1. The Objections to the Award under sections 30 and 33 of the Arbitration Act, 1940 were filed by the plaintiff/objector, Messrs Aer Rianta International Pakistan (Pvt.) Limited hereinafter referred to as ("ARI"). The subject objections were filed to an Award rendered by Umpire [Mr. Justice (Retd.)
2. Wajihuddin Ahmed] in a matter of Arbitration between Civil Aviation Authority hereinafter referred to as ("CAA") the claimant and Messrs Aer Rianta International Pakistan Limited (referred to "ARIP"), the respondent. Subject-matter of the controversy is a contract entered into by the parties, pursuant to invitation of tenders and followed by a formal contract whereunder the ARIP were granted licence to run "Duty Free Shops" at Quaid-e-Azam International Airport, hereinafter referred to as ("QIAP") beside other terms and conditions stipulated therein; inter alia, reserved Licence Fee in the sum of Rs,1.00 Million per annum. Relevant dates for the purpose of disposing of the objections to the Award. in a nut shell, are as follow:-
(1) A letter, dated 29-4-1991, by CAA to Counsel-General, Ireland, forwarding set of papers containing necessary information relating to Duty Free Shops at QIAP.
(2) 19-5-1992 is the date of issuance of tender documents.
(3) 25-5-1992 ARIP submitted tender documents (last date being 5-6-1992).
(4) On 25-7-1992 a formal License Agreement concluded between CAA and ARIP for a period of ten
(10) years.
(5) On 3-8-1992 two other agreements in continuation and in furtherance of main contract referred to above were executed.
(6) It appears that after some time ARIP entered into some correspondence with CAA expressing concern and dissatisfaction followed by a suit by CAA against ARIP for specific performance of licence agreement and for recovery of arrears on License Fee and electricity dues being No,549 of 1991 and a counter-suit being No,689 of 1995 filed by ARIP against CAA raising counter-claim on account of loss of profit and recovery of compensation for loss of goodwill, reputation and refund of security deposit. In these suits, by consent of the parties, two eminent retired Judges of the High Court namely Mr. Justice (Retd.) K.M.A. Samdani and Mr. Justice (Retd.) Syed Haider Ali Prizada were appointed Arbitrators. Both the learned Arbitrators differed in opinion, resultantly the matter came up before the learned Umpire. The matter was decided on following issues:--
(1) "Whether the claimant is entitled to any of the claims mentioned in its statement of claim, if so to what extent?
(2) Whether the respondents are entitled to any one of the claims in the counter-claim and, if so, to what extent?
(3) Whether any representations were made by the claimants to the respondents in relation to the projected volumes of passengers for ten years, the open skies policies, free access to the duty free shops and other promotional measures for marketing the Jinnah Terminal and, if so, to what effect?
(4) Whether the aforementioned representations, if made by the claimants to the respondents, were incorrect and, if so, to what effect?
(5) Whether any breach of licence agreements has been committed by either of the parties and, if so, to what effect?
(6) What should be the award?
3. Learned Umpire decided Issues Nos. 3, 4 and 5 against ARIP. Issues Nos.1, 2 and 6. were decided together. The amount of Licence Fee in terms' of the main Agreement was determined up to June, 2001 and Licence Fee in respect of display centre as well as zero level agreements were determined up to April, 2002. Electricity dues were determined after appointing one expert from each side in the light of agreement and on the basis of formula worked out by ARIP and applying rates agreed under the agreement, dues of electricity were also determined.
4. Mr. Anwer Mansoor Khan, learned counsel for ARIP contended that learned arbitrator misconducted himself, rendering the award liable to be set aside. In support of his contention that where the arbitrator failed to appreciate the contract and law in proper perspective resulting in miscarriage of justice and where the material documents relevant for the purpose of determining the controversy in issue were ignored then in such cases the Courts undisputedly have held that the arbitrator misconducted himself. In support of his contention, he has relied upon the various case- laws reported as (1) Messrs Aslam Saeed & Co. v. Messrs Trading Corporation of Pakistan Ltd. (PLD 1985 SC 69), (2) K.P. Poulose v. State of Kerala and another (AIR 1975 SC1259), (3) Government of N. F. P. through Secretary Forests, Peshawar and 4 others v. Azizur Rehman (1991 MLD 422), (4)
5. Shaikh Muhammad Sadiq-Muhammad Afzal v. Ministry of Industries, Department of Supply and Development, Government of Pakistan, Karachi (PLD 1966 (W.P.) Karachi 412), (5) Brooke Bond (Pakistan) Ltd. v. Conciliator appointed by the Government of Sindh and 6 others (PLD 1977 SC 237),
(6) West Pakistan Industrial Developmeni Corporation, Karachi v. Aziz Qureshi (PLD 1973 SC 222), (7)
6. Messrs Hafeez Construction Co. v. Messrs Javedan Cement Ltd. (1989 CLC Karachi 885), (8)
7. Thawardas Pherumal and another v. Union of India (AIR 1955 SC 468), (9) House Building Finance Corporation v. Shahinshah Humayan Cooperative House Building Society and others (1992 SCMR 19), (10) Ghee Corporation of Pakistan (Pvt.) Limited v. Broken Hill Proprietary Company Limited through their Local Agents (PLD 1999 Karachi. 112), and (11) Province of Sindh and 4 others v.
8. Waseem Construction Co. (1991 CLC Karachi 66).
9. Adverting to the merits of the claim, it was contended that CAA misrepresented to the ARIP thereby inducing ARIP to enter into a contract. Such misrepresentation, according to him, is manifest from the forecast relating to the passengers traffic made available to them. ARIP in 1991 on the basis of such forecast worked out its feasibility same was the foundation to enter into a contract subject- matter of dispute. It was stated that the Arbitrakir misconducted himself by not considering the entire bid and tender documents in totality which included the passengers forcast as well.
10. According to him, tender was based on forecast of the passengers traffic which subsequently turned out to be incorrect. As such ARIP is entitled. to off set its losses against the Licence Fee, in addition to compensation for the losses it sustained. As to the misconduct on the part of Umpire, it was contended that the Umpire picked-up the thread of the case with effect from 8-10-1993 when the first compliant was male and not from 21-4-1991 when the forecast was purportedly supplied which turned out to be totally incorrect. It was urged that Umpire though referred to all the complaints and letters in the award but failed to draw any d result or conclusion that inevitably followed in favour of ARIP. Misconduct was also attributed on account of the alleged failure of the learned Umpire to note that the ARIP was forced to continue the contract which otherwise was voidable, ARIP intended to avoid the contract to save them from recurring losses as a suit was field by CAA against ARIP for specific performance of licence agreement. Learned counsel also attributed misconduct on account of Umpire, who according to him failed to consider that Public Functionaries and required to act fairly and reasonably. In support of his contention, he has relied upon the case-laws reported as (1) Bissett v. Wilkinson and another (1926 All ER 343), (2) With v. 0 Flanagan (1936 All ER 727), (3) Esso Petroleum Co. Ltd. v, Mardon (1976) 2 All ER 5), (4) Howard Marine & Dredging Co. Ltd. v. A Ogden & Sons (Excavations) Ltd. (1978) 2 All ER 1134), (5) Pakistan Tobacco Co. Ltd. v. Pakistan Cigarette Labour Union and another (PLD 1977 Karachi 586), (6) Abdul Sattar & Co., Karachi v. Messrs Dada Ltd., Karachi (PLD 1979 Karachi 88), (7) Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others (1994 MLD 1612), (8) Intertrade Ltd., Karachi v. Trading Corporation of Pakistan Ltd. and another (PLD 1976 Karachi 496), (9) Haq Nawaz Knan and others v. Muhammad Yanoob and others (1991 CLC 1606), (10) Zakaullah Khan v. Muhammad Aslam and others (1991 SCMR 2126), and (11) Federation of Pakistan v. Messrs Al-Farooq Flour Mills Ltd. (2000 CLC Lahore 215).
11. In relation to the adjudication by the Umpire regarding it was urged that the same was not determined by the learned Umpire in proper perspective and ARIP has been wrongly adjudged liable to pay the amount determined under the award,.
12. 'Mr. Zahid F. Ebrahim, learned counsel appearing for CAA conceded on fact and law that where an Arbitrator or Umpire failed to consider material documents or evidence it may amount to misconduct. According to him, the allegations of misconduct, in the instant case are not true. He contended that learned Umpire considered entire episode from the date of forecast till the date of the complaint. He also contended that Umpire also took note of the documents annexed with the Forecast, dated 21-4-1991 wherein a warning as to anticipated drastic declined in the density of the passengers traffic was made. He further argued that such letters and even the forecast were addressed to, Irelands Consul-General Mr. Nadeem Malik and not to AIRP, therefore, ARIP. cannot claim misrepresentation, if any, was ever made to them. It was further contended that said Consul- General was not examined to disprove non-receipt of warning letter. Mr. Zahid F. Ebrahim, learned counsel highlighted that ARIP was expert in the business of running Airport and so also Duty Free Shops Worldwide with such background they had made their own judgments. He contended that first complaint or a grievance whatever worth was made on 8-10-1993 by ARIP i.e 14 months after the agreements wherein no allegations as to the misrepresentation vis-a-vis forecast was made. It was further contended that ARIP's case was not that the forecast was wrong but that it did not come true, which cannot be termed as a case misrepresentation. He further urged that the tender was worked out on the basis of their own independent assessment and evaluation of the project which evaluation also did not materialize was anticipated, inasmuch as passengers expending forecast or anticipated by AIRP was average $10.00 per passenger whereas in fact it turned out to be slightly above $2 per passenger. Therefore, according to Mr. Zahid F. Ebrahim, it cannot be contended that the forecast of CAA alone was wrong. According to him, honest forecast for various Geo Political reason did not materialize as anticipated, which act cannot be said to be misrepresentation. He further dispelled the contention of Mr. Anwer Mansoor Ahmed Khan that ARIP was restrained from quitting the contract as a suit was filed against ARIP. He contended that the restraining orders were obtained not by CAA but ARIP. Such aspect was considered by learned.
13. Umpire. He further urged that, matter was referred to arbitration subject to certain conditions, whereby ARIP was required to pay specified sum during arbitration proceedings but RIP violated the term of such reference inasmuch as they failed to pay even a 'penny till date on such count alone objection are liable to be dismissed.
14. Having heard the arguments, perused the record. One of the ground seeking annulment of the award, is misconduct on the part of the learned Umpire. The connotation "misconduct" has not been defined in the Arbitration Act itself but it has received judicial treatment by the superior Courts. in legal parlance with reference to arbitration proceedings misconduct imply failure to perform the essential duty of maintaining impartiality, equal treatment, just and proper assessment evaluation and consideration of facts, circumstances, evidence and material produced and relied upon by the parties. If the arbitrator or Umpire while delivering an award abdicates such duties one can safely say that he misconducted himself. Court have identified both moral and legal misconduct imply favoures for financial or other extraneous consideration or culpable and deliberate act of omission or commission on the part of arbitrator or umpire prejudicially effecting the interest of any party to the Arbitration. Legal misconduct does not cast A doubt on the integrity or moral attribute of the Arbitrator or Umpire. It implies where the Arbitrator or umpire with all honest intention and belief, adopt a procedure or deliver the award or any part of the award not warranted by law, resulting in substantial miscarriage of justice. Case of Ghulam Rasood v. Azad Jammu and Kashmir Government (PLD 1971 Azad J&K 127) contains illustrative discussion on misconduct. Now I propose to examine contention of learned counsel for ARIP, to see that whether the learned Arbitrator in fact misconducted himself and/or misconduct the proceedings so as to warrant annulment of the award.
15. Taking up the ground that the learned Arbitrator picked up the thread of the controversy with effect from 1-10-1993 and not from 21-4-1991 when the forecast allegedly was communicated which turned out to be incorrect. As observed above, the arbitrator indeed treated the controversy as having commenced on the date as given by Mr. Anwer Mansoor Ahmed Khan. From the reading of Award it cannot be said that learned Arbitrator did not consider pre-tender happening as could be seem from para.20.02 (at typed page 40) of the award where the learned arbitrator has elaborately dealt with from first communication, dated 29-4-1991 whereby not only the forecast but two other documents were also referred. One of such document contained word of caution as it was anticipated that "there would be drastic decline in the density of the traffic", such letter is available in Umpire's File No,12, page No,25. Even otherwise the first grievance whatever worth was made in the letter, dated 8-10-1993 almost 14 months after the execution of the contract, that too, contained their expectation to improve the viability of. Duty Free Shops for which purpose it was stated that action plan is underway. Therefore, it cannot be said that the learned Arbitrator did not consider other pre-tender documents while addressing the issue.
16. It may be observed that the award runs into seventy (70) pages authored by no less than a former eminent Chief Justice of this Court and a retired Judge of Hon'ble Supreme Court. Award deals with all the arguments and contentions as urged before me.
17. Moot ground for the attack on the award is the non-appreciation of alleged misrepresentation made by CAA said to be contained in the first letter, dated 21-4-1991 containing the passengers forecast which did not materialize in year that followed as expected. Entire case built up by the ARIP revolves around this controversy. According to them, the entire working of and feasibility of the Duty Free Shops by them solely rested on such representation in form of forecast which culminated into Licence Agreement subject-matter of the present proceedings. It was argued that it was on the basis of such representation contract was worked out and executed.
18. Mr. Zahid F. Ebrahim, learned counsel for CAA seriously disputed such statement which according to him is nothing but figment of imagination and afterthought just to wriggle out and avoid contractual obligations. It was stated that ARIPis Multi-national Company having International exposure in managing Airports and Duty Free Shops worldwide as against this CAA was merely a small fry. In this context Mr. Zahid F. Ebrahim pointed out that AIRP carried out its own working before entering into a contractual obligation. He referred to the evidence of objectors witnesses to support his contention. Evidence of Michael Patton who remained associated with ARIP since 1985 as contained in para.1 of his affidavit-in-evidence that "the Duty Free business is a core business activity of ARI and one of my responsibilities was to expand ARI's global business interests". One such "business opportunity arose in respect of the Duty Free Shops at the new Jinnah Terminal Quaid-e--Azam International Airport ('Jinnah Teminal'), which I directly oversaw from the pre-bid stage till August, 1994". The witness further deposed that he "received the documents relating to Duty Free Shops from Dr. Nadeem S.A. Beg, the Honary Irish Conusel and Head of Mission in Pakistan". In para.5 he stated that "to double check the information provided and with a view to obtaining further information, Mr. O'Donovan travelled to Karachi on several occasions". In cross- examination the witness admitted that "those Agreements do not guarantee that particular number of passengers will travel and then only licence fee will be paid". To a specific question the witness in respect of study carried out by Mr. Frank O'Donovan regarding passenger traffic volume for the years 1981-1991 his answer was that "it is partially true that the feasibility study did not take into consideration the years 1981-1987 up to 1991 was considered. But I never had any doubt about the judgment of Mr. Frank O'Donovan". To a specific question the witness stated that "personally he did not ask for the actual figures pertaining to the years 1990-91". Another witness of ARI namely William Francis O'Donovan was examined in para.6 of affidavit-in-evidence he stated as follows:-- "The Jinnah Terminal presented an excellent business opportunity which would enable ARI to establish a presence in Pakistan. However, in order for ARI's Board of Directors to approve a bid for the Duty Free Shops Project by ARI and allocate the necessary funds for the project, ARI had to evaluate the information provided by the claimant in terms of its 29th April letter and attachments.
19. It was in charge of carrying out the exercise for evaluating the information provided by the claimant. The evaluation exercise entailed the preparation of a feasibility report for ARI's Board of Directors for determining ARI's participation in the Duty Free Shops Project. In addition to the information provided by the claimant in the 29th April Letter and its attachments, I was of the view that one or more fact finding trips to Karachi were necessary to discuss the information provided by the claimant in the 29th April letter and to obtain any other information on the Duty Free Business at Karachi Airport; on the new Jinnah Terminal; and particularly on information regarding passenger volumes, which as stated above, is the most important factor in determining the feasibility of a Duty Free business. During my two years involvement in the project I travelled eighteen times to Karachi for the purposes of the project, including twice in February and May, 1992 for the pre-tendering process alone."
20. In cross-examination, he admitted that "it is correct that the three Licence Agreements have the approval of ARI's Board of Directors. Board of Directors of AER Rianta never sought incorporation in the Agreement of the term that the Fixed Licence Fee should be adjusted on the basis of passenger volume". From the trend of the evidence of the respondents what emerges is ARIP prepared and participated in the tender process not only on the information provided by CAA including passenger forecast but the ARIP themselves also carried out their own feasibility study inasmuch as the information provided by CAA in the words of ARIP's witness was "Double Checked". Such facts have been slaborately dealt with by the learned Umpire at typed page 87 of the Award.
21. Second witness of AER had deposed that in order to work out the feasibility he undertook as many as eighteen trips of Pakistan, which admission is reflective of the fact, that such trips were made to independently evaluate the feasibility of the project. 'A contract procured by any representation, which is not correct, though innocent and unintentional and honestly believed to be correct is said to have been procured by misrepresentation in terms of section 18 of the Contract Act. Where one could infer in any representation element of deceit and malice with intent and purposeful object to defraud and gain advantage over the other than such representation enter into realm of fraud. An agreement procured either by misrepresentation or by playing fraud is voidable at the option of a party whose consent was so procured. Consequence of contract so procured are spelled out in section 19 of the Contract Act, 1872 which reads as follows:-- "Voidability of agreements without free consent.---When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
22. A party to a contract, whose consent was caused by fraud or misrepresentation may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
23. Exception.---If such consent was caused by misrepresentation, or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
24. Explanation.---A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable."
25. The exception to this section as reproduced above provides protection against avoidance of the contract on such pretext, where it is shown that a consenting party seeking to avoid contract on the pretext of misrepresentation or fraud had means to discover the truth with ordinary diligence before entering into a contract. In Ghulam Muhammad v. Fateh Muhammad (1987 CLC 2244) a Division Bench held at page 2250 "that where consent of a party was induced by suggestion of a fact which wag not true would not render exchange deed voidable where person deceived had means of discovering truth with ordinary diligence". As discussed from the evidence above, the witnesses of the respondent who were directly associated in pre-contract happening and post- contract developments of the subject transactions not only had occasion to meet the higher-ups in CAA and in fact undertook frequent visit to Pakistan to "Double Check" the information to prepare its own feasibility report.
26. Mr. Anwar Mansoor Ahmed Khan, learned counsel to a specific question by the Court that whether at any point in time the respondent called for the information as to actual passenger turn out as against forecast figures before finalizing the contract in 1992. The answer was frank and candid that no specific correspondence could be pointed out. Even the witnesses of AER had so admitted in their depositions as noted above. The forecast as defined in Chamber's 20th Century Dictionary means "to contrive or reckon beforehand; to foresee; to predict; to form schemes beforehand".
27. From the meaning as referred, it could very well be said that the forecast is nothing but mere opinion, assessm ent, expectation, speculation or evaluation of certain future events, trend, happening or result. Invariably before undertaking any project, venture or task some objective assessm ent, feasibility, opinion or one may call, forecast is made. it is based on study of various variable factors as may be considered relevant for that specific project, venture task or. study. It is not always necessary nor one could guarantee that such opinion, assessment, expectation, speculation or evaluation may materialize in future as anticipated, assessed, opined or forecast. It may not be out of place, as pointed out by Mr. Zahid F. Ebrahim that a similar forecast made by the ARIP themselves in respect of per passenger spending did not turn out to be correct. According to him, if such passenger spending as forecast by ARIP themselves had come true, perhaps they would have earned profits even on the actual passenger turn out. He referred to page 157 of the Umpire's File No,2 i.e, documents of ARIP itself which reflects actual average passenger spending to be Dollar 2.68 this figure was worked out on the basis of 6.5 years actual working, whereas, ARIP anticipated slightly over Dollar 10 spending per passenger. Forecast prepared by one of the global player of International repute in Duty Free Shops business did not come true.
28. A forecast is not a matter of fact it is merely speculative in nature proximity of its turning into reality depends on the happening of variable contingencies in anticipated direction, result different than what is opined, speculated or anticipated is not unusual but inherit. The misrepresentation as defined under section 18 of the Contract Act, is said to be in respect of existing facts, where it does not relate to an existing fact it cannot be said to be a misrepresentation in terms of section 18 of the Contract Act. Forecast as the word "itself" denotes is one's opinion as to future happening or occurrence as discussed above, where both the parties are aware of the true nature of the "representation" and knowingly not only enter into contract but act upon it for more than one year.
29. Such representation cannot be termed as "misrepresentation" in terms of section 18 of the Contract Act and be used as a cloak to avoid contract. Where both the parties worked out their own respective assessm ent of happening of various variables that were considered necessary for viability of the project and their respective assessment did not come out to be as expected then one party cannot blame the other for the negative outcome or impact of the result, if any.
30. Therefore, the respondent cannot argue that they rested solely on the forecast of the claimant/CAA. In this case, it could be seen that the contract was entered into on 25-7-1992. First grievance that too in other context was raised first time on 8-10-1993 i.e, after 14 months of the contract. All such facts are discussed at great length by learned Umpire in para.12 of award. Issue relating to the foundation of the case i.e, AER "relied on the information provided with regard to general passenger projection" was raised by Mr, Patton in his letter, dated 28-3-1994 i.e, after 19 months. A party seeking refuge behind plea of fraud or misrepresentation to avoid contract must be prompt in doing so any delay in this context goes against the party who intend to avoid the contract on such pretext. In a case reported as Muhammad Azim v. Pakistan Employees Cooperative Housing Society Ltd., Karachi and 4 others (PLD 1985 Karachi 481) wherein it was held that "The person seeking to avoid contract on basis of fraudulent representation has to be prompt in seeking redress. If he allows a long time to elapse, he disentitles himself from obtaining any relief on basis of fraudulent misrepresentation. On this count also the Arbitrator was well within his jurisdiction to reject the claim of the objector ARIP. Mr. Anwer Mansoor Ahmed Khan, learned counsel vainly contended that Hajj passengers were not allowed to use the Duty Free Shops facility.
31. To a specific question by the Court, as to whether any objection was raised as regard diverting the Hajj passengers ,o Old Terminal. He candidly conceded that no such specific issues were ever raised either in its claim nor before the arbitrator, I am afraid such being the position no extraneous plea could be raised while hearing objections to the award. It is now well-settled that the Court while hearing the objections to an award do not sit as a Court of Appeal. Lastly Mr. Anwer Mansoor, learned counsel contended that CAA is a public functionary and was required to act fairly, reasonably and in good faith, as has been observed by the Court in Pakistan Shaheen Containers Services (Pvt.) Ltd. v. Trustees of Port of Karachi (PLD 2001 Karachi 30) and even a Government Functionary when entering into a commercial activities are required to act fairly, impartially and in reasonable manner and not in unfair, capricious, arbitrary or in discriminatory manner. He was unable to show that the forecast purported to be the foundation of the contract which was not even made to ARIP was, careless, negligent or mala fide designed to lure ARI(P) into the contract.
32. Such information as admitted by the witnesses of CAA was made available to all perspective parties who desired such information. It was not specifically directed or designed for the objector.
33. Even the CAA constructed gigantic state of the art QAIP, Airport on the basis of such feasibility to cater to the need of projected figure of the passenger as contained in the much talked about passengers forecast. When CAA themselves acted upon the same assessment and feasibility, it cannot be said that such feasibility forecast or assessment was not honest, fair or reasonable.
34. Accordingly, I do not find any error apparent on the face of record.
35. Another contention of Mr. Anwer Mansoor, who vainly argued that ARIP was forced to continue the contract as suit was tiled by CAA for declaration and injunction against the revocation of the contract and for specific performance thereof, being Suit No,548 of 1994. Such aspect was also considered by the learned Umpire in detail. It may be observed that in a suit filed by CAA, stay was obtained by ARIP (being C.M.A. No,5547 of 1994 available at page 89 of the Umpire's File No,3).
36. Therefore, it will be wholly misplaced to contend that ARIP were restrained or their hands were tied up by the CAA in Court proceedings. Lastly Mr. Zahid F. Ebrahim, learned counsel pointed out that the arbitration was not resorted in a routine manner but it was subject to certain conditions as spelled out from the order, dated 14-12-1998 passed in Suit No,548 of 1994 available at page 117 in the second part of the Court's record. Wherein ARIP was required to pay fixed License Fee of US $ 1.00 Million per annum on quarterly-basis in advance before 10th of each month. But such amount, it is stated, at bar, by Mr. Zahid F. Ebrahim and not refuted by Mr. Anwer Mansoor Ahmed Khan, has not been paid as directed. Such conduct on the part of ARIP also reflects the mind set of the Objector that they are not interested to fulfil their contractual obligations on one hand and on the other they want to compel the claimant to come their terms. It was not expected that a business giant of International repute would act in a manner which is not in accordance with International Business norms. It is not very uncommon that in business ventures one may make wrong judgment, assessm ent or evaluation consequently suffer loss. It is a risk in business everyone has to take perhaps this was one of the venture where the objector's assessment as to profitability did not materialize which failure is to be taken in same spirit rather than trying to pass on the buck.
37. As regards the dispute relating to the Electricity Bills, Mr. Anwer Mansoor Ahmed Khan, learned counsel stated that there was no basis to arrive at a figure by the learned Umpire. He did no elaborate any further. Mr. Zahid F. Ebrahim, learned counsel contended that the working was carried out by the Umpire in close association with the experts one each of both the parties and in view of the difference between two experts to arrive at a final figure. Learned Umpire determined and reduced the Electricity Bills to Rs,23,294,115 as against Rs,41,068,374 which shows that claim of CAA was slashed by more than 40% as claimed by CAA. Treatment of such issue is contained at typed pages 67 to 70. I do not find any miscalculation or error that may be floating and/or apparent on the face of record. In view of the foregoing discussion, it is highly unjustified to impute any misconduct on the part of learned Umpire himself or in the proceedings. It needs authority to say that Court of law lean in favour of upholding the award. Court while hearing objections to award, as observed above, do not act as Court of Appeal, while dealing with the arguments and contentions of Mr. Anwer Mansoor Khan, I have examined the documents and material placed on record before the learned Umpire not with intention to reappraise or revaluate the evidence which certainly cannot normally be undertaken in such proceedings.
38. I have carried out such exercise to satisfy myself that the learned Umpire had taken note of each and every documents and arguments as pointed out and urged before me.
39. Finding no merits in the objections, same are dismissed with costs. The award is made rule of the