Swarup Group of Industries & Anr v. National Agricultural Cooperative Marketing Federation of India

order under Section 17 of Arbitration and Conciliation Act, 1996, we find that Nimbus India is taking advantage of indulgence granted to it by the Tribunal on two prior occasions. The applications under Section 17 and the application for passing an interim award were heard together. In the order dated May 06, 2014 the Tribunal has recorded in categorical terms that it was a fit case to pass an interim award, but for the time being was granting an opportunity to Nimbus India to furnish a bank guarantee. Subsequently, the application was further heard. The Tribunal again recorded that it was a fit case to pass an interim award but made a direction to Nimbus India to deposit the amount. In the said order it was recorded that if the direction is not complied with, an interim award would follow. Therefore, the interim award is based on the finding that Nimbus India had made decisive admissions. Those admissions have not been denied even when the appeal was heard. The Tribunal also recorded that the counter claim was yet to be established. In doing so, the Tribunal only followed the law laid down by this Court in the decision in Numero Uno's case (supra)."

¶9Similar is the view taken by a Division Bench of the Madras High Court in Gammon India Ltd. v Sankaranarayana Construction Pvt. Ltd. (OSA No. 112/2010), Decided on 30th November, 2011. The Court held as under: "15...Now we have to consider that whether the interim award has been passed on admission and whether the statement given by the Appellant/Petitioner in the claim statement is clear, unambiguous and unequivocal admission? The Tribunal has right to pass an interim award on admission made by Appellant/Petitioner by invoking Order XII Rule 6 of C.P.C., because as already stated that it is a discretion of the Arbitrator to follow the procedural law, if both the parties are not agreed. Hence we are of the opinion that the learned single Judge has rightly held that the arbitral Tribunal has a right to pass an award on the basis of the admission by invoking Order XII Rule 6 of C.P.C. So it does not warrant any interference."

¶10In view thereof, there is no merit in this petition and same is dismissed. PRATHIBA M. SINGH JUDGE NOVEMBER 12, 2018/Rahul

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12th November, 2018 + SWARUP GROUP OF INDUSTRIES & ANR ..... Petitioners Through: Mr. Mohit Chaudhary & Ms. Shrishti Gupta, Advocates (M-9810663997). versus NATIONAL AGRICULTURAL COOPERATIVE MARKETING FEDERATION OF INDIA ..... Respondent Through: Mr. Aaditya Vijay Kumar, Ms. Akshita Katoch, Advocates (M- 8384024970) with Mr. Anurag Tiwari, Law officer. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) 1. The present petition has been filed challenging the award dated 31st December, 2013 by which the Ld. Sole Arbitrator has directed the Petitioners herein to pay to the Claimant a sum of Rs.92,88,46,688/-. The award is brief and is set out herein below: "1. During the meetings held on 29th June, 2012 and 9th October, 2012, Mr. Guruswarup Srivastava (Respondent No.2 and owner of Respondent No1) appearing before the Tribunal admitted in categorical terms that the total amount payable by him to the Claimant towards principal and interest as on the date of Statement of Claim 11th May, 2007 was Rs.197,13,46,688/-. 2. The Tribunal made an Interim Award by consent on 3rd December, 2008 by which a sum of Rs. 104.25 crores was awarded against the Respondents in favour of the Claimant. The Tribunal is informed that the said Interim Award is under execution under Execution Petition No.581 of 2010 before the Bombay High Court. 3. At the meeting held on 4th July, 2013 the parties agreed to sign Consent Terms and seek an award in terms thereof. It was agreed by the Respondents that a sum of Rs.197,13,46,688/- was due and payable by the Respondent to the Claimant as on the date of Statement of Claim, viz. 11th May, 2007. In view of the categorical admission made by the Respondents the Tribunal forwarded draft terms of the final award for finalizing the Consent Terms by the parties. The Respondents, however, did not give their suggestions to the draft consent terms. Hence, a meeting was again called on 20th December, 2013. 4. The Tribunal's experience with the Respondents was that every time the Respondents would engage a new Advocate, who would have no knowledge of whatever had been agreed in the earlier meetings, causing considerable delay in conduct of arbitral proceedings. On 20th December, 2013 also Respondent did not appear personally, but was represented by Mr. Imran Ali, Advocate, who was not fully instructed. Despite categorical admission before the Tribunal, on two occasions by the Respondent appearing personally and seeking an award, Mr. Imran Ali appearing on behalf of the Respondents submitted that his clients was not be in a position to agree to any Award and the Tribunal may proceed with arbitration. 5. The Tribunal considers such conduct on the part of Respondents as reprehensible. After having categorically admitted at the meetings held on 29th June, 2012 and 9th October, 2012, going back on their admission cannot be accepted. Merely because the Tribunal gave an opportunity to the Respondents to make suggestions with regard to exact wordings of the consent Award, the Respondents are not entitled to go back on their admission through an Advocate with incorrect instructions. This only sets the arbitral proceedings at naught. In the result, the Tribunal is of the view that the Respondents should be called upon to pay to the Claimant the admitted balance amount of Rs. 92,88,46,688/- after adjusting the amount of Rs. 104,25,00,000/- being the amount payable under the Interim Award dated 3rd December, 2008 . Hence the Tribunal makes the following Award:- 1. The Respondents are liable for and are directed to pay the Claimant the amount of Rs.92,88,46,688/- being the difference between the total amount payable (Rs.197,13,46,688/-) and amount directed to be paid under the Interim Award dated 3rd December, 2008 (Rs. 104,25,00,000/-). 2. Under the Agreements dated 26th March, 2004 and 24th April, 2004 the Respondents are liable to pay interest on outstanding amount at