Union Of India And Ors. vs Bharat Builders
2001 Latest Caselaw 1677 Del

JUDGMENT

J.D. Kapoor, J.

1. The award has been challenged under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'The Act'). Section 34 of the Act can be invoked for setting aside the award only in the following eventualities:-

(i) a party was under some incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration.

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement was in conflict with a provision of this Part from which the parties cannot derogate, or failing such agreement, was not in accordance with this part; or

(b) the court finds that-

(i) the subject matter of the dispute is not capable or settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India."

Main ground of challenge is as under:-

"Because the ld.Arbitrator has also failed to appreciate claim No. 3 of the respondent towards refund of rebate amount claimed by the petitioners. The Ld.Arbitrator has illegally and wrongly awarded a sum of Rs. 1,40,766/- in favor of the respondent. It is submitted that 45th pre-final Bill for Rs. 90,723/- pertaining to the respondent was cleared by the petitioners within six months from the date of the Bill and this fact has not been appreciated by the Ld.Arbitrator because he did not afford any proper hearing and opportunity to the petitioners, in violation of the principles of natural justice. It is also pertinent to mention here that the ld.Arbitrator also failed to appreciate that 46th and final bill of the respondent was in minus and in fact the petitioners had to take a refund of Rs. 3,33,906/- from the respondent as per the contract. The award against the claim No. 3 is against the facts and records. It is further submitted that inspite of minus bill rebate was given to the respondent, thus, the ld.Arbitrator has totally misconstrued and misconducted the arbitration proceedings."

2. It is settled law that court does not sit in appeal nor is it required to re-appreciate or reassess or re-evaluate the documents/material placed before the arbitrator. Even if erraneous view has been taken by the arbitrator in respect of the finding of fact or interpretation of terms and clauses of the agreement, the court should be reluctant to interfere until and unless perversity or non-application of mind or error is writ large on the face of the award.

3. The main grievance of the petitioner is that 45th pre-final bill for Rs. 90,723/- pertaining to the respondent was cleared by the petitioners within six months from the date of the Bill and this fact has not been appreciated by the Arbitrator because he did not afford any proper opportunity to the petitioners which is in violation of the princiles of natural justice. I am afraid such a plea or objection cannot or ought not be entertained as the Arbitrator has returned the finding after discussing all the relevant documents/material.

4. Even if it is presumed that petitioner was not heard on the aforesaid aspect i.e. whether 45th pre-final Bill for Rs. 90,723/- pertaining to the respondent was cleared by the petitioners within six months from the date of the bill or not, still it is a finding of fact and no such view was taken by the arbitrator which is contrary to the document or suffers from perversity.

5. Unless bias or partiality of the arbitrator is manifestly demonstrated, the award should not be set aside because the parties choose forum on their own and to assail the findings of facts based upon the material produced by the parties amounts to stultifying the statute and its object and purpose. The objects of the Arbitration Act is to minimise the disputes between the parties and not to allow the parties to challenge the finding by way of appeal. Scrutiny or scanning of findings of facts of the arbitrator is neither permissible nor called for. Unless a party succeeds in establishing any of the ingredients of Section 34 of the Act. It is not entitled to subent the award.

6. Hence the petitioner has failed to come up with any of the grounds available to a party for setting aside the award as contemplated in section 34 of the Act.

7. Petition is dismissed.