Skip to main content

Arbitration: 'Patent Illegality' & 'Contra Proferentem' explained

Cause Title : Flowmore Limited vs M/s Skipper Limited, O.M.P. (COMM) 391/2022, Delhi High Court

Date of Judgment/Order : 2nd February, 2023

Corum : Hon’ble Mr. Justice Chandra Dhari Singh

Citied: 

  1. PSA Sical Terminals Pvt. Ltd. vs. The Board of Trustees of V. O. Chidambranar Port Trust, Tuticorin and Ors. AIR 2021 SC 4661
  2. Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167
  3. Nabha Power Ltd. Vs. Punjab State Power Corporation Ltd. (2018) 11 SCC 508
  4. Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49
  5. R vs. Northumberland Compensation Appeal Tribunal. Ex Parte Shaw, 1952 1 All ER 122
  6. ChampseyBhara Company vs. The Jivraj Balloo Spinning and Weaving Company Ltd., AIR 1923 PC 66
  7. Delhi Airport Metro Express Pvt Ltd vs. Delhi Metro Rail Corporation (2022) 1 SCC 131

Background

The main ground taken by the learned senior counsel for the petitioner while assailing the Arbitral Award is that the impugned Arbitral Award is ex-facie erroneous and suffers from patent illegality, contrary to the fundamental policy of Indian Law by misappreciating vital evidence and virtually re-writting the contract terms by way of his interpretation, and has altered the agreed terms and the intention of the parties.

Judgment

The Delhi High Court decided that the issue before the Court was to adjudicate whether the Learned Arbitrator had adopted a judicial approach while giving out the Award. The Court may only interfere where the Arbitrator has failed in adopting a judicial approach during the Arbitration Proceedings, analysis of the contract, and thus while giving the Award. Where it is evident that the Learned Arbitrator had worked well within his limits and there has not been any arbitrary exercise of power, there is no scope of interference of the Court.

The Delhi High Court referring to the various judgments as above held that on the issue of 'patent illegality' raised by the Petitioner,  the decisive test is that first, whether the learned arbitrator has adopted a judicial approach; second, the principles of natural justice has been upheld; third, the decision must not have been egregious, or rather, perverse.

“Patent Illegality” is an illegality that goes to the root of the matter but excludes the erroneous application of the law by an arbitral tribunal or re-appreciation of evidence by an appellate court. 

The court observed that in this instant case, the Arbitral Award was a well-reasoned award, with the findings being clearly arrived at based on all the documents/evidence on record. The learned Arbitrator has clearly considered all the relevant evidence of record, and the ground of “misappreciation of evidence” does not stand validated as per the submissions of the Petitioner and under the observation of the Court. The impugned Award is in no way in contravention of the Arbitration and Conciliation Act, 1996, to reason that the Award is patently illegal.

A party cannot simply raise an objection on the ground of patent illegality if the Award is simply against them. Patent illegality requires a distinct transgression of law, the clear lack of which thereof makes the petition simply a pointless effort of objection towards an Award made by a competent Arbitral Tribunal.

The principle is that if arbitrators use the contract itself to determine a dispute, clauses should, in principle, be construed 'contra proferentem', meaning that they should be interpreted against the party that drafted it.

In the instant case, The Petitioner had drafted the Purchase Contract in which the Respondent was a signatory. The Learned Arbitrator having observed various interpretations of the contract, chose to endorse the interpretation that is favorable to the Respondent. The application of the rule of contra proferentem validates the learned Arbitrator‟s findings and observations regarding the interpretation of the contract so as to decide the question of breach of the contract.

Comments

Most viewed this month

Partition proceedings are vitiated even if single co-sharer is not made party or is not served in accordance with law

Cause Title :  Bhagwant Singh vs  Financial Commissioner (Appeals) Punjab, Chandigarh,  CWP-2132-2018 (O&M), High Court Of Punjab & Haryana At Chandigarh Date of Judgment/Order : 31.08.2022 Corum : Hon’ble Mr. Justice Sudhir Mittal Background A large parcel of land was owned by the Nagar Panchayat. Thereafter, some of the co-sharers sold their shares to third parties including the petitioners herein. On 22.11.1995, respondents No.3 to 5 filed an application for partition of the land. The petitioners were not impleaded as parties.  On completion of proceedings, sanad was issued on 28.08.1996. Vide two separate sale deeds dated 28.05.2008 respondents No.3 and 5 sold some portion in favour of respondent No.6 and 7. These respondents sought implementation of the sanad resulting in issuance of warrants of possession dated 05.06.2008. Allegedly, it was then that the petitioners realized that joint land had been partitioned and that proceedings h...

Power of Attorney holder can also file cheque bounce cases: Supreme Court

The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant. A three-judge bench headed by Chief Justice P Sathasivam gave the "authoritative" pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court. "We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases)," the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said. The bench, in its judgement, said, "...we clarify the position and answer the questions in the following manner: "Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal...

Christian who reconverts as Hindu SC will get quota benefits

Amid the controversy over “ghar wapsi”, the Supreme Court on Thursday ruled that a person who “reconverts” from Christianity to Hinduism shall be entitled to reservation benefits if his forefathers belonged to a Scheduled Caste and the community accepts him after “reconversion”. Citing articles by B R Ambedkar and James Massey, and reports by Mandal Commission and Chinappa Commission, the court said: “There has been detailed study to indicate the Scheduled Caste persons belonging to Hindu religion, who had embraced Christianity with some kind of hope or aspiration, have remained socially, educationally and economically backward.” The bench of Justices Dipak Misra and V Gopala Gowda held that a person shall not be deprived of reservation benefits if he decides to “reconvert” to Hinduism and adopts the caste that his forefathers originally belonged to just because he was born to Christian parents or has a Christian spouse. Expanding the scope of a previous Constitution benc...