| Headnote |
Issue for consideration: The issue is wi th respect to theinterpretation of a contract condition, which required the measurementof quantities used for payment for embankment construction with soil orwith pond; and the relevance of the dissenting opinion of the arbitrators.Arbitration and Conciliation Act, 1996 – ss. 34, 37 – Arbitralaward – Scope of intereference u/ss. 34 and 37 – On facts, threetechnical member arbitration passed an award which was unanimouson most questions while, on others, there was a dissenting view –Single Judge of the High Court held that the tribunal’s majorityopinion refl ected a plausible and reasonable view, however, theDivision Bench holding that the tribunal’s majority opinion, andaward, were based on an implausible interpretation of the contract,set aside the award – Correctness:Held: Awards which contain reasons, especially when they interpretcontractual terms, ought not to be interfered with, lightly – Prevailingview about the standard of scrutiny- not judicial review, of an award, bypersons of the disputants’ choice being that of their decisions to standandnot interfered with, save a small area where it is established that sucha view is premised on patent illegality or their interpretation of the factsor terms, perverse, as to qualify for interference – Judges tend to adopt acorrective lens; usually, commended for appellate review, however, it isunavailable when exercising jurisdiction u/s. 34 – Courts cannot, throughprocess of primary contract interpretation, thus, create pathways to the kind of review which is forbidden u/s. 34 – So viewed, the DivisionBench’s approach, of appellate review, u/s. 37, and conclusions drawnby it, resulted in displacing the majority view of the tribunal, as alsothe unanimous view – As long as the view adopted by the majority wasplausible and there is no reason to hold otherwise, such a substitutionwas impermissible – Judgments passed by the High Court are set aside– Awards, which were the subject matter of challenge, and to the extentthey were set aside, are upheld and restored. [Paras 22, 23, 28]Arbitration – Arbitral award – Dissenting opinion of thearbitrator – Relevance of:Held: Dissenting opinion cannot be treated as an award if themajority award is set aside – It might provide useful clues in case thereis a procedural issue which becomes critical during the challenge – Whena majority award is challenged by the aggrieved party, the focus of thecourt and the aggrieved party is to point out the errors or illegalities inthe majority award – Minority award or dissenting opinion only embodiesthe views of the arbitrator disagreeing with the majority – There is nooccasion for the party aggrieved by the majority award, or, more crucially,the party who succeeds in the majority award, to challenge the soundness,plausibility, illegality or perversity in the approach or conclusions in thedissenting opinion – Dissenting opinion would not receive the level andstandard of scrutiny which the majority award is subjected to – Thus, theso-called conversion of the dissenting opinion, into a tribunal’s fi ndings,in the event a majority award is set aside and elevation of that opinionas an award, would, be inappropriate and improper. [Para 27] |
