Naresh Kumar Gupta vs Nav Bharat Times Coopt. Group ...
1996 Latest Caselaw 50 Del

JUDGMENT

S.K. Mahajan, J.

1. Under an agreement entered into between the parties for the construction of flats for Nav Bharat Times Cooperative Housing Society at Plot No. 4 Mayur Vihar, Delhi, there arose certain disputes and the petitioner accordingly filed a petitioner in this court under Section 20 of the Arbitration Act. for reference of the same to an arbitrator in terms of the arbitration agreement existing between the parties. By order dated 24th January, 1989 passed in suit No. 2849-A/88, this court appointed Mr. S. C. Jain, Advocate and retired Superintending Engineer, CPWD, as the sole arbitrator to decide the disputes, as had been mentioned in the petition filed in court under Section 20 of the Arbitration Act. The arbitrator made and published his award on 23rd May, 1990 in the disputes which had been referred to him. On the said award having been filed in court, the respondent has filed objections thereto under Sections 30 and 33 of the Arbitration Act challenging the said award.

2. In the objection petition, the respondent has alleged that the award being a non-speaking award, was no award in the eye of law and the arbitrator has grossly misconducted in making and publishing the award by ignoring the counter-claims of the objector and by making and publishing an award in favour of the petitioner. It is alleged that the arbitrator ought to have given reasons for making and publishing the award. As regards the award passed on Claim No. 4 the allegation was that this claim was never referred to the arbitrator and the arbitrator has thus travelled beyond his jurisdiction by making an award in respect of the said claim. The award in respect of claim No. 3 has been challenged on the ground that the arbitrator could not have directed the respondent to pay a sum of Rs. 1,88,091/- as the said amount represents income-tax deducted at source by the society under the provisions of the Income Tax Act and it was the statutory responsibility of the respondent to deposit this tax under the Act. The award is stated to be bad on that account. Reply to the objections were filed and on the pleadings of the parties, the following issues were framed :

"(1) Whether the objections filed against the award are within time ?

(2) Whether the award made and published by the arbitrator is liable to be set aside on the basis of the objections raised in the petition ?

(3) Relief."

3. Evidence has been led by the parties by means of affidavits. By order dated October 6, 1993, this court had decided issue No. 1 holding inter alia, that the objections were not barred by the time.

4. At the outset, learned counsel for the petitioner has conceded that the award of the arbitrator in so far as the same relates to claim No. 4 cannot be upheld inasmuch as the said claim had not been referred to him for decision. I have, therefore, heard arguments of the parties counsel on the objections in so far as they relate to other claims which have been awarded by the arbitrator in favour of the petitioner.

5. The main contention of learned counsel for the petitioner is that, firstly, the arbitrator ought to have given a speaking award and the award being non-speaking award is no award in the eye of law and was thus liable to be set aside. The objector, therefore, wants the award to be set aside on the ground that as no reasons giving details or rationale for arriving at the figures which have been awarded in favour of the petitioner, had been given, the award cannot be sustained. It is also contended that the arbitrator has arbitrarily rejected the counter-claims of the objector. It is also the contention of the objector that the arbitrator could not have awarded the sum of Rs. 1,88,091/- as the said amount being the tax Department. The last contention of the objector is that the arbi Income Tax Department. The last contention of the objector is that the arbitrator has misconducted himself and the proceedings by awarding interest and costs in favour of the petitioner.

6. In so far as the objection in relation to Claim No. 3 is concerned in my opinion, there is force in the contention of the objector inasmuch as an amount which had been deducted by the society being tax at source in accordance with the provisions of the Income Tax Act, the arbitrator could not direct the society to pay the said amount to the petitioner. It was the statutory responsibility of the respondent to deduct from the payments made to the respondent and deposit the said tax with the Income Tax Department and in case the respondent fails to deposit the same, it could be subject to penalty and prosecution in accordance with the Income Tax Act. This amount, however, could not be given back to the petitioner. At best, the respondent could have been directed to issue the certificates to the petitioner of tax deducted at source. In may opinion, therefore, the award of the arbitrator in so far as the same relates to claim No. 3 can also not be sustained.

7. In so far as the objections of the respondent in relation to the claims are concerned, in my opinion, the arbitrator was not required to give any reasons for making and publishing his award in respect of the said claims unless he was specifically required by the parties to give such reasons. I have not been shown any such agreement which might have been arrived at between the parties whereby the arbitrator was required to give reasons for making and publishing his award. In my opinion, therefore, Is no force In the objection of the objector that the arbitrator ought to have given reasons for making the award and the award cannot be set aside merely on this ground.

8. The jurisdiction of the court in deciding the objections raised by party against the award is very limited. The court cannot sit in appeal and examine the correctness of the award on merits with reference to the materials produced before the arbitrator. The material and evidence which are there before the arbitrator can also not be re-examined and reassessed by the court, nor the court can sit in appeal over the views of the arbitrator. The court can also not go into the question about the adequacy of evidence, though, the court can set aside an award in case there is no evidence at all to sustain the findings of the arbitrator. However, it is not the case of the respondent that there was no evidence before the arbitrator to enable him to make and publish the award. The arbitrator is made the final arbiter of the disputes between the parties and the award is not open to challenge of the ground that the arbitrator has given a wrong conclusion and has failed to appreciate the facts. The grounds on which the award can be set aside are limited by statute and Section 30 of the Act in mandatory terms declares that the award shall not be set aside, except on any one or more of the grounds mentioned in the Section. It is not open to the court to speculate, where no reasons are given by the arbitrator, as to what compelled him to arrive at his conclusions. The court has no jurisdiction to investigate into the correctness of the arbitrator's decision on the merits of the case either on points of law or on facts. His decisions is final both on points of law and facts. In my opinion therefore, the objector has miserably failed to show any error apparent on the face of the award nor he has been able to prove any misconduct alleged to have been committed by the arbitrator in making and publishing the award.

9. I therefore, do not find any reason as to why the award of the arbitrator in respect of claims 1 & 2 should be set aside.

10. In view of the above discussion, while I set aside the award of the arbitrator in so far as it relates to claim Nos. 3 & 4, the rest of the award is made rule of the court and a decree in terms of the said portion of the award is passed. The petitioner shall also be entitled to interest at the rate of 9% per annum on the decretal amount. In the circumstances of the case. I leave the parties to bear their own costs.

11. The petition stands disposed of.