Subhash & Co. And Anr. vs Union Of India And Anr.
2001 Latest Caselaw 1588 Del

JUDGMENT

V.S. Aggarwal, J.

1. M/s Subhash & Co. though its proprietor Subhash Chopra have filed the present petition under Sub-section (2) to Section 14 of the Arbitration Act seeking the filing of the award of shri N.H. Chandwani, sole arbitrator and for making the award a rule of the court.

2. It has been asserted that the applicant was awarded the work of construction of Dr. M.A. Ansari Auditorium at Jamia Milia Islamia University, New Delhi. The agreement contained an arbitration clause. Disputes arose between the applicant and the Union of India and Shri N.H. Chandwani was appointed as the arbitrator. The arbitrator had gone into the controversy and pronounced his award on 30th May, 1990. Rs. 2,94,319.04 had been awarded with interest at the rate of 14% p.a. from the date of the award till the date of the decree.

3. Notice had been issued to the parties and on behalf of the Union of India objections have been filed. It is pleaded that the arbitrator had misconducted himself and there is error apparent on the fact of the record. The award is assailed primarily with respect to claim No. 3, 9 and 12. So far as claim No. 3 is concerned the objections asserted that erroneously and without nay basis the arbitrator allowed Rs. 247/- fro centring and shuttering provided for triangular grid roof whereas the applicants himself had agreed to get a rate of Rs. 196/- per sq. mtr. As regards claim No. 9, the plea raised was that erroneously S. 62,137/- have been awarded for centring and shuttering for balcony portion which could not be removed because of the typical structural design. Lastly, with respect to claim No. 12 the contention raised is that it is related to damage suffered by the applicant due to uncertain unworkable circumstances. The arbitrator erroneously awarded Rs.1,45,000/-.

4. Reply filed to the objections pleading inter alia that the award does not suffer from any error apparent on the face of the record or that the arbitrator has misconducted himself. It was submitted that it was the case of neither party that the applicant was entitled to get at the rate of Rs. 196/- per sq. mtr for centring and shuttering for triangular grid roof The respective cases of the parties were that applicant claim Rs. 247/- per sq. mtr while respondent were ready to pay at Rs. 88.16 per sq. mtr. The arbitrator thus was never called upon to decided whether the applicant would be entitled at the rate of Rs. 196/- sq. mtr. As regards claim No. 9 also applicants plea was that claim was for Rs. 3,50,000/- the arbitrator has only awarded Rs. 62,137,/- which is reasonable nor it is exorbitant amount because the arbitrator had written the findings that applicant was entitled to a claim. Lastly, qua claim No. 12 again it is reiterated that amount alleged by the arbitrator was just and proper and it is not illegal certain amount of guess work is permitted.

5. As as apparent form the resume of the facts given above the short question that comes up for consideration is as to whether award on basis of the assertions is liable to be set aside or not. The main stress in this regard was with respect to claim No. 3 and learned counsel for the objector asserted that applicant had himself conceded that he would charge Rs. 196/- per sq. mtr. According to the applicant, this was only stated in the letter by way of concession. Reliance on behalf of the objector was placed on the letter of the applicant dated 16th July, 1985. The relevant extract of the same reads:-

"We informed the department vide our letter No. 29 dated 17.8.84, that the roof of the Auditorium had special and typical features and our quoted rates for ordinary type of suspended floors both for centring and concreting did not hold good and need revision. The rate of centring for such specially featured roof was worked out and intimated by us as Rs. 247/- per M2 on 11.9.84 after discussing this issue with Project Manager at site (copy enclosed- Annexure 'A')

We even informed vide our letter No. 37-38 dated 5.10.84 that the department was ate liberty to get the item of roof centring/shuttering done from other agency in case it did not agree with the rate demanded by us i.e. Rs.247/- per sq.m. (copy enclosed -Annexure 'B').

We again reiterated the demand vide our letter No. 39-40 dated 10.10.84 (copy enclosed -Annexure 'C') and 40 dated 9.11.84, 45 dated 17.11.84, 46 dated 23.11.84 (copy enclosed - Annexure 'D').

We also apprised your good self vide our letter No. SC/AA/84-44 dated 16.11.84 in this respect.

A meeting was convened by your good self on 14.12.84 in your Chamber where in Project Manager, SSW, SW etc. were also present.

You were convinced in principle that our demand was quite rational and justified and desired that the extra item should be prepared."

6. It is obvious fro aforesaid that the claim was reduced to Rs. 196/- per sq. mtr by way of concession and as a goodwill gesture. Not only that even during the course of arguments on 6th September, 2001 on behalf of the applicant it had been stated in court that the applicant had no objection if claim No. 3 is reduced to Rs. 196/- per sq. mtr which was reduced during negotiations. Taking stock of the statements that had been made in court is clear that by way of concession the applicant was ready to reduce the claim to Rs. 196/- per sq. mtr. To that extent only therefore the objection would be allowed and claim is reduced to Rs. 75969.20 paise.

7. As regards claim No. 9, it has been alleged that it relates to centring and shuttering for the balcony portion which could not be removed because of typical structural design. In spite of the fact that it was clarified to the arbitrator that centring and shuttering provided by the contractor was in such a location that it could be removed because of the typical structure the same a was given back to the contractor when it was not needed. The arbitrator had awarded Rs. 62,137/-.

8. The findings arrived at thereto are purely findings on fact. It is entirely within the domain of the arbitrator to go into the findings of fact and arrive at a conclusion unless it is shown that the same is totally erroneous in the sense that no other view can be taken. The court will not interfere. It will not re-apprise material evidence and arrive at its own independent findings. Therefore, the said contention must fail.

9. Lastly the claim was allowed with respect to claim No. 12 which has been allowed. Rs. 1,45,000/- had been awarded by the arbitrator . It was rightly pointed once again that this is a finding of fact and of the reasons with respect to the claim No. 9 the same should not succeed. This was the damages that has been awarded and this court should not re-appraise the same Reply int this regard must be held to be meritorious because as referred to above this court will not sit as a court of appeal and re-appraise the evidence that was before the arbitrator.

10. For these reasons the objections are only allowed in part. The applicant would be entitled to interest at the rate of 12% p.a. from the date of the present order till the final payment is made.