S.S. Jaitley vs Delhi Development Authority
2000 Latest Caselaw 59 Del

ORDER

S.K. Mahajan, J.

1. Certain disputes having arisen between the parties under Agreement No. 7/27/EE/HD XVI/DDA/84-85 the matter was referred for arbitration to Shri Suresh Mehta, Superintending Engineer (Arbitration)-I, D.D.A. The Arbitrator after hearing the parties made and published his award on 19th August, 1996. After the award was filed in Court notice of the filing of the same was given to the parties and the respondent-D.D.A. has filed objections under Sections 30 and 33 of the Arbitration Act for setting aside the award.

2. It is argued by Mr.Kapur on behalf of the Objector that the Arbitrator has not applied his mind to the matter in issue and has thus misconducted himself and the proceedings and the award is, therefore, liable to be set aside. It is also contended by him that the claims referred to the Arbitrator were barred by time and the Arbitrator has, therefore, illegally made and published his award against the respondent - DDA. In support of his contention that the claims were barred by time and consequently the arbitrator could not award any amount to the claimant. Mr. Kapur has referred to the judgment reported as Panchu Gopal Bose Vs. Board of Trustees for Port of Calcutta, and Raj Kumar Vs. Official Receiver M/s. Chiranji Lal Ram Chand, .

3. It is not in dispute that the question as to whether the claims were barred by time was not raised before the Arbitrator. It is also not in dispute that the matter was referred to the Arbitrator without the intervention of the Court. Under Article 137 of the Limitation Act it is only in a case where a petition is filed in Court for reference of disputes to the Arbitrator that an objection could be raised that the petition was filed beyond the period of limitation prescribed for the purpose. The question that the claims were barred by the law of limitation was not urged before the arbitrator either orally or by way of pleadings. In my view, therefore, the objector cannot be permitted to raise the same in this Court.

4. It is next argued by Mr. Kapur that there is complete non-application of mind by the Arbitrator in deciding the claims before him and he has thus misconducted himself and the proceedings by making and publishing the award. It is contended that no reasons whatsoever have been given by the Arbitrator in arriving at his decision and in awarding the amount claimed by the petitioner. Mr. Kapur has tried to challenge the decision of the Arbitrator claim-wise in respect of Claims No. 1, 5, 6, 7, 8, 10, 11, 15, 17 and 20 to 22. It is the contention of Mr. Kapur that the amount claimed under Claim No. 1 was also a subject matter of dispute under Claim No. 9 and the Arbitrator has awarded this amount twice over in favour of the petitioner. It is also the contention of Mr. Kapur that when there is a specific clause for claiming enhancement in the price of the material the Arbitrator could not award any amount in favour of the petitioner under Claim No.17 inasmuch as the petitioner has already made a claim for enhancement of the price of the material for the period beyond the stipulated date of completion.

5. It is now well settled that the Arbitrator is not required to write a detailed judgment as are written by the courts. As held by this Court in S.S. Jetley Vs. D.D.A. would be sufficient enough if one can discern the trend of the arbitrator's thoughts from the observations made in the award. The underlying idea of the Arbitration Act is to simplify the procedure and to quicken the pace of the disposal. This will not be possible in case an Arbitrator is expected to act like a civil court and to write out detailed judgments. This was so held in Indian Oil Corporation Limited Vs. Indian Carbon Limited. . The Arbitrator has made his mind known on the basis of which he has acted and that, in my opinion, is sufficient to meet the requirements. It is one thing to say that reasons should be stated and another thing to state that a detailed judgment be given in support of an award. In my opinion, the Arbitrator has given sufficient reasons in the Award for arriving at the findings given by him and I do not see any infirmity therein. It is also well settled that an award is not liable to be set aside if the view taken by the arbitrator is a possible view of the matter. It is not even argued by the objector that the view taken by the arbitrator was an impossible view to take. The Court is not to sit as a Court of appeal over the findings of the arbitrator. Merely because another view was possible to interpret the contract cannot be a ground to set aside the award.

6. In respect of claim No.1 it is the contention of Mr.Kapur that the Arbitrator has made the award on the basis of a concession alleged to have been given by the respondent. According to him, no such concession was given and as such there is an error apparent on the face of the award. I have gone through the proceedings of 24/06/1996. While dealing with claim No.1 it is noted by the Arbitrator as under:

"The claim was reviewed again. The claimed stated that 39th bill has been submitted by the respondent for Rs.1,00,460/-.

The claimant explained revised Annexure-VI the amount of items works out to be Rs.1,17,022.22 which was agreed by the respondent also.

The claimant further stated that the following agreement items have not been paid by the respondent at all.

1.3(e): This item is for excavating for pipes/cables greater than 80 mm less than 300 mm upto a depth of 1.5 mtr. to 3.0 mtr. Respondent has only paid 206.18 mtr. while the claimant claims for 1052.17 mtr. Broadly the claimant stated that that excavation has been paid as under :

1.3(a) as 4955.22 mtr. laying of pipe has been paid fir 6485.20 mtr. After deducting for manholes gully chambers Approx. 300.00 mtr. The net quality works out to be 1229.98 mtr.

The respondent was agreed to pay to the claimant a quantity of 1052.77 mtr. under this item.

The another item filed in Statement of facts file No. 2 Annexure-I item 2.10 is not being pressed by the claimant now.

The respondent stated that the reduction items are only to the tune of Rs. 76,976/-. The respondent also agreed with the indices used by the claimant are calculating the claim as shown on page-3 of Annexure-VI in file No.1."

7. Though the reading of the proceedings indicate that the respondent had agreed to the amount of items which are worked out to be Rs.1,17,022.22. However, even assuming that there was no such concession given by the respondent, in my opinion, there was sufficient material before the Arbitrator to come to the finding that the amount awarded by him under this claim was due to the petitioner. I, therefore, do not see any reason to set aside the award of the Arbitrator so far as it relates to the said claim.

8. In so far as Claim No.5 is concerned I find that the petitioner had withdrawn this claim before the Arbitrator on 8.8.1995. Therefore, the Arbitrator was not justified in making an award in favour of the petitioner under this claim.

9. In respect of Claim No.6 I find that the respondent in the proceedings held on 3.7.1996 had agreed to release an amount of Rs. 5,232.04 claimed under this head. It is this amount which has been awarded by the Arbitrator in favour of the claimant and I, therefore, do not find any infirmity therein.

10. In so far as claim Nos.7,8 and 10 are concerned I find that the Arbitrator has given sufficient reasons for arriving at his findings. This Court is not sitting as a court of appeal over the decision of the Arbitrator or to find out as to whether his decision is correct or not. As already mentioned above, in case the Arbitrator has taken a possible view of the matter it cannot be said that the decision is wrong. It is not the case of the respondent that there was no evidence before the Arbitrator to come at the findings arrived at by him. Court cannot substitute its findings for that of the arbitrator if it is of the opinion that the decision taken by the arbitrator was a possible view which could be taken though it may not be the only view of the matter. I, therefore, do not see any reason to interfere with the award of the Arbitrator in so far as it relates to claim Nos.7,8 and 10.

11. In so far as Claim No.11 is concerned I find that in the hearing held on 3.7.1996 the respondent had agreed with the calculations and the rates in respect of the said claim. In my view, therefore, there cannot be any objection to the said claim having been awarded in favour of the petitioner.

12. Claim No.15 relates to an amount which is said to have been wrongfully recovered by the respondent (i) for pipe upto 2m length and (ii) for pipe beyond 2m length. Originally in the contract the recovery was to be effected @ Rs.64.60 for two mtr length and @ Rs.72.50 for length beyond 2 mtr. of pipe. However, the agreement which was shown to the Arbitrator there were some cuttings. The rates were amended by these cuttings and it was written that the Department was entitled to make recoveries even for two mtrs. length pipe @ Rs. 71.30 per mtr. and beyond 2 mtrs length it was to be recovered @ Rs. 81.40 per mtr. The Arbitrator has held that these cuttings were not there at the time of the filing of the agreement and were not agreed to by the petitioner and has, therefore, made the award in respect of this claim in favour of the petitioner. In my view, this finding of the Arbitrator cannot be challenged by way of objection petition as this Court will not sit as a court of appeal over the findings of the Arbitrator to find out as to whether on the basis of the material on record the Arbitrator has arrived at a correct decision. It is entirely at the discretion of the Arbitrator to come to a finding on the basis of the material available before him. It is not a case that there was no material available before the Arbitrator to arrive at the finding at which he has arrived.

13. In respect of claim No.17 Mr. Kapur has submitted that as the petitioner has already been paid under Clause 10 CC of the agreement there was no reason to make any further claim for idle labour, staff, machinery, stock, shuttering etc. for the period beyond the stipulated date of completion. I do not find any merits in this contention inasmuch as the claim under Clause 10 CC and for idle labour, staff, stock, machinery, shuttering etc. are two independent claims. The claims for idle staff is not dependent upon the claim under Clause 10 CC. I, therefore, do not find any infirmity in the award of the Arbitrator under this claim.

14. Lastly it is argued by Mr. Kapur that the Arbitrator was not justified in awarding interest @ 12% p.a. from 1.10.1991 to 15.2.1995 on the amount awarded under claim Nos.1,5 to 11, 14, 15 and 19 and from 31.3.1990 to 7.3.1995 on the amount under claim No. 2 and 4. He has also challenged the Award of the Arbitrator in so far as it was awarded interest @ 12% p.a. w.e.f. 16.2.1995 to 19.8.1996 on the amount awarded under claim Nos. 1, 5, 6, 7, 8, 10, 11, 14, 15 and 19. He was also objected to the award of interest @ 16% p.a. w.e.f. 19.8.1996 on the awarded amount of claim Nos.1, 5, to 11, 14, 15, 17 and 19. I find that in a similar matter between the same parties in S.S.Jetley's case (supra) while dealing with the similar claims the Court has modified the award insofar as it related to claim No.20 by awarding interest @ 12% p.a. from the date of notice till the payments were made in so far as claim No.2 and 4 were concerned and no modification was made in respect of the other claims. In this case also notice was given on 28.9.1991. Therefore, following the judgment in S.S.Jetley's case (supra) I also modify the award in so far as it relates to claim No.2 and 4 and direct interest to be paid @ 12% p.a. from 1.10.1991 to 7.3.1995.

15. In view of the above I do not see any reason to set aside the award or to allow the objections filed by the respondent. I accordingly with the modifications made in respect of Claim No.5, under which Petitioner is not entitled to any amount, and interest, make the award dated 19th August, 1996 a rule of the court and decree in terms of the award is passed. The petitioner will be entitled to interest @ 12% p.a. from the date of decree till the date of payment. No costs.