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Judgment
A.S. Naidu, J.—This appeal u/s 39 of the Arbitration Act, 1842 has been filed by Hindusthan Aeronautics Limited, a Government of India Enterprise assailing the judgment dated 26.8.2000 passed by Learned Civil Judge (Senior Division), Koraput in O.S. No. 27 of 2000.
The scenario of facts reveal that the Appellant-company after following all paraphernalin selected & awarded execution of work, i.e., "Internal Power Distribution, Lighting of Block 58 & 6B, Electrification of Stores Block & re-sitting of machineries in Block No. 5" to the Respondent-firm. An agreement was entered into between the Appellant-company & the Respondent-firm on 4.8.1986 stipulating different terms & providing other specifications with regard to the execution of the said work. After execution of the agreement, the Respondent-firm commenced its work as per the terms. During such execution, inter-se disputes cropped up between the Appellant & the Respondent, consequently in consonance with the terms of the agreement, which stipulated that any dispute arising out of or relating to the work in question, shall be decided by the arbitrator, the Respondent issued a letter stating that he intends to invoke the arbitration clause for deciding the inter-se disputes. Consequently, Sri Ashok Kumar Rath, Chief Engineer of M/s. National Aluminium Company, Damonjodi was appointed as the sole arbitrator & the dispute was referred to him for adjudication. Both parties appeared before the Arbitrator & put-forth their claim. The arbitrator after hearing the parties, passed the award. For the sake of brevity the operative portion of the award is quoted here-in-below for better understanding:
Final bill payment shown by the Respondent: Rs. 2,03,590.20
(+) the deviation amount due to discrepancy in measurement calculated (list attached & sent with 14.7.95 minutes) calculation was made after receiving the copy of measurement book: Rs. 30,635.60
(+) Refund of E.M.D.: Rs. 5,000.00
Rs. 2,39,225.80
(-) The final payment made by cheque to Sri B.N. Das the proprietor of M/s. Das Electric Trading Co. Rs. 1,00,000.00
M/s. Das Electric Trading Co. is due to get from M/s. H.A.L. from this work executed under work order No. MNE/C-1/86/697 dated. 5.4.86 (Inclusive of supply cost for 196.5 mtrs. Of Trunking fixed in stores block (claimed by claimant).: Rs. 1,39,068.60
Payment of interest:
i. M/s. H.A.L. has to pay the interest at 12% instead of 18% as claimed by the claimant.
a. For Rs. 39,500.00 (from 3.9.86 to 14.7.95): Rs. 42,012.85
b. For Rs. 54,447.00 (from 17.10.86 to 4.7.95): Rs. 57,168.96
c. For Rs. 1,09,380.00 (from 1.1.88 to 4.1.90): Rs. 20,969.80
Total: Rs. 1,22,151.61
ii. M/s. H.A.L. has to pay to claimant towards damage at 10% on the work order amount of the other contractor named M/s. p. K. Sahoo & associates, who carried out the balance work after cancellation of the disputed work (H.A.L. exhibit. ANN-Mil) on value Rs. 2,56,611.50 instead of Rs. 48,000 as claimed by the claimant. Damage payable to the claimant by M/s. H.A.L. on Rs. 2,56,611.50 .... at the rate of 10%= Rs. 25,661.00
iii. M/s. H.A.L. has to pay to claimant towards contract work sale tax as sum of = Rs. 7,566.00
iv. M/s. H.A.L. has to pay back to the claimant the sum of rupees deducted by H.A.L. from the final bill of claimant towards the extra cost (as stated by H.A.L.) incurred by them amounting: Rs. 12,500.00
v. The counter Claims of M/s. H.A.L. to realize from claimant a sum of Rs. 12,500 towards extra cost incurred by them & a sum of Rs. 4,000 towards the damage is disallowed & rejected, as it merits no consideration. M/s. H.A.L. is directed to make payment to the claimant M/s. Das Electric Trading Co. within 30 days from the date of receipt of this order.
vi. M/s. H.A.L. has agreed vide its letter No. KPT/NEE/c-1/88/1814 dtd. 30.9.88 & letter No. NEEB/C-1/89/2464 dtd. 31.1.89 (refer claimants exhibit No. 54 & 56) that 120 mtrs. of Trunking was brought to site (by claimant) later (but before cancellation of disputed work order) for which that quantity of Trunking could not be entered in Measurement book & no bill is paid by M/s. H.A.L. for this quantity of trunking. I advise that either 120 mtrs. of Trunking should be returned by M/s. H.A.L. to the contractor (claimant) or payment in place.
vii. Required fees are to be paid by both the parties equally.
In the year 1995 the arbitrator filed the award before Learned Civil Judge (Senior Division), Koraput for making it a "rule of the Court" & O.S. No. 53 of 1995 was registered. The said case was subsequently re-numbered as O.S. No. 27 of 2000 after transfer to the Court of Civil Judge (Senior Division), Koraput. The Appellant filed objection Under Sections 30 & 33 of the Arbitration Act to the aforesaid award on several grounds. Similarly, the Respondent also filed a petition claiming pendentilite & future interest & cost. The petition filed by the Respondent was registered as, M.J.C. No. 53 of 1995. Unfortunately the said M.J.C. was dismissed for default. The petition for restoration filed by the Respondent was also dismissed. Assailing the said order of dismissal of M.J.C., & rejection of the restoration petition the Respondent filed a civil revision before this Court, which was registered as C.R. No. 381 of 2001. On 26.8.2000 Learned Civil Judge (Senior Division), Koraput after hearing Learned Counsel for the parties & going through the award & other materials was satisfied that there was no apparent error & confirmed the award, but then modified the same to the extent that the Respondent would not be entitled to pendentilite interest, interest of sales tax & damages of 10%.
The said judgment is assailed by the Appellant in this appeal. The Respondent, on the other hand, filed M.A. No. 813 of 2000 assailing the judgment passed by Learned Civil Judge (Senior Division) modifying the award & holding that the Respondent would not be entitled to pendentilite interest, return of sales tax & damages.
M.A. No. 813 of 2000 & Civil Revision No. 381 of 2001 filed by the Respondent were listed before the then Hon''ble Chief Justice while His Lordship was sitting in single. After analyzing the facts & circumstances, the appeal & Civil Revision were dismissed by a reasoned order on 8.12.2002. The Respondent has filed Review Petition Nos. 113 of 2003, & 114 of 2003, inter alia praying to review the Order Dated 8.11.2002. All the aforesaid 3 cases, i.e., two review petitions & M.A. are taken up together for hearing.
The Appellant-company assails the order passed by Learned Civil Judge (Senior Division) making the award rule of the Court, mainly on the ground that the Respondent has no locus standi to initiate a proceeding for arbitration & as such, the award passed by the Arbitrator as well as the order passed by Learned Civil Judge (Senior Division) making the same as rule of the Court was not correct. It is further averred that the dispute raised do not come within the scope, effect & ambit of the arbitration clause & as such, the proceeding itself was not maintainable. The Respondent on the other hand, submitted that agreement was executed by the Respondent & work was executed by him with the knowledge of the Appellant-company & he has locus standi to raise the dispute. That apart, it is stated that the question of locus standi has no relevance in the present facts & circumstances of the case as the said point was not raised by the authorities at any time.
Heard Learned Counsel for the parties at length. Perused the judgment as well as the award. From the facts, it appears that in January, 1990 the Appellant made the first & final payment after several correspondences, which was 50 % of the approximate total amount. Payment was made in favour of the Respondent. On 16.7.1991 the Respondent served a pleader''s notice raising dispute of less payment & prayed that in consonance with the arbitration clause, the said dispute be referred for arbitration. On 26.7.1991 the Senior Manager (Maintenance) of the Appellant-company acted upon the letter & wrote to the General Manager to appoint an arbitrator on 30.7.1991. The General Manager appointed Sri Ashok Kumar Rath, Chief Engineer of M/s. National Aluminium Company, Damonjodi as the sole arbitrator. Before the arbitrator also the Appellant raised a question with regard to the locus standi of Sri B.N. Das mainly on the ground that the work was awarded & executed by M/s. Das Electric Trading Company, which is a partnership firm & as such, Sri B.N. Das has no locus standi to raise the dispute and/or prosecute the same. The said submission was stoutly denied by the Respondent on the contention that Sri B.N. Das was all along representing the Respondent-firm, M/s. Das Electric Trading Company & all negotiations & correspondences were made by him & as such raising the dispute with regard to locus standi of Mr. Das is an afterthought. The arbitrator as would be evident from the award, has considered the said aspect & has come to the conclusion that Sri B.N. Das is in fact the real owner, who has submitted the tender, signed the agreement & executed the disputed work & as such, he is entitled to receive full payment. That apart, before the Learned Civil Judge (Senior Division), the award was assailed by the Appellant-company only on the following three grounds; (i) the award is backed by any evidence or supporting material & as such, liable to be set aside; (ii) Learned Arbitrator misconducted the proceeding having gone beyond the scope of reference, not correctly recorded the minutes of the proceeding, omitted to provide reasonable opportunity to the Defendant to adduce evidence & was biased in his conduct & (iii) the arbitrator has no jurisdiction to award & pass pendentilite interest.
To substantiate its case, the Respondent, who was the Plaintiff before the Learned Civil Judge (Senior Division) got examined Sri B.N. Das as a witness. On behalf of the Appellant-company, two witnesses were examined. Several documents were also exhibited on behalf of the Appellant & Respondent respectively. After vivid discussion of the evidence & the materials available on record, Learned Civil Judge (Senior Division) came to the conclusion that the arbitrator has taken note of all the facts & did not commit any error apparent on the face of the record. By a well discussed order, Learned Civil Judge (Senior Division) accepted the award dated 25th September, 1995 & made the same as rule of the Court.
The scenario of facts further reveal that Misc. Appeal No. 813 of 2000 was filed by the Respondent before this Court assailing the award rejecting a portion of the claim of the Respondent. The said appeal was heard along with Civil Revision No. 381 of 2000. By Order Dated 8.11.2002, this Court had the occasion to go through the award meticulously & was satisfied that no ground had been made out for interference with the award in the appeal. It is seen that the claim of the Respondent had been duly considered by the arbitrator so also the objections raised by the Respondent. The arbitrator has considered the relevant questions in the light of the objections raised by the Appellant. This Court also finds no palpable error committed by the arbitrator and/or Civil Judge (Senior Division) justifying interference by this Court in the appeal. Therefore, this Court finds no reason to disagree with the decision of this Court in M.A. No. 813 of 2000.
So far as the two review petitions are concerned, it appears that by Order Dated 8.11.2002, the then Hon''ble Chief Justice by a well discussed order disposed of the appeal as well as the Civil Revision. The said order does not suffer from the vice of any typographical or factual errors. Section 114 read with Order 47, Rule 1, Code of Civil Procedure. stipulates the scope of interference in a review petition. On going through the order also, this Court does not find any mistake on the face of the record. The Petitioner in the review petitions has also failed to satisfy that the order passed suffers from any error apparent on the face of the record & that he had discovered any new & important matter or evidence, which cannot be discovered with due diligence or it was not within his knowledge & could not be produced at the initial stage. Review of an order is permissible only when the Court is satisfied that there is error of procedure apparent from the records, i.e., the judgment was delivered without notice to the parties or the judgment does not effectively deal with or determine any important issue in the case though argued by the parties. "Sufficient reason" means & connotes disposal of a case without affording proper opportunity. In the case of S. Nagaraj and Others Vs. State of Karnataka and Another, , the Supreme Court held as follows:
Review literally & even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law, the Courts & even the Statutes lean strongly in favour of finality of decision legally & properly made. Exceptions both statutorily & judicially have been carved out to correct accidental mistakes or miscarriage of justice... The expression, for any other sufficient reason in the clause has been given an expanded meaning & a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power.
It is well settled that the purpose of review is rectification of an order, which stems from the fundamental principle that the justice is above all & it is exercised only to correct the error, which had occurred by the some accident, without any blame.
Perusal of the Order Dated 8.11.2002 passed in Misc. Appeal No. 813 of 2000 & C.R. No. 381 of 2001 do not satisfy any of such criteria. The order is very clear & all facts & issues were dealt with. After going through the orders passed, this Court is satisfied that the same does not satisfy any of the ingredients required to review the order. Consequently, both the review petitions stand dismissed.
Mr. Murty, Learned Sr. Advocate appearing for the Appellant tried his best to convince this Court that Mr. B.N. Das has no locus standi to pursue the litigation, but then in view of the materials available & past conduct of the parties before the dispute arose, this Court remains unconvinced. The arbitrator has rightly arrived at a conclusion that Sri Das had locus standi to raise the dispute. Mr. Murty also tried to assail the award on the ground that enough opportunity was not granted to the Appellant. Perusal of the award as well as the order-sheet reveals that such contentions cannot be accepted on its face value inasmuch, the order-sheet reveals that the Appellant, who was the Defendant before the Learned Civil Judge (Senior Division) did not act with promptitude. That apart, law is well settled that the jurisdiction of the Court to interfere with the award of an arbitrator is very limited. The adjudication of the arbitrator is generally binding between the parties & it is not open to the Court to attempt to prove the mental process by which the arbitrator has reached his conclusion. Award of an arbitrator can be set aside by a Court only on the grounds indicated in the Arbitration Act. It is not open to the Court to reassess the evidence to find whether arbitrator has committed any error or to decide the question of adequacy of evidence, nor the Court cannot sit on the conclusion of the arbitrator by reexamining & re-appreciating the evidence considered by the arbitrator.
The award of an arbitrator cannot be set aside unless there is an error of law apparent on the face of the records. The award is ordinarily final & conclusive, unless a contrary intention is disclosed in the agreement. The award is the decision of a domestic tribunal chosen by the parties & the Civil Courts which are entrusted with the power to facilitate arbitration & to effectuate the awards, cannot exercise Appellate powers over the decision. Wrong, or right, the decision is binding, if it be reached fairly after giving adequate opportunity to the parties 10 place their evidence in the manner provided by the arbitration agreement.
Accordingly, M.A. No. 792 of 2000 stands dismissed.