{"id":151256,"date":"2009-05-05T00:00:00","date_gmt":"2009-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nat-thermal-power-corp-ltd-vs-engineers-enterprises-on-5-may-2009"},"modified":"2015-10-19T16:04:24","modified_gmt":"2015-10-19T10:34:24","slug":"nat-thermal-power-corp-ltd-vs-engineers-enterprises-on-5-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nat-thermal-power-corp-ltd-vs-engineers-enterprises-on-5-may-2009","title":{"rendered":"Nat.Thermal Power Corp.Ltd. vs Engineers Enterprises on 5 May, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Nat.Thermal Power Corp.Ltd. vs Engineers Enterprises on 5 May, 2009<\/div>\n
                   Miscellaneous Appeal No. 114 of 1999 ( R)\n                                 ............\n             Against the judgment dated 23.12.1998, passed by Sub Judge-II at\n             Saraikella in Title Suit No. 8 of 1990.\n                          ............\n\n       National Thermal Power Corporation Ltd. ........Appellant\n                                 Versus\n       Engineers Enterprises                        ..........Respondent\n                                 With\n                   Miscellaneous Appeal No. 52 of 1998 ( R)\n                                 ............\n             Against the judgment dated 19.1.1998, passed by Sub Judge-II at\n             Saraikella in Title Suit No. 7 of 1990.\n                                 ------------\n       National Thermal Power Corporation Ltd. ........Appellant\n                                 Versus\n       Engineers Enterprises                        ..........Respondent\n                                 ----------\n\n       For the Appellant        : Mr. Sudarshan Srivastava, Advocate\n                                  Mr. K.K. Ambastha, Advocate\n                                       in both cases.\n       For the Respondent       : Mr. G.N. Chandra, Advocate in both cases\n\n                              PRESENT\n                   THE HON'BLE MR. JUSTICE R.K. MERATHIA\n\n                                -------\n       C.A.V. On 15.4.2009                   Delivered on 5\/05\/2009\n\n\/5\/05\/2009         Both these appeals arise out of two separate contracts and\n       involve common questions of facts and law. They were heard together\n       and are being disposed of by this common order.\n       2.          Miscellaneous Appeal No. 114 of 1999 ( R) arises out of the\n       contract dated 31.10.1988\/2.11.1988, entered into between the parties\n       for construction of roads, drains and culverts at 400\/220 K.V.\n       Jamshedpur Sub Station of the appellant ( subject matter of Title Suit\n       no. 8 of 1990).\n       3.          Miscellaneous Appeal No. 52 of 1998 ( R) arises out of the\n       contract dated 31.10.1988\/2.11.1988 for construction of boundary wall\n       and switchyard fencing at 400\/220 KV Jamshedpur Sub Station of the\n       appellant ( subject matter of Title Suit no. 7 of 1990).\n       4.          In course of performance of the said contracts, certain\n       disputes and differences arose between the parties. In view of arbitration\n       agreement contained in clause 56, the respondent-contractor made an\n       application under Section 20 of the Arbitration Act, 1940 ( the Act for\n       short) before the learned Sub Judge, Saraikella. By order dated\n       24.4.1992<\/pre>\n
, Mr. Manohar Sahay, retired General Manager of the
\n       appellant, was appointed as sole arbitrator with the consent of the
\n       parties. The parties submitted their pleadings, documentary and oral
\n                                        2<\/span><\/p>\n
evidence and advanced their oral and written submissions before the
\narbitrator. After hearing the parties, the Arbitrator made the two Awards
\nin question both dated 29.4.1996.\n<\/p>\n
            In the Award in question in Miscellaneous Appeal No. 114 of
\n1999, against a claim of Rs.18,74,600.00, an amount of Rs.7,70, 000.00
\nwas awarded.\n<\/p>\n
            In the Award in question in Miscellaneous Appeal No. 52 of
\n1998 ( R), against a claim of Rs.22,62,884.00, the arbitrator awarded
\nRs.7,97,974.00.\n<\/p>\n
            The counter claims of the appellant were rejected. In both
\nthe awards, pendent elite simple interest @ 10% per annum on the said
\namount was awarded from the date of first sitting i.e. 19.8.1992 till the
\ndates of the Awards and if the said amount plus interest aforesaid was
\nnot paid within 30 days, the awarded amount together with interest was
\nto carry further simple interest @ 10% per annum till the date of
\nsatisfaction of the Award or date of decree following judgment upon the
\nAward, whichever was earlier.\n<\/p>\n
 5.         The appellant filed objections to the awards, under Sections
\n15, 16 and 30 of the Act. After hearing the parties, learned Sub Judges
\nrejected the objections, made the Award rule of the Court; and decreed
\nthe suit. The Award was to form part of the decree.\n<\/p>\n
            It may be noted here that in both the suits, the impugned
\norders were passed by two different Subordinate Judges.\n<\/p>\n
6.          Learned counsel for the appellant made the following oral
\nand written submissions:-\n<\/p>\n
                  ”       To sum up it is submitted that the Award as well
\n                  as the impugned orders are not sustainable in the eye
\n                  of law on the following grounds.\n<\/p><\/blockquote>\n
                  (i)     The Award        does not disclose   any   reason,
\n                          considerations or “Findings”.\n<\/p><\/blockquote>\n
                  (ii)    The Arbitrator while rejecting the claims has
\n                          over looked the relevant terms & conditions of
\n                          the contract as well as special condition of the
\n                          contract entered between the parties.\n<\/p><\/blockquote>\n
                  (iii)   Despite of submission of numerous documents,
\n                          letters and facts, the Arbitrator has failed to
\n                          consider any of these documents while passing
\n                          the Award.\n<\/p><\/blockquote>\n
                  (iv)    The learned trial court has also erred in not
\n                          considering the legality, propriety and validity of
\n                          the Award on the touch stone of “misconduct” as
\n                                        3<\/span><\/p>\n
                           envisaged u\/s 30 of the Act and also other
\n                           provisions of the 1940 Act.\n<\/p><\/blockquote>\n
                  (v)      By awarding a claim though lesser than claimed
\n                           cannot waive the reasons, considerations or
\n                           findings at least in preliminary manner by the
\n                           Arbitrator in its Award”.\n<\/p><\/blockquote>\n
7.          On the other hand counsel for the respondent supported the
\nAward as well as the impugned judgments.\n<\/p>\n
8.          After hearing the parties, going through the records
\ncarefully, and keeping in view the legal position, in my opinion, no
\ngrounds are made out for interfering with the awards and the impugned
\norders in question, for the following reasons.\n<\/p>\n
9.          The only question involved in these appeals is as to whether
\nthe Arbitrator, misconducted himself or the proceeding in making the
\nimpugned awards?\n<\/p>\n
10.         On behalf of the appellant much emphasis was laid on the
\nletter dated 24.4.1992, issued by learned Sub Judge to the Arbitrator,
\nwhich reads as follows:-\n<\/p>\n
                  “To,<\/p>\n
                  Sri Mahohar Sahay
\n                  Retd. G.M. N.T.P.C. Ltd.,
\n                  36\/6 ” Upasana”,
\n                  Nehuru Nagar East,
\n                  P.O. Bhilai,
\n                  Madhya Pradesh.\n<\/p><\/blockquote>\n
                        Whereas you have been appointed Arbitrator for
\n                  the purpose of the above noted suit, you are required
\n                  to give your award on the basis of your finding after
\n                  hearing both the parties duly.\n<\/p><\/blockquote>\n
                        The award is to be submitted to this Court
\n                  within three months from this date”.\n<\/p><\/blockquote>\n
11.         On the basis of this letter, it was submitted on behalf of the
\nappellant that the court required the Arbitrator to give Award on the
\nbasis of ‘finding’ but the award does not disclose any reason,
\nconsideration or findings.\n<\/p>\n
12.         It appears from the order dated 20.4.1992 passed by the
\nlearned court below that the court ordered to inform the Arbitrator about
\nhis appointment with a direction to submit his Award within three
\nweeks. In this order, the Arbitrator was not directed to give a reasoned
\nAward. In the said letter dated 24.4.1992, issued pursuant to the said
\norder also, the learned court below simply asked the Arbitrator to give
\nAward on the basis of his findings after hearing the parties. This letter
\ncannot be read as statute. Finding means conclusion\/decision. Thus, on
\n                                       4<\/span><\/p>\n
the basis of the said letter, it cannot be said that the arbitrator was
\nrequired to pass a reasoned award.\n<\/p>\n
13.         Moreover, on perusal of clause 56 of the agreement, it is
\nclear that a reasoned award was not contemplated by the parties from
\nthe arbitrator. It further appears from the Award that the parties were
\nduly heard and the arbitrator considered their respective cases and the
\nevidences brought by them on the record. He inspected the site in
\npresence of the parties. On scrutinizing the pleadings, evidences and
\nsubmissions, he reached findings of facts thereon and on that basis
\nmade his Award. It appears from the forwarding letter sent by the
\nArbitrator to learned Sub Judge dated 29th April, 1996 that while
\nsubmitting the Award, a list of documents, pleadings along with
\ndocuments of the proceedings and list of the same was enclosed. It also
\nappears that the parties confirmed the proceedings of cross-examination
\nof witnesses. It further appears that the counter claims of the appellant
\nwere considered, but were rejected. The parties and the arbitrator well
\nunderstood that neither as per clause 56 of the agreement, nor as per the
\nsaid order\/letter of the court, the arbitrator was required to make a
\nreasoned award.\n<\/p>\n
14.         The relevant portion of the Award reads as follows:-\n<\/p>\n
                  ”     AND WHEREAS the parties duly submitted to
\n                  my jurisdiction filed pleadings and documentary
\n                  evidence before me and also led oral evidence and
\n                  made oral and written submissions on questions of
\n                  facts and law before me.\n<\/p><\/blockquote>\n
                        AND WHEREAS I held numerous sittings, heard
\n                  the parties inspected the site in the presence of both
\n                  parties, carefully went through and scrutinized their
\n                  pleadings, evidence and submissions, reached findings
\n                  of facts thereon, carefully studied the contract and
\n                  interpreted and applied the same to determine the
\n                  consequences of the aforesaid facts as found by me
\n                  and thus and otherwise carefully considered the entire
\n                  matter”.\n<\/p><\/blockquote>\n
15.         In AIR 1990 S.C. 1426-Raipur Development Authority Vs.
\nM\/s Chokhamal Contractors., the Constitution Bench held as follows:-\n<\/p>\n
                  “19. It is now well-settled that an award can neither be
\n                  remitted nor set aside merely on the ground that it does not
\n                  contain reasons in support of the conclusion or decisions
\n                  reached in it except where the arbitration agreement or the
\n                  deed of submission requires him to give reasons. The
\n                  arbitrator or umpire is under no obligation to give reasons in
\n                  support of the decision reached by him unless under the
\n                  arbitration agreement or in the deed of submission he is
\n                                       5<\/span><\/p>\n
                 required to give such reasons and if the arbitrator or umpire
\n                 chooses to give reasons in support of his decision it is open
\n                 to the Court to set aside the award if it finds that an error
\n                 of law has been committed by the arbitrator or umpire on the
\n                 face of the record on going through such reasons. The
\n                 arbitrator or umpire shall have to give reasons also where
\n                 the court has directed in any order such as the one made
\n                 under Section 20 or Section 21 or Section 34 of the Act that
\n                 reasons should be given or where the statute which governs
\n                 an arbitration requires him to do so”.\n<\/p><\/blockquote>\n
16.        In AIR 1963, SC 1677-Smt. Santa Sila Devi Vs. Dhirendra
\nNath Sen, it was observed as follows:-\n<\/p>\n
                 ”       Where an award given by the arbitrator is filed in
\n                 Court      and it was challenged on the ground of             its
\n                 incompleteness, the Court has to bear in mind certain basic
\n                 positions. These are (1) a Court should approach an award
\n                 with a desire to support it, if that is reasonably possible,
\n                 rather than to destroy it by calling it illegal; (2) unless the
\n                 reference to arbitration specifically so requires the arbitrator
\n                 is not bound to deal with each claim or matter separately,
\n                 but can deliver a consolidated award. The legal position is
\n                 clear that unless so specifically required an award need not
\n                 formally express the decision of the arbitrator on each matter
\n                 of difference, (3) unless the contrary appears the Court will
\n                 presume that the award disposes finally of all the matters in
\n                 difference; and (4) where an award is made de praemissis
\n                 ( that is, of and concerning all the matters in dispute referred
\n                 to the arbitrator), the presumption is, that the arbitrator
\n                 intended to dispose finally of all the matters in difference;
\n                 and his award will be held final, if by any intendment it can
\n                 be made so”.\n<\/p><\/blockquote>\n
17.        In AIR 1959, Calcutta 156-Smt. Padmabati Paul and
\nothers Vs. Pannalal Paul and others, it was observed that where the
\nissues are framed by the arbitrator in the proceedings before himself,
\nthe law does not require the arbitrator to answer each one of the issues,
\nand the failure to answer the issues does not amount to misconduct.\n<\/p>\n
18.        In AIR 1960, Calcutta 693-Pannalal Paul and others Vs.
\nPadmabati Paul and others, several issues were raised in the
\nreference. It was contended that the arbitrator was duty bound to
\nanswer the issues raised specifically and having not done so he mis-
\nconducted himself in not answering the issues. It was held that the
\narbitrator was not bound to make separate and distinct finding on each
\nissue and he could award on whole case.\n<\/p>\n
19.        In AIR 1965 SC 214-Jivarajbhai Ujamshi Sheth Vs.
\nChintamanrao Balaji, the Supreme Court observed as follows:-\n<\/p>\n
                 ”      It is not open to the court to speculate, where no
\n                 reasons are given by the arbitrator, as to what impelled the
\n                 arbitrator to arrive at his conclusion. On the assumption that
\n                 the arbitrator must have arrived at his conclusion by a
\n                 certain process of reasoning, the Court cannot proceed to
\n                 determine whether the conclusion is right or wrong. It is not
\n                 open to the Court to attempt to probe the mental process by
\n                 which the arbitrator has reached his conclusion where it is
\n                 not disclosed by the terms of his award”.\n<\/p><\/blockquote>\n
                                        6<\/span><\/p>\n
20.         In AIR 1989 SC 777-Puri Construction Pvt. Ltd. Vs.
\nUnion of India, it was observed as follows:-\n<\/p>\n
                   ”      When a court is called upon to decide the objections
\n                   raised by a party against an arbitration award, the
\n                   jurisdiction of court is limited, as expressly indicated in the
\n                   Act, and it has no jurisdiction to sit in appeal and examine
\n                   the correctness of the award on merits.\n<\/p><\/blockquote>\n
21.         In AIR, 1994 SC 2562-Bijendra Nath Srivastava (dead)
\nthrough L.Rs. Vs. Mayank Srivastava and others, it was observed in
\nparagraph 46 that it was permissible for the arbitrator to deliver
\nconsolidated lumpsum award.\n<\/p>\n
22.         Learned counsel appearing for the parties made submissions
\non the merits of their claims\/counter claims but this Court is not
\nrequired to go into the merits of the claims\/counter claims in view of the
\nfact that the Arbitrator has not disclosed his mind\/reasons in the
\nAwards and it has already been held that Arbitrator could make Award
\nwithout disclosing the reasons. The argument with regard to frustration
\nof contract is also misconceived as admittedly the respondent started the
\nwork.\n<\/p>\n
23.         In view of the facts and circumstances; and the legal
\nposition, noticed above, it cannot be accepted that the Arbitrator had
\nmisconducted himself or the proceedings and therefore the learned court
\nbelow, after considering the objections raised on behalf of the appellant
\nin detail has rightly rejected them.\n<\/p>\n
24.         In the result, it is held that the arbitrator has not
\nmisconducted himself or the proceedings and accordingly the Awards in
\nquestion are upheld and the appeals are dismissed. However, no costs.\n<\/p>\n
                                                     (R.K. Merathia, J)<\/p>\n
Jharkhand High Court, Ranchi
\nDated the 5th day of May, 2009
\nRakesh\/AFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Nat.Thermal Power Corp.Ltd. vs Engineers Enterprises on 5 May, 2009 Miscellaneous Appeal No. 114 of 1999 ( R) ………… Against the judgment dated 23.12.1998, passed by Sub Judge-II at Saraikella in Title Suit No. 8 of 1990. ………… National Thermal Power Corporation Ltd. ……..Appellant Versus Engineers Enterprises ……….Respondent With Miscellaneous Appeal No. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-151256","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nNat.Thermal Power Corp.Ltd. vs Engineers Enterprises on 5 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nat-thermal-power-corp-ltd-vs-engineers-enterprises-on-5-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nat.Thermal Power Corp.Ltd. vs Engineers Enterprises on 5 May, 2009 - 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