UNION OF INDIA versus M/S. SUSAKA PVT. LTD. & ORS.

Citation: [2017] 12 S.C.R. 430 · Decided: 08-12-2017 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Dismissed

Judgment (excerpt)

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[2017] 12 S.C.R. 430 
UNION OF INDIA 
v. 
MIS. SUSAKA PVT. LTD. & ORS. 
(Civil Appeal No. 8530 of 2009) 
DECEMBER 08, 2017 
[ABHAY MANOHAR SAPRE AND NAVIN SINHA, JJ.] 
Arbitration and Conciliation Act, 1996 - ss.11(5), 31(a), (b) 
and 34 - Worh contract awarded by appellant to respondent No. I 
- Disputes arose between the parties - Arbitral Tribunal partly 
allowed the claims of respondent No. I against the appellant -
Application uls.34 filed by appellant before Single Judge of High 
Court was allowed in part wherein two modifications were made in 
the date of award of interest on respondent No. I~· claim for damages 
- Respondent No. I filed appeal before Division Bench against tile 
said orde1; which was allowed -Plea of appellant that interest could 
not have been awarded on various claims to respondent No. I as 
Cl.13(3) of General Conditions of Contract (GCC) did not allow it 
to claim any interest on the sums payable under the contract except 
on Government securities, (f any deposited with t/1e appellallf - On 
appeal, held: Appellant did not raise the plea based on Cl.13(3) 
against respondent No.I at any stage of the proceedings - No 
indulgence can be granted to the appellant to raise such plea for 
the first time in Supreme Court - It is a clear case of waiver or/and 
abandol)ment of a plea at the initial stage itself- Further, appellant's 
application u/s.34 was dismissed on all other claims except two 
claims - However, despite such substantial dismissal it did not file 
any appeal to challenge the part dismis.ml of the application - Thus, 
the order of Single Judge insofar as it resulted in dismissal of 
appellant's application became final and attained finality - Grant 
of award of interest on tirbitmble claims by Arbitral Tribunal was 
not illegal or against any public policy or per se bad in law - Waive1: 
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Practice and Procedure - Pleadings - Raising a plea for the 
first time in Supreme Court - Held: If a plea is available wlzetlzer 011 
facts or law, it ht1s to be raised by the party at appropricite stage in 
accordance with law - If not mised or/and given up with consent, 
the party would be precluded from mising such plea at a later stage 
H of the proceedings 011 the principle of waiver - Waiver. 
430 
UNION OF INDIA v. MIS. SUSAKA PVT. LTD. & ORS. 
431 
Doctrines/Principles - Principle of waiver - Discu.ssed. 
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Arbitration - Arbitration award - Binding value of - Held: 
Award of Arbitral Tribunal once passed is binding on the parties -
Parties having chosen their own Arbitrator and given him an 
authority to decide the specific disputes arising between them must 
respect his decision as far as possible and should not make any 
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attempt to find fault in each issue decided by him only because it is 
decided against one party. 
Arbitration - Grant of interest by Arbitral Tribunal - Held: It 
is permissible to award interest on arbitrable clainL~ by the Arbitral 
Tribunal. 
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Maxims - "Cuilibet licet renuntiare juri pro se introducto" -
Discussed. 
Dismissing the appeal, the Court 
HELD: 1.1 The appellant did not raise the plea based on 
Clause 13(3) of the General Conditions of Contract (GCC) against 
respondent No.1 at any stage of the proceedings either in their 
reply filed before the Arbitral Tribunal or/and in submissions 
except raising it, for the first time, before Supreme Court in this 
appeal. It is found that in proceedings under Section 11 (5), 
Arbitration and Conciliation Act, 1996, the appellant did not raise 
this objection in their reply and instead gave their express consent 
to refer the issue of award of interest payable on various claims 
(1 to 17) to Arbitral Tribunal considering the said claim to be 
arbitrable under the contract. [Paras 20, 21) [437-F-G] 
1.2 If the appellant was so keen to place reliance on clause 
13(3) of GCC to defeat the claim of respondent No.1 relating to 
the award of interest on various claims, then it was necessary for 
the appellant to have raised such plea specifically, in their reply, 
before the Arbitral Tribunal. No such plea was raised even before 
the Arbitral Tribunal. Though it is found that the appellant raised 
this ground, for the first time, in Section 34 proceedings before 
the Single Judge but again this ground was not pressed at the 
time of arguments, as is clear from the perusal of the Single 
Judge's order. Not only that, the appellant again did not raise 
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SUPREME COURT REPORTS 
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