Bharat Construction Corporation vs Delhi Development Authority And ...
1997 Latest Caselaw 276 Del

JUDGMENT

M.K. Sharma, J.

(1) The petitioner was awarded with the contract work under the name and style "Construction of different categories of Sfs houses at Sarita Vihar, Sector I", by the respondent No. 1. In respect of the aforesaid contract disputes arose between the parties in pursuance of which the petitioner invoked the arbitration clause. The Engineer Member of the respondent No. 1 appointed respondent No. 2 as the Arbitrator to resolve the disputes arising between the parties. The Arbitrator entered upon the reference on 15.7.1991 and made the award on 13.5.1994.

(2) The petitioner filed the petitioner in this Court under Section 14 of the Arbitration Act praying for filing of the award in this Court. Notice of the aforesaid matter was issued to the Arbitrator, the respondent No. 2 on service of which the respondent No. 2 filed the award in original in this Court alongwith the record of the arbitration proceedings. Notice of filing of the award having been issued by this Court to the parties both the petitioner and the respondent No. 1 have filed objections in respect of the award passed by the arbitration which have been registered as LA. 9625/1994 and 3630/1994 respectively.

(3) I have heard the learned Counsels appearing for the parties on the aforesaid objection filed by both the petitioner and respondent No. 1 and by this order I propose to dispose of the said two objections filed by the parties as also the present petition.

(4) The objection filed by the petitioner is restricted to the award passed by the Arbitrator in respect of claim No. 12 which relates to payment of Rs. 10,20,476.46 on account of compensation due to prolongation of work beyond 6.1.1986. The arbitrator, considering the various reasons cited by the petitioner for the delay in execution of the works and after considering the documents on record came to the conclusion that since the petitioner has been paid an additional payment under Clause 10cc the claim of the petitioner for the aforesaid amount is not justified and accordingly rejected the said claim. The counsel appearing for the petitioner submitted that the reasons given by the Arbitrator for rejecting the aforesaid claim are unreasonable and erroneous. He submitted that there are decisions of this Court where this Court has allowed additional expenditure over and above the amount paid under Clause Iocc in favour of the contractors. According to him Clause Iocc does not take notice of the prevailing rise in the market prices and, therefore, for delay caused beyond the stipulated date of completion the petitioner is entitled to claim additional expenditure keeping in view the rise in the market prices, as compensation which in any case would be more than what is paid under Clause Iocc of the agreement.

(5) The Arbitrator, after taking notice of the provisions of the agreement under Clause Iocc came to the conclusion that there is no reason to disregard the aforesaid express provision whereunder calculation of the compensation could be made due to rise in prices of the material and labour wages and it is not necessary to follow any method particularly when the claimant is a party to the agreement and was aware of the said clause at the time of tendering. The rejection of the claim by the Arbitrator on that count is based on reasons. This Court, while considering objections filed under Sections 30 and 33 of the Arbitration Act cannot function as an Appellate Court and cannot substitute its own findings in place of evaluation of the Arbitrator on conclusions of law and facts. This Court also has no jurisdiction to hold that the conclusion of the Arbitrator is erroneous. In the instant case on perusal of the award passed by the arbitrator I find that the Arbitrator has relied upon materials on record as also on Clause 10cc of the agreement for recording his findings in respect of this claim and it cannot be said that there was no basis whatsoever to base the findings of the Arbitrator by the considerations of the material on record. In that view of the matter, being aware of the power and jurisdiction of this Court to interfere with the award of an Arbitrator and having found the conclusions of the Arbitrator being possible on an interpretation of Clause Iocc the objection filed by the petitioner in respect of this claim stands rejected and the award is upheld.

(6) Now coming to the objection filed by the respondent No. 1, it is found that the objection of respondent No. 1 in respect of the award relates mainly to Claims No. 1,11,13 and 18. Although objection has been raised by respondent in respect of Claims No. 3 and 7 also, I find that the award of the Arbitrator in respect of the aforesaid claims No. 3 and 7 are based on reasons end conclusions have been arrived at on materials on record. The Counsel appearing for respondent No. 1 could not point out any error apparent on the record in respect of the aforesaid conclusions and, therefore, the said objections are held to be without any merit.

(7) Inrespect of Claim No. 1 the learned Counsel appearing for respondent No. I submitted that the same relates to similar claim as Claim No.11. Since the arbitrator has awarded a sum of Rs. 10,418.00 in respect of Claim No.1 either the Arbitrator could not have awarded a sum of Rs. 1,08,000.00 on the same count against Claim No. 11 or the Arbitrator having awarded amount against Claim No. 11 could not have awarded the amount of Rs. 10,418.00 in respect of chips claim. I have perused the award passed by the Arbitrator in respect of Claim No. 1. The Arbitrator, after referring to various documents on record, came to the conclusion that an amount of Rs. 10,418.00 is due to the petitioner towards final bill. I also find that although the Claim No.1 is shown to be a claim against amount withheld in running account bills the same actually relates to the amount withheld in respect of the final bill in respect of which the Arbitrator has found that an amount of Rs. 10,418.00 is due and the same has been directed to be paid to the petitioner under his award. This Court has no jurisdiction to sit over the mathematical calculations of the Arbitrator and also cannot judge the reasonableness of the reasons set out by the Arbitrator while passing the award. The award passed by the arbitrator is accordingly upheld in respect of this claim.

(8) The next objection of the respondent No.1 is in respect of Claim No.11 wherein as against the claim of the petitioner for refund of Rs. 1,52,000.00 withheld in running bills, an amount of Rs. 1,08,000.00 has been directed to be refunded by the respondent No.1 to the petitioner. The aforesaid claim of the petitioner appears to be as against running bills, the details of which are cited in the award passed by the Arbitrator in respect of this claim. The real objection of the respondent No.1 in respect of this claim appears to be against the award granting refund in respect of the claim for use of lighter section in steel glazed door windows and Q.C. paras amounting to Rs. 6,000.00 . The Arbitrator while passing the award found that the recovery for Q.C. paras is not justified as the petitioner was not informed about the same in time. Similarly recovery for Graduate Engineer was also not found to be justified by the Arbitrator. The Arbitrator has given his reasons for arriving at his conclusion and it appears that the Arbitrator has applied his mind when he stated that so far reduced rate item is concerned the same has been accounted for in the final bill as against Claim No.1 but for recovery for Q.C. paras was not justified. Since the conclusion of the Arbitrator is based on reasons and no error apparent on the face of the record could be proved and established by the Counsel for the respondent No.1 the objection in respect of this claims held to be without any merit and the award is upheld.

(9) Coming to the objection of respondent No.1 in respect of Claim No. 13 the Arbitrator has awarded a sum of Rs. 25,000.00 against this claim of the petitioner to the extent of Rs. 2,13,673.41 on account of compensation for idleness of establishment, machinery and shuttering. The Arbitrator, after considering the entire claim and the evidence on record awarded the aforesaid sum of Rs. 25,000.00 towards salary of the staff employed by the petitioner between the period 7.10.1984 and 20.2.1985. The Counsel appearing for respondent No.1 submitted that since the definite finding of the Arbitrator is that both the parties are responsible for the delay caused in executing the work no award could have been passed by the Arbitrator for maintenance of the staff and payment of salary for maintenance of the said staff by the petitioner.

(10) I have given my consideration to the submission made by the learned Counsel. However; on careful perusal of the award I find that the Arbitrator has come to the conclusion that part of the site was handed over to the petitioner only on 20.2.1985 and the delay for the period 7.10.1984 to 20.2.1985 is attributable to respondent No. 1. Since the respondent No.1 was responsible for the delay for the aforesaid period and handed over the site only on 17.2.1985, the Arbitrator, considering the fact that certain minimum staff was required at the site during the period when site was not handed over, allowed the claim to the extent of Rs. 25,000/ - towards payment of salary of the staff for the aforesaid period. On the face of the aforesaid findings the same is based on reasons. The thought process of the arbitrator is indicated in the award and, therefore, no interference is called for in respect of the aforesaid award passed by the Arbitrator.

(11) In the result, the objections filed both by the petitioner and respondent No.1 stand rejected. The award passed by the Arbitrator is made a Rule of the Court. The petitioner shall be entitled to interest @ 15% per annum from the date of the decree till realisation in terms of Section 29 of the Arbitration Act. Let a decree be drawn in terms on the award. No costs.