Silver Resorts Hotel India Pvt Ltd v. Wikberly Allison Tong & Goo (Uk) Ltd

SANJIV KHANNA, J MAY 17, 2017/P REK /kJALLI, J FAQ (OS) 283/2016

'0 $-^2 + IN THE HIGH COURT OF DELHI AT NEW DELHI IM)(OS) 283/2016 & CM No. 36615^/201^ Date of decision: 1?"' May, 2017 SILVER RESORTS HOTEL INDIA PVT LTD ..... Appellant Through: Mr. Sandeep Sethi, Sr. Advocate With Mr. Rohan Jaitley, Mr. Tushar Johu & Mr. Naman Joshi, Advocates j( versus WIIOiERLY ALLISON LONG & GOO (UK) LTD Respondent CORAM- Shambhu Sharan, Advocate HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MS. JUSTICE REKHA PALLI SANJIV KHANNA, T (ORAL) This appeal under Section 37(i)(c) of the Arbitration & Conciiiation Act, 1996 (Act, for .short) impugns order and judgment dated 18.07.2016 whereby objections filed by the appellant - Silver Resorts Hotel India Pvt. Ltd under Section 34 of the Act have been dismissed, upholding the arbitration avtara dated 03.07.2015. 2. The dispute relates to non-payment of architecture fee, in terms of the Design Seivice Agreement" dated 08.12.201!. 3. A number of contentions were raised before the Single Judge but before us the appellant has raised a singular contention. ThJ FAO (OS) 283/20) 6 \ challenge is to the part oi the award which directs payment of the thiid and the last tranche of £50,000 each under the Fee Schedule set out in Appendix 'B' of the 'Design Service Agreement' dated 8.12.2011. ' d..d 4. The appellant asseitithat the respondent had failed to perform their obligations and had not submitted complete drawings relating to the third tranche of £50,000 towards professional service fee payable on completion of 75% design development. Our attention was drawn to the e-mail dated 21.04.201.7 sent by Vipin Thakur of the appellant to Massimo Mallia of the respondent in which specific shortcomings m design and drawings were pointed out. On the principle of quantum meruit, tfte respondent was not entitled to the fourth tranche of £50,000 as the respondent had not completed 100% design development. The respondent in the statement of claim had adverted having completed 90% of the deliverable work by March, 2012 for which drawings were issued to the appellant on 19.03.2012. It is submitted that this i-^ n - caoc 0, a perverse award which aspect has been over looked by the learned Single Judge. -P-dent has contested the submissions. Our attpnt'V,r. - -j atiention /./as drawn to the Iponi j 16 08 7010m, notice dated • o-Zul^. lOi pay.men'^ of £ i 40 n^io 'yn I i - ouistanaing invoice, for due to bad market HV whtch had adversely affected them, they had m^h flow^" 17' causing delay. The appellant had .equested the 1 ^ n ^ quested the lespondent to release FAO (OS) 283/2016 IP further drawings, for delay in implementation of the project was not beneficial to either party. Thus implying that the appellant was aware that the designs were ready. In the rejoinder filed before the arbitrator, the respondent had affirmed and asserted the appellant were fully aware since inception that development phase drawings would be issued after release of outstanding instalment. The respondent had duly performed their part of the contract. They had prepared all or 100% design development drawings. 6. At the outset, we would note that scope for interference is rather limited and confined to the statutory parameters stated in Section 34 of the Act. The learned Single Judge has rightly referred to the ambit and scope of the said section by making reference to Oil and Natural Gas Corporation Limited Versus Western Geco International Limited, (2014) 9 SCC 263 and Associate Builders Versus Delhi Development Authority, (2015) 3 SCC 49 which places reliance on P R Shah, Shares and Stock Brokers Private Limited versus B.H.H. Securities Private Limited and Others, (2012) 1 SCC 594, to interpret "public policy" etc. 7. The arbitration award dated 03.07.2015 is exhaustive and etailed on the question of amounts due and payable and whether the .rd »d the fourth tranches of £50.000 each, the claim of £35 000 for additional work beyond the scone of p agreement and £5,059.70 towards expenses, were payable. The e-mail o