Special Leave Petition Civil Nos 1 li50 58 of 1987
From the Judgment and Order dated 3 17
1987 of the Madras High Court in Appeal against Order Nos 54 1 to 544 and 558 to 562 of 1981
AK Sen V Krishnamurthy and V Balachandran for the Petitioner
A V Rangam for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
These are petitions under Article 136 of the Constitution seeking leave to appeal against the judgment and order of the High Court of Madras dated 31st July 1987
The petitioner company undertook the work of widening and strengthening pavements in Nation Highway No 7 Madurai Kanya kumari Road from Reaches 376 km
to 1  km
on the Madurai Kanyakumari Road and the work was divided into fourteen Reaches and 14 separate agreements were entered into between the petitioner and the Superintending Engineer National Highways Tirunelveli
respondent No 3 to the present petitions
There is not much dispute on this point
At the relevant time according to the petitioner the Superintending Engineer
National Highways Salem was one Thiru Mohan
He entered into reference
He took up the matter for arbitration and called for statements from the parties
Statements were filed before him and evidence were also adduced before him
But before he could complete the adjudication he was transferred and was succeeded by one Thiru JR Cornelius Superintending Engineer
The contention of the petitioner in this case was that he had no Jurisdiction to proceed and complete the arbitration
It appears however that he entered into the task of adjudication with the knowledge and consent of the petitioner and the petitioner had participated actively in the proceeding before him
From the notices served by Thiru Mohan previously and subsequently by Thiru Cornelius
it is apparent that the petitioner had knowledge of the change of the incumbent of the Superintending Engineer who was to arbitrate in the matter
This is evident from the documents appearing at pages 164 PG NO 465 and 165 of the present paper book and both the parties had notice of the succession in office
The arbitrator could not complete the award within time and there was need for extension of time
He wrote a letter to the petitioner on lst May 1977 stating extension of time was necessary to pass orders on reference and hearing has been concluded
In reply to that fetter on 11th May 1977 the petitioner agreed to such extension
The petitioner was content with that situation and never asked for any further or fresh opportunity either to make any submission or to adduce any evidence
In that light the arbitrator has made the award
This was challenged before the learned District Judge by means of a suit under sections 30 and 33 of the that the previous arbitrator Thiru Mohan having entered into reference and Thiru Cornelius had no jurisdiction to conclude
It was violative of the principles of natural justice it was submitted
But as mentioned hereinbefore the petitioner had knowledge of the change of the incumbent
He did not protest and the proceedings went on before Thiru Cornelius
It is apparent from the terms of the agreement between the parties that the Superintending Engineer of the Circle for the time being was the named arbitrator
The learned District Judge held that Thiru Cornelius was competent to pass the award
The High Court also upheld that and rejected the challenge to the award on this ground made by the petitioner
Shri AK Sen learned counsel for the petitioners urged before us that once an arbitrator had entered into reference the next incumbent could not conclude the said arbitration proceeding without a fresh agreement
In the facts of this case as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor namely Thiru Cornelius we are of the cpinion that this contention of Shri Sen cannot be entertained
It was contended that there was violation of the principles of natural justice
This objection cannot be entertained
If the parties to the reference either agree beforehand to the method of appointment or afterwards acquiescence in the appointment made with full knowledge of all the circumstances
they will be precluded from objection to such appointment as invalidating subsequent proceedings
Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence explains Russell on Arbitration
18th Edition at page 105
This was stated by the Judicial Committee long ago in Chowdhury Murtaza Hossein vs Mussumat Bibi Bechunnissa 3 IA 209
See also the observations of PB Mukherji J in the decision of the Calcutta High Court PG NO 466 Calcutta AIR 1456 Calcutta 470 at 472
This Court held in N Challappan vs Secretary Kerala State Electricity Board and another  that acquiescence defeated the right of the appellant at a latter stage
See also the observations of this Court in Prasun Roy vs The Calcutta Metropolitan Development Authority and another  See Russell on Arbitration 20th Edition pages 432 435
Shri Sen contended that no notice was issued after the appointment of the new arbitrator
This was factually incorrect as mentioned before
Then it was said that the award was bad as it did not consider all the claims
This also cannot be entertained
It must be assumed that the arbitrator had considered all the evidence adduced before him
There was no disregard of any principle of law
There was nothing to indicate that the arbitrator had not considered all the evidence
Unless there was a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity the award remains unassailable
In this case the arbitrator gave no reason for the award
There is no legal proposition which is the basis of the award far less any legal proposition which is erroneous
There is no appeal from the verdict of the arbitrator
The Court cannot review in such circumstances the award and correct any mistake in the adjudication by the arbitrator See Champsey Bhara B Company vs Jivray Ballo Spinning and Weaving Company Ltd 50 IA 324 and the observations of Bachawat J in Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd Indore  l967 1 section C R 105 of this Court
In the facts and circumstances of the case in our opinion this award is not assailable
The High Court was therefore right in upholding the learned District judge s dismissal of the challenge to the award
These petitions therefore fail and are dismissed accordingly without any order as to costs
NPV Petitions dismissed


Summary:
Section 129A of the confers right of appeal to the Appellate Tribunal
Where however the order appealed against relates to duty demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under the Act section 129E requires the aggrieved person to deposit with the proper officer the duty demanded or the penalty levied pending the appeal
The proviso thereto however empowers the Appellate Authority to dispense with such deposit in case of under hardship
The appellants Indian citizens based in Hong Kong and Singapore respectively were caught red handed while on a visit to India with huge amounts of foreign exchange
They admitted their part in systematic illegal export of foreign exchange from the country over the past several years
In proceedings under sections 111 to 114 and 118 of the Act the Addl
Collector of Customs imposed a penalty of Ks3 lacs on each of them
They preferred appeals to the Appellate Tribunal under section 129A In an application made under section 129E the Tribunal reduced the amount of penalty to be deposited to Rs 1 lac for each of them
The appellants sought further reduction
Their case was that they had not gone out of the country and had no assets in India
Their passports were impounded at the time of arrest
Their visas had lapsed and could not be renewed
They had no money and that in a situation of this type the condition for deposit of penalty was bad as it whittled down the appellants  right of appeal
The Tribunal after considering the relevant factors declined to reduce the penalty further and dismissed the appeal for non compliance with the provisions of section 129E Dismissing the appeals under section 130Eb of the 
HELD Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which PG NO 434 PG NO 435 must be followed in all judicial and quasi judicial adjudications
The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant
439A B 2
It is not the law that adjudication by itself following the rules of natural justice would be violative of any right constitutional or statutory without any right of appeal as such
If a statute gives a right to appeal upon certain conditions it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant
440C 3
The purpose of section 129E of the is to act in terrorem to make the people comply with the provisions of law
The right of appeal provided therein is a conditional one
The petitioner could obtain stay of realisation of tax levied or penalty imposed in an appeal subject to the limitations contemplated therein
Although the section does not expressly provide for rejection of the appeal for non deposit of duty or penalty yet it makes it obligatory on the appellant to deposit the same pending the appeal failing which the Appellate Tribunal is fully competent to reject the appeal
The proviso thereto gives a discretion to the authority in cases of undue hardships to condone the obligation to deposit or reduce
It is a discretion vested in an obligation to act judicially and properly
440E 439F 437G 440C In the instant case the order of the Tribunal was passed honestly bona fide and having regafd to the plea of undue hardship  as canvassed by the appellants
All the relevant factors namely the probability of the prima facie case of the appellants and the conduct of the parties were taken into consideration
The Tribunal noted the several abortive and defective attempts made to get extension of time to deposit the security
Firstly the prayer was to accept Rs35000 and secondly to accept Rs 60000 in two months 
It also noted the fact that the appeals were filed two years ago
It could not therefore be said that there was any improper exercise of jurisdiction or misdirection by the Appellate Authority
439H440AD438C Navin Chandra Chhotelal vs Central Board of Excise  Customs  Ors
   referred to
Hoosein Kasam Dada India Ltd vs The State of Madhya Pradesh  Ors  and Collector of Customs  Excise Cochin  Ors
vs AS Bava  distinguished
PG NO 436