Oil and Narural Gas Corporation Ltd. Vs. Saw Pipes Ltd. - Court Judgment

D.Y. Chandrachud, J.

1. In these proceedings under section 34 of the Arbitration and Conciliation Act, 1996, an Arbitral Award dated 4th December, 2001 of three arbitrators appointed to adjudicate upon the disputes which had arisen between the parties is sought to be questioned.

2. An agreement was entered into between the petitioners and a consortium of two bidders consisting of the respondent and a company known by the name of P.J. Pipes and Vessels Ltd. ('PJPVL'). Under the terms of the agreement which was entered into between the parties, PJPVL was to supply Risers and Bends and the respondent was to supply line pipes to the petitioner. There is no dispute between the parties of the fact that in pursuance of the contract that was entered into, goods came to be supplied. There is no dispute either as regards the supply of the goods contracted for or in regard to the quality of the goods supplied. On 25th March, 1996, a letter was addressed to the petitioner by the respondent and PJPVL. The letter recorded that in pursuance of the contract, the goods contracted for had been supplied to the petitioner; that the goods were accepted without demur or protest and were appropriated and utilised for the benefit of the petitioner. The letter recorded that disputes and differences had arisen between the parties which were reflected in the correspondence that had taken place between them. In terms of the arbitration Clause, Clause 10.1 of the contract read with Clause 7 of the General Conditions of the Contract, a notice invoking the provisions for arbitration came to be served on the petitioners on behalf of the respondent and PJPVL. On their part, the two members of the consortium appointed an arbitrator and called upon the petitioner to appoint its arbitrator in accordance with law. By a further letter dated 25th April, 1996 addressed to the petitioner the disputes between the parties were specifically elucidated. Those disputes were: (i) the levying of liquidated damages by the petitioner; (ii) the non-payment of the foreign exchange component; and (iii) a claim in respect of warranty. The concluding part of the aforesaid letter sets out that in case it was confirmed by the petitioner that the aforesaid issues shall be examined for an amicable settlement, the respondent and the other member of the consortium will not further pursue the invocation of arbitration and that they shall withdraw the notice after receiving an assurance that the petitioner would be 'examining the above issues for an amicable settlement'. There was further correspondence between the parties and in response to a communication dated 26th June, 1996, addressed on behalf of the petitioner, the respondent and PJPVL recorded that they were unconditionally agreeing 'not to take any further steps at present' pursuant to the letter dated 25th March, 1996 invoking arbitration.

3. The Court has been informed that the outstanding disputes were considered by the Competent Authority of the petitioner and the only claim which survived was the claim of the respondent in so far as the foreign exchange fluctuation was concerned. The issue of liquidated damages came to be resolved amicably between the parties. The Court has also been informed that there was no subsisting claim of the petitioner against either the respondent or against the other consortium member, PJPVL.

4. On 30th September, 1997, a letter was addressed to the petitioner on behalf of the respondent, by which the Advocates for the respondent recorded that despite the previous exchange of correspondence, the petitioner had not taken any decision regarding the claim made by the respondent in respect of the foreign exchange component. According to the respondent, though efforts had been made to settle the claim of the respondent which was in the total sum of Rs. 61,05,305.97 in respect of the foreign exchange component, no settlement was reached. In the circumstances, by the aforesaid letter dated 30th September, 1997 the petitioner was informed that the respondent was proceeding with the arbitration, as already notified by its letter dated 25th March, 1996. The petitioner was accordingly called upon to appoint its arbitrator to adjudicate upon the disputes and differences that had arisen between the parties in relation to the foreign exchange component.

5. The disputes and differences which had thus arisen, relating, as they did, to the question as to whether the respondent was entitled to its claim in respect of the foreign exchange component, was referred to the arbitration of three learned arbitrators. By an Award dated 4th December, 2001, the claim has been accepted in part and the petitioner has been directed to pay a total amount of Rs. 47,88,189.35 together with interest at the rate of 12% per annum thereon from 1st May, 1993, until the date of the Award and thereafter, till payment.

6. Before dealing with the four submissions that have been urged to challenge the Award of the learned arbitrators in the present case; it would be necessary to note at the outset that, in the present case, the first request to arbitration was made on 25th March, 1996. Since the request for arbitration has been made after the enforcement of the Arbitration and Conciliation Ordinance, which came into force on 25th January, 1996, there is no dispute about the fact that the provisions of the new Act would govern the present case. The submission of the learned Counsel for the petitioners, as will be considered in greater detail subsequently, was that the request for arbitration must be regarded as having been made on 30th September, 1997, and that this should be the relevant date for the purposes of limitation. In either way of the matter, however, since the request for arbitration was made after the Arbitration and Conciliation Ordinance, 1996 came in force, there is no dispute about the fact that the new Act would be applicable.

7. The submissions which have been urged on behalf of the petitioner are thus:

(i) The arbitration proceedings must fail on account of there being a non-joinder of necessary parties. The contract was entered into by the petitioner with two members of a consortium including the respondent and the claim in arbitration is not maintainable in the absence of the other consortium member; (ii) The consortium, properly construed was a partnership, and not being registered under the provisions of the Indian Partnership Act, 1932, the proceedings before the learned arbitrators were not maintainable; (iii) The claim before the arbitrators was barred by limitation; and (iv) The Award of the learned arbitrators is contrary to the provisions of the contract.

8. The learned Counsel appearing on behalf of the petitioner has stated before the Court that with reference to the grounds which are available under section 34 of the Arbitration and Conciliation Act, 1996, the only ground which is pressed in aid of the arbitration petition is that contained in section 34(2)(iv). Hence, the only submission urged by learned Counsel is that the Arbitral Award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration. In view of the judgment of the Division Bench of this Court in Vijaya Bank v. Maker Development Services Pvt. Limited, 2001 (3) Bom.C.R. 652 the petitioner has not pressed the submission that the Arbitral Award is in conflict with the public policy of India. Each of the challenges to the impugned Award can now be taken up seriatim.

9. THE FIRST SUBMISSION: The first ground of challenge is that the claim in arbitration which was made by the respondent which was only one member of the consortium must fail in the absence of the other member joining in the arbitral proceedings. The learned Counsel appearing on behalf of the petitioner relied upon various provisions of the bid document and of the contract between the parties in support of the submission, to which it would be necessary to briefly refer. Reliance was placed on Clause 2.1 of the bid document which provided that the bid can only be submitted in the name of the bidder or a consortium led by him in whose name the bid documents were issued by the petitioner. Reliance was next placed on Clause 2.12 which provides that bidders shall clearly indicate their legal constitution and where the tender is made by a consortium, the tenderer shall submit a Memorandum of Understanding between the consortium members and shall specifically indicate full particulars of the members of the consortium by whom and/or on whose behalf the tender is being submitted. The name of the leader of the consortium was also required to be submitted. Clause 2.13.2 then provided that the Memorandum of Understanding must also state that all the members of the consortium shall be jointly and severally responsible for the complete and satisfactory execution of work in accordance with the supply order. A similar provision was made in Clause 2.13.8 which provided that the Memorandum of Understanding to be executed by the members of the consortium must state that all the members of the consortium are jointly and severally responsible for the satisfactory execution of the complete project.

10. In so far as the contract that was entered into between the parties is concerned, learned Counsel placed reliance on some of those provisions to submit that the contract was entered into with the consortium consisting of two members of which the first respondent was one member. The duties and obligations of the parties were stipulated in Clause 3.2 and Clause 3.3 provided that both the members of the consortium shall be jointly and severally responsible for the execution of the entire scope of work and shall ensure satisfactory performance of the entire supply contract. The clause provided that both the members of the consortium shall be liable for any breach in the performance of the supply contract with consequent liability for the damages and losses of the company.

11. In sum and substance, the submission that was urged was that one composite contract was entered into by the consortium consisting of two members and in the absence of PJPVL which is the other member, the claim could not have been maintained by the first respondent alone.

12. The point which was urged before the Court has been urged before and considered by the learned arbitrators. Amongst the issues that were framed in the arbitral proceedings, Issue No. 2 related to the question as to whether PJPVL is a necessary party to the proceedings and whether the claim is not maintainable in its absence as alleged in paragraphs 1(a) to 2(b) of the reply. The learned arbitrators in rejecting the submission adverted to the provisions of Clause 3.2 of the agreement dated 22nd June, 1992. Clause 3.2 delineates separately the duties and obligations of PJPVL and of the respondent. Clause 2(h) thereof clearly specifies that PJPVL was to receive advance payment and payments only for supplies of Risers and Bends. Similarly, in so far as the duties and obligations of the respondent are concerned, it was stated in Clause (j), that the respondent would receive payment for the supply of line pipes. The Arbitral Award records that in the arbitral proceedings, there was no claim relating to any amount that was due and payable to PJPVL. The claim in other words is of the amount receivable exclusively by the respondent in respect of supplies which were made solely by the respondent. There is also a reference in the Award to the fact that the expression 'supplier' is to include the respondent as well as PJPVL collectively or individually.

13. Apart from these circumstances, it would also be necessary to refer to Clause 12 of the General Conditions of the Contract which formed an annexure to the agreement that was entered into between the parties. Clause 12.1 provides that 100% payment less the proportionate amount of advance against supplies of each lot of line pipes, risers and bends shall be made to the respondent, subject to prior satisfactory inspection, acceptance of supplies and proof of despatch. Similarly, 100% payment was to be made to PJPVL by the petitioner in respect of supplies of risers and bends effected by PJPVL.

14. The position, therefore, as it obtains was that the claim in the arbitral proceedings was restricted to the claim which the respondent alone had against the petitioner in respect of the non-payment of the foreign exchange component on supplies exclusively effected by the respondent. No part of the claim related to any amount which was alleged to be due and outstanding to PJPVL. Moreover, it would be material to note that the petitioner has neither a counter claim, nor a plea that any amount which is found to be due and owing should be set off against any amount outstanding to the petitioner. The learned Counsel for the petitioner stated that the petitioner has no claim against the respondent or against PJPVL.

15. In these circumstances, the learned arbitrators construed the provisions of the contract and came to the conclusion that the claim in the arbitral proceedings is not liable to fail by the non-joinder of PJPVL. The obligations of the two contracting members of the consortium were separate and identified separately. True, each of the two members, was jointly and severally liable to the petitioners for any breach that may be committed by either of them. That issue does not arise in the present case, since the petitioner has no claim or outstanding. The view which has been taken by the learned arbitrators is based on the provisions of the contract. The view in fact commends itself as a correct view. I am of the view that there is no scope for the interference for this Court and the first submission which has been urged lacks merit.

16. THE SECOND SUBMISSION : The second submission which was urged was that the members of the consortium must be regarded as having entered into a partnership and that in the absence of the registration of the partnership under the Indian Partnership Act, 1932, the claim is not maintainable. This submission has also been considered by the learned arbitrators. The Arbitral Award records that there are three essential ingredients under section 4 of the Partnership Act for there to be a partnership, these being: (i) There must be an agreement entered into by two or more persons; (ii) The agreement must be to share the profits of a business; and (iii) The business must be carried on by all or any of them acting for all. The last two ingredients were found to be missing, in that there was no agreement between the parties to share profits, nor was there any mutual agency between the parties by which each partner would act both as a principal and as an agent for the other. The relevant provisions of the contract between the parties have already been adverted to earlier and these have been duly considered by the learned arbitrators. The Award takes due note of the fact that under the modified arrangement that was entered into between the parties, payments were to be separately made to the respondent and to PJPVL. Moreover, separate roles have been assigned to the two members of the consortium. In that view of the matter, there was no question of the members of the consortium having entered into a partnership. The finding of the learned arbitrators is correct. There was no merit in the second submission.

17. THE THIRD SUBMISSION : The third submission that has been urged is that the claim in the arbitral proceedings was barred by limitation. In considering the correctness of the aforesaid submission, it would, at the outset, be necessary to refer to the relevant documents and the dates as they emerge from the record. On 25th March, 1996, a letter, as already noted earlier, was addressed by the respondent and by the other member of the consortium to the petitioner setting out that disputes and differences had arisen between the parties, for the resolution of which, the provision for arbitration contained in Clause 10.1 of the agreement and Clause 7 of the General Conditions of the contract was invoked. There were, thereafter, negotiations between the parties and on 25th April, 1996, a further letter was addressed by the members of the consortium recording that there were three outstanding issues which needed to be resolved, these being, the issue of liquidated damages, payment of the foreign exchange component and the warranty claim. The respondent and PJPVL stated that they would not pursue the invocation of arbitration if the petitioner were to confirm that the above issues were being examined for an amicable settlement. The petitioner thereafter, addressed a communication dated 26th June, 1996 and in response thereto a letter dated 5th July, 1996 came to be addressed by the two members of the consortium stating that in view of the aforesaid communication, the consortium members had unconditionally agreed not to take any further steps 'at present' in pursuance of the earlier letter dated 25th March, 1996. Subsequently, as already noted earlier, the issue relating to liquidated damages was resolved. On 30th September, 1997, a letter was addressed to the petitioner on behalf of the respondent in which it was stated that despite the assurance which had been given by the petitioner, the outstanding issue relating to the claim of the respondent in the total amount of Rs. 61,05,305. 97 in respect of the foreign exchange component remained unresolved. In the circumstances, it was stated that the respondent was proceeding with the arbitration as already notified by its letter dated 25th March, 1996.

18. In evaluating as to whether the claim was barred by limitation, the learned Arbitrators considered at the outset, as to what would be the correct date on which the limitation for the purpose of the arbitration proceedings would stop running. The learned Arbitrators held that limitation would stop running on 25th March, 1996 when the arbitration clause of the contract was invoked on behalf of the members of the consortium. Before the learned Arbitrators as well as before this Court, it was sought to be urged that the notice dated 25th March, 1996 must be regarded as having been withdrawn and that the invocation of the arbitral proceedings must be regarded as having taken place by the subsequent letter dated 30th September, 1997. This submission has been rejected by the learned Arbitrators who have taken due note of the fact that on 5th July, 1996, what the respondent had stated together with the other member of the consortium was that at present it was unconditionally agreeing not to take any further steps in pursuance of the letter dated 25th March, 1996. There was, in other words, no withdrawal on 5th July, 1996 of the invocation of arbitration which had taken place by the letter dated 25th March, 1996. The respondent decided to pursue the arbitral proceedings after the attempted negotiations to settle the dispute with the petitioner did not bear any fruit in so far as the foreign exchange component was concerned. The view which has been taken by the learned Arbitrators is proper in fact and correct in law. This is quite apart from the fact that there is no jurisdictional error. This Court has to be conscious of the limited parameters for the exercise of its jurisdiction under the provisions of the Act to a challenge to an Arbitral Award.

19. The Award of the Arbitrators then takes account of the fact that of the six bills which formed the subject matter of the arbitral proceedings, all claims in respect of invoices prior to 25th March, 1993 will have to be regarded as being barred by limitation. There was no dispute about the fact that in respect of five of the six invoices, part payments were made on 23rd April, 1993 in respect of Invoices Nos. 299 and 300 both dated 20th January, 1993. Similarly, in respect of Invoices No. 311-A, 311-B and 311-C dated 16th March, 1993, payments were made on 29th March, 1993, 7th April, 1993 and 7th April, 1993 respectively. In view of these part payments, the learned Arbitrators held that the claim in so far as the said five invoices are concerned, will have to be held as falling within the period of limitation. The claim under the sixth invoice, it was held, could not be allowed since the claim thereunder was barred by limitation. The learned Counsel appearing on behalf of the petitioners has fairly conceded that if the relevant date for the invocation of the arbitral proceedings is taken as 25th March, 1996, the claim is within the period of limitation. The finding which has been arrived at by the learned Arbitrators is correct and does not call for any interference. The provision for arbitration under the contract between the parties was invoked on 25th March, 1996. The subsequent letter dated 30th September, 1997 was only in continuation of the earlier letter since by that letter all that the respondent stated was that it would no longer hold the arbitral proceedings in abeyance, since the dispute in respect of the foreign exchange component was not settled.

20. THE FOURTH SUBMISSION : The final submission urged on behalf of the petitioners is to the effect that the Award is contrary to the provisions of the Contract and consequently, in violation of the provisions of section 28 of the Arbitration and Conciliation Act, 1996, read with section 34(2)(iv). Learned Counsel urged that sub-section (3) of section 28, provides that in all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. In considering whether there is any merit in the submission, it would at the outset, be necessary to advert to the provisions of section 34(2)(iv), which were relied upon by the learned Counsel appearing on behalf of the petitioner. Clause (iv) of sub-section (2) of section 34 envisages a situation where the Arbitral Award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or one where it contains decisions on matters beyond the scope of the submission to arbitration. In the present case the submission based on section 34(2)(iv) is misconceived. This is clearly not a case where the Arbitral Award has dealt with a dispute which is not contemplated by or not falling within the terms of the submission to arbitration. The question as to whether the respondent was entitled to its claim on account of the foreign exchange component was within the purview of the arbitration clause and within the terms of the submission to arbitration. Therefore, in considering the claim and in awarding the claim, the Arbitral Forum cannot be held to have dealt with a dispute which is not within the terms of the submission or falling beyond the terms of the submission to arbitration.

21. Be that as it may, I have, for the sake of completeness, also considered the question as to whether there is any merit in the submission that has been urged in so far as the challenge to the Award is concerned. In considering the merits of the submission which has been urged before the Court, it is necessary at the outset, to advert to Clause 4.2 of the agreement which provides as follows:

'4.2 It is the responsibility of the supplier to arrange foreign exchange, towards the payment of foreign currency for execution of this supply contract. Company shall make all payments under the supply contract in Indian rupees only, including the foreign currency component at the market rate of exchange as declared by State Bank of India as on the date of actual payment of supplier for the imported supplies against documentary evidence by such payments by the supplier subject to the following conditions:

i) No increase in the price on account of foreign exchange variation, which takes place after the scheduled date(s) of delivery shall be admissible in such of the supplies which are made after the said date(s).

ii) The company shall be entitled to the benefit of any decrease on account of reduction in foreign exchange rate at the time of import of supplies when it takes place after the expiry of the scheduled delivery date(s).'

In the present case, the learned arbitrators on the basis of the provisions of Clause 4.2 awarded a total amount of Rs. 47,88,189.35 on account of the foreign exchange component. From the Award it would be clear that the learned arbitrators had taken into account the exchange rate that was prevalent on the scheduled date of delivery. The learned arbitrators held that the respondent would be entitled not to the entire claim as made before the arbitral forum, but only that portion of the claim to the extent to which it related to the rate of exchange prevailing on the scheduled date of delivery. Since a part of the claim was also found to be barred by limitation, a deduction was made in respect thereto. An amount of Rs. 47,88,189.35 has been held to be due and payable.

22. In assailing the Arbitral Award the learned Counsel appearing on behalf of the petitioner sought to urge that no foreign exchange fluctuation at all could have been allowed to the respondent where there was a delay in delivery beyond the stipulated date. The submission that was urged was that the respondent was not justified in claiming any amount whatsoever in respect of the foreign exchange component and once there was delay in delivery, the claim must fail in its entirety.

23. In considering the tenability of the submission which was urged on behalf of the petitioners, it would, at the outset, be necessary to record that the Award of the learned arbitrators refers to two submissions which were urged before the arbitral forum. The first submission that was urged before the learned arbitrators was that the respondent was estopped from claiming any amount in excess of the rate of exchange of one U.S. Dollar being equivalent to Rs. 26/- since according to the petitioner, that was the rate that had been fixed by the petitioner and had been accepted by the respondent. The second submission that was urged was that the respondent had entered into a credit arrangement with its foreign suppliers and that the respondent was, therefore, disentitled to any claim in respect of the foreign exchange component.

24. Both the submissions have been duly considered in the Award of the learned arbitrators. The Award refers to the correspondence between the parties and construes the provisions of the contract. As regards the first submission, the Award notes that there was no merit in the contention of the petitioners that the respondent had accepted the determination of the rate of exchange of Rs. 26/- per U.S. Dollar as fixed by the petitioner. The Arbitral Award refers to the fact that in a letter marked in evidence as Exhibit C-23, the petitioner had decided to make payment at an ad hoc rate of Rs. 26/- per U.S. Dollar on the basis of the prevailing rate as of 26th November, 1991. The petitioner had sought unconditional acceptance by the respondent before effecting payment at the aforesaid rate. The respondent had by its communications dated 8th February, 1993 (Exhibit-C-30), 15th February, 1993 (Exhibit-C-33) and 2nd March, 1993 (Exhibit C-36) clearly stated that while it was accepting the conditions stipulated by the petitioner for payment of the foreign exchange fluctuation, this was without prejudice to its rights under the conditions of contract dated 22nd ,1992. In that view of the matter, the learned arbitrators, after considering the correspondence between the parties, came to the conclusion that there was no express consent given by the respondent agreeing to the proposal made by the petitioner. In fact, correspondence showed the absence of an unconditional acceptance on the part of the respondent of the proposal which had been made by the petitioner. On the second submission which was urged before them, the learned arbitrators concluded that there was nothing in the agreement which would prohibit the respondent from securing credit facilities in respect of the payments which were made to foreign suppliers and this did not disentitle the respondent, to receive payment under the foreign exchange component. The findings of the learned arbitrators on the two submissions which were urged before them on this point are based on adequate reasons, founded upon the documentary evidence and on a construction of the contract which commends itself for acceptance. The Court would allow the view of the arbitrators to pass muster even if it were a possible view. In the present case it is a correct view. In my view, this is also an area where the interference of this Court in the Award of the learned arbitrators is not warranted in the least, having regard to the well-settled limitations upon the exercise of the jurisdiction in considering a challenge to an Award under the Act of 1996.

25. Apart from this, the submission which has been urged before this Court to the effect that no payment at all was liable to be made on account of the foreign exchange component where the supplies were delivered beyond the scheduled date, has not been urged before the learned arbitrators either in the pleadings or in the submissions made before the arbitral forum. The attention of the Court has been drawn to the claim and to the written statement filed before the learned arbitrators and it is to my mind abundantly clear that the only two defences which were taken in the pleadings were that (i) the respondent had accepted the ad hoc rate of Rs. 26/- per U.S. Dollar which was determined by the petitioner and was, therefore, estopped from claiming anything over and above the aforesaid amount; and (ii) that the respondent was disentitled to any payment on account of the foreign exchange component since it had availed of credit from its foreign suppliers. Having regard to defences which were taken before the learned arbitrators, the only issues which were raised in this connection were issues Nos. 4, 5 and 6 which were as follows:

'(4) Whether the claimant is estopped from making the claim, as alleged in paragraph 3 of the reply.

(5) (a) Does the claimant's availing of credit arrangement between the claimant and the foreign suppliers of raw materials constitute a breach, as alleged by the respondent?

(b) If so, what is the effect?

(6) Whether the payments made by the respondent to the claimant and received by the claimant from the respondent towards foreign exchange component were without prejudice to the rights of the claimant under the contract and subject to final adjustments as alleged in paragraphs 10 and 18 of the statement of claim?.'

Neither in the hearing before the learned arbitrators, nor in the submissions, was it sought to be urged that the respondent would be disentitled to any payment on the ground of the foreign exchange component in respect of supplies which were delivered after the scheduled date. In that view of the matter, I am of the view that the respondent is not entitled to canvass the submission which was urged in the proceedings before this Court for the first time.

26. That apart, I am of the view that the learned arbitrators have construed the provisions of the contract, more particularly Clause 4.2 and the construction which has been placed thereon does not warrant interference. Before considering the interpretation of Clause 4.2, it is necessary to advert to the provisions of Clause 3.1 of the contract which refers to the scope of supplies under the agreement. Both the foreign exchange component and the Indian Rupee Component form part of the ex-works unit price. Therefore, it is abundantly clear that the total price that was payable was inclusive of both the Indian Rupee Component and of a component expressed in terms of U.S. Dollars. Clause 4.2 of the contract postulates that it is the responsibility of the supplier to arrange foreign exchange, towards the payment of foreign currency for the execution of the supply contract. The petitioner agreed to make all payments under the supply contract only in Indian Rupees, including the foreign currency component which would be worked out at the market rate of exchange declared by the State Bank of India on the date of actual payment by supplier for the imported supplies against documentary evidence of such payments having been made. Two conditions were stipulated thereafter in Clause 4.2. The first condition was that no increase in the price on account of foreign exchange variation, which takes place after the scheduled date of delivery would be admissible in respect of such of the supplies which were made after the said date. The second condition stipulates was that the petitioner would be entitled to the benefit of any decrease on account of a reduction in the foreign exchange rate at the time of import of supplies when it takes place after the expiry of the scheduled delivery date. The first condition which was imposed by Clause 4.2 properly construed, does not prohibit or bar the contractor from seeking the benefit of an exchange rate variation completely, but only stipulates that such portion of the variation which has taken place after the scheduled date of delivery would not be admissible to the contractor. The aforesaid condition cannot be read to mean that in the event of supplies being effected after the scheduled date of delivery the contractor would lose entirely his right in respect of the exchange rate variation. In the event of supplies being delayed, there were other provisions of the contract such as the provision relating to liquidated damages which conferred sufficient safeguards upon the petitioner. The learned arbitrators were in these circumstances, more than amply justified in taking the view that while the respondent would be disentitled to the benefit of any variation in the exchange rate that had taken place after the scheduled date for the completion of delivery, the respondent would be entitled to the foreign exchange component calculated with reference to the rate of exchange applicable on the scheduled date fixed under the contract for effecting delivery.

27. This being in any event of the matter, a possible view to take of the contractual terms and conditions, I am of the view that the Court is not justified in interfering with the Award of the learned arbitrators on that count. The scope for the interference or this Court in the Award of the learned arbitrators is now restricted by the provisions which have been enacted by Parliament in section 34 of the Arbitration and Conciliation Act, 1996. The Supreme Court interpreted those provisions in its decision in Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan, : [1999]3SCR490 . These provisions have also been considered by the Division Bench of this Court in Vijaya Bank v. Maker Development Services, 2001 (3) Bom.C.R. 652 As noted earlier, the learned Counsel appearing on behalf of the petitioners has not urged that the Award is in conflict with the public policy of India. I am of the view for the reasons recorded in this judgment, that there is no merit in the submission that the Arbitral Award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or that it contains decisions on matters beyond the scope of the submission to arbitration.

28. There is no merit in the arbitration petition. The arbitration petition is accordingly dismissed.