$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 191/2013 & CM 6503/2013 (stay)
% 10th February, 2014
UNION OF INDIA ..... Appellant
Through Mr. D. Rajeshwar Rao, Mr. Charanjeet
Singh, Mr. Vikrant Kaushik, Advocate
versus
R.S. MAKKAR (DECEASED) THR LRS & ANR. ..... Respondents
Through Mr. Rajesh Tyagi, Advocate CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal under Section 37 of the Arbitration and Conciliation Act, 1996 impugns the judgment of the court below dated 19.1.2013 by which objections under Section 34 of the Act were dismissed.
2. Even assuming that the objections are within time, and which has been held as otherwise by the court below, however, on merits also the appellant has no case to claim adjustment and which becomes clear from FAO 191/2013 Page 1 para 13 of the impugned judgment and which para 13 reads as under:
"13. On merits, during the course of arguments, counsel for the petitioner confined the present petition and his arguments only to non adjustment of the cost of material. Counsel for the respondent no. 1 pleaded that the plaintiff cannot raise the said plea at this stage. Admittedly, the plaintiff made the counterclaim before the arbitrator. Counterclaim 11 dealt with recovery of the interest amount on the cost of material. However, the petitioner neither claimed the said amount by way of counter claim nor pleaded set off. Therefore, the said plea is not maintainable at this stage."
3. Once therefore adjustment which is pleaded in the objections under Section 34 of the Act was not claimed before the Arbitrator, the court below has rightly disallowed the entitlement to raise such a claim for the first time in objections under Section 34 of the Act.
4. In view of the above, there is no merit in the appeal and the same is, therefore, dismissed, leaving the parties to bear their own costs.
5. Without prejudice to the dismissal of the appeal, counsel for the respondent says that if any amounts/moneys are lying in advance with the respondent nos. 1(a) & (b), for such amount lying in advance, appellant will be given the necessary adjustments. This statement is noted and accepted.
6. Whatever amount has been deposited by the appellant in this Court and before the executing court will be available for the benefit of the FAO 191/2013 Page 2 respondent nos. 1(a) and (b) in terms of Award dated 20.1.2011 taken with the correction order dated 18.7.2011.
VALMIKI J. MEHTA, J
FEBRUARY 10, 2014
godara
FAO 191/2013 Page 3