Bombay High Court
M/S. Kamal Construction vs Union Of India on 9 June, 2016
Bench: Anoop V. Mohta
1 app1148.05.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.1148 OF 2005
in
ARBITRATION PETITION NO.281 OF 2003
M/s Kamal Constructions }
Through proprietor Shri G.L.Masand
having its office at 409, Jay Apartments, }
32, Nehru Road, Santacruz (E) Mumbai-55
vs .. Appellant
(Orig.Respt)
1. Union of India }
acting through Divisional Railway Manager
Central Railway CST,Mumbai-1 }
2.Atul Mohan } .. Respondents
(Orig.Petr & Respt no.2
Mr.Vibhav Krishna a/w Ms.Brenda Barnes
Mr.Devang Lakhotia i/b Mr.Uday Shankar
Samudrala for Appellant
Mr.Suresh Kumar for Respondent
Coram: ANOOP V.MOHTA &
G.S.KULKARNI, JJ.
9TH JUNE, 2016.
ORAL JUDGMENT (Per Anoop V.Mohta,J)
1. The Appellant/original Claimant has challenged the
order dated 19th July, 2005 passed by the learned single Judge
whereby claim Nos.3 and 4 awarded by the learned Arbitrator have
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been set aside. The appellant is not pressing other claims.
2. Admittedly, the Appellant/original claimant has not led
any oral and/or supporting evidence in support of the claims in
question. Claim No.3 is for underutilization of resources. The
contesting respondents resisted the same by a specific reply :
"In fact no resources have been mobilized so there is no
question of under utilization of resources."
The learned Arbitrator based upon the documents placed
on record though restricted the amount and granted the claim of
Rs,2,43,750.00 but, no finding whatsoever is given and/or dealt with
about the actual proof of such supporting documents. This is in the
background when the respondents specifically resisted and denied
the claim so prayed.
3. Claim No.4 was for extra expenses on overheads during
the prolonged period. For this claim also there was no specific
evidence led. The respondents resisted the claim. The documentary
evidence so placed on record admittedly not proved as required.
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There was no admission and/or acceptance of these documents by
the respondents at any point of time. The learned Judge therefore,
considering both these claims and above position on record, has
observed as under :
" However, so far as amounts awarded against claim nos.3 & 4 are
concerned, it appears that there is no material considered by the
learned arbitrator for recording the finding. Though the learned
arbitrator has awarded Rs.1,00,000/- for underutilization of the
resources. Perusal of the award does not show as to what were the
resources mobilized by the claimant for performing the4 contract. The
award also does not show that the claimant had produced any material
before the learned arbitrator, which was considered by the learned to
show that the resources were mobilized by the respondent for carrying
out the work and those resources remained unutilised. As the finding
recorded by the arbitrator in this regard is a finding without
considering the evidence on record, finding against claim no.3 in my
opinion is liable to be set aside. So far as the finding recorded in
relation to claim no,.4 is concerned against the award does not show
that the respondent had produced any evidence on record that he has
actually incurred any expenses on overheads. I do not see any
consideration of any document by the learned arbitrator in arriving at
the amount of Rs.42,000/- which is awarded against this claim.
Therefore the amount awarded against claim no.4 could not have been
awarded and therefore the award made against claim nos. 3 & 4 is
liable to be set aside. It is accordingly set aside."
4. Even after hearing learned counsel for the parties and after
perusal of the claims, reply, reasons given by the learned Judge so
recorded above and even after going through the documents,
unproved documents on record, we see there is no case made out to
interfere with the reasoned order passed by the learned Judge as the
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same is within the framework of law and the record. There is no
perversity in the order passed by the learned Judge. On the contrary,
the learned Arbitrator ought not to have granted Claim nos.3 and 4
in view of the above admitted position on record.
5. The Apex Court in M/s Chelarolu Enterprises vs Andhra
Pradesh Backward Class Cooperative Finance Corporation Ltd
2015 (12) Scale 207, has held that :
" 20. ..... This Court or even the Appellate court would not look into
the finding of facts unless they are perverse".
6. Therefore, taking an over all view of the matter, appeal
dismissed. No costs.
(G.S.KULKARNI, J) (ANOOP V.MOHTA, J)
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