The disputes in the present case culminated in a reference to the arbitration of three technical persons, who after considering the rival viewpoints and the materials before them, made the award[Award dated 30.03.2010]. The award was unanimous on most questions while, on others, there was a dissenting view of one of the arbitrators. (Para 2)
The single judge was of the considered opinion that as far as measurement aspects were concerned, the tribunal’s majority opinion reflected a plausible and reasonable view that did not call for interference (Para 3)
NHAI appealed to the Division Bench, which set aside the decision of the learned single judge, and held that the tribunal’s majority view, and award, were based on an implausible interpretation of the contract. (Para 4)
It is quite evident that in most cases, the view of DRPs and tribunals, and in two cases, majority awards of tribunals, favoured the arguments of contractors, that composite embankment construction took place, as a result of which measurement was to be done in a composite, or unified manner. Dissenting or minority views, wherever expressed, were premised on separate measurements. This opinion was of technical experts constituted as arbitrators, who were versed in contractual interpretation of the type of work involved; they also had first hand experience as engineers who supervised such contracts. When the predominant view of these experts pointed to one direction, i.e., a composite measurement, the question is what really is the role of the court under Section 34 the Act. (Para 20)
When a majority award is challenged by the aggrieved party, the focus of the court and the aggrieved party is to point out the errors or illegalities in the majority award. The minority award (or dissenting opinion, as the learned authors point out) only embodies the views of the arbitrator disagreeing with the majority. There is no occasion for anyone- such as 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 the dissenting opinion. That dissenting opinion would not receive the level and standard of scrutiny which the majority award (which is under challenge) is subjected to. Therefore, the so-called conversion of the dissenting opinion, into a tribunal’s findings, [in the event a majority award is set aside] and elevation of that opinion as an award, would, with respect, be inappropriate and improper. (Para 27)
In view of the findings recorded earlier, this court is of the opinion that all the appeals have to succeed. Therefore, C. A. No. 4658/2023, C. A. No. 4659/2023; C. A. No. 4660/2023; C. A. No. 4661/2023 and C. A. No. 4662/2023 are allowed; all judgments of the Delhi High Court, which were the subject matter of challenge in those appeals are set aside. The awards, which were the subject matter of challenge, and to the extent they were set aside, are hereby upheld and restored. The direction in the awards, to the extent they required compounded monthly interest payments, are modified. Instead, the NHAI shall pay uniform interest on the amounts due, on the head concerned, i.e., construction of embankment, to the extent of 12% from the date of award to the date of payment, within eight weeks from today. (Para 28)
SUPREME COURT OF INDIA
2023 STPL(Web) 214 SC
[2023INSC768]
M/S Hindustan Construction Company Limited Vs. M/S National Highways Authority Of India
Civil Appeal No(S). 4658 of 2023 With Civil Appeal No(S). 4659 of 2023 Civil Appeal No(S). 4660 of 2023 Civil Appeal No(S). 4661 of 2023 Civil Appeal No(S). 4662 of 2023-Decided on 24-8-2023
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