Delhi High Court
Prem Chand Sharma vs Dda on 5 December, 2005
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 11981/1999 (Under/Sections 30 and 33 of the Arbitration Act)
1. The petitioner contractor was awarded the work of construction of MIG Dwelling Units at Paschim Puri in terms of the Agreement No. 11/EE/WD.12/DDA/87- 88. Disputes arose between the parties and the arbitration clause No. 25 was invoked. The Engineer Member, DDA vide letter dated 12.09.1994 referred the disputes to the sole arbitration of Shri C. Banerjee, the then Chief Engineer, DDA who made and published his Award dated 26.04.1999. The respondent / DDA aggrieved by the same has filed the present objections.
2. Learned counsel for the respondent seeks to contend that there are errors made in the Award, but cannot seriously dispute the proposition that insofar as the matter requires re-appreciation of evidence or re-scrutiny of facts, the same would not fall within the scope of Section 30 of the Arbitration Act, 1940 (for short, 'the said Act').
3. The Apex Court has observed that in the absence of an award being absurd, reasonableness is not a matter to be considered by the Court as appraisement of evidence by an arbitrator is not ordinarily a matter for the Court (Food Corporation of India v. Joginderpal Mohinderpal and Anr., and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. and Anr., ). The Supreme Court has re-emphasised the limited scope of jurisdiction to be exercised under Section 30 of the said Act in State of UP v. Allied Constructions, holding that unless one of the conditions specified in the said Section is satisfied, an award cannot be set aside. Thus, a number of issues are not really required to be gone into in the present proceedings.
4. Learned counsel for the respondent sought to draw attention of this Court to claim No. 1 dealing with the penal rate of recovery, which has been disallowed and the claim No. 3 dealing with the balance amount payable under Clause 10CC. These are all matters based on appreciation of evidence and there is no averment that the award is contrary to the contract.
5. Learned counsel also sought to emphasise that infructuous expenditure incurred by the petitioner has been awarded in claim No. 6. This claim, in my considered view, is based on the principle that if there is delays attributable to the respondent, the petitioner must be compensated for the same. There is no overlapping in the award of this claim with Clause 10CC, which deal with the aspect of increase in labour and material cost during the currency of the contract and the extended period thereof.
6. The next submission of learned counsel for the respondent is on account of the award made under claim No. 4(D) for straightening and cutting of steel. In this behalf, learned counsel has referred to judgment of this Court in Narain Das R. Israni v. Delhi Development Authority, 2005 VIII AD (Delhi) 556 where it has been held that the relevant clause dealing with such straightening and cutting is comprehensive to include all aspects of this work unless a notice is specifically given by the contractor. No such notice has apparently been given and, thus, this claim is liable to be set aside.
7. The last aspect urged is in respect of pre-suit, pendente lite and future interest where 18% p.a. simple interest has been granted to the petitioner pendente lite and future from 29.09.1994 till the date of decree or the date of payment, whichever is earlier. In this behalf, learned counsel for the petitioner confines the claim of interest to 12% p.a., which in my considered view is the reasonable prevailing market rate of interest at the relevant period of time.
8. In view of the aforesaid, the objections are disposed of in the aforesaid terms.
CS (OS) No. 1907A/1999
1. In view of the objections having been disposed of and there being no other legal impediment, the Award of the Sole Arbitrator, Shri C. Banerjee dated 26.04.1999 is made Rule of the Court with the modification that claim No. 4(D) is set aside and the interest till the date of decree is reduced from 18% p.a. to 12% p.a. The petitioner shall also be entitled to future interest from the date of decree till the date of realisation @ 9% p.a. The petitioner shall be entitled to costs.
2. In the case of respondent making payment of the decretal amount within 60 days from today, the respondent shall be exempted from payment of future interest.
3. Decree-sheet be drawn up accordingly.
