18 December 2021, Saturday

1 year ago

Principle that set-aside court cannot interfere with finding of fact applied to issue of waiver and abandonment: Kerala High Court

17 November 2021 | CPG Consultants India Pvt. Ltd. v. MFAR Realtors Pvt. Ltd. | Arb.A No. 69 of 2017 | PB Suresh Kumar and CS Sudha JJ | Kerala High Court | 2021 SCC OnLine Ker 4285

The High Court noted that, though the expression ‘waiver’ was not used in the award, the tribunal had found that there was waiver and conscious abandonment of a particular claim (of “additional compensation”, i.e., liquidated damages).

The court asked: the findings may or may not be correct on facts, but the question is whether the said findings could be corrected in a proceeding under Section 34 ACA? It answered that the question of waiver is a pure and simple question of fact to be rendered on an appraisal of the evidence on record and a finding to that effect even if it is rendered on an erroneous application of the law, cannot be corrected under Section 34 ACA.

ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 was cited to argue that the arbitrator cannot decide beyond the terms of the contract.

The court said that there could not be any doubt to that proposition especially in the light of Section 28 (3) ACA, but here the tribunal’s finding was that there was a conscious abandonment of a term.

Read the judgment here.


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