1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Ordinary Original Civil Jurisdiction Appeal Lodging No.419 of 2008 In Arbitration Petition No.437 of 2007 M/s. R.K. Mishra & Sons Appellant Vs. Union of India & ors. Respondents Ms.Shilpa Kapil for appellant. Mr.Suresh Kumar for respondent – Union of India. CORAM: B.H.MARLAPALLE & SMT.V.K.TAHILRAMANI,JJ. February 4, 2010. P.C. 1. Heard Miss Kapil, the learned counsel for the appellants. This appeal is directed against the order dated 24th June 2008 passed by the learned Single Judge in Arbitration Petition No. 437 of 2007. By the said order arbitration petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 came to be dismissed. 2. The appellants were awarded contract as per the agreement dated 20/12/2002 and the work of construction of trial embankment between Ch.770 to Ch.1000 and Ch.16500 to 2 Ch.16900 for Nerul-Belapur-Seawood-Uran Railway Project was awarded to the appellants. The scope of the work consisted of construction of trial embankment and as there was no physical work carried out the contract was terminated as per the letter dated 12/3/2003. This termination gave rise to the claim for arbitration before the Arbitral Tribunal as provided under the contract and the Railways raised a counter claim. The Arbitral Tribunal by its award dated 23rd July 2007 rejected the claim made by the appellants on all counts i.e. claim nos.1 to 11 but awarded the counter claim of the Railways for payment of risk and cost amount in the sum of Rs.4,87,385/-. Being aggrieved by the said award a petition under Section 34 of the Act was filed and it appears challenge to the award was raised on limited grounds. 3. It was submitted on behalf of the appellants that the findings recorded by the Tribunal that the contract was terminated by the Railways on account of breach of the tender terms was erroneous and perverse, counter claim made by the Railways was not maintainable, the letters dated 29th January 2003 and 5th February 2003 submitted by the appellants to the Railways were not considered and the decision of this Court in 3 the case of State of Maharashtra Vs. M/s. S.N. Chawhan [1985 (1) Bom.C.R. 579] was not considered by the Tribunal and the law laid down therein would vitiate the award. 4. So far as the breach of contract terms is concerned, the Railways submitted before the Tribunal that the claimants did not start work till 4th March 2003 i.e. after 2 and ½ months of issuance of LOA, seven days notice was issued on 5th March 2003 followed by 48 hours notice on 12th March 2003. The appellants had intimated vide their letter dated 19th March 2003 that they were not able to start the work without compensation for increase in rates of petrol diesel as well as royalty charges. The letters dated 29/1/2003 and 5/2/2003 were claimed to have been sent under UPC to the respondents and this could not be verified from the record. It is not known why such a mode of service was followed when the officers of the Railways were available on the site or there was even other mode of sending by registered post A.D. It was for these reasons the Tribunal held that the service of these letters could not be established. On the issue of allegations that the drawings were not given in time to the appellants and that was the reason that the work could not be started, the Tribunal 4 noted that the work being earth work in embankment it did not require formal issue of drawings and the available records of the embankment design by M/s. Oriental Consulting Engineers went to show the bottom width of bank as 60 m, top width as 12 m and side slope as 2.5:1. This could lead to the inference that the claimants were in the knowledge of things to be done and, therefore, the Tribunal held that the contract was terminated by following due procedure and there was no legal infirmity in termination of the contract by the respondents. On the face of these findings the learned Single Judge was right in holding that the reliance on the decision in the case of M/s.S.N. Chawhan (Supra) was of no consequence. 5. Coming to the issue of counter claim, the learned counsel relied before us, as was done before the learned Single Judge, on the decision of the Andhra Pradesh High Court (DB) in the case of K. Venkateswara Rao Vs. Sri T. Seshachalapathi & ors. [1998 (1) Arb. LR 540]. In that case the Railway Board’s letter dated 6/6/1990 clearly stated that the Railways could not seek arbitration without the consent of the claimant and the General Conditions of Contract did not provide any clause of reference of railway claims to arbitration. It has been pointed 5 out by Mr.Suresh Kumar, the learned counsel for the respondents that in February 1997 the General Conditions of Contract (GCC) came to be amended and raising of counter claim was provided for in these amended conditions. He also pointed out that in the instant case the contract was signed in December 2002 when the amended General Conditions of Contract occupied the field. 6. The learned Single Judge also observed that if the Arbitral Tribunal took a possible view, there could not be any case to interfere in the same in a petition filed under Section 34 of the Arbitration Act. Even in this appeal there is no other ground which has been argued so as to hold that the arbitral award suffered from any error in law or any perversity so as to hold that it was vitiated. 7. Hence this appeal must fail at the threshold and the same is hereby dismissed in limine. (SMT.V.K.TAHILRAMANI,J.) (B.H.MARLAPALLE,J.)