Babu Ram Gupta vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 305 Del

JUDGMENT

J.D. Kapoor, J.

1. Through this suit, the award dated 28.12.1995 is sought to be made rule of the court. On being noticed, the respondent-UOI has preferred objections under Sections 30 & 33 of the Indian Arbitration Act, 1940 through I.A. 7583/1996.

2. Challenge to the award has a limited scope as the court does not sit in appeal and therefore re-appraisal or re-evaluation or re-assessment of evidence or material is not permissible. It is only in rare cases where perversity as to finding of fact or proposition of law is writ large then the award requires rejection or remittance. Again if the Arbitrator traverses beyond the terms of the agreement, award is liable to be set aside on account of non-jurisdiction. Similarly, if the Arbitrator ignores the material document which has significant bearing on arriving at just and fair decision, the award is liable to be remitted for re-decision. If the Arbitrator proceeds on the unsound proposition of law, he renders his award unworthy of acceptance.

3. Let us test the objections on the anvil of aforesaid principles.

4. Respondent-UOI has challenged the findings of award in respect of three claims namely claim Nos. 1, 2 &

6.

5. At the outset, Mr. Dilip Singh, learned counsel for the respondent-UOI has pointed out that award in respect of claim No. 6 is mainly based upon document marked exhibit C-52 which was filed by the petitioner subsequently after both the parties had filed written arguments. Thus, this document was not in the knowledge of the respondent till the conclusion of proceedings and to its great surprise was formed basis for granting claim No. 6. Claim No. 6 is payment under Clause 10CC which is on account of statutory increase in the prices of material and wages of labour during the stipulated period of contract. Clause 10CC also provides a formulla for calculating escalation.

6. Exhibit C-52 contains the details of claims of the petitioner under Clause 10CC. Originally claim No. 6 was for Rs. 1,25,000 but on the statement of the claimant/petitioner that they have not been made payment under Clause 10CC in accordance with the terms of the agreement, an additional amount of Rs. 77,000/- was paid on the basis of document exhibit C-52. Admittedly, petitioner/claimant had been paid Rs. 3,74,205/- under this clause. Non filing of the details of this amount by the respondent had persuaded the Arbitrator to consider the document exhibit C-52. It was neither in the knowledge of the respondent nor was it produced by the petitioner along with claims.

7. As is apparent from the aforesaid facts, the document Exhibit C-52 is the basis for awarding Rs. 77,000/- in spite of the plea of the respondent that they have already paid Rs. 3,74,205/- on this account towards full and final settlement. It was neither put to the respondent for confrontation nor was it in the knowledge of respondent nor was the copy of this document furnished to the respondent by the petitioner or by the arbitrator. Even if copy of this document after written arguments was filed, it was incumbent upon the Arbitrator to call upon the respondent either to admit or deny the calculations contained in the document but the learned Arbitrator did not adhere to the principles of natural justice.

8. A party cannot be put to jeopardy by not being given an opportunity to admit or contradict a document filed on the back of the party. Since this was the crucial document, the learned Arbitrator committed gross error by not getting it confirmed or contradicted by the respondent. On this premise alone, award in respect of claim No. 6 cannot be sustained and is liable for remittance to the Arbitrator for re-decision. The learned Arbitrator shall call upon the respondent to file its reply or react to the said document before giving fresh decision.

9. Claim No. 1 is on account of final bill of the work. I have perused the award. Finding is purely based upon facts and material produced by the parties. Merely because the impugned bill was signed by the Assistant Engineer, does not loose its status as a final bill. to say that any bill singed by an official other than the authorized official cannot be deemed as a final bill is not correct. Any bill signed by an official who is connected with the implementation of the terms of the contract is a final bill unless it is contradicted or amended either immediately or before submitting it for arbitration. Any such plea, if taken subsequently is an after thought. This is a findings of facts, even if erroneous view was taken, the same cannot be interfered. Same is the fate of claim No. 2 which is on account of refund of security deposit. If the court starts interfering in such like matters, it would be arrogating the powers of the appellate court. As a consequence, Objections with regard to claim Nos. 1 & 2 are dismissed being untenable. Award in respect of these claims is made rule of the court. As regards future interest, the respondent-UOI has already deposited the awarded amount along with interest and therefore petitioner is not entitled for any additional future interest.

10. As regards claim No. 6, award is remitted to the Arbitrator for re-decision. Decree sheet be prepared accordingly.