Nonit Ram Rajput & Sons vs Delhi Development Authority
2001 Latest Caselaw 1425 Del

JUDGMENT

V.S. Aggarwal, J.

1. Shri Nonit Ram Rajput, hereinafter described as the applicant is the proprietor of M/s Nonit Ram Rajput & Sons has filed the present petition under Section 14 and 17 of the Arbitration Act for filing of the award and for a decree to be passed and award to be made a rule of the court.

2. It has been asserted that the applicant had entered into a contract with the respondent Delhi Development Authority for the development work in North Mukherjee Nagar. After getting the due formalities performed a proper agreement was executed between the parties. The agreement contained an arbitration clause, according to which all the matters of dispute were required to be adjudicated upon by the arbitrator to be appointed by the Engineer Member, DDA. The applicant had invoked the arbitrator clause forming part of the agreement. Shri Om Prakash had been appointed as the arbitrator. The arbitrator had entered into the reference and submitted the award. Therefore, the present petition has been filed for making the award a rule of the court.

3. The DDA in pursuance of the notice issued has chosen to file the objections. It is asserted that the arbitrator has misconducted himself while making the award and has ignored the important documents placed on the record. As per terms of the agreement the arbitrator was required to give a reasoned award. But the arbitrator has only given his conclusions and has not recorded the reasons. Therefore, the same is liable to be set aside. Furthermore it is claimed that findings of the arbitrator with respect to claims 2, 3 and counter claim of the objector (no. 1) are erroneous. The arbitrator has given the award with respect to claims 2 and 3 of the petitioner and counter claim no. 1. It is not sustainable at all. With respect to claim no. 1 of the applicant, the arbitrator has awarded the amount of Rs. 1231.88 on account of difference in the rate of the pumping out water. That amount was awarded by the arbitrator in favor of the applicant on the ground that up to 7th running account bill rate of pump account charged was paid on Rs. 7.66 per cum but in the final bill the rate was reduced to 7.20 per cum. As per clause 7 of the agreement all payments made to the applicants were to be considered as advance payments towards the final payment. The final rate approved by the competent authority was Rs. 7.20 per cum and thus the award cannot be justified.

4. Furthermore it is claimed that arbitrator had awarded an amount of rs. 5498.58 on account of carriage of bricks. He has ignored Ex. R2 whereby the applicant/petitioner had given an undertaking that he will not claim any amount on account of cartage of material. Plea has also been raised that damage as held that recovery on amount of outstanding secured advance is admissible only to the amount of Rs. 12,881/-. He was ignored Ex. R1 and R2 placed on the record by the objector which contains an undertaking that outstanding amount of the secured advance may be recovered from the two works. Similarly under claim no. 5, the arbitrator has awarded a sum of Rs. 7640/- on account of damages for engaging the chowkidar, the same is totally uncalled for and could not have been allowed. Similar plea has been raised with respect to the claim no. 6 to be erroneous alleging that Rs. 12,683/- could not be awarded to the applicant/petitioner on account of loss of profit. There is no objection in the agreement for the award of the damages that may be caused. Lastly objection has raised that interest at the rate of 12% could not have been so awarded.

5. In the reply filed the applicant has controverter the assertions and took up the plea that this court is bound by the findings of fact that have been arrived at by the arbitrator. The arbitrator has gone into the facts and recorded his reason and there is no grounds to set aside the same. He has observed the norms of arbitration and recorded his reasons. He acted judicially. The claim that has been allowed is based on evidence.

6. After hearing the parties learned counsel, it is patent that what the controversy is if the award is liable to be set aside in the facts of the present case or not. The principle of law is not subject-matter of any controversy and has authoritatively been decided by the Supreme Court more often that once and more recently in the case of Arosan Enterprises Ltd. v. Union of India and Anr. . The precise findings are :

"36. Be it noted that by reason of a long catena of cases, it is now a well-settled principle of law that reappraisal of evidence by the court is not permissible and as a matter of fact exercise of power by the court to reappraise the evidence is unknown to proceedings under Section 30 of the Arbitration Act. In the event of there being no reasons in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, the interference would still be not available within the jurisdiction of the court unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. In the event however two views are possible on a question of law as well, the court would not be justified in interfering with the award.

The common phraseology "error apparent on the fact of the record" does not itself, however, mean and imply closer scrutiny of the merits of documents and materials on record. The court as a matter of fact, cannot substitute its evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. If the view of the arbitrator is a possible view the award or the reasoning contained therein cannot be examined."

7. In other words, unless there is an error apparent on the face of the record or has misconducted himself in any other manner, the award will not be liable to set aside.

8. As is apparent from the resume of the facts which have been given above, the award is being assailed basically asserting that the findings so arrived at are not correct. Indeed as referred to above, this court will not sit as a court of appeal and re-appreciate the evidence even if the court comes to a conclusion to the contrary but the law would permit interference only there is any error apparent on the face of the record.

9. In addition the arbitrator has gone into the material placed before him and recorded his reasons and thereupon had allowed the claim. That being the position once the principle of natural justice have been complied with and the arbitrator has not misconducted himself regarding which there are common allegations there are no grounds to set aside the award.

10. For these reasons the objections must fail and are dismissed. The award is filed and made rule of the court. A decree in terms of the same is passed. The applicant would be entitled to interest at the rate of 12% p.a. from the date of the filing of the award till the final payment is made.