| Headnote |
Arbitration and Conciliation Act, 1996: International commercial arbitration – The present case is that of an international commercial arbitration, the Majority Award being delivered in New Delhi on 12.05.2014 – Case was argued on the basis of the law as it stood before the Arbitration and Conciliation (Amendment) Act, 2015 which added two explanations to s.34(1) and sub-section (2A) to s.34 of the Arbitration Act, in which it was made clear that the ground of “patent illegality appearing on the face of the award” is not a ground which could be taken to challenge an international commercial award made in India after 23.10.2015, when the Amendment was brought into force – Given the parameters of judicial review laid down in Associate Builders, neither the ground of fundamental policy of Indian law, nor the ground of patent illegality, have been made out in the facts of this case, given the fact that the Majority Award is certainly a possible view based on the oral and documentary evidence led in the case, which cannot be characterized as being either perverse or being based on no evidence – Majority Award, after reading the entire correspondence between the parties and examining the oral evidence, has come to a possible view, both on the Respondent being in breach, and on the quantum of damages – Majority Award is certainly a possible view of the case, and thus, cannot in any manner, be characterised as perverse.Evidence Act, 1872: s.92, proviso (6) and illustration (f); s.94 and s.95 – Interpretation of documents exchanged between the parties in the performance of a contract – Reading together proviso (6) and illustration (f) to s.92, s.94 and s.95 of the Evidence Act show that when there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to “existifacts”, which include how particular words are used in a particular sense, given the entirety of correspondence between the parties – Thus, after the application of proviso (6) to s.92 of the Evidence Act, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts – If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the said words meaningful in the context of the entirety of the correspondence between the parties – In the instant case, the three critical emails have to be read in the surrounding circumstances of the entirety of the LTA and the correspondence which ensued between the parties – Once that exercise is undertaken, as was undertaken by the Majority Award, it was not possible to hold that the Majority Award was not a possible view on the facts of this case – The reliance of the Majority Award upon the correspondence between the parties buttressed by evidence on behalf of appellant, was not therefore flawedEvidence Act, 1872: ss.92, 94, 95 – A “patent ambiguity” provision, as contained in s.94 of the Evidence Act, is only applicable when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense – Given that, in the facts of the present case, there was no mention of the price at which coal was to be supplied in the three “crucial” emails, these emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called “admissions” in the emails apply to existing facts – Once this is done, it is clear that there is no scope for the further application of the “patent ambiguity” principle contained in s.94 of the Evidence Act, to the facts of the present case – However, s.95 of the Evidence Act, dealing with latent ambiguity, when read with proviso (6) and illustration (f) to s.92 of the Evidence Act, could apply to the facts of the present case, as when the plain language of a document is otherwise unmeaning in reference to how particular words are used in a particular sense, given the entirety of the correspondence, evidence may be led to show the peculiar sense of such language – Thus, if this provision is applied, the Majority Award cannot be faulted as it has accepted the evidence given by Mr. Wilcox, wherein he explained that the three emails would only be meaningful if they were taken to refer to “mixed” supplies of coal, and not supplies of coal at the contractual price. Law of evidence – Latent ambiguity and patent ambiguity – Distinction between. |
