- (1.) The three appeals arise out of a common judgment and order repelling challenges to a common arbitral award arising out of three similar agreements pertaining to inter-corporate deposits. The challenge to the arbitral award is as bad as they come and the respondent has not been called upon.
(2.) The fundamental premise on which the appellant fashioned its defence in the arbitral reference was that prior to the agreement for the three tranches of inter- corporate deposits being executed, there was an oral agreement between the parties and involving a third party, Unitech Limited. According to the appellant, upon Unitech Limited approaching the appellant for a loan, the appellant was agreeable to extend the facility only if an associate of Unitech Limited (UL, for short) made a corresponding investment in the appellant. The appellant claims that at the relevant point of time early in 2012, both UL and Unitech Developers & Projects Pvt. Ltd. (UDPL, for short) were part of the same stable. According to the appellant, UL or the persons in control of UL were in a position to control the affairs of UDPL and the subsequent conduct of the parties, including UL, would lend credence to the oral agreement that the appellant sought to assert.
(3.) The appellant claims that the third proviso to Section 92 of the Evidence Act, 1872 permits an oral agreement of the kind that was asserted by the appellant before the arbitrator. The appellant says that the arbitrator was wrong in disbelieving the appellant and the arbitration court failed to appreciate that the arbitrator had acted contrary to the evidence that was before such arbitrator. For the circumstances in which an oral agreement can pre-date a written contract and still be binding, the appellant has relied on a judgment reported at AIR 1967 SCC 333 ( Narandas Morardas Gajiwala v. S.P.A.M. Pappamal ) to place a passage from page 337 thereof. In support of the principal ground canvassed by the appellant to challenge the arbitral award, the appellant relies on a judgment reported at (2015) 3 SCC 49 ( Associate Builders v. Delhi Development Authority ) and emphasises on the legal principle enunciated at paragraph 31 thereof: "31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where: (i) a finding is based on no evidence, or (ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at; or (iii) ignores vital evidence in arriving at its decision, such decision would necessarily be perverse.";