Smt. Indira Rai vs Iaf Educational & Cultural ...
2001 Latest Caselaw 977 Del

ORDER

Vijender Jain, J.

1. The claimant filed a suit No. 288/90 under Section 20 of the Arbitrator Act, 1940 for appointment of Arbitrator in terms of Arbitration Clause in the Contract. This Court on 27th September, 1990 disposed of suit by giving a direction to the respondent to appoint Arbitrator. The respondent appointed Mr.B.K. Nigam, Air Commador (retired) as the Arbitrator who gave his Award on 20th March, 1994.

2. Both the parties have filed objections to the Award to the Arbitrator.

3. Mr. Sharma learned counsel for the Claimant has contended that the Arbitrator has not allowed the amount of Rs. 1,05,911.30/- although the counter claims of the respondents were disallowed. The basic bone of contention between the parties on which objections have been filed by the respondent is the value of the contract and the professional fee awarded by the Arbitrator.

4. Mr.Sanjiv Ralli, learned counsel for the respondent has contended that in terms of documents C-16 which is a letter written by the Claimant on 28th August, 1986, the claimant was not entitled for professional fee on any other amount beyond a limit of Rs.77 lakhs and, therefore, the Arbitrator committed grave irregularity in awarding the professional fee on actual cost and not on the agreed cost between the parties. The respondent is also aggrieved by rejection of their counter claim by the Arbitrator on the ground that having found that the claimant has misconducted herself as the cost of the interior works was increased from what was initially submitted by the Architect still the losses sustained or the cost escalation on the same has not been awarded in favor of the respondent.

5. I have given my careful considerations to arguments advanced by counsel for the parties. With regard to the submissions of Mr. Sharma appearing for the Claimant that a sum of Rs. 1,05,911.30 has been deducted. From the discussion in the Award at paragraph 55 at page 20, the Arbitrator has granted 95 per cent of the total fee of Rs. 10,75,748.00/- the arbitrator has also given reasons for that deduction, the deduction was on account of as stage 4.2 (vii) was not completed and as per C-112, the claimants have claimed only 95% of 3.5%. Therefore, the arguments of Shri Sharma has no force on this score that full amount was not paid.

6. Coming to the second limb of his argument, the Arbitrator has chosen not to grant any professional fee on sum of Rs. 31,85,302/- which was the counter claim of the respondent in view of the discussions in paragraph 66 to 69. This Court is not a Court of appeal. The Arbitrator after considering the statements, documents, correspondence and arguments of the parties came to the conclusion that no professional fee is to be paid to the claimant and that decision cannot be interfered even if this Court comes to a different reasoning. Therefore, I do not see any force in the objections filed by the Claimant and the same are dismissed.

7. Coming to the submissions of learned counsel for the respondent that the professional fee was to be paid at fixed cost and not on the actual cost. There is a basic fallacy in the arguments of the respondent. Paragraphs 4 and 5 of the Agreement between the parties deal with the parameters, scope, state and detail of the professional fee to be to be charged by the Claimant. Initially, the project cost was Rs. 95 lakhs. Later on, Claimant was told that the project cost would be Rs.77 lakhs and on that basis the Claimant sent document C-16 written on 9th August, 1986 lowering down the professional fees on the basis of the figure of Rs.77 lakhs whereas the arbitrator in his Award has found that the total professional fee to be paid to the Claimant on the basis of the total actual work was to the extend of Rs.3.07 crores and has awarded the fee on aforesaid amount. Therefore, when the actual cost on the project was increased, the Arbitrator was right in awarding the professional fees to the Claimant on the basis of the actual cost of the Project. I do not find any merit in the objection of the respondent on this score.

8. Lastly, it has been contended before me by Mr.Ralli, learned counsel for the respondent that having found that the initial estimates on interior designing given by the Claimant was on a lower side, the counter claim ought to have ben allowed as the respondent has to incur additional expenditure. The learned Arbitrator has discussed in paragraph 69 of the Award that there was no provision in this Agreement to meet this contingency. It has also been pointed out in the Award that whatever extra expenditure has been spent it has enured to the benefits of the respondent and on that score, the Arbitrator has not allowed and claim of the Claimants for professional fees. Even otherwise, expenditure on interior designing is based on clients requirements. In the respondent's organisation the same has been done to suit the same. Claimant has not been personally benefitted from them. I do not want to disagree with the reasoning of arbitrator. I do not want to interfere with the well-reasoned Award of the Arbitrator. Objections of the respondent are also dismissed.

9. In view of the objections of the parties having been dismissed, the Award is made Rule of the Court. The decree in terms thereof is passed and interest be paid till realisation of the Award.