Delhi High Court
Emco General Plastic Industries ... vs Union Of India (Uoi) And Anr. on 6 August, 1998
Equivalent citations: 1999 (50) DRJ 97
Author: M Sharma
Bench: D Sharma
JUDGMENT
M.K. Sharma, J.
1. In response to the invitation of tender floated by the respondent No. 1, the petitioner submitted his tender for supply of Plaything Pipes and the said tender of the petitioner was accepted and the parties entered into a contract dated 17.5.1978. However, disputes and differences in respect of and in relation to the aforesaid contract arose between the parties and, therefore, in terms of the arbitration agreement included therein, the entire disputes were referred to the sole arbitration of respondent No. 2.
2. The respondent No. 2 entered into the reference and upon hearing the parties made and published his award on 15.10.1985. The said award of the arbitrator has been filed in this Court in pursuance of the application filed by the petitioner under Section 14 of the Arbitration Act.
3. After receipt of the aforesaid award in this Court, the respondent No. 1 has filed an objection under Sections 30 and 33 of the Arbitration Act on which I have heard the learned counsel for the parties.
4. The claim of the contractor in the arbitration proceedings relates to a claim of a sum of Rs. 2,97,915.28 on account of increase of price of raw material in accordance with the price variation clause in the agreement including 4% sales tax amounting to Rs. 11,458.58. The petitioner also claims release of balance of 2% for the stores supplied and also claims the interest at the rate of 18% per annum from the date the amount became due and payable till the actual payment or till the award is made Rule of the Court, whichever is earlier.
5. The arbitrator went into the reference of the aforesaid claims filed before him by the petitioner and on consideration thereof held that the petitioner is entitled to the claim of an amount of Rs. 2,97,915.28 on account of increase of price of raw material including 4% sales tax in accordance with the price variation clause in the agreement. The arbitrator further held that the petitioner is entitled for release of the balance of 2% for the stores supplied by him. The arbitrator, however, rejected the claim of the petitioner for payment of interest.
6. Mr. Suhail Dutt, counsel appearing for the respondent No. 1 submits that while coming to the aforesaid conclusion and giving his award, the arbitrator has ignored and lost sight of a very material clause in the agreement, namely, Clause 14 (ii) of the agreement.
7. I have also heard the learned counsel appearing for the petitioner.
8. According to the aforesaid Clause 14 the petitioner was to make supply of the stores as per delivery schedule mentioned in the purchase order. According to Mr. Suhail Dutt, counsel for respondent No. 1, the petitioner was required to deliver the stores at the rate of 45 tonnes every month.
9. In order to appreciate the contention of the learned counsel appearing for the respondent No. 1, I have carefully perused the award passed by the arbitrator in respect of the aforesaid claims. The arbitrator has found as a matter of fact that there were altogether nine supply orders involved in the present case and except for supply order dated 23.7.1979, all supply orders were with delivery period of the rate contract to supply stores as early as possible and that none of the supply orders contained any specific date for making delivery. Therefore, even though aforesaid supply orders were placed with the petitioner within the pendency of the contract, no stipulated date was fixed under the supply orders as to within which period supply of stores were to be made. The arbitrator on appreciation of the evidence on record has come to the conclusion that the supply orders did not contain any specific period for the supply of the stores and the stores that were supplied belatedly were also accepted without any objection by the respondent No. 1.
The aforesaid conclusion arrived at by the arbitrator, in my considered opinion, is a conclusion and finding of fact. It is also incorrect to say that while coming to the aforesaid conclusion, the arbitrator has not considered and/or ignored the applicability and/or relevancy of Clause 14 (ii) of the contract.
In Puri Construction Pvt. Ltd. v. Union of India, reported in, the Supreme Court has observed that when a court is called upon to decide the objections raised by a party against an arbitration award, the jurisdiction of the Court is limited, as expressly indicated in the Act, and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits.
Therefore, this Court has no jurisdiction to interfere with the findings of fact arrived at by the arbitrator on appreciation of evidence.
10. I do not find any error apparent on the face of the records in the aforesaid part of the award of the arbitrator and the same stands upheld.
11. The next contention is against the award passed by the arbitrator directing for release of balance of 2% for the stores supplied.
12. The petitioner supplied stores which were also accepted by the respondent No. 1 and, therefore, the arbitrator rightly came to the conclusion that the petitioner is entitled to get a direction for release of the balance of 2% for the stores supplied.
There is no error apparent on the face of the records in the said conclusion arrived at by the arbitrator and accordingly the same also stands upheld.
13. Therefore, there is no merit in the objection filed by the respondent No. 1 in the present case and the same stands accordingly dismissed.
14. In view of the dismissal of the objection filed by the respondent No. 1 and there being no other objection on record, the award passed by the arbitrator is made a Rule of the Court. The petitioner shall be entitled to interest at the rate of 12% per annum from the date of passing of the decree till the date of realisation. Let a decree be drawn up in terms of the award.
Petition accordingly stands disposed of. Pending application also stands disposed of.
