"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, January 22, 2015

Liquidated Damages in India: Kailash Nath Associates v DDA (SCI)

Recently, the Indian Supreme Court had the occasion to discuss the law on liquidated damages. A Bench consisting of Ranjan Gogoi & RF Nariman, JJ, through the latter summarised the law on liquidated damages:

"1. Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation. 
2. Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. 
3. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section. 
4. The Section applies whether a person is a plaintiff or a defendant in a suit. 
5. The sum spoken of may already be paid or be payable in future. 
6. The expression “whether or not actual damage or loss is proved to have been caused thereby” means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. 
7. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application." 

The Indian law on liquidated damages has been less than clear on several aspects. This decision does not do much to clear the air. Some of the issues that require clarity/ discussion are:

1. How does a court determine whether the liquidated amount is a genuine pre-estimate of damages.?Parties deem such a provision to be efficient in case of litigation since liquidated damages is more or less a short cut to proving damages in case of breach of contract. In such a scenario, what precisely does the promisee have to show to establish that the liquidated amount is a genuine pre-estimate of damages. Surely, it should not be as rigorous as it is in Section 73. In practice, however, does this not mean that the promisee is forced to show that the liquidated amount is reasonable, especially in the absence of pointers from the court on whether and how should the promisee establish this? In other words, the court (and past decisions as well) is not clear whether the parameters for establishing reasonableness of the liquidated amount ex-post the breach (S. 73) is the same as those for establishing the liquidated amount to be a genuine pre-estimate and reasonable ex-ante the breach (S. 74). If the distinction is unclear or non-existent, S. 74 virtually becomes redundant (as S. 74 seeks to rationalise and simplify the law on party agreed damages).

2. It is well settled that liquidated damages is agreed by parties in many cases where assessment of damages is either difficult or in some cases impossible. Therefore, should not the level of determination of damage/ loss in Section 73 be more than in Section 74?

3. In point 6 above, the court mentions that it is only in cases where the actual damage/ loss is difficult/ impossible to prove, there are no specific parameters given on the kinds of cases in which such proof can be dispensed with so long as the liquidated amount is not unreasonable. But ONGC v SAW Pipes gives some indication on such types of cases, viz.,:

a) Delay/ breach in contracts for construction of a road or bridge
b) Delay/ breach caused is one of the several reasons for the legal injury (for example, delay in sending casings was one of the several reasons for postponing deployment of rigs).

Even so, it is important for an authoritative decision on those types of cases (a detailed illustrative list) where it is necessary to prove losses and those cases where it is difficult/ impossible to furnish proof of loss for breach. One reason why this point is being made is because while agreeing with the decision in Maula Bux case (where the contract was a government contract, the court held that a party had to prove losses despite the LD clause), the court in SAW Pipes stated that the need to prove loss in breaches in contract for construction of road or bridge could be dispensed with (if there is an LD clause) as it would be difficult/ impossible to estimate the loss to the society.

Therefore, unless, there is legal certainty on this issue, it would be inefficient for the parties to waste time in negotiating LD clauses when they have to prove losses even in cases where the parties have agreed on the LD. 

4. At Para 33 of the judgement, the court states that Section 74 is sandwiched between Sections 73 and 75 which deal with compensation for loss or damage caused due to breach of contract and that like the other two aforementioned Sections, compensation is payable under Section 74 only when there is a damage or loss caused by breach. Strictly speaking, the argument that since Section 74 is sandwiched between the other two sections providing for compensation for loss or damage on breach, Section 74 would also require loss or damage to be caused would be true only if the basis of arrangement of these sections by the drafters was based on loss or damage. It is one thing to say that there should be loss or damage and another thing to say that merely on breach there is legal damage or injury. Also, Section 74 does not expressly state that "compensation is payable for breach of contract under section 74 only where damage or loss is caused by such breach".

Lastly, the court held that DDA had not breached the contract at all. The question of damages would have arisen only if there was a contractual breach, In view of the determination that there was no breach of contract, was it necessary for the court to discuss the law on the need for proof of loss or damage under Section 74? 

Would love to the readers' views on these points.

The judgement can be downloaded from this link.

Wednesday, January 21, 2015

Government Not to Go Ahead with Ordinance to Amend the Arbitration & Conciliation Act, 1996

In a previous post, we had brought the attention of our readers to the Cabinet's approval of an ordinance to amend the Arbitration & Conciliation Act, 1996. However, the Business Standard reports that the Government has planned not to send the Ordinance for the President's signature. Instead the amendments are likely to be introduced as an Amendment Bill in the budget session of the Parliament. The news report can be accessed from here

Saturday, January 3, 2015

PSC Awards: Great Eastern Energy Corporation v MoPNG

In July this year, we made public an arbitral award in the arbitration between Selan Exploration and the Ministry of Petroleum and Natural Gas (MoPNG). We had assured our readers that we would be bring a few such arbitral awards to the public domain considering their precedential and academic value.

In this second post in the series, we bring to the public domain the arbitral award in the disputeb between Great Eastern Energy Corporation Ltd. (Great Eastern) and the MoPNG. The central issue in the dispute was the quantum of signature bonus to be provided by Great Eastern to the MoPNG. The three member arbitral tribunal upheld the stance of the MoPNG and directed Great Eastern to pay the amount claimed with interest. The arbitral award can be accessed from the below link:

Great Eastern Energy Corporation Ltd. v. MoPNG

Monday, December 29, 2014

Updated (2): Cabinet Approves Arbitration & Conciliation Amendment Ordinance

The electronic media is abuzz with the news that the Cabinet has okayed amendments to the Arbitration and Conciliation Act, 1996 through an ordinance. The PIB Press Release, which is not available now on the PIB site, stated that the following were the proposed changes:

The salient features of the proposed amendments are as under: 

(i) Insertion of a new provision to provide that Arbitrator shall charge composite fees for disposal of case and not on the basis of per sitting or per hearing, as has been the practice. 

(ii) Insertion of a new provision that the Arbitral Tribunal shall make its award within a period of 9 months. If the Court finds that the Arbitrator has delayed the matter for his personal benefit, it may debar the Arbitrator from taking fresh arbitration for 3 years. 

(iii) Amendment of Section 34 relating to grounds for challenge of an arbitral award, to restrict the term 'Public Policy of India" (as a ground for challenging the award) by explaining that only where making of award was induced by fraud or corruption or is in conflict with the fundamental policy of Indian Law or is in conflict with the most basic notions of morality or justice, the award shall be treated as against the Public Policy of India. 

(iv) A new provision to provide that application to challenge the award is to be disposed of by the Court within one year. 

(v) Amendment to Section 36 to the effect that mere filing of an application for challenging the award would not automatically stay execution of the award. Award can only be stayed where the Court passed any specific order on an application filed by the party. 

(vi) A new sub-section of Section 11 to the effect that an application for appointment of an Arbitrator shall be disposed of by the High Court or Supreme Court as expeditiously as possible and an endeavour should be made to dispose of the matter within 60 days. 

(vii) A new sub-section of Section 11 to the effect that while considering any application for appointment of Arbitrator, the High Court or the Supreme Court shall only examine the existence of a prima facie arbitration agreement and not other issues. It is also proposed to insert a new sub-section to the effect that the Court while appointing an Arbitrator shall also fix the fees of the Arbitrator. 

Apart from above, amendments in Sections 2(l)(e), 2(l)(f)(iii), 7(4)(b), 8(1) and (2), 9, 11, 12(1), 14(1), 16A, 17(3), 23, 24, 25, 28(3), 31(7)(b), 34 (2A) 37, 48, 56 and in Section 57 are also proposed for making arbitration process more effective.


Source: Cached Copy of the PIB Press Release (link). The amendment has come as a surprise as it was expected that the amendments would only be introduced in the next session of the Parliament. More on the same in the next post.

Update 1: Certain news reports (here and here) suggest that the PIB has withdrawn the Press Release suggesting that the Government may not be ready with the Ordinance.

More on this once there is clarity.

Update 2: News reports confirm that the Cabinet has actually approved an Ordinance to amend the arbitration laws in India and the same has been sent to the President for assent.
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