When court should set aside award passed by arbitrator even if he has taken plausible view?

Once we interpret the formula in the manner indicated above, the necessary consequences would be to hold that the Arbitral Tribunal(s) did not decide the cases with the correct application of the formula and further that the claim for price adjustment in respect of bitumen laid by the contractors was not correct. Therefore, it can be held that the Award(s) are contrary to the contractual terms. At the same time, this outcome poses a dilemma inasmuch as in these cases, the Arbitral Tribunal has taken a particular view and when this was a plausible view, keeping in mind the parameters of judicial review of the Court in exercise of powers Under Section 34 of the Act, normally the Court would not interfere with such Awards. However, as already indicated above, such a situation has arisen because of conflicting Awards given by the Arbitral Tribunals themselves, which has provoked this Court to take a final view in the matter, necessitated by the aforesaid reason. If one takes into consideration the theory that one applies the principle mechanically i.e. that a plausible view is not to be interfered with, then it may lead to very anomalous situation. In such an eventuality, view taken by a particular Arbitral Tribunal in favour of the Contractor would be upheld as plausible view. Likewise, the Court will have to uphold the view taken by a particular Arbitral Tribunal in favour of NHAI as well, as a plausible view. Therefore, the purpose is to avoid such a situation which cannot be permitted as it would result in upholding both kinds of arbitral awards interpreting the same clause, whether they go in favour of the employer or they go in favour of the contractor. When the exercise is done keeping in view these considerations and outcome thereof is not determined, interest of justice would also demand that this result has to be applied to the pending cases, which have not attained finality. Therefore, in these peculiar circumstances, we hold that the principle of issue estoppel will apply only in those cases where matters have attained finality and no judicial proceedings are pending. In all those cases, including the present one, where awards are challenged on this particular aspect, this judgment will govern the outcome.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 458, 459 and 460 of 2018

Decided On: 23.02.2018

 National Highway Authority of India Vs. Progressive MVR (JV)

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 14 SCC 688

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Whether objector can file same objection again if his first objection was rejected and said order has attained finality?

The respondent No. 1 had filed one such application (Exh. 58) way back on 3.3.2011, which stood rejected on merits on 4.8.2011. This order attained finality. Yet, after about five years of such rejection, the respondent No. 1 filed another application objecting to the execution of the decree, virtually on the same ground on which she had filed the earlier application that was rejected.

14. The Executing Court correctly rejected the subsequent application filed in the year 2016 (Exh. 185) and in the order rejecting the said application, the Executing Court recorded in paragraph Nos. 7 to 10, not only about the rejection of the earlier application of respondent No. 1 but also a series of such applications filed by other objectors, which were rejected. The relevant portion of the said order has been quoted above.

15. Despite such glaring facts, the District Court, by the impugned order has allowed the appeal of respondent No. 1 thereby setting aside the order of Executing Court and sending the matter back to the Court for another ground of litigation which the decree holder would be made to suffer. The court below has committed grave error in observing in its judgment and order that the earlier application filed by respondent No. 1 before the Executing Court at Exh. 58 was not decided on merits. This observation is wrong on the face of the record. Apart from this, the Court below has erred in observing that a fair opportunity was not granted to the respondent No. 1 for adjudicating her rights in the suit property. The said observation is clearly unsustainable because the respondent No. 1 exercised her rights by filing the application/objection at Exh. 58, which stood rejected on 4.8.2011 by the Executing Court and such order had attained finality. The Court below seems to have placed emphasis only on procedure, without appreciating the substance of the matter. In any case, even if procedural aspect was to be emphasized, the facts of the present case show that the subsequent application/objection filed on behalf of respondent No. 1 at Exh. 185 deserved to be rejected, because similar earlier application/objection at Exh. 58 stood rejected on 4.8.2011, which had attained finality.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 364 of 2017

Decided On: 26.02.2018

Nandkishor Hemraj Khandelwal Vs.  Chandrakalabai Kisanrao Marotkar and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5)MHLJ 379

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Whether court can take note of subsequent events in execution of decree?

For the foregoing discussion, we must hold that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into consideration for the purpose of adjudication until a decree is made by the final Court determining the rights of the parties but any event that takes place after the decree becomes final cannot be made a ground for reopening the decree. The finality to the dispute culminating in the decree cannot be reopened by the executing Court for re-adjudication on the ground that some event or the other has altered the situation. As a corollary thereto it must also be held that once the decree became final it became a part of the estate of the landlord and therefore the appellants as legal representatives of the deceased landlord are entitled to execute the same.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 622 of 1994.

Decided On: 04.02.1994

P.V. Papanna and others Vs. K. Padmanabhaiah

Hon'ble Judges/Coram:

S. Mohan and M.K. Mukherjee, JJ.

Citation:AIR 1994 SC 1577, (1994) 2 SCC 316

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Whether party can challenge amendment of pleading after it attained finality?

 It is not in dispute that there was no prayer for possession
initially made by the plaintiff in the plaint. There is no dispute that the
plaintiff had prayed for amendment before the first appellate Court. The
first appellate Court after hearing the plaintiff and the defendant no.2
and having found that there was no objection to the said amendment,
allowed the amendment on the issue of possession and framed two
additional issues regarding possession and had remanded the matter
back to the trial Court for rendering findings on those two additional
issues. It is not in dispute that the defendant no.2 did not challenge the
said order allowing the amendment to the plaint. Though the learned
trial Judge rendered fresh opportunity to the defendants upon remand
before rendering additional findings on those two additional issues, none
of the defendants bothered to avail of such opportunity granted by the
learned trial Judge. The learned trial Judge after considering the
additional evidence rendered findings in favour of the plaintiff on
those two additional issues.

23. In my view, since the defendant no.2 did not challenge the
order passed by the first appellate Court allowing the amendment and
claim for possession of the suit flat and framing the additional issues,
the defendant no.2 cannot be allowed to urge this issue for the first time
in this second appeal. The order of amendment passed by the first
appellate Court in favour of the plaintiff has attained finality and cannot
be challenged across the bar at this stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.746 OF 2013
ALONG WITH
CIVIL APPLICATION NO.1541 OF 2013

 Madhukar s/o. Baburao B.Savle,
V
 Smt.Nanda Madhukar Yene 
 CORAM : R.D. DHANUKA, J.
 DATE :   10th October 2016.
Citation: 2017(1) MHLJ 425

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