*1* arbp.439.10.18 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.439 OF 2010 ISPL Industries Ltd.. ..Petitioners -Versus- Remi Metals Gujarat Ltd.. ..Respondents .......... Mr.B.R.Zaiwala, Senior Counsel a/w Kirit Mody i/b M/s S.Pathak & Company, for the Petitioners. Ms.Anjali Chandurkar i/b Purnanand & Company, for the Respondents. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 10th January, 2011. P.C. 1 Challenge is to the award dated 05.11.2009 passed by the learned Arbitral Tribunal consisting of a retired Judge of this Court. 2 Two contentions have been raised by Mr.Zaiwala, learned Senior Counsel appearing on behalf of the Petitioners, to impugn the subject award. He firstly submits that if clause 16 of the contract pertaining to liquidated damages/ penalties is perused, it is clear that for the reasons attributable to the Petitioners, if it fails to deliver on the dates as mentioned in clause-12 of the contract or any agreed written extension thereof, then, the claim for liquidated damages would arise. Inviting my attention to clause-12 titled “Delivery”, Mr.Zaiwala submits that commencement of delivery was stipulated as January, 1994, start of erection as March, 1994, completion of delivery was July, 1994 and hot commissioning was September, 1994. However, the learned Arbitrator holds that there is no dispute about dates of delivery. If there is no dispute about dates of delivery and the learned Arbitrator holds that the evidence *2* arbp.439.10.18 shows that the site was ready at the end of 1994, therefore, the question is whether there was delay after December, 1994. However, Mr.Zaiwala submits that unless and until it is proved from the record that the date taken into consideration by the Sole Arbitrator namely 30.08.1995 is final date of extension, the Arbitrator could not have presumed that the claim for liquidated damages accrued on that date, more so when hot commissioning was done on 20.12.1995. If hot commissioning could not have been done without any supply of electricity as admitted by the Respondent/Claimant, then, the learned Arbitrator could not have awarded the liquidated damages on the basis that for the period of 15 weeks, there was no justification. 3 The second submission of Mr.Zaiwala is with regard to the claim for refund of excess amount paid by the Respondent/Claimant to the Petitioner Company being a sum of Rs.1,23,492.65 and for recovery of Rs.38,77,233/- being the value of the goods appropriated by the Claimant. Mr.Zaiwala submits that on own showing of the Arbitrator if the Respondent had by a letter dated 02.08.1997 referred to certain supplies of total value of Rs.38,77,213/- and stated that the payments have not been coming from the Petitioner’s side and therefore, the Petitioners’ executives approached the Respondents with request to adjust Rs.18 lacs against the amount due towards supply of equipments made by the Petitioners and which sum of Rs.18 lacs is also reflected in the statement, then, the learned Arbitrator could not have awarded under this head the sum which he quantifies namely Rs.31,27,233/-. For all these reasons, in this case the award is contrary to the terms of contract and in any event is perverse because it is against oral and documentary evidence. The claims could not have been awarded at all on the basis of the material produced, therefore, the award requires to be set aside and this Court must exercise *3* arbp.439.10.18 jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996 and proceed to allow the petition. 4 On the other hand, Ms.Chandurkar, learned counsel appearing on behalf of the Respondents, submitted that the argument of Mr.Zaiwala is in realm of appreciation of oral and documentary evidence on record which is impermissible in the limited jurisdiction. In the garb of challenging the award as being vitiated for errors apparent on the face of it and contrary to the oral and documentary evidence, the Petitioners cannot call upon the Court to scrutinize and verify the same materials which have been referred to by the Arbitrator, more so, when each of the claims have been scrutinized in detail by the Arbitrator and he has not awarded entire sum as claimed but made appropriate adjustments. Once reasons are assigned in support of the conclusion, then, it is not for this Court to consider adequacy or sufficiency thereof and interfere with the award. 5 Ms.Chandurkar submits that as far as the claim for liquidated damages is concerned, the same is within the scope of contract. The clause itself is clear that for the reasons attributable to the Petitioners if it fails to deliver on the dates as mentioned in clause-12 of the purchase order or any agreed written extension thereof, then, for each full week of delay, the Petitioners will have to bear liquidated damages. Ms.Chandurkar further submits that it is not as if the documents have been taken on record straightaway. After full opportunities to the parties to examine and cross-examine the witnesses, the documents have been relied upon. If the Petitioners desire to rely on any additional written statement or report even that aspect was clarified by the learned Arbitrator in the award and he has clarified that subject to proof of contents of the report, the Petitioners can rely upon the report of their *4* arbp.439.10.18 Chartered Engineer. In such circumstances, this Court should not countenance any challenge to the award and uphold the same and dismiss the petition. 6 With the assistance of the learned counsel appearing for the parties, I have perused the award to the extent it has been challenged. As far as the liquidated damages are concerned, I am in agreement with Ms.Chandurkar that clause enables the Respondents to make the claim for liquidated damages against the Petitioners on their failure to deliver on the dates mentioned in the clause or any agreed written extension thereof. In so far as this claim is concerned, the learned Arbitrator has held that in paragraph No.6 of the statement of claim the Respondents/Claimants have set out a schedule of delay and stated that there was delay in delivery of the equipments by 9 to 11 months. There was reliance placed on Bar Charts and the claim has been quantified in that behalf. It is not as if the Sole Arbitrator made no reference in relation to the hot commissioning. The Arbitrator was aware of the fact that the hot commissioning was actually done on 20.12.1995 and the site was ready at the end of 1994, therefore, the delay was from 01.09.1995 to 20.12.1995. The Claimant’s witness stated that full power was acquired by April, 1996. On scrutiny of the oral and documentary evidence the learned Arbitrator held that the site was ready at the end of 1994. He has, therefore, considered the claim of liquidated damages on account of delay only from 01.09.1995 to 20.12.1995. It is in such circumstances that I find that computation of damages which has been done by the Arbitrator on the basis of his reasonings cannot be said to be perverse. It is not as if the claim could not have been awarded at all. The claim could have been considered from the date of agreed commissioning, which the learned Arbitrator finds from the minutes of the meeting between the parties. In *5* arbp.439.10.18 such circumstances that I am unable to accept the contention of Mr.Zaiwala that the award to the extent it grants liquidated damages is perverse or beyond the terms of contract. 7 Equally, as far as the second claim for refund of the excess amount is concerned, that has been duly scrutinized by the Arbitrator in the backdrop of the oral and documentary evidence before him. He had before him the letters wherein figures were mentioned including the statements in that behalf. However, on the basis of the items that have been scrutinized by the Arbitrator, he has given adjustment of Rs. 7,50,000/-. Thus, out of the total claim of Rs.41,75,334.20, the Arbitrator allowed a sum of Rs.7,50,000/- by way of adjustment. As far as the contention that Rs.18 lacs referred in the Respondents’ letter itself and that should have been also deducted, is concerned, reliance on the reasonings of the Arbitrator is apposite. In paragraph Nos.41 and 42 of the award that claim is discussed and for the reasons set out therein including cross-examination of the witnesses examined by the Petitioners, that claim has been rejected. This is not a court of further appeal so as to sit in judgment over the factual conclusion of the Arbitrator. Once the claims are within the scope of the Arbitrator’s jurisdiction under the contract and they have been granted after affording full opportunity to lead oral and documentary evidence, then, it is not for this Court to substitute its opinion in place of that of the Arbitrator. Sufficiency or adequacy of the reasons is not a matter which should detain this Court. That apart I find that elaborate reasonings have been given for awarding the second claim as well. 8 Having dealt with two contentions of Mr.Zaiwala and finding no merit therein, there is no alternative but to uphold the award and dismiss the petition and it is, accordingly, dismissed. *6* arbp.439.10.18 9 Mr.Zaiwala, lastly submits that the reference made by the learned Arbitrator to the meeting wherein there is agreed extension date, is erroneous because there is only a suggestion therein and no date for completion has been agreed between the parties. To my mind, the learned Arbitrator has dealt with the matter by looking into oral and documentary evidence in its entirety. Therefore, I do not find that the conclusion of the Arbitrator is perverse or so unreasonable as would shock the conscience of this Court. 10 Arbitration Petition is, accordingly, dismissed. No costs. (S.C. Dharmadhikari, J)