{"id":182060,"date":"2003-11-18T00:00:00","date_gmt":"2003-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-sathyanarayana-brothers-p-vs-tamil-nadu-water-supply-drainage-on-18-november-2003"},"modified":"2015-06-09T00:05:08","modified_gmt":"2015-06-08T18:35:08","slug":"ms-sathyanarayana-brothers-p-vs-tamil-nadu-water-supply-drainage-on-18-november-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-sathyanarayana-brothers-p-vs-tamil-nadu-water-supply-drainage-on-18-november-2003","title":{"rendered":"M\/S.Sathyanarayana Brothers (P) … vs Tamil Nadu Water Supply & Drainage … on 18 November, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S.Sathyanarayana Brothers (P) … vs Tamil Nadu Water Supply & Drainage … on 18 November, 2003<\/div>\n
Author: J Brijesh Kumar<\/div>\n
Bench: Brijesh Kumar, Arun Kumar.<\/div>\n
           CASE NO.:\nAppeal (civil)  9136-9137 of 2003\nSpecial Leave Petition (civil)  2096-2097 of 2002\n\nPETITIONER:\nM\/s.Sathyanarayana Brothers (P) Ltd.        \n\nRESPONDENT:\nTamil Nadu Water Supply & Drainage Board \n\nDATE OF JUDGMENT: 18\/11\/2003\n\nBENCH:\nBrijesh Kumar & (Arun Kumar.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
BRIJESH KUMAR,J<\/p>\n
\t\tLeave granted.\n<\/p>\n
These appeals are the outcome of an arbitration
\nproceedings initiated at the instance of the appellant
\nM\/s.Sathyanarayana Brothers (P) Ltd. raising certain claims
\nagainst the respondent Tamil Nadu Water Supply &
\nDrainage Board (for short ‘the Board’).  The claim was
\nultimately partly allowed by the Umpire.  The objections
\nagainst the Award preferred by the appellant were allowed
\nby the learned single Judge  but the Division Bench set aside
\nthe order of the learned single Judge.  Hence, this appeal by
\nM\/s.Sathyanarayana Brothers (P) Ltd.\n<\/p>\n
In view of the acute scarcity of water in the
\nState of Tamil Nadu a project known as Veeranam project
\nwas undertaken by the State Government after its clearance
\nby the Planning Commission for bringing the water from the
\nleft bank of the Coleroon at Lower Anicut to the city of
\nMadras covering a distance of 155 miles through the
\npipelines to be laid for the purpose.  The work required to be
\ndone was for manufacturing, supplying, delivering 1676
\nmm. (66″) Diameter Prestressed Concrete Pipes and fittings
\nincluding transporting to site, laying, jointing and testing for
\nraw water and clear water conveying mains from Veeranam
\nTank to Madras city.\n<\/p>\n
The tenders submitted by the appellant
\nM\/s.Sathyanarayana Brothers (P) Ltd. for carrying on the
\njob detailed above was accepted for a lump sum amount of
\nRs.16,55,87,300\/- subject to clearance of the foreign
\ncollaboration arrangement and release of necessary foreign
\nexchange and also subject to other conditions and issued
\nG.O.Ms.No.1607 Public (TWAD) Department dated
\n13.7.1970.  While submitting the tender the petitioner had
\nalso written a letter dated 22.1.1970 to the Chief Engineer
\n(Buildings) and City Water Supply, Veeranam Project,
\nPublic Works Department, Chepauk, Madras with a request
\nfor foreign exchange requirement for import of
\nequipments from foreign manufacturers.  The contractor had
\nrequested the government to give all assistance in
\nprocurement of foreign exchange and other necessary
\ncentral government clearances. Articles of agreement was
\nexecuted between the State of Tamil  Nadu and
\nM\/s.Sathyanaraya Brothers specifying the terms and
\nconditions of the contract.  The work was required to be
\ncompleted within 36 months from the date of the
\nentrustment of the site which was to be done within 30 days
\nafter the date of acceptance of the tender.  It also provided
\nthat if there was any delay in handing over the site there
\nshould be extension of time for completion of the contract.
\nThe time for completion was liable to be extended on the
\nrequest of the contractor for justifiable reasons.
\nThe contractor required Rs.1.2 crores of foreign
\nexchange for importing necessary equipments for
\nmanufacture of Prestressed Concrete Pipes from Switzerland
\nsince the exporters insisted on payment in Doutecha Marks.
\nThe contractor was advised to approach the Integral Credit
\nand Investment Corporation of India (ICICI) who insisted
\nthat the contractor should be in the form of an incorporated
\ncompany so as to be able to  avail facilities of foreign
\nexchange instead of a partnership firm. The contractor,
\ntherefore, converted into a private limited company as per
\nthe advise on 24.2.1971.  The imported equipment landed in
\nMadras in February 1972 whereafter a factory at
\nThirukalikundram and another factory at Panruti were
\ncommissioned by June 1972 and January 1973 respectively.
\nThere was thus already a delay of one year four months in
\ncommencing production of prestressed concrete pipes.  The
\ncontractor therefore, requested for extension of time up to
\n31.12.1975.  It was, however, extended up to 30.06.1975 by
\nthe Chief Engineer.  The contractor wrote a letter dated
\n11.11.1974 refusing to accept the offer and further indicated
\nthat he would be prepared to work on the condition that
\ncontractor would be paid at the rate to be worked out taking
\ninto account the increase in the cost and which may further
\nincrease during the course of the work.  It was also indicated
\nthat necessary time may be given for completion of the work
\nkeeping in mind the capacity of equipment and the rate of
\nproduction.  He also wanted to be compensated for the
\nlosses resulting from the delay and default on the part of the
\ngovernment.  The contractor stopped the work with effect
\nfrom June 30, 1975.  The Chief Engineer extended time for
\ncompletion of the work by 31.12.1975 and again upto
\n31.3.1976 but did not agree to the other conditions as
\nindicated in the letter of the contractor dated 11.11.1974.
\nThe dispute thus arose and the work stood stopped with
\neffect from 30.06.1975.  The contractor invoked the
\narbitration clause and appointed one Mr.P.S.Subramaniam, a
\nChartered Engineer as its Arbitrator.  After some litigation at
\nthe instance of the Board it also nominated its arbitrator.
\nThe arbitrators entered upon the reference on 18.3.1978.
\nThe arbitrators disagreed.  Mr.P.S.Subramaniam, the
\narbitrator appointed by the appellant partially awarded the
\nclaim to the extent of about Rs.7.00 crores whereas the
\narbitrator appointed by the Board only said that he did not
\nagree with the award.  Since there was no agreement
\nbetween the two arbitrators hence the matter was referred to
\nthe Umpire – Justice Palaniswamy, a retired Judge of the
\nHigh Court who started the proceedings on 2.4.979. The
\nUmpire gave its award on 10.9.1979 and filed it in the court
\non 26.11.1979. The appellant contractor filed objections for
\nsetting aside of the Award given by the Umpire and
\nchallenged the conclusions and findings arrived at by him to
\nthe effect that it was not obligatory upon the State
\nGovernment to get foreign exchange cleared from
\nGovernment of India for the contractor and that the
\ncontractor had abandoned the work on June 30, 1975 despite
\nthe extension of time up to March, 1976 as well as the
\nfinding that non-production of inter-departmental
\ncorrespondence and documents as requested by the
\ncontractor would not vitiate the award.  The Board, on the
\nother hand supported the findings of the Umpire and prayed
\nfor making the award a rule of the court.\n<\/p>\n
The matter was considered by the learned single
\nJudge of the High Court.  According to the decision of the
\nlearned single Judge the State Government was obliged to
\nget foreign exchange clearance for the contractor for import
\nof equipment from Switzerland for the purposes of
\nmanufacturing prestressed concrete pipes.  Due to delay in
\nclearance for foreign exchange the time should have been
\nextended by the Board as requested by the contractor.  The
\nlearned single Judge also found that extension of time after
\nstoppage of the work was of no avail,  thus there was no
\nbreach on the part of the contractor.  Non-production of the
\ndocuments by the Board as requested by the appellant had
\nthe effect of vitiating the award given by the Umpire.  The
\naward was thus set aside by the learned single Judge.
\nIn the appeal preferred by the Board, the
\nDivision Bench, found that the following points fell for its
\nconsideration:\n<\/p>\n
“(1) Whether there is any obligation on the
\npart of the Government of Tamilnadu to get
\nforeign exchange clearance from
\nGovernment of India as per the terms of
\ncontract entered into between the Contractor
\nand the State Government?\n<\/p>\n
(2) Whether the contractor has not
\ncommitted breach of contract by abandoning
\nthe work with effect from 30.06.1975?\n<\/p>\n
(3) Whether the non-production of inter
\ndepartmental correspondence of confidential
\nnature as required by the contractor will
\nvitiate the Award passed by the Umpire?\n<\/p>\n
(4) To what relief?”\n<\/p>\n
The Division Bench held that no such clause in
\nthe agreement has been disclosed to  indicate that it was the
\nobligation on the part of the State Government to get
\nclearance of Government of India for foreign exchange for
\nthe purpose of import of equipment by the contractor from
\nSwitzerland.  The acceptance of the tender was subject to
\nGovernment of  India clearance of foreign collaboration
\narrangement and release of necessary foreign exchange.
\nWhile arriving at this finding the Division Bench quoted an
\nextract from one of the letter of the contractor dated
\n22.1.1970 Exh.D-557  to the following effect :
\n“We understand that the Government should
\ngive us all assistance in the procurement of
\nforeign exchange and necessary Central
\nGovernment clearance”.\n<\/p>\n
The Division Bench further observed that the Umpire was
\nright in coming to a conclusion that Government of
\nTamilnadu had rendered all possible assistance to the
\ncontractor for getting the foreign exchange clearance as the
\nGovernment of Tamilnadu had approached the I.C.I.C.I. for
\nthat purpose, whom the contractor had approached on the
\nadvise of Government of India. Thus the state shall not be
\nresponsible for the delay in getting the foreign exchange.
\nOn the other two points the Division Bench held that time
\ncannot be said to be the essence of the contract since the
\nagreement contained a clause for extension of time for
\njustifiable reasons.  It has also been found that the contractor
\ncould not carry on the work in accordance with its
\ncommitment of manufacturing 28 prestressed concrete pipes
\nper day and laying of 72 pipes per day.  Whereas according
\nto the contractor the target could not be achieved due to
\nfrequent failures of electricity and dropping of voltage.  The
\nDivision Bench ultimately came to the conclusion that the
\ncontractor alone had committed the breach of contract in
\nexecuting the work of Veeranam project.  In so far it related
\nto non-production of the file containing inter-departmental
\ncorrespondence including the handing over note by former
\nChief Engineer, Veeranam project Exh.D-660, it was
\nobserved by the learned single Judge that it was a secret
\ndocument which was not available on the record of the
\nBoard. The case of the Board was that the note of the former
\nChief Engineer while handing over the charge to his
\nsuccessor would not bind the Board in any respect and other
\ninter-departmental correspondence may not be admissible in
\nevidence and it would also not advance the case of the
\ncontractor.  The Division Bench seems to have agreed with
\nthe submissions made on behalf of the Board.  The Division
\nBench, after discussing the case law, came to the conclusion
\nthat the Award given by the Umpire cannot be set aside
\nexcept on the ground that the arbitrator or the umpire had
\nmis-conducted himself or the arbitration proceedings having
\nbecome invalid or the Award was procured improperly.
\nThe Court would not re-appraise the evidence.  The Award
\nof the Umpire awarding only a sum of Rs.2,67,41,079  has
\nbeen upheld by the Division Bench.  Thus it set aside the
\norder passed by the learned single Judge.\n<\/p>\n
\tShri Deepankar Gupta, learned senior counsel
\nappearing for the appellant has first tried to submit that the
\nArbitration Tribunal has not been constituted in accordance
\nwith the arbitration clause.  In that connection he has drawn
\nour attention  to Clause 70 of the agreement which provides
\nthat the dispute shall be referred to the arbitration of three
\npersons, one of whom shall be  nominated by the contractor,
\nthe second by the Governor and the third shall be an
\nindependent person selected by other two persons so
\nnominated and this provision shall be deemed to be a
\nsubmission to the arbitration within the meaning of Indian
\nArbitration Act 1940.  It is therefore submitted  that there
\nshould have been three arbitrators instead of two arbitrators
\nand an umpire chosen by the arbitrators,  in the present case.
\nIt appears that this point was never raised  by the appellant
\nbefore any forum earlier as pointed out by Shri Nageshwar
\nRao, learned senior counsel appearing for the respondent.  It
\nis submitted that such a question cannot be allowed to be
\nraised in this Court for the first time after the appellant had
\nhimself submitted to the jurisdiction of the arbitrators and
\nthe umpire.  There is no dispute about the appointment of
\ntwo arbitrators and the umpire having been appointed by the
\narbitrators.  The arbitration proceedings concluded before
\nthe two arbitrators in which both parties participated without
\nany objection.  Thereafter all matters having been referred to
\nthe umpire, there too parties submitted to the proceedings
\nbefore the umpire.  No such objection was raised in the
\nobjections filed against the award nor before the High Court.
\nThat being the position, it is submitted that it is too late in
\nthe day to say that the dispute should have been decided by
\nthree arbitrators  and not by two and then by umpire in the
\nevent of difference between the two arbitrators.  No good
\nreason could be indicated  on behalf of the appellant for
\nhaving kept silent on this point  all throughout the
\nproceedings.  They still rely upon the award given by the
\narbitrator Shri Subramaniam in their favour.  It is still their
\nstand that the order passed by the learned Single Judge of
\nthe High Court records the correct finding.  We find that the
\nstage to have raised such an objection as to whether the
\ndispute was liable to be decided by two arbitrators or a
\nBoard of three arbitrators had passed long before.  The two
\narbitrators were appointed in accordance with the provisions
\nof arbitration clause as well as the third arbitrator called
\numpire.  The mode of hearing was adopted in the manner
\nthat the dispute was heard by two arbitrators appointed by
\nthe respective parties.  The matter was referred to  umpire
\nsince there was no agreement between the two arbitrators.
\nThere is no justification  now at this stage to raise such an
\nobjection that Board of three arbitrators should have decided
\nthe matter.  Such a plea contradicts their own action, and it
\nseems to be taken now to wriggle out of  the award
\nultimately given by the umpire, but it would not be
\npermissible at this stage. Shri Nageshwar Rao, learned
\nsenior counsel,  has placed reliance upon  Russel on
\nArbitration “Loss of right to object”.  It states as under:
\n“A party who objects to the award on the
\nground that the tribunal lacks substantive
\njurisdiction, should not only act promptly,
\nbut should also take care not to lose his right
\nto object.  A party who takes part or
\ncontinues to take part in the proceedings is
\nin a different position from someone who
\ntakes no part in the proceedings.  The latter
\ncannot lose his right to object as long as he
\nacts promptly to challenge the award once it
\nis published.  The former must, however,
\nstate his objection  to the tribunal’s
\njurisdiction “either forthwith or within such
\ntime as is allowed by the arbitration
\nagreement or the tribunal”.  That statement,
\nwhich should be recorded in writing and sent
\nto the tribunal  and the other parties, should
\nnot only mention the jurisdiction objection
\nbut  also make  clear that any further
\nparticipation in the arbitration will be
\nwithout prejudice to the objection.  If that is
\nnot done, the party concerned  may not be
\nable to raise that objection before the court
\n“unless he shows that, at the time he took
\npart or continued to take part in the
\nproceedings, he did not know or could not
\nwith reasonable diligence have discovered
\nthe grounds for the objection”.  A person
\nalleged to be a party to arbitral proceedings
\nbut who takes no part in those proceedings
\nmay at any time apply to the court for a
\ndeclaration, an injunction or other relief
\nconcerning the validity   of the arbitration
\nagreement, the proper constitution of the
\narbitral tribunal and any matter submitted to
\narbitration in accordance with the arbitration
\nagreement.”\n<\/p>\n
\tIn view of the above position, we repel the
\ncontention raised on behalf of the appellant pertaining to the
\njurisdiction of the arbitrators and the umpire to decide the
\nmatter.\n<\/p>\n
\tIt is next submitted on behalf of the appellant
\nthat it is no doubt  that period of contract was specified to be
\n36 months in the agreement itself but it has been rightly held
\nby the learned Single Judge that time was not essence  of the
\ncontract for the reason that as per the terms of the contract
\ntime could be extended for justifiable reasons and it is for
\nthis reason that the time was extended by the respondent but
\nthey initially extended the time in an unreasonable manner.
\nIt is submitted that despite the best efforts made, the
\nequipment could not be imported prior to February 1972 at
\nthe first instance.  The result was that there was a delay of
\none year and 4 months as found by the courts also, in
\nstarting the work itself.  It is submitted that there was clear
\nunderstanding  that the State Government would get the
\nclearance from the Central Government for foreign
\nexchange necessary for import of the equipment.  The State
\nGovernment did not provide proper assistance in the matter
\nand the appellant was referred to ICICI by the Central
\nGovernment for foreign exchange.  As per conditions of
\nICICI, the appellant had to change its constitution
\nconverting into a company  as desired. After the clearance of
\nthe foreign exchange, due to other intervening factors of Pak
\nwar etc., the import could not be possible.  Therefore, the
\nappellant was not responsible for the delay caused.  It is then
\nfurther submitted that after the factories were installed on
\nreceipt of  foreign exchange, equipment were installed
\npromptly.  There have been problems of  availability of
\nelectrical energy and low voltage which was so necessary
\nfor carrying on the work in the factory.  For such difficulties
\nthe appellant could not be held responsible.  It is also
\nsubmitted that according to the agreement, trenches etc.
\nwere also to be dug out by the Board.  It is submitted that
\nthe finding as recorded by the umpire and the Division
\nBench that the Board was not responsible for the delay, it
\nwill not necessarily lead to the inference that the appellant
\nwas responsible for it.  For good reasons time was liable to
\nbe extended reasonably.  It could not be cut short
\nunreasonably. It is further submitted that the Board itself
\nlater on extended the time beyond 31.3.1975 but initially it
\nwas refused. It indicates that partial extension given by the
\nBoard was insufficient and not justified.  Time was even
\nthereafter extended but by that time the appellant was
\ncompelled to stop the work.  The effort therefore which has
\nbeen made before us by the appellant is that  it was not a
\ncase of abandonment of contract on the part of the appellant
\nrather the delay occurred for justifiable reasons on account
\nwhereof extension of reasonable time as prayed for by the
\ncontractor was not allowed by the respondent.
\n\tShri Nageshwar Rao, learned counsel for the
\nrespondent submits that the Board had extended all possible
\nassistance which was needed for the foreign exchange to
\nimport the machinery by the appellant but so far electricity
\nis concerned it was to be arranged by the contractor himself.
\nIn this connection learned counsel for the appellant has
\ndrawn our attention to the observations made by the umpire
\nin his award where it has been observed that no doubt failure
\nof electricity or low voltage would have caused some
\ndislocation   but  that  cannot  absolve  the   contractors
\nfrom   their  contractual  liability  and  certainly     the
\nfailure of electricity cannot be the sole reason for the
\ndismally poor performance of the contractors.  It is
\nsubmitted that the case of the appellant is not that the Board
\nfailed  to arrange for the electricity but there is no denial  of
\nthe fact that due to interrupted electric supply and low
\nvoltage the progress of the work got slowed down, may be
\nBoard is not responsible for it but it also cannot be said to be
\nthe responsibility of the contractor.  Such a reason would be
\na justifiable reason to be considered for appropriate
\nextension of time to complete the job.\n<\/p>\n
\tLearned counsel for the appellant then submitted
\nthat the arbitrator failed to summon the document, namely
\nthe inter-departmental correspondence of the Board and the
\n“handing over note” of the Chief Engineer of the Project to
\nhis successor.  It is submitted that these documents
\ncontained relevant and authentic material and facts and
\nprovide proper background to correctly appreciate the points
\nregarding obligation of the State Government to get the
\nforeign exchange, late arrival of equipments imported, the
\ninterrupted electric supply , digging of trenches etc. by
\nlooking into which alone the question could properly be
\ndecided as to whether the appellant had abandoned the work
\nor how far the appellant was responsible for the delay and
\nstoppage of the  work.  It is submitted that there could not be
\nany confidentiality about such documents which related to
\nthe work of the project.  So far the “handing over note” is
\nconcerned, it is a document written by none else but the
\nChief Engineer  of the Project who had first hand knowledge
\nof all that was going on pertaining to the work and he was
\ncompetent to prepare a record of the same in official
\ndischarge of his duties.  It is submitted that the arbitrator
\nerred in not allowing the application moved before him for
\nsummoning of the “handing over note” and the learned
\nSingle Judge, it is submitted, rightly held that it vitiated the
\naward of the arbitrator.  It may be mentioned here that the
\nUmpire also refused to get the “handing over note” and
\nplace it on record and peruse the same so as to realize the
\nrelevance of the note for the purposes of arriving at a just
\nand correct finding on the questions involved.  It was
\nnecessary to have the proper background as contained in the
\nnote prepared by the Chief Engineer of the Project.
\nThe learned counsel for the appellant has taken
\nus through some of the parts of the “handover note” just
\nwith a view to emphasize the relevance and importance of
\nthe said note which is document D-660.  A copy of the same
\nhas been filed in this Court.  In Paragraph 6.1.7 and 6.1.7.1.
\nit is indicated  that Department had to carry out the work of
\ntrench excavation, the service roads, river, rail and road
\ncrossings besides many other things enumerated therein.
\nPara 6.1.10 deals with requirement of foreign exchange and
\nthe details thereof.  In Paragraph 6.1.10.3 the delay in arrival
\nof the machinery imported due to Indo-Pakistan war is also
\nindicated.  Paragraph 6.11 deals  with the factors that
\ncontributed to delay in execution of the project.  Thereunder
\nit is  mentioned about the availability of power.  Some
\nproblem relating to trench excavation by the Board  also
\nfinds mention in Para 7 onwards.  A bare look of some of
\nthe parts  of the note indicates that it may have some
\nmaterial bearing on the merits relating to the question of
\ndelay in execution of the project, and throwing some light
\non the share of responsibility of the parties to the contract
\nand extent of their responsibility as well.
\n\tLearned counsel for the appellant has placed
\nreliance upon a decision reported in (1975)  2 S.C.C. 236
\nK.P. Poulose Vs. State of Kerala and Another to indicate
\nthat where it is a speaking award and the arbitrator fails to
\ntake note of the relevant documents or ignores the same, it
\nvitiates the award.  It was observed such documents which
\nwere ignored were material documents to arrive at a just and
\nfair decision to resolve the  controversy between the parties.
\nOur attention has particularly been drawn to the
\nobservations made in Paragraph 4 which reads as under:
\n“We have been taken through  all the
\nrelevant documents by the learned counsel
\nfor both sides and we are satisfied that Ex.P-
\n11 and Ex.P-16 are material documents to
\narrive at a just and fair decision to resolve
\nthe controversy between the Department and
\nthe contractor.  In the background of the
\ncontroversy  in this case even if the
\nDepartment did not produce these
\ndocuments before the Arbitrator it was
\nincumbent upon him to get hold of all the
\nrelevant documents including Ex.P-11 and
\nP-16 for the purpose of a just decision.\n<\/p>\n
Ex.P-11 dated September 8, 1966, is a
\ncommunication from the Superintending
\nEngineer  to the Chief Engineer with regard
\nto the objections raised by audit in
\nconnection with the construction of the
\nreservoirs.”\n<\/p>\n
(emphasis supplied by us)  <\/p>\n
Reliance has also been placed upon a decision reported in
\n(2001) 5 S.C.C. 629  Sikkim Subba Associates Vs. State
\nof Sikkim, particularly to the observations made in
\nParagraph 12  of the decision that an award, ignoring very
\nmaterial and relevant documents throwing light on the
\ncontroversy to have a just and fair decision would vitiate the
\naward as it amounts to misconduct on the part of the
\narbitrator.  The case of K.P. Poulose (supra) has also been
\nreferred to. Yet another decision on the point referred to is
\nreported in 2003 (7) Scale Page 20  Bharat Cocking Coal
\nLtd. Vs. M\/s. Annapurna Construction where also it has
\nbeen held  that passing award ignoring the material
\ndocument would amount to mis-conduct in law,  In such
\ncircumstances the matter was remitted to a retired Judge of
\nthe Jharkhand High Court instead of to the named arbitrator
\nsince only  the question of law was involved and the parties
\nhad also agreed for the same.\n<\/p>\n
\tIn so far the case in hand is concerned, learned
\ncounsel appearing for the respondent first made a
\nsubmission that no application was moved by the appellant
\nbefore the arbitrator for summoning the document, namely,
\nthe “handing over” note prepared by the Chief Engineer
\nwhile handing over the charge as Project in-charge to his
\nsuccessor but after verification he conceded that such an
\napplication was moved before the Arbitrator but no orders
\nhad been passed on it.  The learned Single Judge has given it
\nas one of the reasons to hold that it vitiated the award.  We
\nagain find that before the umpire also effort was made to get
\nthe document on record for perusal of the same but the
\nrequest was not accepted.  We find that there is no question
\nof secrecy or confidentiality so far the “handing over note”
\nof the Chief Engineer is concerned.  It is a note prepared by
\nthe Chief Engineer of the project in official discharge of his
\nduties.  It contains relevant facts and information regarding
\nquestions involved in the case.  The appreciation of the
\ncontents of the ‘note’ and its effect would of course be a
\nmatter to be decided by the appropriate
\nauthority\/arbitrator\/umpire but its perusal or consideration
\ncould not be shut out on the meek ground that the
\ndepartment was not bound by it or on the ground of
\nconfidentiality in the times when more stress is rather on
\ntransparency. In our view, the learned Single Judge was
\nright in inferring that such an infirmity would vitiate the
\naward.   That being the position, in our view the order of the
\nDivision Bench, reversing the decision of the Single Judge
\nis not sustainable and the matter may be required to be
\nremitted to be considered in the light of the “handing over
\nnote” of the Chief Engineer in respect whereof  an
\napplication was moved by the appellant before the arbitrator
\nas well as before the Umpire which remained unattended to
\nby the forum and later did not accede to the request.
\n\tConsidering the fact that it is an old matter and
\nit being a speaking award the matter having also been
\nconsidered by the learned single Judge,  it would better
\nserve ends of justice to ensure expeditious disposal of the
\nmatter, therefore, the Division Bench of the High Court may
\nconsider the matter afresh, taking into account the “handing
\nover note” of the Chief Engineer of the Project and other
\nrelevant documents in respect of which request may have
\nbeen made but refused.\n<\/p>\n
\tIn the result, these appeals are allowed.  The
\norder of the Division Bench of the High Court is set aside
\nand the matter is remitted to the High Court for being
\ndecided afresh by the Division Bench in the light of the
\nobservations made above.  Costs easy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S.Sathyanarayana Brothers (P) … vs Tamil Nadu Water Supply & Drainage … on 18 November, 2003 Author: J Brijesh Kumar Bench: Brijesh Kumar, Arun Kumar. CASE NO.: Appeal (civil) 9136-9137 of 2003 Special Leave Petition (civil) 2096-2097 of 2002 PETITIONER: M\/s.Sathyanarayana Brothers (P) Ltd. RESPONDENT: Tamil Nadu Water Supply & Drainage […]<\/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":[30],"tags":[],"class_list":["post-182060","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S.Sathyanarayana Brothers (P) ... vs Tamil Nadu Water Supply & Drainage ... on 18 November, 2003 - 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\/ms-sathyanarayana-brothers-p-vs-tamil-nadu-water-supply-drainage-on-18-november-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S.Sathyanarayana Brothers (P) ... vs Tamil Nadu Water Supply & Drainage ... on 18 November, 2003 - 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