Sukumar Chand Jain vs Delhi Development Authority And ...
1999 Latest Caselaw 87 Del

JUDGMENT

M.S.A. Siddiqui, J.

1. The petitioner/claimant entered into a contract with the respondent DDA for the construction of L.I.G. houses in Sector 15, Rohini, New Delhi. Certain differences and disputes arose between the parties which were referred to arbitration in pursuance of a clause thereof contained in the contract. The Arbitrator made an award on 28.2.1995. Feeling aggrieved by the award, the respondent-DDA filed objections under Sections 30 and 33 of the Arbitration Act for setting aside the award.

2. The question is : whether the award is liable to be set aside on the basis of the objections raised by the respondent DDA? The submissions of the learned Counsel for the respondent-DDA may be summarised in the following propositions:

(a) That the award suffers from a legal infirmity as the Arbitrator has not assigned reasons for the award;

(b) That the award on Claims No. 1, 2, 3, 10, 16, 18 and 19 suffers from an error apparent on the face of the record.

3. The respondent is aggrieved by the Arbitrator's award on the following claims:

Item No. Subject Amount as mentioned claimed Award in the award :

1.

Claimant claim refund to the tune of Rs. 1,66,576.

1,66,576/-

34,734.65

2.

Claimant

(s) claim refund of Rs. 83,289/- which has been wrongfully recorded under garb of rebate of the final bill.

83,289/-

64,669.50

3.

Claimant

(s) claim refund of Rs. 83,289/- wrongfully enforced under garb of rebate regarding security.

83,289/-

64,669.80

10.

The claimant (s) claim Rs. 2,17,875/- for watch and ward deployed from actual date of completion till 30.6.93

2,17,875/-

95,000/-

16.

Claimant

(s) claim Rs. 1,17,600/- on account of handing over of flats in peace meal resulting in unproductive and uncontemplated expenditure of industrial flats.

1,17,600/-

46,187.50

18.

Claimant(s) claim Rs. 22,109/- which has been wrongfully recorded against steel under the garb of excess expenditure at double the issue rates

22,109/-

22,109/-

19.

Claimants claim of [email protected] 18% p.a.

Interest @ 12% p.a. w.e.f. the date of with holding payment till the date of payment or upto28.9.94, whichever is earlier."

4. It is significant to mention that at the relevant time the Arbitrator Shri S.C. Kaushal was employed in the D.D.A. as Superintending Engineer. On a perusal of the award, it is apparent that the award is based on the material produced by the parties and the Arbitrator has given reasons for arriving at his conclusions. This Court has no jurisdiction to re-examine and re-assess the evidence or substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the Arbitrator had acted contrary to the bargain between the parties. (Sudershan Trading Co. v. Government of Kerala and Ors., ; Puri Construction Pvt. Ltd. v. U.O.I., 46 (1989) DLT 353 and Hindustan construction Co. Ltd. v. State of IK, . In my opinion, the award is a speaking award and the Arbitrator has assigned reasons for arriving at his conclusions.

5. Claim No. 1 : The respondent has challenged the award on the Claim No. 1 on the ground that since the claimant did not raise any dispute at the time of accepting payments of bills, the Arbitrator committed a patent illegality in awarding a sum of Rs. 34,734.65 on account of refund of rebate. The Arbitrator on the basis of the evidence, found that a sum of Rs. 34,734.65 was wrongfully retained by the respondent and so he reduced the claimant's claim from Rs. 1,66,576/- to Rs. 34,734.65.1 do not find any legal infirmity in the said award.

6. Claim No, 2 &3 : The claimant preferred a claim of Rs. 83,289/-, which was wrongfully deducted by the respondent under the garb of rebate of the final bill and the security deposited by the claimant. On a consideration of the material on record, the Arbitrator found that since the respondent had committed breach of the Clauses No. 4(ii) and (iv) of the contract, there was no justification for deducting a sum of Rs. 64,669.50 under the garb of rebate of the final bill and the security deposited by the claimant. Accordingly, the Arbitrator allowed the claimant's claim to the extent of Rs. 64,669.50 only. The Arbitrator has assigned valid reasons for the said award and I do not find any legal infirmity therein.

7. Claim No. 10: The respondent has challenged the award on the ground that in awarding the claim under this head, the Arbitrator has failed to take into consideration that watch and ward deployed by the claimant was for the protection of his equipment and materials lying on the spot and also for rectification of defects in the flats. The Arbitrator has assigned the following reasons for his award on the aforesaid claim:

"Claim No. 10 : The claimant(s) claim Rs. 2,17,875/- for watch and ward deployed from actual date of completion till 30.6.93.

Award : The respondent(s) have recorded completion certificate of work on 15th November, 1991 (Ex.C-29) and maintenance period in terms of agreement is six months after date of record of completion certificate i.e. upto 15th May, 1992. However, as per evidence placed on record the claimant(s) have been kept engaged for handing over the flats to allottees, in pretext of rectification of defects whereas in the completion certificate it has been recorded that no defects are apparent and site has been cleared. The claimant(s)) have informed the respondents that during this period watch and ward at site is at their risk cost (Exts. C-31, C-34 and C-35). The respondent(s) have not produced cogent evidence that the handing over of flats is also the responsibility of claimant(s) in terms of agreement. Hence, I hold that the claims of the claimant(s) is justified partly to the extent of deployment of six watch-men and two labourers for purpose of watch and ward and sweeping for a period of twelve and half months @ Rs. 950/- per person per month and therefore, the respondent(s)) do pay the expenditure incurred by claimant(s) (Ext. C-40). I decide that respondent do pay Rs. 95,000/- (Rs. ninety five thousand only) to claimant(s)."

In my opinion, the Arbitrator has assigned valid reasons for awarding a sum of Rs. 95,000/- under Claim No. 10.

8. Claim No. 16: The respondent has challenged the award under this head on the ground that the claimant having failed to rectify the defects in the flats cannot claim any amount on account of delay in handing over possession thereof. While making the award under Claim No. 10, the Arbitrator has held that the completion certificate issued by the respondent is conspicuous by the absence of any defects in the flats. In view of the said specific finding of the Arbitrator, the objections raised by the respondent against the award under Claim No. 16 deserve to be repelled. In my opinion, the award under the Claim No. 16 does not suffer from any legal infirmity.

9. Claim No. 18 : Admittedly, the respondents had recovered a sum of Rs. 22,109/- from the petitioner on account of steel issued to it. While allowing the claim of the petitioner under this head, the Arbitrator has observed as under :

"Claim No. 18 : Claimant(s) claim Rs. 22,109/- which has been wrongly recovered against steel under the grab of excess expenditure at double the issue rates.

Award : The respondent(s) have admittedly recovered at double rate for steel issued and balance not returned in 43rd running account bill of claimant(s) in terms of Clause 42(iii) of agreement and also have given a certificate in recovery statement of final bill, and according to respondent(s) the claimant(s) have accepted the recovery without any protest. However, after payment of final bill on 16th July, 1993, the respondent(s) have again recovered Rs. 22,109/- by preparing T.E. No. 2 of 8/1993 and adjusted against some withheld amount before releasing Rs. 35,356.75. Hence respondent(s) have no jurisdiction on this amount. I hold that the respondent(s) do refund/pay Rs. 22,109/ - (Rs. twenty-two thousand one hundred and nine only) to claimant(s)."

In my opinion, the Arbitrator has assigned valid reasons for making the award under Claim No. 18. Accordingly, the objection raised by the respondent against the award in respect of Claim No. 18 is rejected.

10. Claim No. 39 : The respondent has challenged the Arbitrator's power to award interest pendente lite. This objection can be easily disposed of as it is covered by the decisions of the Apex Court in Secretary, Irrigation Department of Oriasa v. G.C. Roy, and Hindustan Construction Co. Ltd. v. State of J&K, , which upholds the power of the Arbitrator to award interest.

11. For the foregoing reasons, the objections of the respondent are rejected and the award is made a rule of the Court and a decree in terms thereof is hereby passed. The petitioner shall be entitled to interest @ 12% p.a. on the amount adjudged by the Arbitrator from the date of decree till realisation. No order as to costs. A decree be drawn up accordingly.