Madrasdated High Court · 2025

O.P. No.933 of 2019For Petitioner:Mr.K.V. Subramanian Senior Counsel for M/s.K.V. Subramanian AssociatesFor Respondents: Mr. M.K. KabirSenior Counselfor Mr.S. Karthikeyan ORDERThis petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996, challenging the impugned arbitral award dated 19.06.2017 passed by the arbitrator. 2. Before the arbitrator, the petitioner was the claimant and the respondent Nos.1 to 3 were the respondents. The petitioner was appointed as a contractor by the respondent Nos.1 to 3 in respect of a construction work. There arose disputes out of the said contract, which contains an arbitration clause. The petitioner initiated arbitration in accordance with the arbitration clause, against the respondent No.1 to 3. 3. This Court had appointed an arbitrator to adjudicate the dispute between the parties under Section 11 of the Arbitration and Conciliation Act, 1996. The arbitrator acted upon the reference and has awarded the 2/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019following:a) It was declared by the arbitrator that the respondents had not breached the terms of the agreement dated 28.02.2011 (Ex.C3);b) It was held that the Tamil Nadu Detailed Standard Specification - General Conditions of Contract (TNDSS) (Ex.R29) incorporated in the agreement in Ex.C3 is fully operational and binding on both parties;c) The petitioner is not entitled for any relief except to the extent of getting interest on the delayed payment covered by the 1st and part bill amounting to Rs.55.98 lakhs, which will carry an interest of 18% from the date it became payable (05.06.2011) till the date it was actually paid (30.11.2011). The full claim for refund of EMD and interest is negatived. But, the petitioner is entitled to get back the amount of Rs.1,32,949/- together with interest accrued on the EMD. If the 5th and part bill is not paid so far, then the petitioner is also entitled to get (as determined by the respondents in their M.Book) the amount paid together with interest at the rate of 18% p.a. from the date it became payable till the date of the payment;d) The counter claim made by the respondents was maintainable;e) The counter claim made by the respondents was disallowed on the ground that they have brazenly violated orders of the High Court and 3/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019granted the contract to a third party even while the order of interim injunction was in force;f) Parties were allowed to bear their own costs. 4. Aggrieved by the findings of the arbitrator in the impugned arbitral award, this petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996, challenging the impugned arbitral award, by the claimant in the arbitration. The respondent Nos.1 to 3 chose not to challenge the impugned award and therefore, the findings rendered by the Arbitrator against them has attained finality. 5. Before the arbitrator, the following claims were made by the petitioner against the respondent Nos.1 to 3:Sl. No.Work DetailsAmount Rs.Interest Rs.Total Amount Rs.1.FDR EMD Refund claim with interest9,97,9495,37,49715,35,4462.With held amount claim with interest6,20,7724,29,77510,50,5473.Delay in payment claim with interest3,37,4452,33,6215,71,0664.Piling and concrete work finished claim with interest18,06,95816,96,33235,03,2905.Pile loading test value with interest1,31,8801,23,8062,55,6866.Equipment idle charges paid claim with interest25,38,20017,57,25442,95,4544/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019Sl. No.Work DetailsAmount Rs.Interest Rs.Total Amount Rs.7.Material loss claim with interest10,47,5207,25,22217,72,7428.Labour idle charges paid claim with interest11,58,3008,01,91819,60,2189.Administration cost paid claim with interest9,09,0006,29,32215,38,32210.Price Escalation charges claim with interest11,10,2547,68,65418,78,90811.Company Revenue Compensation claim with interest25,00,00017,30,80742,30,807Total 1,31,58,27894,34,2082,25,92,4866. Before the arbitrator, the respondent Nos.1 to 3 had categorically disputed the claim made by the petitioner. They also made a counter claim against the petitioner. The arbitrator under the impugned arbitral award framed the issues viz., Issue Nos.1 to 6, based on the pleadings of the respective parties. As seen from the impugned arbitral award, each and every issue was considered at length by the arbitrator based on the evidence available on record. Before the arbitrator, both the parties to the dispute filed documents and they were marked as exhibits. The details of the exhibits marked on the side of the petitioner and the respondents, which have been considered by the arbitrator under the impugned arbitral award are detailed hereunder:a) List of documents filed by the petitioner (claimant):5/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 20196/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019b) List of documents filed by the respondents (respondents):7/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 20198/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 20199/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 20197. Oral evidence was also let in by both the parties before the arbitrator. The managing director of the petitioner Company was examined as CW1 on the side of the petitioner. On the side of the respondents, three witnesses were examined viz., RW1, RW2 and RW3. The arbitrator under the impugned arbitral award has considered each and every issue framed by him in detail and has also given due consideration to the documents marked as exhibits on the side of both the parties and also considered the deposition of the witnesses on both sides and only thereafter, came to the findings, which have been disclosed in paragraph No.3 of this order. 8. An indepth discussion and findings have been rendered by the arbitrator with regard to the issues framed by him. An in-depth analysis has also been made by him with regard to the documentary evidence placed on record as well as the deposition of witnesses while answering issue No.2 and issue Nos.1 and 3 in the arbitral award. 9. It is clear that only based on the evidence available on record, the conclusions have been arrived at by the arbitrator. This Court is not reiterating the discussions made by the arbitrator under the impugned 10/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019arbitral award for coming to the conclusion. The arbitral award speaks for itself and it can be seen that the arbitral award is a speaking award, which has been passed after considering all the contentions that have been raised by the petitioner before this Court once again in this petition filed under Section 34 of the Arbitration and Conciliation Act, 1996. The respondents have also not challenged the impugned arbitral award though their counter claim was rejected by the arbitrator under the impugned arbitral award. The learned arbitrator has also taken into consideration various Judgments rendered by the Constitutional Courts apart from giving proper consideration to the evidence available on record while rendering his findings with regard to the issues framed by him. 10. This Court while deciding an application under Section 34 of the Arbitration and Conciliation Act, 1996, is not an appellate Court. It cannot re-appreciate the evidence. When the arbitrator has passed the impugned arbitral award only based on the evidence available on record and the view taken by the arbitrator is a plausible view, the question of interference by this Court under Section 34 of the Arbitration and Conciliation Act, 1996 does not arise. 11/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 201911. The petitioner has raised the following grounds before this Court:a) The site was handed over belatedly - Section 51 of Contract Act was not complied with;b) 7 Months delay for releasing the funds to the contractor to proceed with the work - Section 51, 54 and 55 of the Contract Act were not complied with;c) Genuine hurdles were not considered despite a provision in the agreement - Section 67 of Contract Act not complied;d) Time is not the essence of the Contract - Reference - Clause 4(A) of the agreement in page No.9 of Vol-I - Violative of Clause 56 of Tamil Nadu detailed Standard Specification - General Condition of Contract;e) Termination is illegal and therefore, Null and Void - violative of Clause 57 of Tamil Nadu detailed standard specification - General condition of contract;f) Impossibility of performance of the contract. 12. All the contentions as stated supra, were also raised by the petitioner before the arbitrator and the same has also been considered during 12/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019the in-depth analysis made by the arbitrator as seen from the impugned arbitral award. Therefore, the question of re-appreciating the evidence once again is not permissible under Section 34 of the Arbitration and Conciliation Act, 1996. Unless and until, without any evidence, the arbitrator had passed the impugned arbitral award, this Court cannot interfere under Section 34 of the Arbitration and Conciliation Act, 1996. As observed earlier, the view taken by the arbitrator is a plausible view and it cannot also be inferred that it is an unintelligible view. Therefore, this Court cannot interfere under Section 34 of the Arbitration and Conciliation Act, 1996. 13. For the foregoing reasons, this Court does not find any merit in this petition. Accordingly, this petition is dismissed. No Costs. Since certain amounts were directed to be paid by the respondent Nos.1 to 3 to the petitioner under the impugned arbitral award, the learned senior counsel appearing for the respondent Nos.1 to 3 would fairly submit that he will advice the respondent Nos.1 to 3 to make the said payments to the petitioner at the earliest. This Court after giving due consideration for the long delay, directs the respondent Nos.1 to 3 to pay the petitioner the amount payable to the petitioner as per the impugned arbitral award within a period of six 13/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019weeks from the date of receipt of a copy of this order.24.03.2025Index: Yes/NoSpeaking Order : Yes / NoNeutral Citation Case: Yes / Noab14/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019To1.The Principal Commissioner of Customs (General),Custom House, No.60, Rajaji Salai,Chennai - 600 001.2. The Inquiry Officer / Assistance Commissioner of Customs,R & I Section (Airport), New Custom House, Meenambakkam, Chennai - 600 027. 15/16 https://www.mhc.tn.gov.in/judis O.P. No.933 of 2019 ABDUL QUDDHOSE. J., abO.P. No.933 of 201924.03.202516/16