1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 114 OF 1999 IN ARBITRATION PETITION NO. 251 OF 1995 IN AWARD NO. 120 OF 1995 Oil and Natural Gas Commission now ] called “Oil and Natural Gas Corporation ] Ltd. ” a statutory corporation established ] under the Oil & Natural Gas Commission ] Act, 1959 and having its Principal Office ] at Tel Bhawan, Dehra Dun U.P. and its ] Head Office at Dehra Dun (India) ] and Bombay Branch Office at Express ] Towers 12th floor, Nariman Point, Bombay ] 400 021 which has now been shifted to ] 16th floor, Maker Towers, Cuffe Parade ] Bombay-400 005 ]..Appellant [Ori.Petitioners] Vs. Punjsons Pvt. Ltd. a company ] registered under the Companies Act, 1956, ] having its Registered Office at Punj House, ] M-13, Connaught place, New Delhi ] 110 001 and an office at 386, ] Veer Savarkar Marg, Bombay-400 036 ]..Respondents [Ori.Respondents] .... Shri. S.U.Kamdar Senior Counsel along with Ms.Snehal Paranjape and Aziz Khan i/b Divya Shah Associates for Appellant Shri. Mustafa S.Doctor along with Baptist D ’Souza and Shivani Paranjape i/b Malvi Ranchoddas and Co. for Respondent .... 2 CORAM : B.H.MARLAPALLE AND SMT.V.K.TAHILRAMANI, JJ. DATE : 9th FEBRUARY, 2010 ORAL JUDGMENT : [PER B.H.MARLAPALLE, J]: 1 This appeal filed under Section 39 of the Indian Arbitration Act, 1940 (the Act for short) arises from award No.120 of 1995 rendered by the Arbitral Tribunal and partly confirmed by the learned Single Judge in Arbitration Petition No.251 of 1995 under Section 33 of the Act. The appellant before us was the Petitioner before the learned Single Judge and it had challenged the award of the Tribunal in respect of only three claims i.e. (1) claim for wharfage, (2) claim for hooking charges and (3) claim for idle charges and by the impugned judgment dated 18th September, 1998 the award of the Arbitrators came to be set aside pertaining to the claims for wharfage and hooking charges, whereas the award of idle charges has been confirmed. The award in respect of the claim of idle charges as rendered by the Arbitrators is in two parts i.e. (a) for the period from 1st November, 1984 to 8th January, 1984 for an amount of Rs.21,00,000/- and (b) for the month of October, 1984 for Rs. 4,76,000/-. 3 2 The parties had entered into a contract agreement on 15th June, 1984 in respect of 14 wrapping and weight coating etc. of line pipes for south bassein Hazira Gas Lines Project and the respondent- claimants vide its letter dated 21st January, 1985 in respect of idle charges claimed the compensation as under: a) October 1984 - 31 days at the rate of 61,500/- per day totaling to Rs. 19,06,500-00 b) 1st November, 1984 to 8th January, 1985 - 40 days at the rate of 1,23,000/- per day.Rs. 50,14,812-50 Total amount Rs. 69,21,312-50 ----------------------- 3 It was submitted by Shri. Kamdar, the learned Senior Counsel for the appellant an undertaking of the Government of India, that the award was without jurisdiction, contrary to the terms of the agreement and the schedule of supplies was to be decided by the appellant under clause 12.2 of the agreement. The day of supplies was decided as 1st November, 1984 and therefore, there was no justification for granting any idle charges for any period in October either fully or partly. He also submitted that the award is not reasoned and the amount granted for the 4 month of October, is contrary to the findings recorded by the Arbitrators while dealing with the idle charges to be granted for the period from 1st November, 1984 onwards. By referring to the evidence recorded before the Arbitrators, it was also submitted that as against the total claim of Rs. 69,21,312-50 the claimants had submitted the bills of only 19,77,000/- and therefore, the award for idle charges could not have been in excess of the said amount. Thus as per the appellant, an excess amount of about 6,00,000/- has been awarded by the Arbitrators and the same is required to be modified, more so, when the said excess claim amount is not supported by the terms of the agreement or by the reasons set out by the Arbitrators in their award. 4 Shri. Doctor, the learned counsel appearing for the respondent-company invited our attention to the impugned judgment of the learned Single Judge and pointed out that when the challenge to the award was based only on limited grounds in this appeal, the scope of arguments cannot be expanded so as to challenge the award of the Arbitrators on any other grounds. Reliance in this regard has been placed on the Constitution Bench decision in the case of Daman Singh and others Vs. State of Punjab and others [(1985) 2 S.C.C. 670]. It was contended that when the Arbitrators have taken a holistic view on 5 the totality of the circumstances/evidence placed before them and the challenge before the learned Single Judge to the said award was only on a very limited ground, it would not be permissible for the appellant- corporation to open the challenge to the award on all fronts. Shri. Doctor submitted that the learned Single Judge has considered the scheme of clause 12.2 of the agreement and confirmed the award of Rs.25,76,000/- as against the claim of Rs.69,21,312-50/-. He placed reliance on the following observations made in the case of Arosan Enterprises Ltd. Vs. Union of India and another [(1999) 9 S.C.C. 449] in paragraph 36 which read as under: “Be it noted that by reason of a long catena of cases, it is now a well settled principle of law that reappraisal of evidence by the Court is not permissible and as a matter of fact exercise of power by the court to reappraise the evidence is unknown to proceedings under Section 30 of the Arbitration Act. In the event of there being no reasons in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, the interference would still be not available within the jurisdiction of the court unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. In the 6 event however two views are possible on a question of law as well, the court would not be justified in interfering with the award. ” 5 We have gone through the award of the Arbitrators as well as the impugned judgment and we have given our anxious considerations to the same. So far as the challenge to the first part of the award (idle charges) is concerned, the claimants had claimed at the rate of 1,23,000/- per day and the Arbitrators have granted at the rate of 1,00,000/- per day. The period from 1st November, 1984 to 8th January, 1985 would come to total of about 69 days as noted by the Arbitrators. The claimants could have completed delivery in 48 days but for the remaining 21 days, the respondents ’ lay contractor could not pick up the coated pipes and therefore, idle charges were granted for 21 days at the rate of 1,00,000/- per day. Shri. Kamdar did not dispute on this calculation except to point out that before the Arbitrators while recording evidence, the bills of only 19,97,000/- were placed against the total claim of Rs.69,21,000/-. We are not impressed by these arguments. Once it is admitted that the period of 21 days was due to the reasons attributable to the appellant-corporation and the idle charges were reduced from 1,23,000/- to 1,00,000/-, no fault can be found with the approximation 7 made by the Arbitrators and therefore, the first part of the award does not call for any interference in this appeal. 6 On the second part of the award i.e. for the month of October, 1984, it was submitted by Shri. Kamdar that as per the observations made by the Arbitrators on 17th October, 1984 only one train had reached the site and the second train was on the way to the yard and in any case, the delivery in such situation, could not have been started on 1st October, 1984 or any time prior to 1st November, 1984. When the delivery schedule was to be fixed by the corporation and was required to be followed by the contractor-respondents, it was not permissible to take any period prior to 1st November, 1984 into consideration for payment of idle charges. These arguments appear to be impressive but we have noted that the Arbitrators have set out justifiable reasons in restricting the claim to 25% of the total claim made at 50% i.e. Rs.19,06,000/-. The Arbitrators referred to the letter dated 27th August, 1984, the telex message of 1st September, 1984 as well as letter dated 15th September, 1984 which accumulatively indicated that the respondent was called upon to be ready for deliveries by 30th September, 1984. However, it is clear that the delivery was to start from 1st November, 1984 and despite this, on the totality of circumstances, the Arbitrators thought it fit to grant 8 idle charges at Rs.4,76,000/-. The total idle charges were claimed at Rs. 1,23,000/- per day but the claimants had claimed 50% i.e. at Rs. 61,500/- and the Arbitrators granted at Rs.15,375/-per day . This part of the award does not seem to have been challenged so specifically before the learned Single Judge. The only ground raised in the petition was that the award was without jurisdiction. The Constitution Bench in the case of Daman Singh (supra) observed as under: “ It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment 9 of the subordinate court was argued before that court or not ? ” 7 In the premise, we do not see any merit in the challenge raised to the view taken by the learned Single Judge in confirming the Arbitrators ’ award in respect of the payment of idle charges at Rs. 25,76,000/- and consequently, this appeal must fail. The same is hereby dismissed. 8 Parties to bear their own costs. [ SMT.V.K.TAHILRAMANI, J.] [ B.H.MARLAPALLE, J. ]