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TMI Blog2014 (10) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... the interest of India, or if there is patent illegality. In our view, the said decision will not in any way come into rescue of the appellant. As noticed above, the parties have entered into concluded contract, agreeing terms and conditions of the said contract, which was finally acted upon. In such a case, the parties to the said contract cannot back out and challenge the award on the ground that the same is against the public policy. Even assuming the ground available to the appellant, the award cannot be set aside as because it is not contrary to fundamental policy of Indian law or against the interest of India or on the ground of patent illegality. High Court has rightly came to the conclusion that no ground exists for setting aside the award as contemplated under Section 34 of the Act. - Decided against appellant. - Civil Appeal No. 9048 of 2014 (Arising out of Special Leave Petition (Civil) No.10849 of 2013) - - - Dated:- 22-9-2014 - M. Y. Eqbal And Pinaki Chandra Ghose,JJ. JUDGMENT M. Y. Eqbal, J.: Leave granted. 2. This appeal by special leave is directed against the judgment and order dated 19.9.2012 passed by the Division Bench of the Calcutta High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Conciliation Act before the Calcutta High Court on the grounds inter alia of perversity and contrary to law. Learned Single Judge of the High Court upholding the award and reasons assigned by the learned Arbitrator, dismissed appellant s petition. Aggrieved by the decision of the learned Single Judge, appellant preferred appeal before the Division Bench of the High Court, which although upheld the contention of the appellant relating to the evidence on the issue of deviation in price bid on 19.1.2007, dismissed the Appeal on the ground of terms contained in NIT and Work Order being in consonance with each other. Hence, this appeal by special leave by the Australian company. 6. Mr. Amarendra Sharan, learned senior counsel appearing for the appellant assailed the award and the impugned order passed by the High Court on various grounds. Learned counsel contended that the appellant is a reputed Australian Mining Company and it submitted bid in response to NIT. The price bid submitted by the appellant provided for base price plus 55% and that any excise duty/service tax or any levy to be reimbursed on actual basis. A meeting of the Tender Evaluation Committee of the respondent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that work order is a unilateral document and there was no consensus ad idem on the Work Order. 9. Mr. Sharan, learned counsel put heavy reliance on the decision of this Court in the case of Oil and Natural Gas Corporation Ltd. vs. Saw Pipes Ltd., (2003) 5 SCC 705, and submitted that if the Award is contrary to the substantive provision of law, or the provisions of fact or against the terms of contract, it would be patently illegal and could be interfered under Section 34 of the Act. Mr. Sharan finally contended that the parties have expressly agreed that the bid price shall be exclusive of the duty of taxes, deviation from such contract will go to the root of the matter and on that ground Award could be set aside if it is so unfair and unreasonable. This will also be opposed to the public policy and required to be adjudged void. 10. Per contra, Mr. P.P. Rao, learned senior counsel for the respondent, firstly submitted that the Award cannot be set aside except where the Award on the face of it suffers from patent illegality and perversity. As the learned single Judge and the Division Bench after re-appreciation of the entire facts and documents came to the conclusion that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the deduction of such taxes at source as per applicable laws. 4.9.2. The successful bidder shall also be responsible to bear and pay any taxes, cess, fees and/or duties levied including but not limited to interest, penalty and/or fine imposed by any authorities including revenue authorities in India and/or abroad at any time even beyond the expiry of the Contract period with respect of the work to be performed by the successful bidder in accordance with the Contract. 4.9.3. The successful bidder shall also be responsible for filing income tax return and/or complying with necessary procedure and/or formalities as required or may be required under the fiscal laws of India and/or abroad in respect of the work to be performed by the successful bidder in accordance with the Contract. 4.9.4. Corporate Tax and/or Income Tax, if any applicable/levied in India and/or abroad on the successful bidder and/or its personnel and/or on the sub-contractors engaged by the successful bidder and /or the personnel of such sub-contractors in respect of this contract will be the responsibility of the successful bidder. All the necessary return and other formalities will be the respons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder on each pages (20 pages) and acknowledged and admitted the terms and conditions for the said work. 18. From the facts mentioned hereinabove, it is evident that the appellant has accepted the liability of payment of excise duty, sales tax, service tax and other taxes and hence it cannot be held that the clause 4.9.1 of the Work Order is inconsistent with the terms and conditions of contract documents. 19. The learned Arbitrator has gone in detail of the dispute raised by the appellant and rightly came to the conclusion that the responsibility on the appellant is to abide by the terms and conditions of the Work Order. 20. We have also gone through the order passed by the High Court. The Court rightly came to the conclusion that there is no patent illegality in the Award passed by the Arbitrator which needs interference under Section 34 of the Act. 21. Mr. Sharan, learned senior counsel appearing for the appellant, also challenged the arbitral award on the ground that the same is in conflict with the public policy of India. We do not find any substance in the said submission. This Court, in the case of Oil and Natural Gas Corporation Ltd. (supra), observed that the te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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