Hargovind Jaggi vs Delhi Development Authority
1994 Latest Caselaw 210 Del

JUDGMENT

Mr. Mohd. Shamim, J.

1. This is a petition under Sections 14 and 17 of the Arbitration Act (registered as Suit No. 2086/90 for issue of a direction to respondent No. 3 i.e. Shri Om Prakash, Arbitrator to file the award dated April 26, 1990 and to make the same a rule of the court.

2. Brief facts which gave rise to the present petition are as under that respondent No. 1 herein awarded a contract with regard to construction of Store with Railways siding facilities at G.T.K. Road SH : Construction of room for electrical JE and Security Guard room vide agreement No. 6/EE/SDI/DDA/85-86 on behalf of respondent No. 2. Certain disputes and differences arose in between the parties with regard to the execution of the said contract and that same were referred to the sole arbitration of respondent No. 3. The respondent No. 3 entered the reference and published his award on April 26, 1990.

3. The said award was filed before this court in Suit No. 356/91. Notices were issued to both the parties to prefer objections, if any, against the said award.

4. The petitioner herein did not choose to file any objections against the impugned award. However, the respondent preferred the objections i.e. I.A. No. 2574/91.

5. The respondent through the said objections have challenged the findings of the Arbitrator with regard to the recovery of steel valued at Rs. 21,703.80 under the Head "Recovery of steel amounting to Rs. 21,730.80 at penal rate". They have also challenged the finding of the Arbitrator with regard to claim No. 3 whereby the learned Arbitrator allowed a sum of Rs. 7,000/- to the petitioner.

6. It has been urged for and on behalf of the respondent that the petitioner was issued steel for the execution of the work allotted to him to the tune of 3.630 MT out of which the respondent recovered steel weighing 1.800 MT leaving behind 1.830 MT which was not accounted for by the petitioner. According to the learned Counsel, it was neither accounted for nor was it returned to the respondent. Thus, the respondent claimed a sum of Rs. 21,703.80 as the value and price of the said steel at double the rate. The Arbitrator for the best reasons known to him allowed a claim of Rs. 3,913.80 only out of the said amount as the price of the steel weighing .660 MT.

7. It has thus been contended that the learned arbitrator went wrong in awarding only such a paltry amount against a huge sum of Rs. 21,703.80. The learned Counsel in support of his argument has sought help from Clause 42 of the agreement.

8. Since we are concerned with the construction of Clause 42 of the agreement, the provisions of the said clause can be adverted to with profit before proceeding any further in the matter. It is in the following words :

(i) The contractor shall see that only the required quantities of materials are got issued. Any such material remaining un-used and in perfectly good condition at the time of completion or determination of the contract shall be returned to the Engineer-in-Charge at a place where directed by him, by a notice in writing under his hand, if he shall so require. Credit for such materials will be given at the prevailing market rate not exceeding the amount charged from him excluding the element of storage charges levied at the time of issue of materials to him ..."

(ii) "...... The difference in quantity of cement actually issued to the contractor and the theoretical quantity including authorised variations, if not returned by the contractor, shall be recovered at twice the issue rate without prejudice to the provision of the relevant conditions regarding return of materials governing the contract ......".

9. The provisions of Clause 42(ii) are also applicable to the non return of the steel as per Clause 42(iii). Learned Counsel for the respondent has contended on the basis of the above that since the petitioner failed to account for the steel weighing 1.830 MT, hence the respondent was entitled to recover the price of the same at double the rate.

10. The Arbitrator while disallowing the claim of the respondent has opined that the steel weighing 1.170 MT was lying at the site and the same was in the custody and possession of the respondent. Hence no lapse can be attributed to the petitioner on the said score and the petitioner is not under any obligation to account for the same. According to the learned Arbitrator, the petitioner was issued steel weighing 3.630 MT. The steel which was found lying at the site was 1.170 MT thus leaving 2.460 MT. The steel which was recovered out of the same in the first running account bill was to the tune of 1.800 MT. Thus, the learned arbitrator allowed for the balance of the steel i.e. .660 MT at the rate of Rs. 5,930/- per MT i.e. to the tune of Rs. 3,913.80. The learned Arbitrator while disallowing the claim of the respondent to make penal recoveries on the said score has opined that the penal recovery can be effected only in those discerning few cases where the respondent are in a position to make out a case that they have suffered any loss on account of the non return of the excess materials issued to the petitioner.

11. The above view also finds support from the observations of a learned Single Judge of this court in the case reported as Salwan Construction Co. v. Union of India and others ((1990) 41 DLT 474). "...... that the Arbitrator has rightly held that in the absence of loss, having been suffered, or the proof of actual loss, if suffered, respondent No. 1, was not entitled, having already recovered the issue rate, to recover double the issue rate of cement consumed by the Claimants in excess of the theoretical calculation. I do not find any legal misconduct on the part of the Arbitrator, in awarding the refund of the aforesaid amount to the claimant".

12. This brings me to the claim No. 3. The petitioner claimed a sum of Rs. 9,000/- on account of the material which was left at the site by the petitioner which he was not allowed to remove. The petitioner claimed a sum of Rs. 9,000/- on the said score. The Arbitrator, however, allowed the claim of the petitioner to the extent of Rs. 7,000/- only. Learned Counsel for the respondent has argued that if the petitioner did not remove the said material lying at the site he can blame none but himself for the same. The respondent neither put any hindrance or obstacle in his way for the removal of the same. In fact, they rendered him all possible assistance to remove the same. The petitioner, however, for the best reasons known to him, did not remove the same, hence the Arbitrator was not justified in sanctioning a claim of Rs. 7,000/- on the said score. Learned Counsel for the petitioner, on the other hand, has contended that the petitioner made every possible effort to remove the said material but he was not allowed to do so. According to the learned Counsel, the said material was lying in the security area and the petitioner was not, as such, permitted to visit the said area.

13. I have very carefully examined and scrutinised the finding of the learned Arbitrator on the said point. The learned Arbitrator has observed that the petitioner could not remove the said material on account of the fact that the same was lying in the security area. It is a well-established principle of law that this court does not sit in judgment over the findings given by the Arbitrator. This court can neither go into the reasonableness of the findings nor sufficiency of the findings not the validity thereof. The court while examining the findings of the learned Arbitrator can interfere with the same only in those few cases where the Arbitrator he misconducted himself and the proceedings. The respondent in the instant case has miserably failed to show to this court any misconduct on the part of the Arbitrator. In view of the above, I do not see any justification to interfere with the findings of the learned Arbitrator on the above points.

14. No other point was raised before this court.

15. In the circumstances stated above, the objections i.e. I.A. No. 2574/91 are hereby dismissed. The award marked Ex. XZ is hereby made a rule of the court. Let a decree be passed in favor of the petitioner against the respondent in terms of the said award. The award Ex. XZ shall form a part of the decree.

16. Objection dismissed.