the Supreme Court in the case "Associate Builders Vs. Delhi Development Authority, ((2015)3 SCC 49)" that in applying the test of public policy in a challenge to the Arbitration Award, the Court would not act as a Court of Appeal and that a possible view that the arbitrator has taken on the basis of the quantity and quality of the evidence, cannot be interfered with. This is not a case where the approach of the learned Arbitrator was arbitrary or capricious so as to render the award perverse requiring interference under the jurisdiction vested in the Court under Section 34 of the Act.
18. In view of the above discussion, we find no reason to upset the award of the learned Arbitrator and the findings of the learned Single Judge in dismissing the Section 34 petition of the Appellants. The Appeal is devoid of any merit and accordingly, is rejected.
19. In view of the order passed in the Appeal, Notice of Motion (lodg)No.1739 of 2016 does not survive and is disposed of.
(G.S.KULKARNI, J.) (ANOOP V. MOHTA, J.)
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