At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE VALMIKI J. MEHTA
For the Appellant: Siddharth Joshi, Advocate. For the Respondent: ------------.
Valmiki J. Mehta, J (Oral)
C.M. No.4664/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. No.4667/2014 (condonation of delay in re-filing)
2. For the reasons stated in the application, delay of 57 days in re-filing the appeal is condoned.
C.M. stands disposed of.
+ FAO No.74/2014 and C.M. Nos.4665/2014 (stay) and 4666/2014 (filing of additional documents)
3. This first appeal is filed under Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) against the impugned order of the court below dated 7.9.2013 by which objections filed by the appellant under Section 34 of the Act were dismissed.
4. The respondent herein i.e Indian Railways Catering and Tourism Corporation Ltd was the claimant in the arbitration proceedings. The claim as filed by the respondent in the arbitration proceedings was essentially a claim for balance due on account of stocks of 'Rail Neer' supplied by the appellant to the respondent. The basic claim of the respondent was stated in para 14 of the claim petition and which was that 'Rail Neer' sold for the year 2007-08 was of the amount of Rs.50,41,825/- but amount received was only Rs.38,66,440/- and therefore the balance amount of Rs.11,75,385/- was said to be due and payable and for which the main claim petition was filed.
5. The appellant herein appeared in the arbitration proceedings and contested the claim. The appellant also filed the counter claim. However, when we refer to the written statement filed by the appellant, the specific figures of amounts due to the respondent/claimant was of Rs.11,75,385/- on account of the figure of sales made and payments made have not been disputed. In para 14 of the written statement only adjustments have been prayed for against the respondent/claimant, and therefore surely onus was upon the appellant herein to make good its case. Both the arbitrator and the court below noticed the aspects which were the contentions of both the parties and have held that the claim of the respondent/claimant of Rs.11,75,385/- being the balance due on account of sale of stocks was due.
6. Before proceeding further, it is relevant to note that scope of hearing objections under Section 34 of the Act is limited. The aspects of appreciation of evidence and conclusions to be derived at from the record falls in the realm/jurisdiction of the Arbitrator and the court hearing objections under Section 34, and much less the appellate court hearing the appeal against an order dismissing the objections, cannot interfere unless the findings are against the law (Section 28(1)(a) of the Act) of the land or against the contractual provisions(Section 28(3) of the Act) or are totally perverse. When on the basis of evidence on record, a particular finding is arrived at and two views are possible of the situation, the Award cannot be said to be illegal or violative of the contract or perverse and nor can the order which dismisses the objections under Section 34 against the Award be said to be illegal.
7. A reference to the objections filed shows that essentially what was contended on behalf of the appellant was that the arbitrator has misread the evidence for arriving at the conclusion for passing of the Award, and the claim petition of the respondent should not have been allowed. These types of objections do not fall in the scope of Section 34 of the Act.
8. Also, though counsel for the appellant argues before me that appellant wanted to lead evidence with respect to its defence/counter claims, however when a query was put to show as to whether such a prayer was made before the arbitrator or even in the objections filed under Section 34, nothing to this effect could be pointed out to this Court. In fact, as already stated above, objections filed by the appellant under Section 34 show that the conclusions of the arbitrator drawn from the evidence on record were/are being challenged.
9. The onus to prove the a
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djustments claimed by the appellant was upon the appellant and the appellant failed to do so by leading of necessary evidence and therefore there is no illegality or perversity in the action of the arbitrator in awarding the amount claimed by the respondent herein being the balance due on the sale of stocks. 10. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.