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Neutral Citation No. - 2024:AHC:82292-DB

Reserved on 22.4.2024
Delivered on 8.5.2024
Chief Justice's Court
Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND
CONCILIATION ACT 1996 No. - 144 of 2023
Appellant :- Gaursons Promoters P. Ltd.
Respondent :- Aakash Engineers And Contractors
Counsel for Appellant :- Mayank Yadav,Nikhil Agrawal,Sanjay Kumar
Mishra,Vivek Kumar Singh
Counsel for Respondent :- Abhay Mishra,Nirendra Mohan,Prateek
Srivastava,Shailesh Kumar Tripathi,Shashank Dwivedi,Syed Safdar Ali
Kazmi

Hon'ble Arun Bhansali,Chief Justice

Hon'ble Vikas Budhwar,J.
(Per: Vikas Budhwar, J.)

1. This is an appeal under Section 37 of the Arbitration and

Conciliation Act, 1996 (hereinafter ‘the Act’) against the order dated
5.7.2021 passed by the Presiding Officer, Commercial Court, Gautam
Budh Nagar in Arbitration Case No.110 of 2018 (Gaursons Promoters Pvt.
Ltd. vs. Akash Engineers and Contractors) whereby the application
preferred by the appellant-objector under Section 34 of the Act for setting
aside the award dated 15.6.2018 of the Sole Arbitrator was rejected.

2. The case projected by the claimant-respondent before the sole

Arbitrator is that it claims to be a sole proprietorship firm by the name
and style of Akash Engineers and Contractors having its office at L-303,
Rail Vihar, Alpha-Greater Noida, Uttar Pradesh. According to the
claimant-respondent the appellant-objector, Gaursons Promoters Pvt. Ltd.
which is a company incorporated under the provisions of the Companies
Act, 1956 engaged in the constructions of commercial and residential
project in an around the National Capital Region ( In short N.C.R.)
approached the claimant-respondent sometime in the year 2011-12 with
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relation to the advertised projects namely G.E.C. Capital-10 at Gaur City-

2, Sector 16-C, Greater Noida for the construction of residential township.

3. It is also the case of the claimant-respondent that the claimant-

respondent executed various works entrusted to it by the appellant-
objector and in the year 2012-13 certain issues arose in respect of the
project of the appellant-objector due to agitation by the villagers,
erstwhile land owners which entailed a situation whereby the work was
stalled.

4. The claimant-respondent further asserts in the claim petition that

earlier it was granted work for block A, K, Extended Basement, F & G
and G.C.-5 at Gaur City, Sector-4, Noida by one of the sister concern of
the appellant-objector being Gaursons Hi-tech Infrastructures (P) Ltd. As
the work of the claimant-respondent is stated to be upto the mark and
satisfaction so the appellant-objector approached the claimant and
requested it to execute balance work of Block C and D. In this regard
two work orders were issued namely:-(a) work order no. GPPL/GC
10/CIV-C/260/13 (work order no.1) dated 1.11.2013 for
INR.2,38,26,296.00 (b) Work Order No.GPPL/GC 10/CIV-D/261/13
(Work Order no.2) dated 1.11.2013 of INR.2,49,18,861.00.

5. As per the pleadings set forth in the claim petition filed before the
sole Arbitrator the work assigned to the claimant was as under:-

Work Order no.1

S.No. Description Amount (INR)

A Item as per Contract
1 Total Work Done as per Actual Qty 4,36,41,944
2 Extra Civil Work (Material Rate Difference) 32,57,564
3 Incentive Timely Rewardes 7,40,245
4 Extra Incentive Timely Rewardes 7,40,245
5 Structure Steel Railing 26,53,786
Total 5,10,33,783
B Extra Item
Entertained/Approved
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1 Extra for Pergola 55,380

2 P.C.C. Ground Floor 63,437
3 Extra Thickness in Plaster 21,58,774
4 Malba Cleaning -1,00,000
Total 23,77,591
C Extra Item approved but not entertained in the 33,69,720
first instance
D Total Work Done (A+B+C) 5,67,81,095
E Escalation 23,27,898
F Less Gross work done for contractor Name Gajraj as 1,26,78,140
per acc. Dept.
G Total (D+E+-F) 4,64,30,853
H Service Tax 14% on 33% of Work Done 21,45,105
I Total Work Done Amount (G+H) 4,85,75,958

Work Order no.2

S.No. Description Amount (INR)

A Item as per Contract
1 Total Work Done as per Actual Qty 4,36,41,944
2 Extra Civil Work (Material Rate Difference) 32,80,029
3 Incentive Timely Rewards 7,40,245
4 Structure Steel Railing 29,55,007
Total 5,06,17,224
B Extra Item
Entertained/Approved
1 Extra for Pergola 55,380
2 P.C.C. Ground Floor 63,437
3 Extra Thickness in Plaster 21,61,662
4 Malba Cleaning 1,00,000
Total 23,80,479
C Extra Item approved but not entertained in the 38,90,729
first instance
D Total Work Done (A+B+C) 5,68,88,432
E Escalation 19,94,970
F Less Gross work done for contractor Name Gajraj as 1,13,42,577
per acc. Dept.
G Total (D+E-F) 4,75,40,825
H Service Tax 14% on 33% of Work Done 21,96,386
I Total Work Done Amount (G+H) 4,97,37,211
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6. Since, according to the claimant-respondent the appellant-objector

did not honour its commitment as per the work order and the agreement
executed between them, the disputes and differences occurred which
occasioned the claimant-respondent to take recourse to the proceedings
under Section 11(4) of the Act.

7. Pursuant to the orders passed by this Court under Section 11(4) of

the Act the sole Arbitrator was appointed. The claimant-respondent filed
claim petition stating in para 57 as under :-

“That, as on date, despite repeated requests, Respondent has only made

payments for an amount of Rs.5,70,00,000/- (Rupees Five Crore Seventy
Lakh Only). However, an amount of Rs.4,85,75,958/-(Rupees Four
Crore Eighty Five Lakh Seventy Five Thousand Nine Hundred and Fifty
Eight Only) is due and payable to the Claimant till date (excluding
interest). The Claimant has completed the work to the satisfaction of the
Respondent, however, despite the same, the Respondent has withheld the
amounts illegally and without any basis thereof. Therefore the Claimant
is entitled to an amount of Rs.4,23,15,030/- (Rupees Four Crore Twenty
Three Lakh Fifteen Thousand and Thirty).”
seeking following reliefs:-

“a). Award an amount of Rs.4,23,15,030/- (Rupees Four Crore Twenty

Three Lakh Fifteen Thousand and Thirty) on account of Outstanding due
and payable to the Claimant.
b). Award an amount of Rs.50,00,000/- (Rupees Forty lakh Only) on
account of loss caused to the Claimant.
c). Award the costs of arbitration in favour of the Claimant.”
8. The claim set up by the claimant-respondent before the Arbitrator
was contested by the appellant-objector while filing statement of fact and
counter claim. Relevant extracts are as under:-

“28.That the averments mentioned in para no. 35 to 42 arc misconceived

and totally falsc as respondent has alrcady paid Rs. 5,70,00,000)
(Fivecrore seventy lakh rupees) which is the admitted position of the
claimant and the same has been paid as per the procedure laid down
under the work order and the joint measurement was conducted of the
work executed at the site vide dated 19.08.2015 which was duly admitted
by the claimant and accordingly it was admitted by the claimant that total
quantity of the work done in C & D block is amounting of cumulative bill
of Rs. 4,23,15.030/- whereas, claimant in through present claim has
wrongly shown a total outstanding of Rs. 9,93,15.030 which in no manner
matching the work executed by the claimant at site and beyond the scope
of the work order. More so, it can be easily ascertain that the claimant has
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already been extra and the same needed to be refunded back to the
respondent along with the interest.”

37. That the averments mentioned in para no. 54 to 57 are totally false
and have no basis whereas, the correct facts are placed here under
exhibiting actual amount of work done by the claimant and the difference
of claim is mentioned herein below:-

Final Bill of BLOCK C

Description Final Total Difference
between
Akashvs
GPPL

Work Done 4,24,43,362 4,17,28,538 19,13,406

Less Incentive @ Rs. 5/- Per Sqfts -7,14,824
Rate difference for Bricks 14,22,872
Rate difference for coarse sand for Brick 2,37,412 25,77,191 6,80,373
work
Rate difference for coarse sand for Plaster 9,16,907
Incentive/Penalty 13,21,100
13,21,100 1,59,390
Railing fabrication work 21,94,928 21,94,928 -4,58,858
Total -32,12,027
4,78,21,757 4,78,21,757
Extra item Entertained/Approved
Extra work (pergola) 43,400 43,400 -11,980
N/A -63,437
Coarse sand’s rate difference in extra thick 4,53,528 4,53,528 -17,05,246
Cement plaster
Malbashifting 75,000 75,000 -25,000
Total 5,71,928 5,71,928 -18,05,663
N/A -38,16,761
Total work done (A+B+C) -88,34,451
4,83,93,685 4,83,93,685
As above in S.No. 2 -23,59,667
Less work done by Prev. Cont 2,00,000
1,28,78,140 1,28,78,140
Total (D+E+F)
3,55,15,545 3,55,15,545 1,13,94,118
Deductions
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Cementer wastage 2,19,345 2,19,345 2,19,345

Recovery of Bricks (supplied by GPPL)in 2,61,899 2,61,899 2,61,899
Tower
Direct Payment to Plaster work Contractor 6,76,731 6,76,731 6,76,731
(MurshidAlam)
Recovery of Steel used in Brick work 2,87,361 2,87,361 2,87,361
Extra measured of Reinforcement steel 59,663 59,663 59,663
Total 15,04,999 15,04,999 15,04,999

3,40,10,546 3,40,10,546 1,28,99,117

Service Tax of 3.8% i/c SBC & KKC 13,49,591 -8,17,636

Total (G+H)
3,53,60,137 3,53,60,137 1,37,16,753

Final Bill of Block D

Description Final Total Difference
between
Akashvs
GPPL

Work Done
4,26,13,200 4,18,98,376 17,43,568
Less Incentive @ Rs. 5/- Per Sqft. -7,14,824
Rate difference for Bricks 14,33,933
Rate difference for coarse sand for Brick 2,53,176 26,05,274 6,74,935
work
Rate difference for coarse sand for Plaster 9,18,165
Incentive/Penalty 13,21,100 13,21,100 5,80,855

Railing fabrication work 24,95,690 24,95,690 -4,59,317

Total -22,96,965
4,83,20,440 4,83,20,440
Extra item Entertained/Approved
Extra work (Pergola) 24,200 24,200 -31,180
N/A -63,437
Coarse sand’s rate difference in extra thick 4,53,528 4,53,528 -17,07,953
Cement plaster
Malbashifting 75,000 75,000 -25,000
Total 5,52,728 5,52,728 -18,27,570
N/A -43,37,769
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Total work done (A+B+C) -84,62,304

4,88,73,168 4,88,73,168
As above in S. No. 2 -20,26,739
Less Work done by Prev. Cont 2,00,000
1,15,42,557 1,15,42,557
Total (D+E+F)
3,73,30,591 3,73,30,591 1,06,89,043
Deductions
Cement wastage 2,19,345 2,19,345 2,19,345
Recovery of Bricks (supplied by GPPL) in 8,85,680 8,85,680 8,85,680
Tower
Direct payment to Plaster work Contractor
Recovery of Steel used in Brick Work 3,08,589 3,08,589 3,08,589
Extra measured of Reinforcement steel
Total 14,13,614 14,13,614 14,13,614

3,59,16,977 3,59,16,977 1,12,02,657

Service Tax of 3.8% i/c SBC & KKC 14,18,562 14,18,562 -7,99,945
Total (G+H)
3,73,35,539 3,73,35,539 1,29,02,602

“38. That the averments made in Para 56 to 61 containing points a) to d)

are in a form of claim made by the Claimant. However, the present Claim
petition is devoid details of merit and no such claim as prayed by the
Claimant is maintainable. In reply it is submitted that the Claimant has
claimed Rs 5,70,00,000 but the detail of which has not been given,
however, as per the stand of the Respondent, the payment has been done
strictly in accordance with the schedule mentioned in the work order. The
Claimant is also demanding the interest of Rs. 50,00,000/- which itself is
not maintainable as the payment was already done as per schedule and
the present claim is not maintainable. That the Respondent has suffered a
huge loss due to delay in the project, and as such, they are not liable to
pay for the cost and expenses which have been stated in the Para under
reply. A true copy of summary along with the details of statement
regarding the payment made to M/s. Akash Engineering and suppliers.”

9. In the counter claim of the appellant-objector INR 4,69,62,127.00

was claimed under various heads from the claimant-respondent.

10. The sole arbitrator after hearing the respective parties pronounced
the award dated 15.6.2018 holding that the total amount payable for Block
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C & D by the appellant-objector to the claimant-respondent comes to be

INR.3,67,29,767.00 + INR.3,86,66,734.00 = INR.7,53,96,501.00 and
amount of INR.5,02,00,000.00 has been received by the claimant-
respondent from the appellant-objector, thus the balance amount comes to
INR.2,51,46,501.00 and while rounding the same the claimant-respondent
was made entitled to the payment of INR.25000000.00 along with the
interest @ 16% per annum w.e.f. the 1st April, 2015 till the making of the
award and the interest payable thereafter till the date of payment would be
at the rate prescribed specified in Section 31(7) (b) of the Act and so far as
the cost payable by the appellant-objector to the claimant-respondent, the
same was quantified to INR. 12,00,000/-.

11. Aggrieved against the award dated 15th December, 2018 of the
learned sole Arbitrator, the appellant-objector preferred an application
under Section 34 of the Act before the Commercial Court, Gautam Budh
Nagar which was registered as Case No.110 of 2018, (Gaursons
Promoters Pvt. Ltd. vs. Akash Engineers) which on contest came to be
rejected on 5.7.2021.

12. Questioning the order dated 5.7.2021 passed by the Presiding

Officer, Commercial Court, Gautam Budh Nagar in Arbitration Case
No.110 of 2018, (Gaursons Promoters Pvt. Ltd. vs. Akash Engineers and
Contractors) and the award dated 15.6.2018 of the sole Arbitrator in the
matter of Gaursons Promoters Pvt. Ltd. vs. Akash Engineers and
Contractors, the present appeal has been preferred.

13. On the presentation of the appeal this Court passed the following
order on 5.10.2021.

“Heard Shri Nikhil Agrawal, learned counsel for the appellant and Shri
Syed Safdar Ali Kazmi, learned counsel for the respondent.
Submission of learned counsel for the appellant is that the specific
application filed by the appellant seeking discovery of the books of the
account of the claimant-respondent remained undisposed by the learned
arbitrator. Relying mostly on the unsubstantiated claim, the award has
been made and an excessive amount has been awarded. He would further
submit, once the tax deducted at source (TDS) was acknowledged by the
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claimant-respondent, it had to be accepted that the full payment had been

made by the appellant for the actual work done by the third party
engaged by the claimant-respondent. However, in absence of the books of
account produced by the respondent-claimant, that verification could not
have been possible.
On the other hand, Shri Kazmi submits that this award is based on the
admitted amounts as per the books of the appellant/contractee.
Matter requires consideration.
Let lower court record be summoned.

List again on 01.12.2021.

Till the next date of listing, the operation effect of the award may
remains stayed subject to the appellant depositing the entire awarded
amount within a period of three weeks' before the court below. Upon
such deposit being made, Rs. 50 lakhs may be released in favour of the
respondent-claimant without security and the balance amount be
retained in separate interest bearing term deposit with a Nationalized
Bank. It shall abide by the further orders of this Court.“
14. On Civil Misc. Clarification Application No.6 of 2021 the
following order was passed on 7.12.2021.

Ref:- Civil Misc. (Clarification) Application No.6 of 2021

Heard learned counsel for the parties.
In the order dated 05.10.2021, we had provided for stay of the execution
of the impugned order, subject to certain conditions. Clearly, the
conditions stipulated were with respect to payment of the principal
amount of compensation excluding interest.
Accordingly, the application is disposed of.
Order on Appeal:-
List in due course.
15. This Court on 15.3.2024 proceeded to pass the following
order:-

1. Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri

Mohit Yadav & Sri Mayank Yadav, learned counsel for the appellant and
Sri Vinayak Mittal, learned counsel for the respondent.
2. Learned counsel for the parties pray for time to prepare short notes on
the dispute pertaining to the amount of TDS for which the claim of the
appellant is that the amount was deducted and deposited and, therefore,
the respondent is not entitled to seek that amount all over again and has
been wrongly awarded by the Arbitrator whereas the claim of the
respondent is otherwise.
3. Learned counsel for the respondent made submissions that as the
dispute pertains to the sum of Rs. 68 Lakhs only of TDS and on account of
the interim order, granted by this court, a sum of Rs. 2 Crores, along with
interest, is lying in deposit and the respondent is being deprived of the
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said amount, after retaining a sum of Rs. 68 Lakhs, which is the amount in
dispute, rest of the amount may be ordered to be disbursed to the
respondent.
4. Learned counsel for the appellant resisted the said submission.
5. However, in view of the fact that in the submissions made, it has been
specifically indicated that the dispute pertains to the amount of Rs. 68
Lakhs of TDS, we deem it appropriate and, therefore, order that the
interim order granted by this court on 05.10.2021 as clarified on
07.12.2021, shall stand modified to the extent that except for a sum of Rs.
68 Lakhs and the interest accrued thereon, in terms of the directions given
by this Court, rest of the amount, i.e. Rs. 1,32,00,000/-, along with interest
accrued on the said amount, would be paid to the respondent, on
respondent filing undertaking before the Commercial Court, Gautambudh
Nagar that in case the appeal filed by the appellant is allowed, subject to
any further directions by this Court, the amount shall be refunded back
along with interest i.e. 6% per annum by the respondent.
6. List the appeal on 09.04.2024.

16. On 22.4.2024 the following order was passed:-

“While entertaining the aforesaid appeal, defects were cured while giving
a regular number summoning for the lower court records, however the
appeal is yet to be admitted.
Heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Mayank
Yadav and Sri Mohit Yadav for the appellant-objector and Sri Vinayak
Mithal, learned counsel for the respondents at length.
Admit.
Since respondent is represented, thus there is no need to issue notice.
A joint statement has been made by the counsels for the rival parties that
they do not propose to file paper book and the appeal be heard on merits,
dispensing with the requirement of filing paper book.
In view of the said submission, we dispense with the requirement of filing
of paper book.
Judgement is reserved.”
17. Sri Shashi Nandan, learned Senior Counsel assisted by Sri Mayank
Yadav and Sri Mohit Yadav for the appellant-objector have sought to
argue that the award passed by the sole Arbitrator dated 15.6.2018 as well
as the order dated 5.7.2021 rejecting the application under Section 34 of
the Act in Arbitration Case No.110 of 2018 suffers from patent illegality,
thus, it is liable to be set aside.

18. Elaborating the said submissions it is being urged that the sole
arbitrator travelled beyond the pleading and created a new case inasmuch
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as the claimant-respondent in claim petition had only claimed INR

4,23,15,030/- as due and outstanding amount after deduction of
INR.5,70,00000/- out of total works executed by it, INR 98313169/- but
the amount awarded was INR.25146501/- which was based upon no
evidence at all. It is further submitted that there was a clear cut admission
of the claimant-respondent in the claim petition that INR 5,70,00000/-
was received by it but the sole arbitrator on presumption without there
being an iota of evidence has come to conclusion that only INR.
5,020,0000/- was paid to claimant-respondent.

19. It is also the submission of Sri Shashi Nandan, learned Senior

Counsel for the appellant-objector that the sole arbitrator has completely
overlooked and misread the documents available on record as it was
specifically pleaded in statement of facts and counter claim that
INR.46,96,2127/- was recoverable to it with respect of following payment
made by it under various heads :- (a) other petty contactors, (b) claim of
payment made to petty contractors of claimant, (c) claim of delay in
construction of block C & D, (d) claim of payment made to suppliers of
claimant due to its default, (e) claim of piece work not executed by the
claimant, (f) claim of recovery of cement bags, (g) claim direct of
payment of Sub-Contractor claimant for executing plaster work (h) claim
of recovery of reinforcement steel used in 115mm thick brick work.

20. While inviting attention of the court towards para 33 of the

objections filed under Section 34 of the Act, it is submitted that there was
a specific pleading that till 22.3.2017 total payment made to claimant-
respondent was INR.7,60,30,739.22 for block C & D. Further attention
was invited towards paragraph 33 of the order of Commercial Court
dated 5.7.2021 while contending that appellant-objector had made
payment of INR.71605696/- and TDS deposited was INR.735159/- the
same was though noticed but brushed aside and not considered. Further
reference was made to the Brief Notes and Relevant Documents as well as
Judgment Compilation so as to show that in Assessment Years 2014-15,
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2015-16, 2016-17 the total amount paid was INR.7,16,05,696.00 and the
TDS deducted and deposited was INR.7,16,059.00. Thus, the
submissions of the learned Senior Counsel for the appellant-objector is
that once the appellant-objector has paid the entire outstanding amount
and the TDS has also been deducted and it is reflected in the website of
the Income Tax Department and also as per the statement of account of
the appellant-objector, then, the learned sole Arbitrator committed patent
illegality in passed an award which is bereft of any evidence and beyond
the subject matter, thus it is liable to be set aside.

21. It has also been submitted that once the entire payment due &
outstanding has been paid to claimant-respondent, there remained no
dispute to be adjudicated by the Arbitrator and in failing to consider the
said legal aspect the learned Arbitrator has transgressed its jurisdiction
and erred in passing the award in favour of the claimant-respondent.

22. Though according to the learned Senior Counsel for the appellant-
objector the said grounds was neither raised before the Arbitral Tribunal
nor Commercial Court but, the same being purely legal and going to the
root of matter tantamount to patent illegality, the same can be raised and
addressed by this Court in present proceedings.

23. It is thus urged that in view of the amendments made in Section 34

of the Act while inserting Section (2-A) which came into effect from
23.10.2015 now an arbitral award arising out of arbitrations other than
International Commercial Arbitrations can be set aside by the Court if the
Court finds then the award is vitiated by “patent illegality” appearing on
the face of the award based upon no evidence or perverse finding.

24. Reliance has also been placed upon the judgement in the case of
Ssangyong Engineering & Construction Co. Ltd. vs. National Highways
Authority of India (NHAI) AIR 2019 SC 5041, PSA Sical Terminals
Pvt. Ltd. vs. The Board of Trustees of V.O. Chidambranar Port Trust,
Tuticorin & Ors., AIR 2021 S.C. 4661, Associate Builders vs. Delhi
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Development Authority AIR 2015 SC 620, Oil and Natural Gas

Corporation Ltd. vs. Discovery Enterprises Pvt. Ltd. & Ors. AIR 2022
SC 2080, Alpine Housing Development Corporation vs. Ashok S.
Dhariwal and others AIR 2023 SC 558, Dakshin Haryana Bijli Vitran
Nigam Ltd. vs. Navigant Technologies Pvt. Ltd. AIR 2021 SC 2493 and
State of Chhattisgarh & others vs. Sal Udyog Pvt. Ltd. AIR 2021 SC
5503 so as to contend that a finding of an arbitrator based on no evidence
at all or award which ignores vital evidence in arriving at its decision
would be perverse and liable to be set aside and more so the ambit of
interference with respect to the domestic award under Section (2-A) of the
Section 34 of the Act is wide enough once patent illegality is writ large.

25. Lastly, it has also been argued on behalf of the appellant-objector

that an application was preferred by the appellant-objector under Order XI
Rule 12 of the C.P.C. for discovery of the Books of Accounts/Ledger qua
the project works in question which is in the possession of the claimant-
respondent before the arbitrator, in which on 6.11.2017, the Arbitral
Tribunal passed the following order.-

“ in view of the payment chart referred above the respondent application

for discovery filed today will be considered only if any of the items in the
payment chart are disputed by the claimant, because burden of proving
the plea of claimant regarding delay on account of short payment is upon
the claimant who can adduce evidence regarding the amount of work
done (including extra work if any) upto a certain date and the payment
received from the respondent till that date. Hard copies of all aforesaid
documents may be filed by respective parties on the next date.”
26. Submission is that despite the fact the aforesaid application was
legally maintainable and the onus was upon the claimant-respondent to
substantiate its claim from its books and account while producing it
before the Arbitral Tribunal but the learned Arbitral Tribunal kept the
application pending and fastened the liability upon the appellant-objector .
It is thus submitted that the said procedural irregularity tantamounts to
miscarriage of justice and in contravention of the fundamental policy of
the Indian Law. In case the said application would have been allowed then
the complete picture would have surfaced.
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27. Countering the said submissions, Sri Vinayak Mithal, learned

counsel for the claimant-respondent submitted that the award passed by
the learned sole Arbitrator on 15.6.2018 and the order dated 5.7.2021 of
the Commercial Court rejecting the Section 34 application, needs no
interference as the scope under Section 34 of the Act is limited and it
cannot in any manner whatsoever be akin to the Appellate jurisdiction
against the orders of the Trial Courts. He submits that in view of the
language employed in Section 34 of the Act the appellant-objector has to
draw its case within the parameters earmarked under Section 34 of the
Act and the appellant-objector cannot insist the court to rehear and the re-
appropriate facts.

28. Submission is that there are contradictions and inconsistency in the

stand of appellant-objector as different figures have been shown in
different stages of proceeding which have no co-relation with each other
that to not reliable as the same are not based upon statutory requirements.
29. Lastly, it is argued that mere non disposal of application by Sole
Arbitrator for discovery of accounts and ledger would not be fatal as the
amounts paid to the claimant-respondent was as per the admission of
appellant-objector. No prejudice has been caused to appellant-objector.
The same can be at best said to be a trivial irregularity but not a patent
illegality exposing the award to be set aside under Sub-Section (2-A) of
the Section 34 of the Act.
30. In view of the argument advanced by the rival parties the following
issues falls for determination before this Court:

(a) Whether the arbitral tribunal committed patent illegality by traveling

beyond the pleadings and granting relief in excess to what was claimed?

(b) Whether the claimant/respondent discharged its burden to prove its claim
and the onus stood shifted upon the appellant/objector?

(c) What would be the import and the impact of the admissions made by the
appellant/objector in cross examination?
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(d) Legal effect of non-disposal of application under Order XI Rule 12 of the

CPC by Arbitral Tribunal for discovery of book & account/ledger by claimant-
respondent.

(e) Whether it is open for the appellant/objector to raise legal issues going into
the root of the matter in Appellate proceedings under Section 37 of the Act for
the first time?

31. We have heard the learned counsel for the parties and perused the
record carefully.

32. Before delving into the tenability of the arguments of the rival
parties it would be apposite to have a quick survey of the scope, ambit and
the parameters under which the Appeal under Section 37 of the Act, is to
be decided.

33. To begin with it would be apposite to quote the provisions

contained under Section 34 & 37 of the Arbitration and Conciliation Act
in extenso.-

“34. Application for setting aside arbitral award.—(1) Recourse to a Court

against an arbitral award may be made only by an application for setting
aside such award in accordance with sub- section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if—
(a) the party making the application 1[establishes on the basis of the record of
the arbitral tribunal that]—
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties
have subjected it or, failing any indication thereon, under the law for the time
being in force; or
(iii) the party making the application was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was otherwise
unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling
within the terms of the submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be
separated from those not so submitted, only that part of the arbitral award
 16

which contains decisions on matters not submitted to arbitration may be set

aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, unless such agreement was in
conflict with a provision of this Part from which the parties cannot derogate,
or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that—
(i) the subject-matter of the dispute is not capable of settlement by arbitration
under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation 1.—For the avoidance of any doubt, it is clarified that an award is
in conflict with the public policy of India, only if,—
(i) the making of the award was induced or affected by fraud or corruption or
was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.—For the avoidance of doubt, the test as to whether there is a
contravention with the fundamental policy of Indian law shall not entail a
review on the merits of the dispute.
(2A) An arbitral award arising out of arbitrations other than international
commercial arbitrations, may also be set aside by the Court, if the Court finds
that the award is vitiated by patent illegality appearing on the face of the
award:
Provided that an award shall not be set aside merely on the ground of an
erroneous application of the law or by re-appreciation of evidence.
(3) An application for setting aside may not be made after three months have
elapsed from the date on which the party making that application had received
the arbitral award or, if a request had been made under section 33, from the
date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by
sufficient cause from making the application within the said period of three
months it may entertain the application within a further period of thirty days,
but not thereafter.
(4) On receipt of an application under sub-section (1), the Court may, where it
is appropriate and it is so requested by a party, adjourn the proceedings for a
period of time determined by it in order to give the arbitral tribunal an
opportunity to resume the arbitral proceedings or to take such other action as
in the opinion of arbitral tribunal will eliminate the grounds for setting aside
the arbitral award.
 17

(5) An application under this section shall be filed by a party only after issuing
a prior notice to the other party and such application shall be accompanied by
an affidavit by the applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously, and in
any event, within a period of one year from the date on which the notice
referred to in sub-section (5) is served upon the other party.”
“37. Appealable orders.—(1) [Notwithstanding anything contained in any
other law for the time being in force, an appeal] shall lie from the following
orders (and from no others) to the Court authorised by law to hear appeals
from original decrees of the Court passing the order, namely:—
(a) refusing to refer the parties to arbitration under section 8;
(b) granting or refusing to grant any measure under section 9;
(c) setting aside or refusing to set aside an arbitral award under section 34.
(2) Appeal shall also lie to a Court from an order of the arbitral tribunal—
(a) accepting the plea referred to in sub-section (2) or sub- section (3) of
section 16; or
(b) granting or refusing to grant an interim measure under section 17.
(3) No second appeal shall lie from an order passed in appeal under this
section, but nothing in this section shall affect or takeaway any right to appeal
to the Supreme Court.”

34. The aims and the objects for enacting the Arbitration and
Conciliation Act, 1996 was to provide a mechanism to the public to
resolve their disputes in a process less rigorous, technical and formal that
of litigation coupled with the fact that the same should be more
accessible, efficient and even cost effective for the parties involved
whether at individual level or at the level of a business or corporation. The
basic concept stems from alternative dispute mechanism which is
advantageous for the general public at large who are involved in dispute
giving wheels for effective disposal and release of burden on the Courts.

35. Section 34 of the Act was deliberately engrafted in a couched

manner bearing in mind the fact that there should be limited intervention
of Courts in arbitral proceedings especially after the proceedings have
been concluded and the award has been pronounced by the arbitral
tribunal.
 18

36. Notably, the yardsticks and the parameters under which intervention
by the courts of law in the proceedings against the award stands bracketed
in Section 34 of the Act which obviously starts with caveat that the
arbitral award may only be set aside by the Court if the party making the
application establishes on the basis of the record of the arbitral tribunal;

(i) was under some incapacity;

(ii) the arbitral agreement is not valid under the law for the time
being in force;

(iii) a party making the application was not given proper notice of
appointment of arbitrator or he was unable to present his case;

(iv) the arbitral award deals with a dispute not contemplated or not
falling within the terms of the submission of the arbitrator;

(v) the composition of the arbitral tribunal or the arbitral procedure

was not in accordance with the agreement of the parties unless such
agreement was in conflict with the provisions;

(vi) the subject matter of dispute is not capable of settlement by

arbitration under law for the time being in force;

(vii) the arbitral award is in conflict with the public policy of India.

37. Importantly, by virtue of Act No. 3 of the 2016 (with effect from
23.10.2015) Section 34 of the Act along with other sections underwent
amendment and Section 2(A) came to be inserted in Section 34 whereby it
was provided that an arbitral award arising out of arbitrations other than
international commercial arbitrations may also be set aside by the Court if
the Court finds that the award is vitiated by “patent illegality” appearing
on the face of the award with a caveat that award shall not be set aside
merely on the ground of erroneous application of law or by appreciation
of evidence.
 19

38. Nonetheless, while assailing the order passed under Section 34 of

the Act either setting aside the award or upholding the award an appeal is
provided under Section 37 of the Act, however, the contours of the
proceedings under Section 37 also is limited to the scope and the ambit of
challenge under Section 34 of the Act.

39. The aforesaid proposition of law stands culled out in the umpteen
number of decisions of the Hon’ble Apex Court, also in the case of
Associate Builders (supra), Ssangyong Engineering & Construction Co.
Ltd. (supra), Sal Udyog Private Limited (supra), PSA Sical Terminals
Pvt. Ltd. (supra), Batliboi Environmental Engineers Vs. Hindustan
Petroleum Corporation Limited & Another AIR (2024) SCC 375. In the
recent judgment of Hon’ble Supreme Court in Civil Appeal No. 8067 of
2019 (S.V. Samudram Vs. State of Karnataka & Another) decided on
4.1.2024.

Issues No. (a), (b) & (c)

40. Since the issues No. (a), (b) & (c) are interwoven, thus, they have
being decided compositely.

41. In order to address the said issues it would be appropriate to briefly

set out the case of the parties as apparent from the record. The claimant-
respondent in its claim petition had pleaded that it had executed works
under two work orders No. 1 and 2 for an amount of INR 4,85,75,958/-
and INR 4,97,37,211/- totalling to INR 9,83,13,169/- out of the said
amount, claimant-respondent claimed that it had received an amount of
INR 5,70,00,000/- and as per the prayer clause INR 4,23,15,030/-
remained outstanding and payable to it. In the statement of facts and
counter claim of the appellant-objector it was acknowledged that INR
5,70,00,000/- had been paid to the claimant-respondent and the counter
claim was of INR 4,69,621.27/-.
42. Essentially, the dispute is two fold firstly, whether the claimant-
respondent received the total outstanding amounts against the work
 20

executed by it and secondly, inconsistency in the two figures i.e. the claim
of the appellant-objector that it paid INR 5,70,00,000/- as whereas
according to the claimant-respondent it received INR 5,02,00,000/-.

43. The Arbitral Tribunal while passing the award on 15.6.2018 came
to the conclusion that the total amount payable with respect to Blocks C
and D comes to (INR 3,67,29,767+3,86,66,734) = INR 7,53,96,501/-,
against which the claimant received INR 5,02,00,000/-, thus, INR
2,51,46,501/- after rounding up to INR 2,50,00,000/- was liable to be paid
to the claimant-respondent.

44. Learned Senior Counsel for the appellant-objector has assailed the
said findings while contending that it was never the case of either
claimant-respondent or the appellant-objector that INR 5,02,00,000/- was
paid and received by the claimant rather to the contrary it was a clear
admission of the claimant-respondent in the claim petition that it had
received INR 5,70,00,000/-, thus, the award suffers from perversity.

45. In order to test the said argument, we have meticulously scanned

the entire records available before the Court. We find that in the claim
petition the claimant-respondent had acknowledged the receipt of INR
5,70,00,000/- and the said fact also stood admitted by the appellant-
objector in its statement of facts. The chapter in normal circumstances
would have been closed there, however, the Court finds from the Lower
Court records that on 20.2.2018 Sri Rohit Sharma, the C.O.O. of the
Gaursons Group who was at that point of time Senior Vice President in its
cross-examination being paper No. 71 while replying to the following
question replied as under:-

“Question:- How much payment was made to the claimant for the two Towers (C &
D)

R.S.- Refer affidavit, page 16 to 20. Amount paid is as follows:

S.No. Particulars Amount (In Rs.)
1. Amount paid to the M/s. Akash Engineers 5,02,69,435
 21

and Contractors
2. Amount paid on behalf of the suppliers 1,48,68,487
3. Amount paid on behalf of the sub- 9,71,109
contractors
Total 6,61,09,031/-

46. Perusal of the cross examination of Sri Rohit Sharma reveals that
the appellant-objector as per their record had paid INR 5,02,69,435/- to
the claimant-respondent, INR 1,48,68,487/- on behalf of the suppliers and
INR 9,71,109/- on behalf of the Sub-Contractors totaling to INR
6,61,09,031/-.

47. Now a question arises whether an admission made in the cross

examination is required to be given weight or not.

48. Here, in the present case there are certain redeeming features which
also needs to be noticed. The claimant had set out its case in the claim
petition particularly paras 56 and 57 which has been quoted in the earlier
part of the judgment, which came to be replied by the appellant-objector
in para 37 of the statements of fact and counter claim where neither any
definite figure has been disclosed nor the amount outstanding or paid has
been indicated.

49. The learned Arbitrator had summarized the final bills of Block-C
and D, the payment to be made as per the claim of the claimant-
respondent and the appellant-respondent, thereafter, derived the figure
which is recapitulated hereinunder:-

Block C
Awarded Brief
Sr. Description As per As per Amount Comment
No. Respondent claimant s
1 Word Done 4,24,43,362 4,36,41,944 4,24,43,362
2 Less Incentive -7,14,824 Nil Incentive
@ Rs. 5/- Per was
Sq ft. payable
3 Rate difference 14,22,872 14,22,872
for Bricks
 22

4 Rate difference 2,37,412 2,37,412

for coarse sand
for Brick work
5 Rate difference 9,16,907 9,16,907
for coarse sand
for Plaster
6 Incentive 13,21,100 7,40,245+7,40 13,21,100
,245=14,80,49
0
7 P.C.C. Ground 63,437 63,437 As per
Floor findings
8 Railing 21,94,928 26,53,786 21,94,928
fabrication
work
9 Extra thickness 21,58,774 Nil
in plaster
Extra items
Entertained/A
pproved
10 Extra Work 43,400 55,380 43,400 As
(Pergola) claimed
by
claimant
in all other
pergolas
11 Coarse sand’s 4,53,528 21,58,774 4,53,528 No cogent
rate difference proof by
in extra thick claimant
Cement plaster
12 Malba shifting 75,000 1,00,000 1,00,000 See
second
last item
on page
146 of the
claimant’s
documents
in the
other case
13 Extra items 33,69,720 Nil Items not
approved but clear
not entertained
in the first
instance
14 Less Work (-) (-) (-)
done by Prev. 1,28,78,140 1,26,78,140 1,28,78,140
Contractor
Deductions
15 Cement -2,19,345 Nil As per
Wastage findings
 23

above
16 Recovery of -2,61,899 (-)2,61,899
Bricks
(supplied by
GPPL) in
Tower
17 Direct payment -6,76,731 (-)6,76,731 Admitted
to Contractor by
(Murshid claimant
Alam)
18 Recovery of -2,87,361 Nil As per
Steel used in findings
Brick work
19 Extra measured -59,663 Nil As per
of Reinforced findings
cement steel
20 Service Tax of 13,49,591 21,45,105 13,49,591 As per
3.8% i/c SBC findings
& KKC
Total 3,53,60,137 3,67,29,767

Block D Awarded Brief

Sr. Description As per As per Amount Comment
No. Respondent claimant s

1 Word Done 4,26,13,200 4,36,41,944 4,26,13,200

2 Less Incentive -7,14,824 Nil Incentive
@ Rs. 5/- Per was
Sq ft. payable
3 Rate 14,33,933 14,33,933
difference for
Bricks
4 Rate 2,53,176 2,53,176
difference for
coarse sand
for Brick
work
5 Rate 9,18,165 9,18,165
difference for
coarse sand
for Plaster
6 Incentive 13,21,100 7,40,245 13,21,100
7 Railing 24,95,690 29,55,007 24,95,690
fabrication
work
 24

8 Extra civil 32,80,029 Nil No details

work or proof
(material rate
difference)
Extra item
Entertained/
Approved
9 Extra work 24,200 55,380 24,200
(Pergola)
10 P.C.C. Ground 63,437 63,437
Floor
11 Extra 21,61,662 Nil Covered
thickness in by rate
plaster difference
12 Coarse sand’s 4,53,528 4,53,528
rate difference
in extra thick
Cement
plaster
13 Malba shifting 75,000 1,00,000 1,00,000 See
second last
item on
page 146
of the
claimant’s
documents
in the
other case
14 Extra item 38,90,729 Nil No
approved but particulars
not
entertained in
the first
instance
15 Escalation 19,94,970 Nil No proof
16 Less work -1,15,42,577 -1,13,42,577 -1,15,42,577
done Prev.
Contractor
Deductions
17 Cement -2,19,345 Nil As per
wastage findings
18 Recovery of -8,85,680 -8,85,680
Bricks
(supplied by
GPPL) in
Tower
19 Recovery of -3,08,589 Nil As per
Steel used in findings
Brick work
 25

20 Service Tax of 14,18,562 21,96,386 14,18,562 As per

3.8% i/c SBC payment
& KKC of
claimant
Total 3,44,98,415 3,86,66,734

50. Notably, the appellant-objector is a private limited company, thus,

while making payments to the contractors or sub-contractors or in case of
suppliers adherence to the provisions contained under Section 194C of the
Income Tax Act, 1961 as amended from time to time is mandatory.

51. The same is:-

“194C. Payments to contractors.—(1) Any person responsible for paying any
sum to any resident (hereafter in this section referred to as the contractor) for
carrying out any work (including supply of labour for carrying out any work)
in pursuance of a contract between the contractor and a specified person shall,
at the time of credit of such sum to the account of the contractor or at the time
of payment thereof in cash or by issue of a cheque or draft or by any other
mode, whichever is earlier, deduct an amount equal to—
(i) one per cent where the payment is being made or credit is being given to an
individual or a Hindu undivided family;
(ii) two per cent where the payment is being made or credit is being given to a
person other than an individual or a Hindu undivided family, of such sum as
income-tax on income comprised therein.
(2) Where any sum referred to in sub-section (1) is credited to any account,
whether called “Suspense account” or by any other name, in the books of
account of the person liable to pay such income, such crediting shall be
deemed to be credit of such income to the account of the payee and the
provisions of this section shall apply accordingly.”

52. As per Section 194C of the Income Tax Act, a duty is cast upon a
person responsible for paying a sum to any resident (hereinafter referred
to any contractor) for carrying out any work in pursuance of the contract
between the contractor and a specific person at the time of the credit of
the sum to an account of the contractor or at the time of the payment
thereof in cash or by issue of cheque or draft or by other mode whichever
is earlier and a deduction of amount equal to 1% where payment is being
made or credit is being given to an individual or Hindu undivided family
and 2% in other cases.
 26

53. Admittedly, in the present case there is no dispute that works

contract came to be executed between the appellant-objector and the
claimant-respondent. Therefore, the provisions of Section 194C of the
Income Tax Act is applicable. Though in the cross examination of Sri
Rohit Sharma dated 28.2.2018 INR 6,61,09,031/- is stated to have been
paid but the actual amount as per the statement, bifurcation whereof was
INR 5,02,69,435/- to the claimant-respondent and amount paid on behalf
of suppliers and sub-contractors was INR 1,48,68,487/- and INR
9,71,109/-.

54. Apparently, in the counter claim of the appellant-objector in sub-

paragraph (i) to (viii) it was averred that payments were made to the
suppliers and the sub-contractors. As per the mandate of 194C of the
Income Tax Act a statutory duty was cast upon the appellant-objector to
make necessary deductions (TDS) but, there is nothing on record to show
that any deductions were made.

55. For the very first time, in application under Section 34 of the Act
filed before the Commercial Court in para 33 it was averred that the
appellant-objector till 22.3.2017 had made a total payment of INR
7,60,30,739.22/- for both the blocks and the appellant-objector had filed
payment summary with its counter claim. Furthermore, during the course
of the arguments before the Commercial Court it was also argued by the
appellant-objector that total amount paid was INR 7,16,05,696/- and tax
deducted was 7,35,159/-. Even before this Court in the brief note and the
relevant document compilation dated 5.3.2023 page 1 it has been
mentioned that a total amount INR 7,16,05,689/- was credited in the
account of the claimant-respondent for the Assessment Year 2014-15,
2015-16, 2016-17 and an amount INR 7,16,054/- was deducted as TDS.
In the said background, the Court finds that the appellant/objector is
taking inconsistent stand at different stages in the proceedings which does
not inspire the confidence of the Court. More so, when figures are not
matching and there is no plausible explanation offered by it.
 27

56. Much emphasis has been laid down upon the fact that in the award
of the Arbitrator there are material contradictions, since on one hand it has
been observed that claimant did not produce any document to show that
TDS or a part of it was not credited in its account, therefore, TDS cannot
be claimed, however, on the other hand, liability has been fastened upon
the appellant-objector while holding that its version was not accurate and
reliable and there was an admission in the statement of facts and counter
claim that INR 5,02,00,000/- was paid to the claimant-respondent instead
of INR 5,70,00,000/- though there was no admission at all. In our
opinion, the said contradiction would not be of any aid or help to the
appellant-objector particularly when from the records it is borne out that
there is a clear cut admission of the appellant-objector by way of
deposition in cross examination of Sri Rohit Sharma that INR
5,02,00,000/- had been paid to the claimant-respondent. Minor
contradictions cannot be permitted to demolish a case particularly when
the same is writ large from an admission of a party. The arbitral tribunal in
the award has drawn a comparative chart of the claim set up by the
appellant-objector and the claimant-respondent and thereafter proceeded
to derive the actual figures which was due and outstanding and liable to
be paid to the claimant-respondent. In absence of any challenge made to
the said figures by the appellant-objector either in the proceedings under
Section 34 of the Act or before this Court in the present proceedings, this
Court is not required to go into the said issues.

57. Another facet which needs to be noticed is that the claimant-

respondent was paid incentives for the works executed by it. Though a
feeble attempt was made based upon the allegations in the counter claim
that since the entire work was not executed by the claimant-respondent so
the said works were got executed by the appellant-objector from the sub-
contractors /suppliers but the Court finds that the findings of payments of
incentive remains unassailable particularly when no challenge has been
raised either before the Commercial Court or before us.
 28

58. Though, ordinarily in view of the provisions contained under

Section 101 read with Section 102 and Section 114 of the Evidence Act,
1872 the burden of proof stood upon the claimant-respondent to prove its
case but in the present case in hand once there is a clear admission of the
appellant-objector admitting a particular fact which remains intact without
any challenge being raised to the same then it cannot be said that the
Arbitral Tribunal committed any patent illegality in awarding the said
amount.

59. Moreover, the Hon’ble Apex Court in the case of Sushil Kumar Vs.
Rakesh Kumar reiterated in (2003) 8 SCC 673 while relying upon the
earlier judgment in the case of Thiru John Vs. Returning Officer (1977)
3 SCC 546 in para 63 observed as as under:-
63. In Thiru John Vs. Returning Officer the law is stated in the following
terms: (SCC page 545, para 15)

“15. It is well settled that a party’s admission as defined in Sections 17

to 20, fulfilling the requirements of Section 21 of the Evidence Act, is
substantive evidence proprio vigore. An admission, if clearly and
unequivocally made, is the best evidence against the party making it and
though not conclusive, shifts the onus on to the maker on the principle that
‘what a party himself admits to be true may reasonably be presumed to be so
and until the presumption was rebutted, the fact admitted must be taken to be
established’.”

Issue No. (d):

60. So far as the next issue regarding non-disposal of the application

under Order XI Rule 12 CPC for discovery of the books of
accounts/ledgers of claimant-respondent rendering the award to be fatal
and vitiated is concerned, the same at first blush appears to be attractive
but it may not have any substance for the simple reason that Sri Rohit
Sharma in his cross examination had given a specific figure of the amount
paid to the claimant-respondent.
 29

61. Importantly, it is also not the case of the appellant-objector either

before the Arbitral Tribunal or in the proceedings under Section 34 of the
Act or before this Court that the deposition made during cross
examination was actuated by fraud, coercion or misconception or he was
not authorized and not competent to make the said statement. Further
there is no application even for recalling the said statements also. The
position might have been different, in case, the appellant-objector would
have demonstrated from the record that the INR 5,70,00,000/- was paid to
the claimant-respondent, but, since the same is lacking, thus, mere
irregularity of non-disposal of the said application would not render the
award to be suffering from patent illegality making it vitiated.

Issue No. (e):

62. There is no quarrel to the proposition of law that a legal issue going
into the root of the matter can be raised for the very first time in the
appellate proceedings. However, the question is dependent upon the facts
of a particular case. Here, the Court finds that the said principle would not
apply and make any difference for the variety of reasons: (i) admission is
best piece of evidence; (ii) the deposition of the witness, Rohit Sharma on
behalf of the appellant-objector which remains intact; (iii) inconsistency
in the stand of the appellant-objector which has not been explained; (iv)
non-challenge to the quantum awarded to the claimant-respondent under
various heads; (v) waving of counter claim; (vi) acceptance of the fact that
incentives were paid to the claimant-respondent for the works executed by
it and of course; (vii) resiling from the admissions at appellate stage.

63. Viewing the case from four corners of law we are of the firm
opinion that the appellant-objector has miserably failed to show any
patent illegality warranting interference in the present appeal. Moreso,
when the scope of interference under Section 34 is limited and within the
contours of the ground specified under Section 34 of the Act.
 30

64. Resultantly, the appeal sans merit and is liable to be dismissed and
is dismissed

65. Interim order stands vacated.

Order Dated:- 8.5.2024

Piyush/Rajesh

(Vikas Budhwar, J.) (Arun Bhansali, C.J.)

Digitally signed by :-
PIYUSH KUMAR
High Court of Judicature at Allahabad