IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI A V FRIDAY, THE NINTH DAY OF MAY TWO THOUSAND AND TWENTY FIVE 1 o ! PRESENT THE HONOURABLE MS JUSTICE B.S. BHANUMATHI INTERNATIONAL COMMERCIAL ARBITRATION ORIGINAL APPLICATION NO: 8 OF 2021 Between: M/s.Dredging Corporation of India Limited., Dredge House, Port Area, Visakhapatnam, Represented by its Authorized Signatory and Power of Attorney Holder Smt. V.Usha Rani, Joint Manager (Legal), Dredging Corporation of India Limited, Dredge House, Port Area, Visakhapatnam - 530035, State of Andhra Pradesh. ...Applicant/Petitioner AND Shipyard “DE DONGE”, Represented by its President, Flushing - Head Office, Order No.5910, VLISSINGN-OOST, Post Box - 240, 4460 A.E. Goes, The Netherlands. Email: info@shipyarddedong.nl ...Respondent Application filed under Section 34 of the Arbitration and Conciliation Act, 1996 praying that the High Court may be pleased to set aside the International Commercial Arbitration Award, dated 25-01-2018, as amended by proceedings dated 11-03-2018 and communicated by E-Mail 12-03-2018, passed by the Arbitral Tribunal, consisting of Mr.Justice C.Y.Somayajulu (Retd), Presiding Officer and Mr.Justice Desaraju Apparao on ( (Retd.) Co Arbitrator and Mr.Justice N.R.L.Nageswara Rao (Retd.) Co Arbitrator, in the matter of Shipyard De Donge (Claimant) and Dredging Corporation of India Limited, (Respondent). lA NO: 3 OF 2021 Petition filed under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of enforcement/execution/operation of International Commercial Arbitration Award, dated 25-01-2018, passed by the Arbitral Tribunal, consisting of Mr.Justice C.Y.Somayajulu (Retd.) Presiding Officer and Mr.Justice Desaraju Apparao (Retd.), Co-Arbitrator and Mr.Justice N.R.L.Nageswara Rao (Retd.) Co-Arbitrator, in the matter of Shipyard "De Donge" (Claimant) and Dredging Corporation of India Limited, (Respondent), and amended/modified by proceedings dated 11-03-2018 and communicated on 12-3-2018, by way of email. Counsel for the Petitioner :Sri Rayaprolu Srikanth Counsel for the Respondent :None appeared The Court made the following: APHC010424242018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3311] (Special Original Jurisdiction) Friday, the ninth day of May two thousand and twenty five Present The Honourable Ms. Justice B. S. Bhanumathi International Commercial Arbitration Original Application No. 8 of 2021 Between: M/s Dredging Corporation of India Limited. ...Petitioner and Shipyard De Donge Counsel for the petitioner: I.Rayaprolu Srikanth Counsel for the Respondent: ... ...Respondent The Court made the following: ORDER: This application is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act'), seeking to set aside the International Commercial Arbitration Award, dated 25.01.2018, as amended by proceedings, dated 11.03.2018, and communicated on 12.03.2018, by the Arbitral Tribunal. 2. The facts, as stated in the petition, briefly stated, are as follows: a. The petitioner. M/s. Dredging Corporation of India Limited / DCIL (hereinafter referred to as “the buyer”), is a Public Sector Unit / Undertaking engaged in the business of dredging having its Head Office at Visakhapatnam. The respondent. Shipyard "DE DONGE" (hereinafter 2 BSB, J ICOMAOA No.8 of 2021 referred to as "the builder"), is engaged in designing and construction of dredging and port equipment, having its Head Office, at Netherlands. The buyer and the builder entered into an agreement dated 22.11.2008, for design, construction and supply of Backhole Dredger. b. As per paragraph (A) of Article II of the agreement, the contract price was Euros 18,500,000 excluding Indian taxes, duties, port duties etc. The price was agreed to be paid in six installments characterized as six stages set out in the agreement, subject to compliance of the requirements by the builder, namely (i) Bill / Invoice: (ii) Stage completion certificate; and (iii) Bank Guarantee. The delays in stage payments beyond the specified period in respect of each stage would attract interest @ 3% per annum. Paragraph (A) of Article VII stipulated the time and place of delivery of dredger. Accordingly, the dredger has to be delivered at Visakhapatnam and it was expected to be ready for commissioning with classification and statutory certificates within 18 months from the date of signing the agreement and receipt of first stage payment. Both the conditions had to be complied with. The delay in payment would entail in levy of interest of 3% per annum. Likewise, the delay in delivery of dredger beyond 14 days as set forth in Article VII would attract liquidated damages of genuine pre-estimated damages of maximum of 5% as penalty. However, the delay was due to force majeure events, defined in Paragraph (A) of Article VIII, specifically marked to be excluded in reckoning the period of delay. were c. As per the agreement, the builder has to deliver the final product of the dredger by 21.07.2010, but it was delivered at Visakhapatnam on 22.11.2011 with a delay of 482 days. So, the buyer recovered the liquidated damages of 5% equal to Euros 925,000 from out of the final stage payment. During the currency of the agreement, differences with regard to the delay in payments, force majeure events, delivery 3 BSB, J ICOMAOANo.Sof 2021 schedule cropped up. As such, the builder issued a legal notice, dated 11.12.2014 unequivocally expressing to refer the dispute to arbitration. This notice was followed by a reply of the buyer, dated 22.01.2015, for which the builder issued a rejoinder, dated 13.05.2015. d. Due to the disputes between the parties, the builder, nominated Mr. Justice Desaraju Appa Rao (Retd.) as its arbitrator and the buyer appointed Mr. Justice N.R.L. Nageswara Rao (Retd.) as its arbitrator. These two arbitrators, in turn, nominated Mr. Justice C.Y. Somayajulu (Retd.) as Presiding Arbitrator. e. The case of the builder / claimant is that the buyer delayed the payment at every stage affecting the financial planning of the claimant in executing the work. Further, the buyer unauthorisedly deducted various amounts especially, by way of liquidated damages from out of the final stage of payment. The following claims were made before the Tribunal:- (i) To declare that the claimant is entitled to damages of a sum of 2,000,000 Euros (Two million Euros) together with interest @ 3% (in Euros) per annum, till the date of repayment for the abnormal, cumulative delay of 1041 days caused from time to time systematically by the respondent by not discharging their reciprocal obligation of releasing overdue payment to the claimant; (ii) To declare that the action of the respondent in making alleged deduction of Euro 940,756 (Nine Hundred Thousand Seven Hundred Fifty Six) towards liquidated damages from the 6th stage payment illegal, invalid and arbitrary and for a consequential relief of mandatory deduction to refund the same with interest @ 3% (in Euros) per annum from the date of deduction till the date of repayment; as BSB, J ICOMAOANo.8 of 2021 (iii) Additional expenditure of a sum of 2,,630,674.18 Euros (Two Million Six Hundred Thirty Thousand Six Hundred Seventy Four Euros only) incurred by the claimant (calculated as on 26.02.2016) on account of force majeure, on account of delay in payments by DCI; on account of delay attributable to the respondent in taking delivery of the dredger; (iv) To direct the opposite party to refund / return / pay /repay / port duties, custom duties, handling charges and like including all statutory charges which have been illegally deduced / adjusted by DCI together with interest @ 3% (in Euros) per annum from the date of deduction till the date of repayment. (v) For costs: (vi) pass such other order or orders as this Tribunal may deem fit and proper in the circumstances of the case. The buyer / respondent refuted the averments in the claim statement and attributed the to the builder. The very nature of force majeure events was disputed by the buyer in order to justify the deduction of amounts by way of liquidated damages. It is further asserted that the intimation of force majeure events do not require to be either acknowledged or protested. 3. 4. Initially, the following issues were framed by the Tribunal; (i) Whether the reasons set out by the claimant for delay in delivering the dredger constitute force majeure and liable to be excluded? (ii) Whether the claimant is entitled to exclusion of the delayed period on stage payments made by the respondent? 5 BSB, J ICOMAOANo.Bof 2021 (iii) Whether the claimant is liable for the Indian customs duty on the dredger? (iv) Whether the claimant is entitled to exclusion of the delay in delivering the dredger on the ground that it stood condoned, waived and ratified by the conduct of the respondent? (v) Whether the claimant is entitled to the amounts claimed? (vi) Whether the claimant is entitled to interest? (viii) To what relief the claimant is entitled to? The buyer filed additional counter on 30.05.2017 raising the plea of limitation. The claimant resisted the same by filing reply. Basing on the subsequent pleadings, the following additional issues were framed by the Tribunal:- 5. (a) Whether the claims are barred by limitation? (b) Whether the deductions made by the respondent towards liquidated damages are legal and valid? 6. In support of the builder, its President was examined as CW1 and exhibits Cl to C84 were marked. No oral evidence was adduced on behalf of the buyer; bu|^, exhibits R1 to R8 were marked. 7. The Tribunal partly allowed the claims by passing an award on 25.01.2018, allowing claim No.2 for a sum of Euros 947,756 along with interest at 3% per annum throughout from the date of delivery of dredger, i.e., 22.11.2011 till the date of payment, and claim No.5 for an amount of Euro 76,000 as cost of arbitration fee, advocate's fee and other expenses; while rejecting claims Nos.1 and 3, and without awarding claim No.4 since custom duty was refunded and since the port duty is stated to be under consideration. 6 BSB, J ICOMAOA No.8 of 2021 Subsequently, on an application of the petitioner under Section 33 of the Act to correct the amount awarded towards liquidate damages of 925,000 Euros instead of Euros 947,756 on the ground that Article 3 of the agreement, dated 22.11.2008, the liquidated damages is limited to the extent of 5% of the total contract price and as the total contract price is Euros 18,500,000 and 5% of it comes to Euros 925,000, theTribunal amended the award, dated 25.01.2018, by proceedings, dated 11.03.2018, and 12.03.2018 for 925,000 Euros to be paid by the petitioner to the respondent as per the award. 8. This petition was filed by the buyer (respondent before the Tribunal) to set aside the above said award, dated 25.01.2018 amended by proceedings, dated 11.03.2018, and dated 12.03.2018, of theTribunal. as Though notices to the respondent herein / builder were sent thrice through e-mail reported vide U.S.R. Nos.44094 of 2021, dt.31.08.2021; 13101 of 2022, dt.21.03.2022; and 50376 of 2022, dt.08.08.2022, the respondent has not made appearance. 9. The relevant clauses of the agreement, dated 21.11.2008, are excerpted hereunder; 10. Article Ill-Adjustment of Contract Price: The contract price shall be subject to adjustment, as hereinafter set forth, in the event of Delayed Delivery. A) Delayed Delivery: 1. No adjustment shall be made, and the Contract price shall remain unchanged, for the first Fourteen (14) days of delay in the delivery of the VESSEL beyond the delivery date as set forth in ARTICLE-VIII 7 BSBJ ICOMAOA No.8 of 2021 (DELIVERY) hereof (ending as of twelve O' clock (1ST) midnight of the Fourteen (14") day of delay). 2. The BUILDER shall, however, pay to the BUYER as liquidated damages (L.D) / genuine pre-estimate and not as penalty an amount equal to 1.0% (one percent) of the building price for every week or part thereof beginning from midnight of 14th day after the date of delivery as set forth in ARTICLE VII hereto. The maximum penalty of single and / or cumulated penalties is 5% of the total contract price. 3. i) If the delay in delivery of the VESSEL continues, for a period of more than ten (10) weeks from the 14th day after the date of delivery as required under the terms of this contract, then, in such event, the BUYER may, at its option, cancel this contract, after such period has expired, by serving upon the BUILDER a written notice of cancellation by fax, speed post etc. ii) Such cancellation shall be effective as of the date the notice thereof is received by the BUILDER and the BUILDER, upon receipt of such notice, shall immediately refund to the BUYER the full amount paid by the BUYER to the BUILDER on account of the VESSEL and interest thereon at the rate of Ten percent (10%) per annum from and including the day of effective receipt of payments by the BUILDDER and in addition the full amount of liquidated damages, i.e., ten percent (10%) of the building price. iii) The BUILDER may, at any time after the expiration of the aforementioned eighty four (84) days period of delay including Sundays and Holidays in delivery of the VESSEL, and if the BUYER has not served the notice of cancellation has herein provided, demand in writing, that the BUYER makes an election, in which case the BUYER, shall within thirty (30) days after receipt of such demand by the BUILDER, 8 BSB, J ICOMAOA No.8 of 2021 notify, in writing, the BUILDER of its intention to cancel or consent to the delivery of the VESSEL at an agreed future date, it being understood and agreed by the parties that if the VESSEL is not delivered by such future date, the BUYER shall have the same right to levy liquidated damages at mutually agreed rate to be settled and agreed prior to reinstatement of the continuation of Contract, and it being understood and agreed by the parties that if the VESSEL is not delivered by such future date, the BUYER shall have the same right to cancellation upon the same terms as hereinbefore provided. 4. For the purpose of this ARTICLE, the delivery of the VESSEL shall be deemed to be delayed when the VESSEL is not delivered on the date upon which delivery of the VESSEL is agreed as provided herein, after taking into full account any extension of the delivery date of the VESSEL by reason of permissible delays as provided herein. 5. The mere extension of time or existence of provisions for extension of time shall not cease to make time the essence of the contract. Time is the essence and will continue to be the essence of the contract. Mere forbearance to exercise any of the rights under the contract shall not amount to a waiver thereof." Article VIII: Delays and Extensions of Time (Force Majeure). Price Adjustments For Deficiencies A) Causes of Delay; If, at any time before the agreed date of delivery either the construction of the VESSEL or any performance required as a prerequisite of delivery of the VESSEL is delayed due to Acts of God, war or other hostilities, civil war, flood, typhoons, hurricanes, storms, earthquakes. 9 BSB, J ICOMAOANo.8of2021 tidal waves, landslides, fires, explosions, all the foregoing irrespective of whether or not these events could be foreseen at the day of signing this contract, then and in any such case, if the cumulative delays exceed 30 (thirty) days, the BUYER and BUILDER will discuss regarding a mutually acceptable new date of delivery. However, if cumulative Force Majeure delays exceed 150 (one hundred fifty) days the BUYER has the right to rescind the Contract. The decision of the BUYER in this case shall be final and binding on the BUILDER." 11. Since this petition was filed under Section 34 of the Act, 1996, the scope of hearing is not like an appeal in a civil case and the contentions of the buyer shall be appreciated strictly within its scope. In this regard, the Full Bench of the Supreme Court in Welspun Speciality Solutions Limited Vs., Oil and Natural Gas Corporation Limited, (2022) 2 SCC 382, reiterated the settled legal position by referring to a previous decision as follows: “28. In Dyna Technologies (P) Ltd. Vs., Crompton Greaves Ltd., (2019) 20 SCC 1], this Court held at paragraphs 24-25: “24. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative 10 BSB, J ICOMAOANo.8of2021 forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated. 25. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act.” an 12. In Welspun Speciality Solutions Limited, (supra), reiterated the grounds available under Section 34 of the Act as explained in the previous decisions. “26. In ONGC V. Saw Pipes Ltd., (2003) 5 SCC 705, the scope of Section 34 was expanded to include patent illegality as a ground for challenging the award and held as under at paragraphs 31 & 74: “31. Therefore, in our view, the phrase “public policy of India” used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such 11 BSB, J ICOMAOA No.8 of 2021 award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term “public policy” in Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) see 644, it is required to be held that the award could be set aside if it is patently illegal. The result would be—award could be set aside if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality, or (d) in addition, if it is patently illegal. Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void. 74. In the result, it is held that: (A)(1) The court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that: (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or 12 BSB,J ICOMAOA No.8 of 2021 (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. (2) The court may set aside the award: (i)(a) if the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, (b) failing such agreement, the composition of the Arbitral Tribunal was not in accordance with Part I of the Act. (ii) if the arbitral procedure was not in accordance with: (a) the agreement of the parties, or (b) failing such agreement, the arbitral procedure was not in accordance with Part I of the Act. However, exception for setting aside the award on the ground of composition of Arbitral Tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part I of the Act from which parties cannot derogate. (c) If the award passed by the Arbitral Tribunal is in contravention of the provisions of the Act or any other substantive law governing the parties or is against the terms of the contract. 13 BSB, J ICOMAOANo.8of2021 (3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. (4) It could be challenged: (a) as provided under Section 13(5); and (b) Section 16(6) of the Act.” “27. Eventually, a three-Judge Bench in ONGC Vs., Western Geco International Ltd., (2014) 9 SCC 263, while upholding ONGC v. Saw Pipes Ltd., (2003) 5 SCC 705, noted that “illegality” of the award must go to root of the matter. Illegality of a trivial nature could not be held to violate the public policy.” 13. The following grounds were raised in the petition under Section 34 of the Act, 1996:- (i) The Tribunal has not considered the provisions / clauses of the agreement, dated 21.11.2008 and wrongly interpreted various clauses in the said agreement and passed the award in favour of the builder; (ii) The Tribunal has not understood the dispute between the parties properly and has gone beyond the scope of the agreement, dated 21.11.2008; (iii) The Tribunal has passed the award in contravention of the fundamental policy of the Indian law as well as most of the findings are against the well settled concepts of the Indian law and the findings are against the provisions of the Indian Contract Act; 14 BSBJ ICOMAOA No.8 of 2021 (iv) The Tribunal has failed and not properly understood the Force Majeure clause of Article VIII of the agreement, dated 21.11.2008; (v) The Tribunal fastened the buyer with the delay caused by the builder on account of its failure, (vi) The Tribunal failed to understand the doctrine of waiver as applicable to the Indian law; (vii) The Tribunal failed to consider the breach of contract by the builder and passed the award; (viii) The builder did not adduce any documentary evidence in support of the claim for Force Majeure events and therefore, the findings of the Tribunal in this regard are not legally valid; (ix) The reasoning adopted by the Tribunal is not legally valid; (x) The Tribunal failed to understand that time is the essence of the contract; (xi) The Tribunal failed to understand the right of the buyer to deduct liquidated damages as per the terms of the agreement; (xii) The Tribunal did not properly consider Section 74 of the Indian Contract Act; (xiii) The Tribunal did not give proper and cogent reasons in granting the relief claimed by the builder; (xiv) The Tribunal failed to understand that no prior intimation is required in deducting liquidated damages as per the terms of the agreement, as there cannot be any implied condition of prior intimation when the agreement was reduced into writing and signed by both the parties after due deliberations; 15 BSB, J ICOMAOANo.Sof 2021 (xv) The claim of the builder before the Tribunal is barred by limitation: (xvi) In any view of the matter, the award of the Tribunal is arbitrary, not legal and valid. 14. A perusal of all these contentions shows that the buyer takes all of them as before a civil court in appeal to re-appreciate the evidence evaluated by the Tribunal. Merely on the ground that another view is possible, jurisdiction under Section 34 of the Act cannot be exercised. None of the grounds discussed in the above cited decisions is applicable to the present case. This view can be further fortified by the contentions raised in detail by the buyer challenging the observations of the Tribunal on various causes of the delay shown by the builder claiming as Force Majeure: (a) The builder claimed delay of 56 days, on account of labour inspection, due to imposed stop on the work etc. from June 24th 2010 to 19th August 2010. The buyer contends that the reasoning of the Tribunal is not valid for the following reasons: i) It is for the claimant/ builder to prove that its workers were forbidden to work on the dredger by the imposition of the Government Order. Mere statement in the affidavit is not sufficient to prove the same; ii) The builder has not filed any documentary proof to prove the same; iii) Shifting the burden to the buyer to disprove the claim of the builder is not valid under law; iv) Mere silence of the buyer does not amount to admitting the claim of the builder; v) Labour Inspection and delay if any caused due to the said inspection cannot be termed as a Force Majeure event, which is beyond the control and capacity of the builder; vi) The government departments of the State will work according to their Rules and Regulations and they have right to inspect any dredge etc. and any delay, if caused, cannot be said to be beyond the control of the builder 16 BSB, J ICOMAOA No.8 of 2021 and cannot be said to be a Force Majeure event, as the builder should have taken all safety precautions for the entire work and at the place of its work. (b) With regard to the delay of 22 days due to problems during the launch of the dredger, the buyer contends that the reasoning of the Tribunal is not valid for the following reasons: i) The Tribunal failed to note that the exact problem was not stated by the builder either in the statement of the claim or in the affidavit; ii)The said event is a Mechanical/Engineering event which requires expertise knowledge and its implementation depends on the builder and its engaged staff only; lii) When the dredger fell aside, it shall be understood that the manner and the way in which it is built/operated etc. or its launching process was wrong, attributable to the builder only; iv) Mechanical/Engineering problems and the delay if any caused cannot be said to be a Force Majeure event. (c) With regard to the delay of 22 days due to extreme weather, the buyer contends that the reasoning of the Tribunal is not valid for the following reasons: 1) The Tribunal failed to note that the builder has to make up the extreme weather and proceeded with the work, as admitted by it, and no reason has been offered or stated by the builder for not making the same, during the process of testing the dredge when the contract was in half way of construction, ii) The builder has not specifically stated what type of extreme weather prevented the builder to proceed with the work and no specific evidence was adduced by the builder, lii) The claimant did not produce any weather reports of those days, for the alleged delay, iv) The Tribunal is wrong in stating that the buyer admitted four days out 17 BSB, J ICOMAOA No.Sof 2021 of 15 delay and that the buyer had not given any reason for the rest of 11 days, as it is the burden of the builder to prove the same. (d) With regard to the delay of 15 days on account of the delay in arrival of the newly constructed tug due to bad weather, the buyer contends that the reasoning of the Tribunal is not valid for the following reasons: i) The Tribunal failed to note that the exact problem of weather condition, ii) The Tribunal failed to understand an important point that the contract to supply the heavier tug is in between the builder and the another company and the said company caused the delay in delivering the said tug to the builder, resulting in delay of 15 days which cannot be called as Force Majeure event and the buyer is not at all concerned with the said delay. iii) The builder did not adduce any documentary proof for the adverse weather, except its self-serving statements, iv) Mere maintaining silence by the buyer does not amount to admitting the reasons stated by the claimant for the delay caused. (e) With regard to the delay of 93 deys due to compulsory detour and customs duty, the buyer contends that the reasoning of the Tribunal is not valid for the following reasons: i) The Tribunal failed to note that the builder should have taken all precautions for the mechanical failures and cleaning of several components, stocking of several shafts and spindles in the dredger is the responsibility of the claimant and any liability if occurred to the builder, is not the responsibility of the buyer as per the terms of contract, ii) There is no evidence put forward by the builder for the above delay for which the liability can be fastened to the buyer. Hi) With regard to the customs duty, there was a tussle between both the parties regarding the 18 BSBJ ICOMAOA No.8 of 2021 interpretation of the original agreement and as such, the Tribunal should not have given the findings which are adverse to the buyer. (f) With regard to the delay in dredging tests, the buyer contends that the reasoning of the Tribunal is not valid for the following reasons: i) The Tribunal failed to note that the builder did not adduce any positive evidence to prove its allegations, li) The Tribunal has failed to understand that the initial burden of proof always lies on the claimant to prove its allegations and then only the burden of proof shifts to the opposite party, iii) As the intimation to the buyer by the builder with regard to the above remains unanswered, drawing adverse inference is not warranted under law. (g) With regard to the delay due to procedure of delivery to buyer / DCI, the buyer contends that the reasoning of the Tribunal is not valid for the following reasons: i) The Tribunal failed to take note that the builder has not substantiated its contention, by adducing reliable and cogent evidence, except its self- serving statement in its evidence affidavit, ii) Mere non-reply to the intimation of the claimant does not amount to admission of its version and the builder is not relieved from its burden to prove its version. The findings of the Tribunal are based on analysis of the evidence in the light of the pleadings. That cannot be stated to be shifting of burden to the opponent. It is a holistic approach of adjudication of the matter. Moreover, there is consideration of material not on record nor is there any consideration extraneous material. Rules of evidence in the Evidence Act, 1872 are also not applicable to the proceedings before an Arbitration Tribunal by virtue of the definition of “Court” in Section 3 thereof (now Section 2(1 )(a) of the Bhahratiya Sakshya Adhiniyam, 2023, specifically excluding arbitrators from its 15. 19 BSBJ ICOMAOANo.8qf2021 scope. Arbitration is a private dispute resolution mechanism whereby two or more parties agree to resolve their current or future disputes by an Arbitral Tribunal, as an alternative to adjudication by the courts or a public forum established by law and the parties, by mutual agreement, forgo their right in law to have their disputes adjudicated in the courts / public forum as held by the Supreme Court in Vidya Drolia and others Vs., Durga Trading Corporation, (2021) 2 SCC 1 at paragraph 18. With regard to the contention that the claim was barred by limitation, a specific issue was framed and answered by the Tribunal and it is not shown here as to how it is erroneous. Therefore, there is no ground to interfere with the award of the Arbitral Tribunal in this case. 16. In the result, ICOMAOA No.8 of 2021 is dismissed. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed. Sd/- K TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTON OFFICER To, 1. Shipyard “DE DONGE”, Represented by its President, Flushing - Head Office, Order No.5910, VLISSINGN-OOST, Post Box - 240, 4460 A.E. Goes, The Netherlands. Email: info@shipyarddedong.nl 2. One CC to Sri Rayaprolu Srikanth, Advocate [OPUC] 3. Three CD Copies BSV vna HIGH COURT DATED:09/05/2025 ORDER ICOMAOA.No.8 of 2021 DISMISSING THE APPLICATION WITHOUT COSTS