Delhi High Court
Tomar Construction vs Delhi Development Authority on 13 August, 2001
Author: J Kapoor
Bench: J Kapoor
JUDGMENT
J.D. Kapoor, J.
1. The petitioner has, through this application, assailed the award made and published by the Arbitrator on 2nd December, 1994.
2. The main objection is that the Arbitrator did not comply with the provisions of Clause 25 that required that wherever the total amount of all the claims in disputes is Rs. 75,000/- and above, the Arbitrator is required to give reasons for the award whereas the awarded amount is Rs. 95,789.60 and no reasons have been given as to on what basis the awarded amount was calculated.
3. Similarly the Arbitrator has failed to appreciate the import of Clause 10-C of the Agreement providing for re-imbursement in case there is statutory increase in wages and cost of the material used in the work. To say that during the progress of the work there has been no increase whatsoever is incorrect and, therefore, the award under claim No. 2 is clear misconduct on the part of the learned Arbitrator.
4. Where parties choose their forum and agree to its decision being final and binding, the Court cannot act as 'Court of Appeal'. Such an award requires protection rather than destruction. Even if there are two possible views as to findings of fact or interpretation of terms of agreement, Court should be reluctant to interfere with the view of the Arbitrator. Re-appraisal or scrutiny or re-evaluation of evidence and material produced by the parties should always be avoided. However, it does not mean that award has a sanctimonious character. If there is perversity or error writ large on the face of it or there is pronounced deviation from the terms of the agreement or jurisdiction bar, the award, is liable to be set aside. Let us test the award on the anvil of above principles.
5. Claim No. 1 was towards the amount lying withheld observations, deviation limits and other reasons. According to learned counsel for the respondent the Arbitrator was required to give details and basis on which the awarded amount of Rs. 48,354.65 was deducted by the respondent towards the reduction in the rates arrived at in respect of deviated items which were held to be void. Since it was admitted by the respondent that the said amount has been withheld and the Arbitrator has found such withholding of the amount as void, there is no breach of Clause 25 of the Contract by the Arbitrator.
6. Similarly claim No. 2 which was on account of Clause 10-C of the agreement there is admission on the part of the respondent in Exhibit R-13 as to amount of Rs. 47,435.01. There is no error on the part of the Arbitrator in accepting the claim. Moreover the Arbitrator also held this claim justifiable in terms of Clause 10-C of the contract. Objection regarding the breach of Clause 25 is with regard to claim No. 2 wherein the claimant had claimed Rs. 75,000/-. Since the claim id not exceed Rs. 75,000/- there was no need for the Arbitrator to give reasons. The award has been made on the admission of the respondent in Exhibit R-13 and, therefore, there is no scope to challenge it.
7. Claim No. 6 was towards the award of interest. The objection of the respondent is that there was no contract allowing interest to any party and if the parties agree not to have such a clause of interest the Arbitrator has no authority to award interest as it is against the provisions of the contract and as such the award is liable to be set aside.
8. The objection appears to be groundless as there was no specific clause in the contract that the interest in any event shall not be allowed. Mere absence of a clause allowing interest to any party cannot be interpreted as clause prohibiting the award of interest. In such an eventuality interest for pre-reference period alone is not permissible.
9. Challenge appears to be a feeble attempt on the part of the respondent to scuttle the award which is mainly based upon the admitted position of the parties. I do not perceive any reason whatsoever to allow the objections and dismiss the same.
10. The award is made a rule of the Court. However if the awarded amount is not paid within six weeks the petitioner shall be entitled to interest @ 12% per annum till the realisation of the amount.
11. The suit and the I.A. stand disposed off.
