1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO. 250 OF 2007 (Dr. Mrs. Malti Abhay Gajbhiye vs. Bharat Sanchar Nigam Limited) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 03, 2009. Heard Shri Kothari, learned counsel for the appellant and Shri Mehadia, learned counsel for the respondent. Both learned counsel have pointed out that as per orders of this court dated 2.4.2007, the matter is to be disposed of finally at the stage of admission itself. Accordingly, I have heard the counsel sufficiently. The appeal is under Section 37(i)(b) of Arbitration and Conciliation Act, 1996, (hereinafter referred to as the Act) challenging the judgment of the Principal District Judge, delivered on an application under Section 34 of the Act. The District Judge has by said judgment/ award found that award of Arbitrator dated 30.6.2005 was unsustainable. The main ground of challenge raised by Shri Kothari, learned counsel is about limited 2 jurisdiction available to the Principal District Judge in the matter. He contends that the entire evidence appreciated by the Arbitrator has been reappriciated by the Principal District Judge and the approach has been perverse. He points out that the terms and conditions have been sought to be interpreted by the Principal District Judge, which was beyond the scope of powers under Section 34 of the Act. The question at the root of the controversy is whether the performance guarantee was to be furnished within 14 days of the date on which letter of intent was issued to present appellant i.e. on 30.10.2002. It is not in dispute that all bidders were called at Mumbai and some negotiations were held and during those negotiations the offer of present appellant was accepted and a letter of intent was also accordingly issued. Shri Kothari, learned counsel relies upon the tender document to urge that the performance guarantee was to be furnished within 14 days from 10.10.2002. Shri Mehadia, learned counsel on the other hand relies upon the acceptance of present appellant and all other bidders who were present on 30.10.2002 to furnish the performance guarantee on 9.11.2002. During arguments, Shri Kothari, learned counsel has also invited my attention to the fact that 3 during four days between these two dates, banks were closed on account of Diwali holidays. The claim statement filed by the appellant before the Arbitrator shows that on 30.10.2002, the claimant/ appellant accepted to furnish the performance guarantee by 9.11.2002. The grievance in claim statement is that said acceptance was obtained by playing some mischief and by misrepresentation. The perusal of the impugned judgment by the Principal District Judge shows that after 30.10.2002 and prior to 9.11.2002, there is one communication dated 6.11.2002 sent by the present appellant to respondent and in said communication, there is no grievance made about any such misrepresentation or mischief. On the contrary, said communication shows some other grievance and it concludes by observing that the respondent should consider the grievance and revise their offer letter for Nagpur and Amravati District so that the amicable agreement could be reached between the parties. The appellant has further stated that if this was not possible, she would be left with no option but to approach the Court of law. The perusal of this communication, therefore, clearly shows that the appellant had backed out of whatever had transpired on 4 30.10.2002 and she wanted revised offer letter from present respondent. She also unequivocally stated that if such revised letter is not issued, she would be constrained to approach the Court of law. The plea of mischief or misrepresentation needs to be viewed in this background. If at all the appellant wanted to perform her part by supplying performance guarantee by 14.11.2002, she could have made request accordingly in her letter dated 6.11.2002. She could have also pointed out that as four days were holidays for Bank, she wanted more time for performance guarantee. However, text of letter shows that she has some grievance about the procedure followed by BSNL in the meanwhile as according to her, that procedure and working of BSNL has prejudicially affected her market in Nagpur and Amravati district. The communication issued by the Bank of Maharashtra dated 7.11.2002 to the appellant was produced before the Arbitrator to show that the appellant was ready and willing to furnish Bank guarantee. Needless to mention that the communication only shows that some steps were taken by the appellant for furnishing bank guarantee but then the bank guarantee was not ready and the appellant was required to go to Bank of Maharashtra 5 for completing the formalities. Again, it is not clear whether she had been to Bank before 9.11.2002 to complete those formalities or then even after 9.11.2002 to complete the same. It is not her case that because of bank holidays or short time given on 30.10.2002, it was not possible for her to obtain bank guarantee by 9.11.2002 or by 14.11.2002. The contention that efforts were being made to submit bank guarantee within 14 days appears to have been raised later on i.e. while filing the claim statement before the Arbitrator. The contention of Shri Kothari, learned counsel that because of written terms and conditions of tender documents between the parties, even DGM of BSNL could not have reduced time of 14 days to 9 days is of no consequence because of acceptance of present appellant to furnish bank guarantee within 9 days and because she was prepared to furnish performance guarantee within 14 days. The perusal of letter dated 6.11.2002 clearly shows that she had backed out of the contract which was reached on 30.10.2002. The Principal District Judge has correctly appreciated the communication dated 6.11.2002 and also the letter of Bank dated 7.11.2002. In limited jurisdiction available to the Court under Section 37 of the Act. I 6 do not find any ground made out warranting any interference. First Appeal is, therefore, dismissed. No order as to costs. JUDGE *GS.