Can't rely on FIR in dam project to argue on tribunal order:HC

The Bombay High Court has said the Konkan Irrigation Development Corporation cannot rely on the FIR and chargesheet filed against a private firm, accused of fraud in the Balganga dam project, while arguing against an arbitral tribunal order awarding Rs 300 crore to the company.

In April this year, a high court-appointed arbitral tribunal set aside the termination notice issued by the Konkan Irrigation Development Corporation (KIDC) for awarding contract of a dam project on the Balganga river in Maharashtra's Raigad district to contractor F A Enterprises.

The tribunal directed KIDC and the state government to pay the contractor Rs 300 crore.

 

In June, the KIDC and the government filed appeals in the high court against the tribunal order.

While the appeals are at the final stage of hearing, the KIDC and the government filed an application seeking permission to submit the FIR copy and charge sheet filed against F A Enterprises.

Justice R D Dhanuka, while refusing permission for it on Monday, noted that the FIR was lodged in August 2015 and the charge sheet filed in June 2016.

Hence, the authorities had ample opportunity to rely on or place the documents before the tribunal or the high court earlier, the judge said.

The KIDC and government claimed that the arbitral tribunal committed an error by failing to take into consideration the pendency of the criminal proceedings against the company which is in public domain.

KIDC counsel Srihari Aney argued that in view of the serious allegations of fraud against the company, such matters at the first instance could not be resolved by arbitration and hence, the high court order of July 2015 referring the dispute to the arbitration tribunal is invalid.

Aney further argued that KIDC wants to submit before the high court the charge sheet and FIR copy only to apprise it of the fact that there exist complicated criminal and serious proceedings touching upon the very subject matter of the arbitration proceedings.

Senior counsel Anil Anturkar, appearing for F A Enterprises, said the applicants cannot submit additional documents when the appeal hearing is at the final stage.

He said both KIDC and the state government had sufficient opportunity to adduce these documents during the hearing before the arbitral tribunal and in the high court at the time of filing the appeals.

Justice Dhanuka, while refusing to accept the contentions of KIDC and the state government, said till date neither of the petitioners raised the issue that the arbitral tribunal had no jurisdiction to decide the matter in view of the serious allegations levelled against the company.

"In my view, even if the charge sheet and FIR are taken on record, neither parties nor this court can rely upon them, in view of the fact that the charge sheet and FIR were not tendered in evidence at any stage though various opportunities were available to the petitioners (KIDC and the government)," the court said.

The court noted that if there were serious allegations of fraud against the company and officers of KIDC, which had a bearing on the execution of contract including the arbitration agreement, then the KIDC and government should have placed the FIR and charge sheet before the arbitral tribunal.

In February 2009, a tender notice was issued by KIDC for the dam project and the contract was awarded to F A Enterprises.

However, after some dispute cropped up over the contract, the high court in July 2015 referred the matter to an arbitral tribunal.

In October 2016, KIDC terminated the contract awarded to F A Enterprises.

In August 2015, the state anti-corruption bureau lodged FIR against 11 people, including senior partners of F A Enterprises and KIDC officers, over alleged irregularities worth Rs 93 crore in the execution of a dam project on Balganga river.