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TMI Blog2021 (7) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... ff. The Arbitral Tribunal has totally failed to take into consideration this aspect of the matter. The intention of TPT is apparent from its various communications and its stand before the Arbitral Tribunal, that it was not agreeable for amendment of the Agreement from 'royalty payment method' to 'revenue-sharing method' - The 'royalty payment method' has been totally substituted by the Arbitral Tribunal, with the 'revenue-sharing method'. It is thus clear, that the Award has created a new contract for the parties by unilateral intention of SICAL as against the intention of TPT. Appeal dismissed. - ROHINTON FALI NARIMAN AND B.R. GAVAI, JJ. For the Appellant : A.M. Singhvi, Gopal Jain, Sr. Advs., Sonal Jain, AOR, Zerick Dastur, Sneha Sheth, Ishkaran Singh Bhandari, Archana Uppuluri and Kajal Sharma, Advs. For the Respondent : Keshav Thakur, Mahesh Prasad, Aditya Kumar Choudhary, Shikhar Sardana, Ajay Singh, Babu M., Gurmeher Vaan Singh, Advs. and Rajesh Singh Chauhan, AOR JUDGMENT B.R. GAVAI, J. 1. The Appellant has approached this Court being aggrieved by the judgment and order dated 1st November 2017, passed by the Division Bench of the Madras Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide communication dated 10th April 2002, objected to the proposal of SICAL for increase in tariff. TAMP vide its order dated 20th September 2002, rejected the proposal of SICAL for increase in tariff. 4. SICAL filed Writ Petition Nos. 40637-40639 of 2002 before the Madras High Court for quashing of the TAMP order dated 20th September 2002. In the said proceedings, the Madras High Court passed an order dated 8th November 2002 granting interim relief in favour of SICAL, thereby staying the TAMP order dated 20th September 2002. Vide the said order, SICAL was permitted to charge tariff at the rate prevailing prior to the TAMP order impugned in those petitions. 5. Ministry of Shipping, Government of India (hereinafter referred to as 'GoI') vide notification dated 29th July 2003, clarified that revenue sharing/royalty payment shall not be factored into as cost for fixation/revision of tariff by TAMP and further directed that the same shall be clearly indicated in subsequent bid documents. On 31st March 2005, TAMP notified the revised guidelines thereby disallowing royalty as an element of cost. However, it also provided that in BOT cases where bidding processes were finalized be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06. TAMP passed a tariff order on 23rd August 2006, which came to be notified on 15th September 2006, vide which SICAL's proposal for increase in tariff was rejected. 8. SICAL made a written representation to TPT on 6th October 2006, thereby seeking relief under the terms of Article 14.3 of the License Agreement. Vide the said representation, SICAL requested for amending the License Agreement so as to incorporate the revenue sharing method and incidental changes. 9. SICAL also filed Writ Petition Nos. 38845 and 38846 of 2006 before the Madras High Court on 9th October 2006, thereby challenging the GoI directive dated 17th April 2006 and the TAMP order dated 23rd August 2006. On 27th October 2006, TPT refused to consider SICAL's application for amendment of the License Agreement on the ground that the issues raised were pending consideration before the Madras High Court. The said communication dated 27th October 2006 came to be challenged by SICAL before the Madras High Court vide Writ Petition No. 43461 of 2006. The Madras High Court passed an order dated 21st August 2007, in Writ Petition No. 43461 of 2006 filed by SICAL, observing therein that the representation dated 6th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary proposal from SICAL and after according sufficient opportunity including personal hearing to SICAL. The GoI directive of 2008 also came to be set aside with a direction to the GoI to consider the matter afresh after giving an opportunity of hearing to SICAL. The said orders have been challenged by TAMP by filing Writ Appeal No. 1845 of 2009 which is pending. It also appears that an appeal has also been filed by SICAL which is also pending before the Division Bench of the Madras High Court. 15. SICAL thereafter addressed a letter to TPT dated 1st December 2009, raising therein the ground of change in law and therefore again praying for shifting to revenue sharing model. A meeting was held by the Secretary, Ministry of Shipping, GoI on 28th February 2011, wherein the representatives of TPT and SICAL were present. It was decided in the said meeting that two proposals each should be submitted by SICAL as well as TPT. These proposals were to be considered by the Expert Committee. 16. SICAL thereafter on 28th June 2011, moved a petition Under Section 9 of the Arbitration Act before the District Judge, Tuticorin with a grievance that the royalty payable for each Twenty-foot Equivalen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings to which reference would not be necessary. By order dated 9th June 2015, the Madras High Court held that the petition filed by TPT Under Section 34 of the Arbitration Act was not tenable on the ground of jurisdiction. As such TPT re-presented its Section 34 petition on 30th June 2015, before the District Judge, Tuticorin being Ar. O.P. No. 260 of 2015. The District Judge, Tuticorin vide order dated 25th February 2016, dismissed the Section 34 petition filed by TPT. Being aggrieved thereby, TPT filed an appeal before the Madras High Court which came to be allowed by the order dated 1st November 2017, vide which the award of the Arbitral Tribunal dated 14th February 2014 and the order passed by the District Court dated 25th February 2016, came to be set aside. Being aggrieved thereby, SICAL has approached this Court by way of the present appeals. 20. We have heard Dr. A.M. Singhvi and Shri Gopal Jain, learned Senior Counsel on behalf of the Appellant-SICAL, Smt. Madhavi Divan, learned Additional Solicitor General of India and Shri Keshav Thakur, learned Counsel on behalf of TPT. 21. Dr. Singhvi submitted that Article 14 of the License Agreement specifically provides that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singhvi submitted that the first change in law was effected vide order of the GoI dated 29th July 2003, by which no percentage of royalty was permitted as a pass through. The second change in law was effected on 31st March 2005, by which the royalty was permitted as a pass through, however, restricting the same to the maximum of the amount quoted by the next lowest bidder. He therefore submitted that on account of these changes in law, SICAL was entitled to get a relief of amendment of the License Agreement and on failure of TPT to provide the relief, SICAL was entitled to invoke arbitration. He submitted that though several representations were made to TPT, the same had not been responded to and as such, SICAL was left with no alternative than to invoke the arbitration clause. He submitted that this has been rightly construed by the Arbitral Tribunal. However, the Division Bench of the High Court has erroneously interfered with the finding of fact recorded by the Arbitral Tribunal which was upheld by the District Judge. 24. Dr. Singhvi further submitted that SICAL has been put in a very precarious situation. He submitted that on one hand it is required to pay royalty to TPT on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 34 or Section 37. He submitted that the District Judge had rightly rejected the Section 34 Application. He further submitted that it was erroneous on part of the High Court in exercise of its jurisdiction Under Section 37 to interfere with a well-reasoned award of the Arbitral Tribunal. He relies on the following judgments in support of his submissions: MMTC Limited v. Vedanta Limited (2019) 4 SCC 163, Associate Builders v. Delhi Development Authority (2015) 3 SCC 49, State of Jharkhand and Ors. v. HSS Integrated SDN and Anr. (2019) 9 SCC 798, Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited (2010) 11 SCC 296, Kwality Manufacturing Corporation v. Central Warehouse Corporation (2009) 5 SCC 142, Rashtriya Ispat Nigam Limited v. Dewan Chand Ram Saran (2012) 5 SCC 306, Steel Authority of India Limited v. Gupta Brother Steel Tubes Limited (2009) 10 SCC 63, Pure Helium India (P) Limited v. Oil and Natural Gas Corporation Limited (2003) 8 SCC 593, P.V. Subba Naidu and Ors. v. Government of A.P. and Ors. (1998) 9 SCC 407, Dhannalal v. Kalawati Bai and Ors. (2002) 6 SCC 16, Swamy Atmananda and Ors. v. Shri Ramakrishna Tapovanam and Ors. (2005) 10 SCC 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9th December 1997 i.e. much before the 1998 Guidelines came to be published. She submitted that it is unthinkable that the rates quoted by SICAL in 1997 were on the basis of the guidelines which were for the first time published in the year 1998. She submitted that even the said guidelines do not provide for permitting royalty as a pass through. It is further submitted that while submitting the bid, SICAL has submitted the bid on the basis of royalty payable to TPT during the concession period. 31. Smt. Divan further submitted that SICAL has indulged into the conduct of approbate and reprobate. She submitted that whereas in the writ petitions filed by it, SICAL has taken a specific stand that the guidelines do not have the force of law, it has now turned around and taken a stand in the arbitration proceedings that it amounts to change of law. She further submitted that on the date on which the arbitration proceedings were commenced, the tariff orders were already quashed in the writ proceedings in favour of SICAL and only with a view to take double advantage, SICAL has initiated arbitration proceedings. She further submitted that because of the interim order passed by the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India (NHAI) (2019) 15 SCC 131. 34. Dr. Singhvi, in rejoinder, submitted that a stray statement made by SICAL that the guidelines do not have the force of law, would not be relevant. Inasmuch as in the counter filed by TPT as well as TAMP, they have themselves stated before the High Court that the said guidelines will have the force of law. He therefore submitted that SICAL was entitled in law to invoke Article 14 since there was a change in law which adversely affects the Licensee. 35. Dr. Singhvi further submitted that the contention of Smt. Divan that reliance has been placed by SICAL on change of law for the first time in 2013, is factually incorrect inasmuch as right from 2006, SICAL has been making representations to TPT for giving relief Under Article 14. To counter the submission of Smt. Divan that the bid of SICAL was tendered in December 1997, he submitted that though the bid was tendered in December 1997, the agreement was entered into in July 1998, when the guidelines had already come into effect from February 1998. He submitted that the perusal of the proposals submitted by TPT in pursuance of the meeting held by Secretary, Ministry of Shipping and Transport, GoI, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, and the existence of patent illegality in the arbitral award. Additionally, the concept of the fundamental policy of Indian law would cover compliance with statutes and judicial precedents, adopting a judicial approach, compliance with the principles of natural justice, and Wednesbury [Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223 (CA)] reasonableness. Furthermore, patent illegality itself has been held to mean contravention of the substantive law of India, contravention of the 1996 Act, and contravention of the terms of the contract. 12. It is only if one of these conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b) (ii), but such interference does not entail a review of the merits of the dispute, and is limited to situations where the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter. An arbitral award may not be interfered with if the view taken by the arbitrator is a possible view based on facts. (See Associate Builders v. DDA [Associate Builders v. DDA (2015) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15) 2 SCC (Civ) 204] i.e. the fundamental policy of Indian law would be relegated to Renusagar understanding of this expression. This would necessarily mean that Western Geco [ONGC v. Western Geco International Ltd. (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] expansion has been done away with. In short, Western Geco [ONGC v. Western Geco International Ltd. (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12], as explained in paras 28 and 29 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a judicial approach, the Court's intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sections 18 and 34(2)(a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in para 30 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204]. 35. It is important to notice that the ground for interference insofar as it concerns interest of India has since been dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable person would; in short, that the arbitrator's view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added Under Section 34(2-A). 38. Secondly, it is also made clear that reappreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award. 39. To elucidate, para 42.1 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Para 42.2 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award. 41. What is important to note is that a decision which is perverse, as understood in paras 31 and 32 of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible on the ground of patent illegality appearing on the face of the award. 43. A decision which is perverse, though would not be a ground for challenge under public policy of India , would certainly amount to a patent illegality appearing on the face of the award. However, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. 44. To understand the test of perversity, it will also be appropriate to refer to paragraph 31 and 32 from the judgment of this Court in Associate Builders (supra), which read thus: 31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where: (i) a finding is based on no evidence, or (ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or (iii) ignores vital evidence in arriving at its decision, such decision would necessarily be perverse. 32. A good working test of perversity is contained in two judgments. In Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughput that will be handled in each year of the contract. The offer shall be in the format shown in Attachment 4.1. 47. Perusal of the bid document would reveal, that the bid was for a license to develop the seventh berth as a full-fledged container terminal with ship-to-shore and shore-to-ship handling facility and also to manage, operate and maintain the same for a period of 30 years inclusive of construction period. The bidder was to state his financial offer to TPT comprising of three aspects: (a) quantum of initial payment at the time of executing the contract in order to secure the agreement; (b) royalty fee payable (before the day of each calendar month) after the commissioning of the terminal for each TEU handled at the terminal in the preceding calendar month. It is also clear, that in case actual throughput falls below the minimum throughput guaranteed by the Licensee in his bid, then the Licensee shall pay royalty as per his minimum guaranteed throughput. It also clarifies, that royalty was to be paid in the same currency in which the Licensee realizes the charges from users; and (c) guaranteed minimum TEU throughput that will be handled in each year of the contract. 48. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation criteria laid down for the technical evaluation will be ranked based on the present value of the expected payments to the TPT by the Bidder (discounted @ 16% per annum) according to the payment Schedule presented in the financial proposal in Attachment 4.1. The calculation of the royalty fees will be based on the Licensee's minimum guaranteed volume of traffic. If, in the opinion of TPT, the prices quoted in a bid including royalties and Schedule of royalties are found to be unrealistic, then such bid will be rejected and not considered for ranking. 50. Attachment 4.4 makes it amply clear, that all responsive bids which meet the qualification criteria for technical evaluation will be ranked on the basis of the royalty fees quoted by the bidder. 51. It will also be relevant to refer to Article 7.3.1 and 7.3.5.1 of the Agreement, which read thus: 7.3.1 Setting Prices The Licensee shall be entitled to recover from the owners/consignees or vessel owners/agents rates and/or charges due and payable by them for use of the Container Terminal services including terminal charges, wharfage on cargo containerised, container box and cargo related charges in respect of cargo and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid latest by the 7th Day of the subsequent Month. At the end of each 3 Month period the total royalty payable shall be computed and the difference, if any, between the amount of royalty actually payable, calculated on the basis of actual TEUs handled and the corresponding amount as set out in the Appendix 12, and the amount of royalty already remitted, shall be paid by the Licensee to the Licensor within fifteen Days of expiry of the relevant 3 Months period. In case the actual traffic falls below the annual minimum guaranteed traffic as guaranteed by the Licensee and as set out in the Appendix 12, then the Licensee shall pay the amount of royalty as per its annual minimum guaranteed traffic. It is to be noted that the minimum guaranteed traffic royalty rate as set out in Appendix 12 will be adjusted upwards or downwards as a one time measure on fixation of tariff for containers by the TAMP for the first time. This adjustment will be carried out by the Port based on a single percentage (plus or minus) to be applied to all the figures quoted as royalty vide Appendix 12. This single percentage shall be decided on the basis of sum of weighted average of variations to the rates in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge in Law means any amendment, alteration, modification or repeal of any existing law by Government Authority or through any interpretation thereof by the court of law or enactment or any new law coming into effect after the date of this Agreement, provision for which has not been made elsewhere in this Agreement. 14.3 Relief under Change in Law If, after the date of this Agreement, there is a 'Change in the Law which substantially and adversely affects the rights of the Licensee under this Agreement so as to alter the commercial viability of the project, the Licensee may, by written notice request amendments to the terms of this Agreement. Subject to provisions of Article 14.3, the Licensee shall not be entitled to any compensation whatsoever from the Licensor as a result of Change in Law. 14.4 Changes in Tax Laws and Regulations The Licensee is not entitled to any compensation for any increase in direct and/or indirect tax which the Licensee is liable to pay in respect of the Project. 55. Article 14 deals with 'change in law'. Article 14.1, which defines 'law', states, that law means any valid act, ordinance, rule, Regulation, notification, directive, order po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India [D.D. Sharma v. Union of India (2004) 5 SCC 325].] 59. The entire finding of the Arbitral Tribunal is based on a premise that when TPT entered into a contract with SICAL there was an existing policy, which provided royalty to be factored into the cost while fixation of tariff and that subsequently, the GoI changed its policy on 29th July, 2003 thereby providing that royalty payment/revenue sharing will not be factored into/taken into account as cost for fixation/revision of tariff by TAMP; and that there was subsequent change in policy on 31st March, 2005 vide which part of royalty was permitted to be factored into the cost. However, it being subjected to a maximum amount of the bid of the second lowest bidder. According to the Arbitral Tribunal, there was a change in policy, which amounted to change in law, which, in turn, adversely affected SICAL. 60. Let us examine the correctness of this finding. We are fully aware, that neither Under Section 34 nor Under Section 37 of the Arbitration Act, the Court is entitled to reappreciate the evidence. The said limitation would be equally applicable to this Court also. Admittedly, the bid document was published on 9th April, 1997. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however specifically observes that the concept of an assured rate of return is not consonant with a competitive system. It provides that however, it will be advisable to maintain it for the time being so as not to destabilize the system with abrupt changes. It further provides that to militate the full impact of its continuance, the reasonableness of the existing base and the absolute total costs may have to be examined to ensure that costs of inefficiencies, uneconomic user/practices or excess are not passed on to users. It further observed, that an assured rate of return can be achieved either by increasing the surplus through a rationalized tariff structure and/or reducing the capital base by eliminating unproductive and obsolete assets. 63. It could thus clearly be seen, that even 1998 guidelines do not mention, that the royalty could be factored in the cost while determining the tariff. Though the said guidelines observed, that the port pricing may continue to be cost-based with an assured rate of return, it further observed, that such a concept of an assured rate of return is not in consonance with a competitive system. Thus, it is amply clear, that when the bids were invited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L including the aforesaid observations in sub-para (iv) of paragraph 7. 66. The second tariff order in case of SICAL came to be passed on 20th September, 2002 (notified on 4th October, 2002). It will be relevant to refer to sub-para (xi) of paragraph 15. (xi) One of the main items of expenditure considered by the PSA SICAL is the royalty payment it has to make to the TPT as per the Concession Agreement. This liability accounts for about 11.4%, 15.4% and 19.2% of the operating income estimated on the basis of the existing tariffs for the years 2002, 2003 and 2004 respectively. As has been mentioned earlier, the existing tariffs were allowed to the PSA SICAL by accepting its proposal to adopt the (then) existing CHPT rates. That being so, there was no detailed cost analysis carried out then. It is admitted that the issue of admissibility of 'royalty' as a cost item has come under a focused scrutiny only in the case relating to the CCTL which was disposed of in March, 2002. In that case, this Authority decided not to allow 'revenue share' as a cost element for computation of tariffs at the CCTL. This Authority held that allowing royalty in tariff would mean that the CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate as to how it could be said that the 1998 guidelines issued by TAMP permitted royalty to be factored in cost while fixation of tariff. 69. The 2002 tariff order has been challenged by SICAL by filing Writ Petitions being Writ Petition Nos. 40637-40639 of 2002 before the Madras High Court. The Madras High Court has also passed interim order on 8th November, 2002 thereby staying the 2002 notification and permitting SICAL to charge tariff on the basis of the 1999 tariff order. 70. Then comes the notification dated 29th July, 2003 issued by the GoI, which is in the following terms: In a few cases recently a question arose as to what treatment to be given to revenue sharing/royalty payment made by private terminal operators to the concerned major ports for the purpose of fixation/revision of tariff. TAMP has also requested for guidelines from Ministry in the matter. The matter has been discussed with Chairman, TAMP and considered in this Ministry and it has been decided to clarify as a matter of policy that the revenue sharing/royalty payment shall not be factored into/taken into account as cost for fixation/revision of tariff by TAMP for the following reasons: (i) The benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Royalty/Revenue share' payable to the landlord port by the private operator will not be allowed as an admissible cost for tariff computation as decided by the Govt. in the Ministry of Shipping vide its Order No. PR-14019/6/2002-PG dt. 29th July, 2003. In those BOT cases where bidding process was finalized before 29 July, 2003, the tariff computation will take into account royalty/revenue sharing as cost for tariff fixation in such a manner as to avoid likely loss to the operator on account of royalty/revenue share not being taken into account, subject to maximum of the amount quoted by the next lowest bidder. This would, however, be allowed for the period upto which such likely loss will arise. This would not be applicable if there is provision in the concession agreement on treatment of 'Royalty/Revenue Share'. [emphasis supplied] 75. The said guidelines specifically provide that 'royalty/revenue share' payable to the landlord port by the private operator will not be allowed as an admissible cost for tariff computation as decided by the Government in the Ministry of Shipping vide its Order No. PR-14019/6/2002-PG dated 29th July, 2003. It further provided, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplicit approval of royalty-related issue and the 2002 tariff order specifically states that royalty was not permitted to be factored in the cost while determining tariff. The Arbitral Tribunal has totally failed to take into consideration this aspect of the matter. 78. As such, we are of the view, that since the finding of the Arbitral Tribunal, that there was an existing law to the effect that the royalty payable shall be permitted as a pass-through in cost while fixation of tariff, is based on 'no evidence' and the finding, that there was a change in law in 2003 and 2005 is based on without taking into consideration the relevant evidence, would come in the realm of perversity as explained by this Court in paragraph 31 of the Associate Builders (supra). The findings are based on 'no evidence' and 'ignorance of vital evidence' in arriving at its decision. 79. This brings us to the next issue viz., as to whether the Arbitral Tribunal was justified in passing an award thereby substituting 'royalty payment module' to the 'revenue-sharing module'. A contract duly entered into between the parties cannot be substituted unilaterally without the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract. By the present dispute, SICAL is trying to change the entire nature of the contract, namely, from the royalty module to the revenue sharing module. It is impermissible for a court or this Tribunal to compel any party to enter into a new contract. Contract is always by consent of parties. All the grievance put forward before the Tribunal by SICAL is their grievance in sum and substances before TAMP and High Court of Madras in all challenges made against the order of TAMP. Neither a Court nor the Tribunal can rewrite the Contract. The contract is an enforceable one and simply because SICAL is stated to be losing monetarily, the relief sought for in this dispute cannot be granted. If the case of SICAL is true, it is open to them to put an end to the contract and seek appropriate relief. If such a termination of the contract takes place at the instance of SICAL, then the PORT will take steps to get appropriate relief. Section 56 of the Contract Act is applicable to this case A number of case laws have been cited by the learned Senior Counsel for the PORT and we will refer to them at the appropriate stage. 80. It could thus be seen, that SICAL wanted the Agreement to be amended s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment. [emphasis supplied] 83. As such, as held by this Court in Ssangyong Engineering and Construction Co. Limited (supra), the fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract has been foisted upon an unwilling party. This Court has further held that a party t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court. 89. The High Court has gone into various other aspects of the matter. Arguments have also been advanced before us with regard to NSCT being given a discriminatory treatment as against SICAL. The arguments have also been advanced on the ground of approbate and reprobate and doctrine of election. It has also been argued on behalf of SICAL that it is incurring huge losses. Per contra, it is submitted on behalf of TPT, that it is incurring huge losses on account of various interim orders passed by the High Court and the District Judge in Section 9 applications. 90. We do not propose to go into those aspects of the matter. TAMP has issued various notifications with regard to fixation of tariff so also various orders have been passed by the GoI with regard to the aspect of grant or refusal of pass through of royalty payable. Various petitions have been filed by SICAL challenging the said orders and notifications. All the petitions were allowed thereby remanding the matters to TAMP and GoI. However, it is not in dispute, that SICAL, by virtue of the interim order passed dated 8th November, 2002 in Miscellaneous Petition No. 60240 of 2002 in Writ Petition No. 40638 of 2002 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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