S.K. Aggarwal vs Delhi Development Authority
1994 Latest Caselaw 601 Del

JUDGMENT

Usha Mehra, J.

1. M/s S.K. Aggarwal entered into an agreement with the Delhi Development Authority (in short the DDA) for development of residential scheme, Zone E-6, Dilshad Garden,(SH: S.W. Drains and Culverts). The said agreement was entered on 17th Day of October,1984. The said agreement contained arbitration clause No. 25 which provided that all questions and disputes relating to the contract shall be referred to the arbitration of the person appointed by the Engineer Member, DDA. Disputes arose between the parties and as being requested the Engineer Member, DDA, appointed Sh. S.C. Gupta, Superintending Engineer, as the Sole Arbitrator. The Arbitrator entered upon the reference. Parties filed their statements and counter-statements of facts. After hearing, examining and considering statements of the parties as well as oral and documentary evidence, he made and published his award dated 26th December, 1990.

2. The Award was filed in the Court. Notice of the filing of the same was issued to both the parties. Objections have only been filed by the DDA. So far as claimant, M/s. S.K. Aggarwal is concerned it has not filed any objection.

3. The main challenge to the Award by DDA is that the Arbitrator did not apply his mind nor gave proper reasons. Challenging the award on each claim it is alleged that award against claim No. 1 was on account of the refund of Rs. 5,396/- recovered as penal recovery on account of steel issued by the DDA. The Arbitrator found the claim justified and awarded amount of Rs. 5,396/- against claim No. 1. According to objector no reasons assigned while awarding this amount. Moreover, this award against claim No. 1 is mere conclusion without reasoning and thus contravened the terms of the agreement. This submission of the objector/DDA is without merits. The Arbitrator has, in fact while discussing this claim took into consideration the submissions of both the parties. He came to the conclusion on the basis of the documentary evidence placed before him that there was no theft or pilferage of steel by the claimant. Nor such was the allegation of the DDA. It was also not the case of the DDA that there was any loss caused to it. In fact the steel was issued by the respondents by weight but measured by length. Therefore, he opined that there could be a possibility of steel being little over weight because of adopting different standards of measurement. Reasoning given by the Arbitrator is based on the oral and documentary evidence led before him. Therefore, it cannot be said that he gave only conclusions and not reasonings. Moreover, I find no apparent error in the award of the Arbitrator against this claim. DDA wants this Court to re-assess and re-examine the evidence led before the Arbitrator which is not permissible because this Court is not sitting as a Court of appeal against the award of the Arbitrator. Arbitrator is the final Judge of facts as well as law.

4. Now coming to the objection against claim No. 2 which was based on account of refund of rebates recovered in the bills by the respondent. The Arbitrator after considering various facts and taking into account the running bills awarded a sum of Rs. 761/- as against a claim of Rs. 1,204/-. The objection by the DDA that the bills were not submitted by the claimant in time, therefore, the delay was attributable to the claimant cannot be gone into by this Court. That would amount to reappraising the evidence, which is not within the scope of this Court. The Arbitrator has infact considered all aspects and then made the Award to which no error can be attributed.

5. As regards claim No. 3, the amount claimed was Rs. 2,37,580/- on account of loss of profit due to the reduction in the scope of the work by the DDA. The Arbitrator awarded a sum of Rs. 63,353/- only. Arbitrator took into consideration the fact that had the work not been reduced, the claimant would have earned profit, which he assessed at 4%. The objection by the DDA that non execution of the work or reduction of work of the claimant was due to the stay granted by the Court, therefore, the contract became impossible of performance. Hence, the DDA cannot be made liable for the same.

6. I am afraid this argument pertains to the merits of the case. These very points were raised before the Arbitrator and he after considering the same awarded the amount. Arbitrator has opined that the DDA failed to provide the site. The Arbitrator further found that the work was not only delayed because of stay but it got delayed right from the beginning on account of various other lapses on the part of the DDA such as part of the site was blocked due to road construction, design of culvert slab not given, non availability of cement and steel, trees coming in the alignment of drains and finally the land dispute. So, it was cumulating effect of all these factors which delayed the execution of work and forced the claimant to close the contract vide letter dated 20th May, 1985 Exhibit 'R-1'. Thus there was lapse on the part of the DDA. It is not only one factor of land dispute, the other factors were also taken into consideration and only thereafter the Arbitrator awarded the amount of Rs. 63,353/-, I find no error apparent on the face of the award against this claim.

7. Under the above circumstances, the objections filed by the DDA are hereby dismissed being without merits. The award made and published by the Arbitrator, Shri S.C Gupta, dated 26th December, 1990, is accordingly made rule of the Court. The petitioner would also be entitled to simple interest at the rate of 12% per annum from the date of the decree till realisation.