{"id":197718,"date":"2003-10-09T00:00:00","date_gmt":"2003-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pure-helium-india-pvt-ltd-vs-oil-natural-gas-commission-on-9-october-2003"},"modified":"2015-09-22T08:11:32","modified_gmt":"2015-09-22T02:41:32","slug":"pure-helium-india-pvt-ltd-vs-oil-natural-gas-commission-on-9-october-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pure-helium-india-pvt-ltd-vs-oil-natural-gas-commission-on-9-october-2003","title":{"rendered":"Pure Helium India Pvt. Ltd vs Oil & Natural Gas Commission on 9 October, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Pure Helium India Pvt. Ltd vs Oil & Natural Gas Commission on 9 October, 2003<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: Cji, S.B. Sinha.<\/div>\n
           CASE NO.:\nAppeal (civil)  6478 of 2001\n\nPETITIONER:\nPure Helium India Pvt. Ltd.\t\t\t\t\n\nRESPONDENT:\nOil & Natural Gas Commission\t\t\t\t\n\nDATE OF JUDGMENT: 09\/10\/2003\n\nBENCH:\nCJI & S.B. Sinha.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. SINHA, J :\n<\/p>\n
\tWhether jurisdiction of an arbitrator to interpret a contract can
\nbe subject-matter of an objection under Section 30  of the Arbitration
\nAct, 1940 (hereinafter referred to as ‘the Act’, for the sake of
\nbrevity) is in question in this appeal which arises out of the judgment
\nand order dated 24.2.2000 of the High Court of Judicature at Bombay in
\nAppeal No.612 of 1996 arising out of a judgment and order of a learned
\nSingle Judge dated 13.10.1995 dismissing the  said objection of the
\nrespondent.\n<\/p>\n
BACKGROUND FACT :\n<\/p>\n
The parties hereto entered into a contract for supply of Helium
\nDiving Gas pursuant to a notice inviting global tender dated 2.5.1989.
\nIn terms of the said notice inviting tender, the respondent herein was
\nto take supply of Helium gas, which is one of the rare gases being not
\nchemically produced and  is mainly extracted from the natural gas wells
\nin mineral form.  The said gas is ordinarily imported from U.S.A.,
\nAlgeria, Poland and Russia.  In terms of the said notice inviting
\ntender, three different categories of rates were to be quoted  by the
\ntenderers both foreign and Indian.   Whereas the foreign tenderers were
\nto quote their prices in foreign currency, the Indian bidders could
\nindicate the nature of payment, i.e. if  a part thereof  was recoverable
\nhaving foreign exchange component.  Pursuant to or in furtherance of the
\nsaid notice inviting tenders, the tenderers submitted their technical
\nbids. The bidding was to be in two stages; in terms whereof the
\ntechnical bids were to be opened first whereafter only final bids were
\nto be considered.  The appellant’s bid was found to be the lowest in
\nthat the appellant had bid a price of Rs.150\/- per cubic meter out of
\nwhich US$ 5 was to be the foreign exchange component.  The said bid of
\nthe appellant having been found to be the lowest, the parties entered
\ninto a negotiation; pursuant to or in furtherance whereof, the appellant
\nlowered its offer to Rs.149\/- per cubic meter, out of which US$ 4.60 was
\nto be the foreign exchange component.\n<\/p>\n
The respondent having felt the need of Helium gas urgently,
\npending execution of the contract, placed an order for ad hoc supply of
\n52000 cubic meters of Helium gas with the appellant.  The respondent
\nagain placed an order for supply of 300000 cubic meters of Helium gas
\non 25.5.1990.\n<\/p>\n
The Ministry of Petroleum and Natural Gas, Government of India,
\nvide its letter dated 21.5.1990 released foreign exchange for
\nprocurement of Helium gas, by reason of letter addressed to the
\nrespondent stating :\n<\/p>\n
“I am directed to refer to your letter
\nNo.DlH\/BOP\/OBG\/OS\/30\/90 dated 19.4.90 on the
\nabove subject and to convey the approval of the
\nPresident to the procurement of 3,00,000 M3 of
\nHelium Gas from M\/s Pure Helium India Ltd.,
\nBombay at a cost of Rs.4.47 crores including a
\nforeign exchange component of Rs.2.38 crores (US
\n$ 1.380 million @ US$ 5.7875 = Rs.100\/-).”\n<\/p>\n
The respondent thereafter issued two supply orders on 12.6.1990 to
\nthe appellant for supply of 52000 cubic meters and 300000 cubic meters
\nHelium gas respectively at a price of Rs.149 per cubic meter inclusive
\nof foreign exchange component of US$ 4.60.  Having regard to the
\nincrease in price of the US dollar, the appellant herein claimed the
\ndifference of price of US dollar as on the date of the contract and the
\ndate of supply.  The claim of the appellant was recommended by the
\nSecretary, Petroleum and Natural Gas Department as well as by certain
\nother senior officers.  The respondent, however, rejected the claim on
\nor about 14.7.1992 whereafter the arbitration agreement was invoked.
\nThe arbitrators entered into a reference on 1.3.1993.  A non-speaking
\naward was made by the arbitrators on 13.8.1993 holding that the
\nrespondent was liable to compensate the appellant for Exchange Rate
\nFluctuation in the sum of Rs.1,03,41,309\/- with interest at the rate of
\n18% per annum from the date of the invoices till the date of the award.
\nThe respondent herein questioned the validity of the said award by
\nfiling a petition under Section 30 of the Act before the Bombay High
\nCourt which was marked as Arbitration Petition No.52 of 1994.  A learned
\nSingle Judge of the High Court of Judicature at Bombay dismissed the
\nsaid petition and directed the award to be made a rule of the Court by
\nan order dated 13.10.1995.\n<\/p>\n
Aggrieved by and dissatisfied therewith the respondent preferred
\nan appeal thereagainst which by reason of the impugned judgment has been
\nallowed.  The appellant is, thus, in appeal before us.\n<\/p>\n
SUBMISSIONS :\n<\/p>\n
Mr. Dipankar P. Gupta, learned Senior Counsel appearing on behalf
\nof the appellant, would contend that the Division Bench of the High
\nCourt committed a manifest error insofar as it proceeded to determine
\nthe dispute on the premise that the claim could not have been preferred
\nunder any clause of the contract. The learned counsel would contend that
\nthe arbitrators had, having regard to the scope and purport of the
\narbitration agreement entered into by and between the parties were
\nentitled to go into the question of the construction of contract and
\nthey, thus, having the requisite jurisdiction therefor, the High Court
\ncould not have independently construe the same.\n<\/p>\n
\tDrawing our attention to various clauses of the contract as also
\nthe claim petition, the learned counsel would contend that the
\narbitrator had analyzed the terms and conditions of the contract having
\nregard to the facts and circumstances of this case as also keeping in
\nview the pleadings of the parties and in that view of the matter the
\nHigh Court while exercising its jurisdiction under Section 30 of the Act
\ncould not have interfered therewith particularly as the award was a non-
\nspeaking one.  It was urged that such a claim was also maintainable
\nhaving regard to a circular letter dated 25.9.1989 issued by the
\nGovernment of India.\n<\/p>\n
\tMr. Gupta would submit that the approach of the respondent in
\ndenying the just claim of the appellant must be held to be arbitrary and
\nunfair insofar as payments on similar terms as claimed by the appellant
\nhad been made not only to the foreign bidders but in fact had been made
\nto the other Indian bidders where the price was payable in the Indian
\ncurrency.  By preferring such a claim, the learned counsel would urge,
\nthe appellant had not asked for any escalation in the price but merely
\nclaimed damages in terms of the provisions of the contract occasioned by
\nfluctuation in the rate of dollar in terms of the notification issued by
\nthe Reserve Bank of India under Section 40 of the Reserve Bank of India
\nAct and such revision was permissible also in terms of clause 23 of the
\ncontract.\n<\/p>\n
\tIn support of the said contentions, Mr. Gupta  strongly relied
\nupon W.B. State Warehousing Corporation and Another vs. Sushil Kumar
\nKayan and Others<\/a> [(2002) 5 SCC 679], K.R. Raveendranathan vs. State of
\nKerala<\/a> [(1998) 9 SCC 410], P.V. Subba Naidu and Others vs. Government of
\nA.P. and Others<\/a> [(1998) 9 SCC 407], H.P. State Electricity Board vs.
\nR.J. Shah and Company<\/a> [(1999) 4 SCC 214], Shyama Charan Agarwala & Sons
\netc. vs. Union of India etc. [(2002) 6 SCC 201].\n<\/p>\n
\tThe learned counsel would further argue that for the purpose of
\ninterpretation of a contract not only the terms thereof but also the
\nconduct of the parties and surrounding circumstances are relevant.
\nReliance has been placed on Khardah Company Ltd. vs. Raymon & Co.
\n(India) Private Ltd.<\/a> [(1963) 3 SCR 183].  In any event, the learned
\ncounsel would contend that the respondent was bound by the policy
\ndecision of the Central Government in the matter of payment of
\ndifference in the rupee value owing to fluctuation in the rate of US
\ndollar.\n<\/p>\n
\tMr. Mukul Rohtagi, learned Additional Solicitor General, on the
\nother hand, would submit that the bid price for supply of Helium gas
\nmade by the appellant herein in terms of the contract being firm, the
\nappellant was not entitled to any escalation in the price and, thus, in
\nthe event, the contention of the appellant is accepted, the same would
\nrun counter to the clause in the contract prohibiting escalation in the
\nprice of the goods.\n<\/p>\n
\tMr. Rohtagi would contend that disclosure of the foreign exchange
\ncomponent in the price to be paid in Indian currency was sought for only
\nfor the purpose of evaluation of bids.  He would urge that for all
\nintent and purport, the foreign exchange component had nothing to do
\nwith the payment of the price for supply of Helium gas to the appellant.
\nIn support of his contention, Mr. Rohtagi relied upon Rajasthan State
\nMines & Minerals Ltd. Vs. Eastern Engineering Enterprises and Another
\n[(1999) 9 SCC 283].\n<\/p>\n
 The learned counsel would further argue that the notifications
\nissued by the Reserve Bank of India do not constitute ‘any change in
\nlaw’ in terms of the provision of Section 40 of the Reserve Bank of
\nIndia Act or otherwise.\n<\/p>\n
RELEVANT CLAUSES IN THE CONTRACT :\n<\/p>\n
“1.16 Prices :\n<\/p>\n
 1.16.1 In cases where payments are required in Indian
\nRupees, the bidder should clearly indicate
\nif it shall need any foreign exchange for
\ncompleting the supplies\/services that may
\nbe ordered on him.  For this purpose they
\nshould quote the total price along with its
\nbreakdown between Indian Currency portion
\nand the foreign currency indicating the
\nspecific currency.\n<\/p>\n
The bidder shall also indicate the nature
\nof payments which it intends to cover
\nforeign exchange payments, viz., whether it
\nis towards acquisition\/hiring of
\nequipment\/services, payments of personnel
\nor acquisition of sub-assemblies, spare
\nparts or purchase of raw materials or for
\nany other purpose.\n<\/p>\n
A bidder who would not need any foreign
\nexchange for completion of the order should
\nstate this categorically.\n<\/p>\n
In case the bidder would require any
\nassistance\/certification from ONGC to help
\nhim secure the required foreign exchanges
\nit should be so stated.”\n<\/p>\n
“1.16.3 Price preference for supplies :\n<\/p>\n
Domestic manufactures are entitled to get
\nprice preference over the foreign
\nsupplier.\n<\/p>\n
The price preference is admissible over
\nthe CIF price of the lowest technically
\nacceptable foreign offer received in
\ninternational competition.\n<\/p>\n
The criteria for giving price preference
\nis domestic value added Domestic value
\nadded to an indigenous  offer will be as
\nfollows :\n<\/p>\n
CIF price of lowest
\nAcceptable foreign
\nTendered<\/p>\n
Direct import requirement of
\nraw material components &
\nconsumable of Indian bidder<\/p>\n
Domestic value = ————————–
\nCIF price of lower acceptable foreign tender<\/p>\n
The price preference admissible to indigenous
\nmanufacturer will be as under :\n<\/p>\n
Extent of domestic       \tExtent of price\nValue\t\t\t\tpreference\t\t\t---------\n----------\t\t-------------\t\t\t\n1. Upto 20%\t\t\t\tNil\n2. More than 20% upto 50%\t\tupto 15%\n3. More than 50% and upto 70%\tupto 25%\n4. More than 70%\t\t\tupto 35%\n\n\n<\/pre>\n
  2.6  Bidder shall quote a firm price and they
\nshall be bound to keep this price firm
\nwithout any escalation for any ground
\nwhatsoever until they compete the work
\nagainst this tender or any extension
\nthereof.\n<\/p>\n
2.7\tThe prices shall be given in the currency
\nof the country of the bidder.  If the
\nbidder expects to incur a portion of this
\nexpenditure in currencies other than those
\nstated in his bid, and so indicates in his
\nbid payment of the corresponding portion
\nof the prices as so expended will be made
\nin these other currencies.\n<\/p>\n
6.2\tIn case the price quoted by two or more
\ndomestic bidders are within the price
\npreference limits and only Indian bidders
\nremain in contention for award of
\ncontract, then the foreign exchange
\ncomponent of their bid would be  loaded by
\na factor of 25% for the purpose of
\nrelative compensation of such domestic
\nbids.  Domestic bidders are required to
\nquote the prices in the price schedule and
\nindicate the import content in their
\noffer.  If there is no import content in
\nthe offer then it should be specifically
\nstated as NIL”.\n<\/p>\n
“12. (i)\tCommission shall pay for Helium at
\nthe rate of Rs.149 per M3 all
\ninclusive for offshore supply as
\nindicated in Anneuxre II.\n<\/p>\n
(ii) The invoice with the following
\nsupport documents, should be
\nsubmitted in triplicate immediately
\nafter receipt of material by
\nCommission to DGM (F&A) 712 B,
\nVasudhara Bhavan, Bandra (E),
\nBombay-400 051.\n<\/p>\n
a)\tThe quantity of gas received
\nduly certified by Commission’s
\nrepresentative.\n<\/p>\n
b)\tThe computer analysis of the
\ngas chromatograph showing the
\npurity of the gas.”\n<\/p>\n
“21. Arbitration<\/p>\n
 If any dispute, difference or question shall at
\nany time arise between the parties herein or
\ntheir respective representative or assignees in
\nrespect of these present or concerning anything
\nhereto contained or arising out of these present
\nor as to the rights liabilities or duties of the
\nsaid parties hereunder which cannot be mutually
\nresolved by the parties, the same shall be
\nreferred to arbitration, the proceedings of
\nwhich shall be held at Bombay, India within
\nthirty (30) days of the receipt of the notice of
\nintention of appointing arbitrators.\n<\/p>\n
Each party shall appoint an arbitrator of its
\nown choice and inform the other party.  Before
\nentering upon the arbitration, the two
\narbitrators shall appoint the Umpires.  In case
\neither of the parties fail to appoint its
\narbitrator within thirty (30) days from the date
\nof receipt of a notice from the other party in
\nthis behalf or the two arbitrator fail to
\nappoint the Umpire, the Chief Justice of the
\nSupreme Court of India shall appoint the
\narbitrator and\/ or the Umpire as the case may
\nbe.\n<\/p>\n
The decision of the arbitration and in the event
\nof the arbitrators failing to regain an agreed
\ndecision then the decision of Umpire shall be
\nfinal and binding on the parties hereto.\n<\/p>\n
The arbitration proceedings shall be held in
\naccordance with the or provisions of Indian
\nArbitration Act, 1940 and the rules made
\nthereunder as amended from time to time.\n<\/p>\n
The arbitration or the Umpire as the case may be
\nshall decide by whom and what proportions the
\narbitrators or Umpire fee as well as costs
\nincurred in arbitration shall be borne.\n<\/p>\n
The arbitrator or the Umpire may with the
\nconsent of the parties enlarge the time, from
\ntime to time to make an publish their or his
\naward.  Arbitration will be conducted in English
\nlanguage and either party may be represented by
\npersons not admitted to practice law in India.”\n<\/p>\n
“23. In the event of any change or amendment of
\nany Act or law including Indian Income Tax Acts,
\nrules or regulations of Govt. of India or Public
\nBody or any change in the interpretation or
\nenforcement of any said Act or law, rules or
\nregulations by Indian Govt. or public body which
\nbecomes effective after the date as advised by
\nthe Commission for submission of final price bid
\nfor this contract and which results in increased
\ncost of works under the contract, through
\nincreased cost by the Commission subject to
\nproduction of documentary proof to the
\nsatisfaction of the Commission to the extent
\nwhich is directly attributable to such change or
\namendment as mentioned above.  Similarly, if any
\nchange or amendment of any Act or law including
\nIndian Income Tax Acts, Rules or Regulation of
\nany Govt. or Public Body or any change in the
\ninterpretation or enforcement of any said Act or
\nlaw, rules or regulations by Indian Govt. or
\npublic body becomes effective after the date as
\nadvised by the Commission for submissions of
\nfinal price bid for this Contract and which
\nresults in any decrees in the cost of the
\nproject through reduced liability of taxes,
\n(other than personnel taxes) duties, the
\nContractor shall pass on the benefits of such
\nreduced costs, taxes or duties to the
\nCommission.\n<\/p>\n
Notwithstanding the abovementioned provisions,
\nCompany shall not bear any liability in respect
\nof:\n<\/p>\n
i)\tPersonnel taxes, customs, duty and
\ncorporate tax”.\n<\/p>\n
RELEVANT PARAGRAPHS OF STATEMENT OF CLAIM OF THE APPELLANT :\n<\/p>\n
\tIn its statement of claim, the appellant, inter alia, contended :\n<\/p>\n
“…The claimant has reason to believe that the
\nBombay Regional Office of the respondent had
\nrecommended that the respondent be made such
\npayments as they rightly believed that such
\npayments were legitimately due to the claimant
\nunder the terms of contract.\n<\/p>\n
That apart from the reason that the said amounts
\nwere due to the claimant under the contract
\nterms itself, the same is also supported by
\nvirtue of a notification of the Government of
\nIndia setting out internal guidelines as
\ncontained in Notification No.D-19011\/7\/87-ONG-
\nUA(EO) dated 25th of September 1989 issued by the
\nMinistry of Petroleum and Natural Gas.  A copy
\nof this notification is placed at Document No.27
\nand its relevant contents are reproduced
\nhereinbelow :-\n<\/p>\n
“It has now been decided that…the Indian
\nbidder’s foreign exchange component may be
\nallowed to be quoted in foreign currency for
\npurposes of actual payment and the actual
\npayment made in rupee equivalent to the foreign
\nexchange component as per the BC selling rates
\non the date of actual payment for the imported
\nsupplies.”\n<\/p>\n
Subsequently, the respondent issued a circular
\nNo.74\/89 dated 8th November, 1989 in compliance
\nof the abovesaid Ministerial Notification, a
\ncopy of which is Documents.  This Circular was
\nto be implemented in all regions and be
\napplicable to all contracts.”\n<\/p>\n
\tThe appellant in the said statement of claim, inter alia, made the
\nfollowing submissions before the arbitrator :\n<\/p>\n
“2.\tIt is submitted that the foreign exchange
\nrate fluctuations did not and cannot
\nresult into a price variation\/increase.
\nIt is submitted that the firm price
\nrelative to this contract was a composite
\nprice stated in Rupees and Dollars and it
\nwas that which was and has been held firm,
\nby the claimant.  The claimant is not
\nseeking additional benefit or profit but
\nis merely seeking to recover a specified
\ncontract consideration.\n<\/p>\n
3.\tThat the ministry notification dated
\n25.09.1989 has the force of law and the
\nrespondent is not entitled to act in
\nviolation of the same.\n<\/p>\n
5.\tThat it is further submitted that this
\nvery respondent has in other suppliers
\nentered into prior to the conclusion of
\nthis contract applied this notification in
\nthe manner in which it ought to have been
\napplied and has given due benefit to
\nvarious other suppliers.  It is also
\nsignificant that the respondent has had no
\nhesitation in applying the said
\nnotification to the claimant’s benefit in
\na subsequent contract.\n<\/p>\n
6.\tThat without prejudice to what is stated
\nabove, it is further submitted that the
\ncontract between the claimant and
\nrespondent was concluded subsequent to the
\nissuance of the notification and,
\ntherefore, any endeavour on the part of
\nthe respondent to construe the effective
\ndate of the notification as subsequent
\nthereto is misconceived and factually
\nincorrect.\n<\/p>\n
7.\tIt is submitted that exchange rate
\nfluctuations brought into effect in
\nexercise of powers conferred on the
\nReserve Bank of India under Section 40 of
\nthe Reserve Bank of India Act 1934 and
\nupon directions given by the Government of
\nIndia has the complete force of law.  That
\nbeing the position, any change arising
\ntherefrom is clearly covered under clause
\n23 of the Tender Document.  Being so, the
\nrespondent is bound under the contract to
\ncompensate the claimant as to such
\nincreased costs arising out of such
\nexchange rate fluctuations.  It is further
\nsubmitted that refusal on the part of the
\nrespondent to compensate the claimant
\nwithout disclosing any reasons itself is
\narbitrary.\n<\/p>\n
8.\t…Any interpretation of the contract
\nwherein foreign suppliers would be paid in
\nforeign currency at the current rate while
\nIndian suppliers would be paid at the rate
\nof exchange prevailing on the date of the
\nsubmission of the Price Bid would
\ndiscriminate against the Indian suppliers
\nin as much as any increase in the value of
\nthe dollar against the Indian rupee would
\ndestroy the costing of the Indian
\nsuppliers.  The claimant states that this
\ninterpretation of the contract is
\ndiscriminatory against the Indian
\nsuppliers, violative of public policy and
\nagainst stated government guidelines,
\nobjectives and intentions.”\n<\/p>\n
ISSUES BEFORE THE ARBITRATORS :\n<\/p>\n
\tThe respondent in their rejoinder having joined issues with the
\naforementioned contentions of the appellant, the following issues which
\nwere raised by the appellant herein, fell for consideration by the
\nlearned arbitrators.\n<\/p>\n
“1.\tWhether the proper interpretation of terms
\nof the contract entitle the claimant to be
\ncompensated for all consequences arising
\nout of exchange rate variations between
\nthe date of the submission of the Price
\nBid and the completion of all supplies.\n<\/p>\n
2.\tWhether, in addition or in the alternative,
\nthe claimant is, under clause 23 of the
\nTender Document entitled to be compensated
\nfor all exchange rate variations between
\nthe date of the submission of the Price Bid
\nand the completion of all supplies.\n<\/p>\n
3.\tWhether, in the alternative, the respondent
\nis bound to effectuate in favour of the
\nclaimant notified State policy as contained
\nin the Ministerial notification dated
\n25.09.1989.\n<\/p>\n
4.\tWhether, the respondent’s circular
\nNo.74\/89 dated 8th November, 1989 estoppes
\nthe respondent from any interpretation of
\nthe contract contrary thereto.”\n<\/p>\n
AWARD :\n<\/p>\n
By reason of the impugned award, the learned arbitrators held :\n<\/p>\n
“1.\tWe hold that the Claimants are entitled to
\nbe compensated for increase in cost
\narising out of Foreign Exchange Rate
\nFluctuations in respect of payment made by
\nthe Respondents to the Claimants on the
\nfrom the respective dated of devaluation
\nof the Indian Rupee, namely 8.7.1991 and
\n28.2.1998 and not on payments made before
\nthe said dates.  Accordingly we direct
\nthat the Respondent do pay to the
\nClaimants a sum of Rs.1,03,41,309\/- only
\n(in words Rupee One crore three lakhs
\nforty one thousand three hundred and nine)
\nRs.24,97,905\/- under Invoice dt.\n<\/p>\n
9.10.1991, Rs.25,20,160\/- under Invoice
\ndt. 15.1.1998 and Rs.53,23,241\/- under
\nInvoice dt. 22.6.1998) in full and final
\nsettlement of their claim under their
\naforesaid three invoices.\n<\/p>\n
2.\tRespondents do further pay to the
\nClaimants interest at the rate of 185 per
\nannum on the aforesaid three amounts
\nawarded to them under the said invoices
\nfrom the respective dates of those
\ninvoices till the date of this Award.”\n<\/p>\n
OBJECTIONS TO THE AWARD BY THE RESPONDENT :\n<\/p>\n
(1)\tThe subject-matter of the arbitration was not arbitrable in
\nview of the terms of the contract;\n<\/p>\n
(2) The appellant was not entitled to any escalation  in price.\n<\/p>\n
IMPUGNED JUDGMENT :\n<\/p>\n
The Division Bench of the High Court set aside the award holding
\nthat the same was without jurisdiction wherefor two questions were
\nframed.\n<\/p>\n
(a)\tWhether a claim of the nature preferred by the
\nrespondent is specifically barred under the
\ncontract?\n<\/p>\n
(b)\tWhether there is any clause in the contract, under
\nwhich such a claim could be preferred?\n<\/p>\n
OUR CONCLUSION :\n<\/p>\n
The questions framed are self-contradictory and inconsistent.
\nWhereas in framing question (a) a right approach had been adopted by the
\nDivision Bench, a wrong one had been adopted in framing question (b).
\nIt is not in dispute that there were three different nature of bids;
\nwhich were required to be made in terms of the notice inviting tenders :\n<\/p>\n
(i) by  foreign bidders; (ii) by Indian bidders quoting Indian price
\nwith the foreign exchange component therefor as import was required to
\nbe made; (iii) payable only in Indian rupee without foreign exchange
\ncomponent.\n<\/p>\n
Before the arbitrators apart from construction of the contract
\nagreement, the questions which, inter alia, arose were : (a) the effect
\nand purport of circular letter dated 25.9.1989 issued by the Central
\nGovernment: (b) the conduct of the respondent in making the payments to
\nthe persons similarly situated.\n<\/p>\n
Construction of a deed sometimes pose a great problem.\n<\/p>\n
Justice Frankfurter said : “there is no surer way to misread a
\ndocument than to read it literally.” [Massachusetts B. & Insurance Co.
\nvs. U.S. (1956) 352 US 128 at p. 138].\n<\/p>\n
We, however, as discussed in details a little later are strictly
\nnot concerned as regard true import and purport of the relevant clauses
\nof the contract agreement.  Our concern is merely to see as to whether
\nthe learned arbitrators exceeded their jurisdiction in making the award.\n<\/p>\n
 The learned arbitrators, as noticed hereinbefore, in making the
\naward took into consideration the documentary as well as circumstantial
\nevidence including rival pleadings of the parties. It is trite that the
\nterms of the contract can be express or implied.  The conduct of the
\nparties would also be a relevant factor in the matter of construction of
\na contract.\n<\/p>\n
In Khardah Company Ltd. (supra), this Court held :\n<\/p>\n
“…We agree that when a contract has been
\nreduced to writing we must look only to that
\nwriting for ascertaining the terms of the
\nagreement between the parties but it does not
\nfollow from this that it is only what is set out
\nexpressly and in so many words in the document
\nthat can constitute a term of the contract
\nbetween the parties.  If on a reading of the
\ndocument as a whole, it can fairly be deduced
\nfrom the words actually used herein that the
\nparties had agreed on a particular term, there
\nis nothing in law which prevents them from
\nsetting up that term.  The terms of a contract
\ncan be expressed or implied from what has been
\nexpressed.  It is in the ultimate analysis a
\nquestion of construction of the contract.  And
\nagain it is well established that in construing
\na contract it would be legitimate to take into
\naccount surrounding circumstances….”\n<\/p>\n
Construction of the contract agreement, therefore, was within the
\njurisdiction of the learned arbitrators having regard to the wide
\nnature, scope and ambit of the arbitration agreement and they cannot,
\nthus, be said to have misdirected themselves in passing the award by
\ntaking into consideration the conduct of the parties as also the
\ncircumstantial evidence.\n<\/p>\n
A dispute as regard the construction of clause 23 of the contract
\nvis-\u00e0-vis the notification issued under Section 40 of the Reserve Bank
\nof India Act also fell for their consideration.  Such a question of law,
\nit is trite, is also arbitrable and was specifically raised by the
\nappellant.  The learned arbitrators were further entitled to consider
\nthe question as to whether the appellant had been discriminated against
\ninsofar as similar claims have been allowed by the respondent.\n<\/p>\n
CASE LAWS ON THE POINT :\n<\/p>\n
In State of U.P. vs. Allied Constructions<\/a> [2003 (6) SCALE 265],
\nthis Court held :\n<\/p>\n
“…Interpretation of a contract, it is trite,
\nis a matter for arbitrator to determine (see M\/s
\nSudarsan Trading Co. vs. The Government of
\nKerala, AIR<\/a> 1989 SC 890).  Section 30 of the
\nArbitration Act, 1940 providing for setting
\naside an award is restrictive in its operation.
\nUnless one or the other condition contained in
\nSection 30 is satisfied, an award cannot be set
\naside.  The arbitrator is a Judge chosen by the
\nparties and his decision is final.  The Court is
\nprecluded from reappraising the evidence.  Even
\nin a case where the award contains reasons, the
\ninterference therewith would still be not
\navailable within the jurisdiction of the Court
\nunless, of course, the reasons are totally
\nperverse or the judgment is based on a wrong
\nproposition of law.  As error apparent on the
\nface of the records would not imply closer
\nscrutiny of the merits of documents and
\nmaterials on record.  One it is found that the
\nview of the arbitrator is a plausible one, the
\nCourt will refrain itself from interfering…”\n<\/p>\n
\tIn K.R. Raveendranathan (supra), the law was laid down in the
\nfollowing terms :\n<\/p>\n
“2. The learned counsel for the appellant points
\nout that the question in issue in the present
\nappeals is squarely covered by the decision of
\nthis Court in Hindustan Construction Co. Ltd. v.
\nState of J&K ((1992) 4 SCC 17). In particular,
\nit drew our attention to para 10 of the judgment
\nand the portion extracted from the decision in
\nSudarsan Trading Co. case (Sudarsan Trading Co.
\nv. Govt. of Kerala,<\/a> (1989) 2 SCC 38) wherein it
\nwas said that by purporting to construe the
\ncontract the Court could not take upon itself
\nthe burden of saying that this was contrary to
\nthe contract and, as such, beyond jurisdiction.
\nThat is exactly what the Court has done in the
\ninstant case…”\n<\/p>\n
\t K.R. Raveendranathan (supra) has been followed by this Court in
\nP.V. Subba Naidu (supra) stating :\n<\/p>\n
“4. The entire thrust of the judgment is on
\nexamining the terms of the contract and
\ninterpreting them. The terms of the arbitration
\nclause, however, are very wide. The arbitration
\nclause is not confined merely to any question of
\ninterpretation of the contract. It also covers
\nany matter or thing arising thereunder.
\nTherefore, all disputes which arise as a result
\nof the contract would be covered by the
\narbitration clause. The last two lines of the
\narbitration clause also make it clear that the
\narbitrator has power to open up, review and
\nrevise any certificate, opinion, decision,
\nrequisition or notice except in regard to those
\nmatters which are expressly excepted under the
\ncontract, and that the arbitrator has
\njurisdiction to determine all matters in dispute
\nwhich shall be submitted to the arbitrator and
\nof which notice shall have been given.\n<\/p>\n
5. In the present case all the claims in
\nquestion were expressly referred to arbitrator
\nand were raised before the arbitrator. The High
\nCourt was, therefore, not right in examining the
\nterms of the contract or interpreting them for
\nthe purpose of deciding whether these claims
\nwere covered by the terms of the contract.”\n<\/p>\n
\tThe same view has been reiterated in H.P. State Electricity Board
\n(supra).  Upon taking into consideration a large number of decisions and
\nreferring to K.R.Ravendranathan (supra), this Court held that the court
\nwould not be justified in construing the contract in a different manner
\nand then to set aside the award by observing that the arbitrator had
\nexceeded the jurisdiction in making the award, when the arbitrator is
\nrequired to construe a contract, only because another view is possible.
\nIt was stated :\n<\/p>\n
“26. In order to determine whether the
\narbitrator has acted in excess of jurisdiction
\nwhat has to be seen is whether the claimant
\ncould raise a particular dispute or claim before
\nan arbitrator. If the answer is in the
\naffirmative then it is clear that the arbitrator
\nwould have the jurisdiction to deal with such a
\nclaim. On the other hand if the arbitration
\nclause or a specific term in the contract or the
\nlaw does not permit or give the arbitrator the
\npower to decide or to adjudicate on a dispute
\nraised by the claimant or there is a specific
\nbar to the raising of a particular dispute or
\nclaim then any decision given by the arbitrator
\nin respect thereof would clearly be in excess of
\njurisdiction. In order to find whether the
\narbitrator has acted in excess of jurisdiction
\nthe court may have to look into some documents
\nincluding the contract as well as the reference
\nof the dispute made to the arbitrators limited
\nfor the purpose of seeing whether the arbitrator
\nhas the jurisdiction to decide the claim made in
\nthe arbitration proceedings.”\n<\/p>\n
\tYet again in Sushil Kumar Kayan (supra), it was held :\n<\/p>\n
“…In order to determine whether the arbitrator
\nhas acted in excess of his jurisdiction what has
\nto be seen is whether the claimant can raise a
\nparticular claim before the arbitrator. If there
\nis a specific term in the contract or the law
\nwhich does not permit the parties to raise a
\npoint before the arbitrator and if there is a
\nspecific bar in the contract to the raising of
\nthe point, then the award passed by the
\narbitrator in respect thereof would be in excess
\nof his jurisdiction…”\n<\/p>\n
\tSome of the aforementioned decisions have been considered by us in
\nBharat Coking Coal Ltd. vs. M\/s Annapurna Construction<\/a> [2003 (7) SCALE
\n20].\n<\/p>\n
\tRajasthan State Mines & Minerals Ltd. (supra) whereupon Mr.
\nRohtagi placed strong reliance, this Court held that the dispute to the
\narbitrator could not be termed as without jurisdiction but proceeded to
\nconsider the question as to whether he will have authority or
\njurisdiction to grant damages or compensation in the teeth of the
\nstipulation providing that no escalation would be granted and that the
\ncontractor would only be entitled to payment of the composite rate as
\nmentioned and no other or further payment of any kind or item whatsoever
\nshall be due and payable by the Company to the contractor.\n<\/p>\n
 It was concluded :\n<\/p>\n
“(a) It is not open to the Court to speculate,
\nwhere on reasons are given by the arbitrator, as
\nto what impelled the arbitrator to arrive at his
\nconclusion.\n<\/p>\n
(b) It is not open to the Court to admit to
\nprobe the mental process by which the arbitrator
\nhas reached his conclusion where it is not
\ndisclosed by the terms of the award.\n<\/p>\n
(c) If the arbitrator has committed a mere error
\nof fact or law in reaching his conclusion on the
\ndisputed question submitted for his adjudication
\nthen the Court cannot interfere.\n<\/p>\n
(d) If no specific question of law is referred,
\nthe decision of the Arbitrator on that question
\nis not final, however much it may be within his
\njurisdiction and indeed essential for him to
\ndecide the question incidentally. In a case
\nwhere specific question of law touching upon the
\njurisdiction of the arbitrator was referred for
\nthe decision of the arbitrator by the parties,
\nthen the finding of the arbitrator on the said
\nquestion between the parties may be binding.\n<\/p>\n
(e) In a case of non-speaking award, the
\njurisdiction of the Court is limited. The award
\ncan be set aside if the arbitrator acts beyond
\nhis jurisdiction.\n<\/p>\n
(f) To find out whether the arbitrator has
\ntravelled beyond his jurisdiction, it would be
\nnecessary to consider the agreement between the
\nparties containing the arbitration clause.
\nArbitrator acting beyond his jurisdiction is a
\ndifferent ground from the error apparent on the
\nface of the award.\n<\/p>\n
(g) In order to determine whether arbitrator has
\nacted in excess of his jurisdiction what has to
\nbe seen is whether the claimant could raise a
\nparticular claim before the arbitrator. If there
\nis a specific term in the contract or the law
\nwhich does not permit or give the arbitrator the
\npower to decide the dispute raised by the
\nclaimant or there is a specific bar in the
\ncontract to the raising of the particular claim
\nthen the award passed by the arbitrator in
\nrespect thereof would be in excess of
\njurisdiction.”\n<\/p>\n
With respect we agree with the conclusions arrived at in Rajasthan
\nState Mines & Minerals Ltd. (supra).\n<\/p>\n
\tClause (g) of the conclusion in the said case, as quoted supra, is
\nnot applicable in the instant case inasmuch as there does not exist any
\nprovision which does not permit or give the arbitrator the power to
\ndecide the dispute raised by the claimant nor there exist any specific
\nbar in the contract to raise such claim.\n<\/p>\n
To the same effect is the decision of this Court in  Food
\nCorporation of India vs. Surendra, Devendra & Mahendra Transport Co.<\/a>
\n{(2003) 4 SCC 80].\n<\/p>\n
\tIn  Shyama  Charan Agarwala (supra), this Court observed :\n<\/p>\n
“19. Testing the case on hand on the touchstone
\nof well-settled principles laid down by courts,
\nwe are unable to hold that the High Court
\nexceeded its jurisdiction in interfering with
\nthe award or failed to exercise the jurisdiction
\nvested in it to set aside the award. The
\napproach of the High Court cannot be said to be
\ncontrary to the well-settled principles
\ngoverning the scope of interference with an
\naward of the arbitrator under the old Act. As
\nregards the first item, the question was whether
\nthe contract contemplates the use of stone
\naggregate and stone metal from the local sources
\nonly, the source of supply being silent in the
\nrelevant clause. The arbitrator was of the view
\nthat the unprecedented situation of the
\nContractor being put to the necessity of
\nprocuring the stone material from far-off places
\nwas not visualized and the parties proceeded on
\nthe basis that such material was available
\nlocally. He further noted that the sample kept
\nin the office of the Engineer concerned
\nadmittedly pertained to the material procured
\nfrom local sources. A letter addressed by the
\nChief Engineer in support of the Contractor’s
\nclaim was also relied on in this context. Hence,
\nin these circumstances, the arbitrator can be
\nsaid to have taken a reasonably possible view
\nand therefore the High Court rightly declined to
\nset aside the award insofar as the quantity of
\nstone aggregate\/stone metal brought to the site
\nup to 24-1-1994 is concerned. The arbitrator
\nacted within the confines of the jurisdiction in
\nmaking the award on this part of the claim.”\n<\/p>\n
ANALYSIS OF THE CASE LAWS :\n<\/p>\n
The principles of law laid down in the aforementioned decisions
\nleave no manner of doubt that the jurisdiction of the court in
\ninterfering with a non-speaking award is limited.\n<\/p>\n
The upshot of the above decisions is that if the claim of the
\nclaimant is not arbitrable having regard to the bar\/prohibition created
\nunder the contract, the court can set aside the award but unless such a
\nprohibition\/bar is found out, the court cannot exercise its jurisdiction
\nunder Section 30 of the Act.  The High Court, therefore, misdirected
\nitself in law in posing a wrong question.  It is true that where such
\nprohibition exists, the court will not hesitate to set aside the award.\n<\/p>\n
\tIn the instant case, the appellant did not ask for any enhancement
\nin the price.  It only asked for the difference in price occurred owing
\nto fluctuation in the rate of dollar.\n<\/p>\n
\tIt is true that by taking recourse to the interpretation of
\ndocuments, the appellant did not become entitled to claim a higher
\namount than Rs.149\/- but, thereby the appellant had not unjustly
\nenriched itself.  Had the price of the dollar fallen, the respondent
\nwould have become entitled to claim the difference therefor.\n<\/p>\n
\tThe appellant quoted the foreign exchange component in its bids in
\nterms of the notice inviting tenders.  The same was asked for by the
\nrespondent itself for a definite purpose.  A contract between the
\nparties must be construed keeping in view the fact that the fluctuation
\nin the rate of dollar was required to be kept in mind by the respondent
\nhaving regard to the fact that the tender was global in nature and in
\nthe event the respondent was required to pay in foreign currency, the
\nsame would have an impact on the cost factor.\n<\/p>\n
Clauses 2.6 and 2.7 aforementioned must be construed in such a
\nmanner so that effect to both of them may be given.  Whereas Clause 2.6
\nprohibits escalation; Clause 2.7 makes the bidder liable for exchange
\nfluctuations which does not amount to an escalation of the price or
\ndisturb their cost evaluation.  The bid of the appellant had two
\ncomponents, namely, Indian currency component and US Dollar component.
\nThe appellant claimed $ 4.60 within the total price of Rs. 149\/- which
\nwas to be paid in Indian currency.  In any manner, the claim did not
\nviolate clause 2.6.  The appellant merely claimed foreign exchange
\ncomponent at the rate of $ 4.60 and no more.\n<\/p>\n
\tThe very fact that three different types of quotations were
\ninvited from the bidders itself is suggestive of the fact that each one
\nof them was required to be construed in such a manner so as to apply in
\ndifferent situations.  The submission of Mr. Rohtagi, the learned
\nAdditional Solicitor General to the effect that if such a factor was to
\nbe taken into consideration, the person who had quoted only in terms of
\nIndian rupee would be at a disadvantage is stated to be rejected.  The
\nquestion as to whether suppliers quoting their bid in Indian currency
\nalone would face disadvantage or not will depend upon the question as to
\nwhether they were similarly situated.  One bidder may have to import the
\nraw-materials; other may not have to.  This itself will lead to a
\ndifference.  In fact, those who did not bid with the amount of foreign
\nexchange component cannot be placed on equal footing to those who in
\ntheir bid pursuant to the notice inviting tender disclosed that they
\nwould have to make import wherefor only the foreign exchange component
\nin the price had to be disclosed.\n<\/p>\n
Furthermore, the circular letter dated 25.9.1989 issued by the
\nGovernment of India itself clearly shows that a decision had been taken
\nto make such payments.  The contract having not been entered into by the
\nparties herein as on the said date, the decision to include the said
\nterm would mean that the same shall be incorporated in the contracts
\nwhich were to be executed in future.\n<\/p>\n
\tIt is further not in dispute that the respondent is bound by the
\ndirectives issued by the Union of India.  In fact from the letter dated
\n21.5.1990 it is evident that even for the purpose of entering into the
\ncontract approval of the Central Government was sought for and granted.
\nSuch a directive of the Central Government was not required to be made
\nby way of a notification nor the same was required to have the force of
\nlaw as the matter involved a contract between the parties.\n<\/p>\n
\tMr. Rohtagi is not correct in his contention that such condition
\nwas required to be incorporated in the NIT inasmuch as from a plain
\nreading of the said letter, it is evident that such a clause was to be
\nincorporated in the notice inviting tenders ex majori cautela.\n<\/p>\n
\tAs regard the contention as to whether the notification issued
\nunder Section 40 of the Reserve Bank of India would be rules or
\nregulations having an impact in the cost factor is concerned, the
\narbitrator had jurisdiction to decide the same, subject of course to
\napplication of correct principles of law in relation thereto.\n<\/p>\n
\tEven assuming that the arbitrators faulted in that regard, it must
\nbe borne in mind that  such a contention was raised on behalf of the
\nappellant, only for the purpose of showing that several aspects of the
\nmatter arose before the learned arbitrators for making the award and
\nany-one of them would be sufficient to uphold the award.\n<\/p>\n
\tThe court, having regard to the proposition of law that the
\njurisdiction of the arbitrator will be ousted only in the event that
\nthere exists a specific bar in the contract as regard raising of a
\nparticular claim must necessarily hold that the award was sustainable.
\nAs in the instant case there did not exist any such bar, it is
\nenforceable in law.  Furthermore, in the event the ratio of the decision
\nof the High Court is accepted, the same would amount to re-hearing of
\nthe entire arguments once over again by the court as regard construction
\nof a contract which is impermissible in law.\n<\/p>\n
\tThe arbitrators were called upon to determine a legal issue which
\nincluded interpretation of the contract.  The arbitrators, therefore,
\ncannot be said to have been travelled beyond jurisdiction in making the
\naward.\n<\/p>\n
CONCLUSION :\n<\/p>\n
We, for the reasons aforementioned, are of the opinion that the
\njudgment of the High Court is not sustainable.\n<\/p>\n
However, one aspect of the matter which requires our
\nconsideration.  The respondent rejected the claim of the appellant as
\nfar back as on 14.7.1992 whereafter the disputes and differences between
\nthe parties were referred to the arbitrators. The arbitrators entered
\ninto the reference on 1.3.1993 and passed an award on 13.8.1993.  The
\nsaid award was set aside by the High Court.  If the award is to be
\nsatisfied in its entirety, the respondent will have to pay a huge amount
\nby way of interest.\n<\/p>\n
In order to do the complete justice to the parties, in exercise of
\nour jurisdiction under Article 142 of the Constitution of India, we
\nthink it appropriate to  direct that the award shall carry interest at
\nthe rate of 6% per annum instead and in place of 18% per annum.   This
\norder shall, however, not be treated as precedent.\n<\/p>\n
\tFor the reasons aforementioned, the impugned judgment is set
\naside.  The appeal is allowed with the aforementioned modifications.
\nHowever, in the facts and circumstances of the case, there shall be no
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Pure Helium India Pvt. Ltd vs Oil & Natural Gas Commission on 9 October, 2003 Author: S.B. Sinha Bench: Cji, S.B. Sinha. CASE NO.: Appeal (civil) 6478 of 2001 PETITIONER: Pure Helium India Pvt. Ltd. RESPONDENT: Oil & Natural Gas Commission DATE OF JUDGMENT: 09\/10\/2003 BENCH: CJI & S.B. Sinha. JUDGMENT: […]<\/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-197718","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPure Helium India Pvt. 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