THE HONOURABLE Ms. JUSTICE P.T. ASHA O.P.No.252 of 2014 M/s.J.K. Fenner (India) Limited,—challenging the Award of the Arbitral Tribunal –partly allowed–For petitioner : Mr. Murari, Senior Counsel for M/s. Preeti Mohan For Respondents : Mr.T.R. Rajagopalan, Senior Counsel for Mr.N.Nithianandam for R1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.02.2020
PRONOUNCED ON : 20.05.2020
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
O.P.No.252 of 2014
M/s.J.K. Fenner (India) Limited,
Formerly known as Fenner (India) Limited
Having its Corporate Office at
5th Floor, Khivraj Complex-11,
No.480, Anna Salai, Nandanam,
Chennai – 600 035.
represented by Mr.R. Krishnan
Vice President (F & A) … Petitioner/Claimant
-Vs.-
1.M/s.Neyveli Lignite Corporation,
Neyveli House,
135, Periyar EVK High Road,
Kilpauk,
Chennai – 600 010. … 1st respondent/
1st respondent
2.Hon’ble Mr. Justice S. Ranganathan (Retd.,)
Presiding Arbitrator,
1/56
[5/25, 13:00] Sekarreporter 1: O.P.No.252 of 2014
For petitioner : Mr. Murari,
Senior Counsel
for M/s. Preeti Mohan
For Respondents : Mr.T.R. Rajagopalan,
Senior Counsel
for Mr.N.Nithianandam
for R1
ORDER
The claimant is the petitioner in the above petition filed under Section
34 of the Arbitration and Conciliation Act, 1996, hereinafter called the Act,
challenging the Award of the Arbitral Tribunal dated 05.10.2013 and the
modified Award dated 05.01.2014. For ease of reference the parties are
referred to in the same ranking as before the Arbitral Tribunal. Although the
claimant had made claims under 10 headings, the Arbitral Tribunal has
partially allowed 4 claims and with reference to one claim made under two
heads, the Tribunal has allowed the claim only with reference to one head
and rejected the claim under the other head. The remaining 5 claims have
been rejected in toto. Further the Tribunal has allowed the Counter claim
under all heads barring one.
3/56
[5/25, 13:01] Sekarreporter 1: O.P.No.252 of 2014
patent illegality without reversing the same award.
26.A Division Bench of this Court in Judgment reported in 2019 (5)
L.W. 409 [ISG Novasoft Technologies Limited v. Gayathri Balusamy]
held as follows:
“A reasonable interpretation to Section 34 would only
lead to an irresistible conclusion that the Court can modify
or vary the Award of the Arbitrator if it is contrary to the
material evidence adduced by the parties.”
In the instant case the learned Arbitrators had after elaborately
considering the evidence upheld the right of the claimant to refund of the
retention money and the only ground on which the learned Arbitrators have
denied interest is on the ground that the amount became payable only by
virtue of the award which is per se erroneous. Taking into consideration the
judgments of the Hon’ble Supreme Court in G.C. Roy, N.C. Budharaj,
Indian Hume Pipe Co. Limited and Hyder Consulting (UK) Limited as
also the division bench judgement of this Court in ISG Nova soft-
Technologies Limited and applying the principles thereon to the case of
53/56
[5/25, 13:01] Sekarreporter 1: O.P.No.252 of 2014
hand I am of the view that the claimant is entitled to interest @ 9 % p.a from
01.03.2004 ( the date on which the respondent had taken over the LHS till
the date of award and from the date of award till date of payment at 18 %
p.a. as held by the Hon’ble Supreme Court in Hyder Consulting (UK)
Limited at paragraph 61, particularly in the light of the learned Arbitrators
after examining the evidence on record coming to the conclusion that the
retention was wrong. Therefore, this Court is not called upon to once again
appreciate the evidence.
28.In fine, the Original Petition is partly allowed with regards to
Claim I, the Award denying interest is set aside and the respondent is
directed to pay interest on the retention money awarded @9% per annum
from 01.03.2004 till date of award and thereafter, @18% per annum till date
of payment of the retention money. In all other respects, the Award of the
Arbitral Tribunal stands confirmed.
20.05.2020
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
mps/mrn
54/56
![Sekarreporter1: https://twitter.com/sekarreporter1/status/1340528768826294273?s=08 [12/20, 10:57] Sekarreporter1: [12/20, 10:39] Adhilashmi Logomoorthy: Legal Eagle Elites is inviting you to a scheduled Zoom meeting. Topic: The Transfer Of Property Act, 1882 ( Part – 5 )](https://www.sekarreporter.com/wp-content/themes/hueman/assets/front/img/thumb-medium-empty.png)
