Anant Raj Agencies vs Delhi Development Authority And ...
2005 Latest Caselaw 290 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The present decision disposes of IA. No. 1439/95 filed by DDA under Section 30 read with Section 33 of the Arbitration Act, 1940 laying a challenge to the award dated 30.5.1995 published by Shri S.K. Ahuja, sole arbitrator appointed by the Engineer Member, DDA vide letter dated 4.9.1991 to decide the dispute between the petitioner and DDA pertaining to a work contract.

2. Dispute was referred to the arbitration of Shri S.K. Ahuja as the sole arbitrator pursuant to directions issued by this Court in a petition filed by petitioner under Section 20 of the Arbitration Act, 1940, which was registered as Suit No. 2992-A/89.

3. The award under challenge is a reasoned award running into 64 pages. The award deals with 11 claims of the petitioner. Claims 4, 5 and 9 have been disallowed.

4. Petitioner, who was the claimant, has not raised any objection to the rejection of the said claims. Accordingly, in the present proceedings, I was required to deal with the objections of DDA pertaining to the claims which have been allowed.

It may be noted that some of the claims have been allowed in full and some in part.

5. A brief backdrop of the facts would be instructive while dealing with the submissions made by Ms. Anusuya Salwan, learned counsel for DDA.

6. DDA invited tenders for construction of 504 MIG flats, Pocket-R (U), Pitam Pura, Delhi including internal development (balance work).

7. From the tender itself, it is obvious, that certain works were carried out at site and work to be performed under tender in question was re-tender work.

8. Offer of the petitioner, after negotiations, was accepted by DDA on 6.10.1982. Date of commencement of work as per agreement was 16.10.1982. Completion period was 12 months. Thus, work had to be completed by 15.10.1983. Work got prolonged.

As per record of DDA, date of completion was recorded as 5.6.1986.

9. As per petitioner, it had various claims, mostly arising due to prolongation of the contract. Summary of the claims of the petitioner and defense of DDA is as under :-

(I) CLAIM NO. 1 :

(a) The claim is in the sum of Rs.3,95,195/- under Clause 10(c) of the contract. As per the claimant, tender of the work was based on minimum labour wages as per notification of Delhi Administration dated 23.2.1982. During the stage when contract was on, minimum wages were revised. Claim was for increase in wages as per Clause 10(c) of the contract.

(b) defense of DDA was that it was liable to pay for statutory increase in labour during contract stipulated period and not the extended time.

(c) Response of the claimant was that DDA granted extension of time up to 5.6.1986 without levy of compensation. It meant that DDA admitted the fault resulted in delay and, therefore, the petitioner was entitled to the amount. Besides delay was attributable to DDA.

II. CLAIM NO. 2 :

(a) Claim in the sum of Rs.29,188/- was on account on loss due to withholding of payment by DDA due to lack of funds. Basis of claim was belated payment under running bills certified for payment. Interest was claimed @ 17.5% per annum from the date amounts became payable on certification of the bills and date on which the amounts were payable.

(b) defense of DDA was a simple denial of belated payments.

III. CLAIM NO. 3 :

(a) Claim in the sum of Rs.6,37,087/- was on account of balance due for extra and substituted items of work and interest @ 17.5% per annum on the amounts stated to be wrongly withheld. Interest was claimed from January,1984 to October,1989.

(b) defense of DDA was that it has to take sanction for extra and substituted works. Procedural delays take place. No interest is accordingly payable. It was pleaded that provisional rates for some extra and substituted items of work were approved and payments made.

IV. CLAIM NO. 4 and 5 :

As noted above, these claims were rejected.

V. CLAIM NO. 6 :

(a) Claim in the sum of Rs.31,35,517/- was on account of compensation for the work done beyond the contract stipulated period.

(b) Basis of the claim was that work started on 16.10.1982 and was to be completed by 15.10.1983. Work got completed on 5.6.1986. Delay in completion was due to shortage of cement with DDA, resulting in non-supply of cement to the petitioner with in time. Delay occasioned due to testing of existing RCC slabs in some blocks. (It may be noted that these slabs were the ones already constructed at site). Flooding of site. Delay in sanction of water supply and sewerage system by MCD. Delay in supply of wooden shutters etc. Delay due to works not being completed by DESU.

(c) defense of DDA was that delay in execution of work was due to shortage of labour and material which had to be arranged by the claimant.

(d) Since arguments were addressed in respect of Clause 10 of the agreement and specially condition No. 1 of the contract pertaining to claim No. 1, pleadings of DDA before the learned arbitrator pertaining to claim no. 1 may be noted. Same are as under :

''It is further added that as per clause 10 of the agreement which states that claimant is not entitled for any compensation. In case there is any delay in supplying of stipulated material up to half of the stipulated period of six months in case of work having been stipulated period of 12 months. Therefore, the claimant is not entitled to any claim up to one and half year from the date of the start of the work i.e. 14.4.1984 and for rest of period the contractor shall be entitled for extension of time. Therefore, as per this clause, the claimant is not entitled for any compensation for delay in execution of the work. . . . . . . . . . . . . . . . it is further clarified in the 'Specification and Conditions' at page 56 of the agreement that the contractor must get acquainted with the proposed site for the work and study specifications before tendering. The work shall be executed as per programme approved by the Engineer-in-Charge.''

(e) For facility of reference, clauses relied upon by DDA in the counter statement of facts may also be noted. They read as under :-

'' CLAUSE 10 :

Stores supplied by Delhi Development Authority:- If the specification of schedule of items provides for the use of any special description of materials to be supplied from Engineer-in-Charge's stores or if it is required that the contractor shall use certain stores to be provided by the Engineer-in-Charge as shown in the schedule of materials hereto annexed, the contractor shall be bound to procure and shall be supplied, such materials and stores, as are from time to time required to be used by him for the purposes of the contract only, and the value of the full quantity of materials and stores so supplied at the rates specified in the said schedule of materials may be set offer deducted from any sums then, due, or thereafter to become due to the contractor under the contract, or other-wise of against or from the security deposit, or the proceeds of sale there of if the same is held in Govt. Securities, the same of a sufficient portion thereof being in this case sold for the purpose. Not with standing any thing to the contrary contained if in any other clause of the contract and (or the CPWA Code) all stores/materials so supplied to the contractor or procured with the assistance of the Delhi Development Authority shall remain the absolute property of Delhi Development Authority and the contractor shall be the trustee of the stores/materials : and the said stores/materials shall not be removed/disposed of from the site of the work on any account and shall be at all times open to inspection by the Engineer-in-Charge, any such stores/materials remaining unused shall be returned to the Engineer-in-Charge at a place directed by him if by a notice by him he shall so require, but in case it is decided not to take back the stores/materials the contractor shall have no claim for compensation on any account of such stores/materials so supplied to him as aforesaid and not used by him or for any wastage in or damages to in such stores/materials.

On being required to returned the stores/materials, the contractor shall hand over the stores/materials on being paid or credited such price as the Engineer-in-Charge shall determine, having due regard to the condition of stores/materials. The price all wed to the contractor, however shall not exceed the amount charged to him, excluding the stores charge, if any. The decision of the Engineer-in-Charge shall be final and conclusive. In the event of breach of the aforesaid condition, the contractor shall in addition to throwing himself open to account for contravention of the terms of the licenses or permit and/or criminal breach of trust be liable to the Delhi Development Authority for all advantages of profits resulting or which in the usual course would having resulted to him by reason of breach. Provided that the contractor shall in no case be entitled to any compensation or damages on account of any delay in supply or non-supply thereof of all or any such materials and stores. Provided further that the contractor shall be bound to execute the entire work if the materials are supplied by the DDA within the schedule time for completion of the work plus 50% thereof (Schedule time plus 6 months if the time of completion of the exceed 12 months) but is a part only of the materials has been supplied within the aforesaid period then the contractor shall be bound to do so much of the work as may be possible with the materials and stores supplied in the aforesaid period. For the completion of the rest of the work, the contractor shall be entitled to such extension of times as may be determined by the Engineer-in-Charge, whose decision in this regard shall be final.

Specifications and Conditions.

GENERAL

1. The contractor must get acquainted with the proposed site for the works and study specifications and conditions carefully before tendering. The work shall be executed as per programme approved by the Engineer-in-Charge. If part of site is not available for any reason or there is some unavoidable delay in supply of materials stipulated by the Department, the programme of construction shall be modified accordingly and the contractor shall have no claim for any extras or compensation on this account.

VI. CLAIM NO. 7 :

(a) Claim in the sum of Rs.17,56,762/- was for unpaid amount as per final bill. Petitioner stated that the final bill was submitted on 24.11.1989.

(b) Reply of DDA was that petitioner be directed to furnish actual bills so that detailed comments could be offered.

VII. CLAIM NO. 8 :

(a) Claim in the sum of Rs.5,83,200/- was on account of compensation for ward and watch from 15.6.1986 to 14.6.1989 on the ground that DDA delayed taking over possession of the flats.

(b) defense of DDA was that petitioner was required to rectify the defects. Rectification took time and petitioner had to remain at site till the period rectification work was completed.

VIII. CLAIM NO. 9 :

As noted above, this claim was rejected.

IX. CLAIM NO. 10 :

(a) Claim in the sum of Rs.90,075/- was on account of fixing chokhats and windows in existing openings, cutting of holes and making good the same. It was stated that awarded balance work left by the previous contractor had openings of doors and windows in the walls. Claimant was required to make holes in the brick masonary walls for embedding the hole-pass of frames. This was an extra item and unjustifiably not sanctioned as an extra item.

(b) defense of DDA was that as per item No. 6.2 of the contract, petitioner had to make holes in the existing brick wall for fixing of door and window frames. No amount was payable.

X. CLAIM NO. 11 :

(a) Claim was on account of pre-suit and pendente lite interest. Claim was for interest @ 18.5% per annum with quarterly rests.

10. Claim No. 1 has been allowed by the learned arbitrator in the sum of Rs.40,220/- as against the sum of Rs.3,95,195/- claimed by the by the claimant.

11. Learned arbitrator has referred to the notification of Delhi Administration dated 23.2.1982 which was in force when the contract was awarded. He took note of the notification dated 1.6.1984 revising minimum wages. He also took note of a third notification dated 15.10.1985 revising the wages further. Learned arbitrator has referred to letters written by the petitioner to DDA being Ex.C-5 to C-13. Learned arbitrator has referred to Clause 10(c) of the contract which required DDA to paynhanced labour rate as per Clause 10(c) on the government increasing minimum wages.

12. As noted above, learned arbitrator has awarded a sum of Rs.40,220/- against claim No. 1. Basis for the same is the agreement between the parties at the hearing held on 7.6.1993. At page 7 of the award, while dealing with claim No. 1, learned arbitrator has recorded as under :-

''Further after hearing both the parties, it was thereafter mutually agreed between the parties in the hearing held on 7th June,1993 that the payments under Clause 10 C would be now worked not on the basis of the labour employed, but on the basis of quantum of work executed after the statutory increase coming into force. ......................... Thereafter, both the parties had worked out the said claim and had agreed the amount worked out by them under Clause 10 C in the hearing held on 1.1.1994 and both the parties gave the agreed amount arrived at on the basis of the quantum of the work executed while applying the two notifications dated 1st June, 1984 and 15th October, 1985, and the amount so claimed comes to Rs.40,220/-.''

13. In view of the evidence noted by the learned arbitrator and the facts recorded by the learned arbitrator, as noted above, Ms. Anusuya Salwan, learned counsel for the objector except for stating that award pertaining to claim No. 1 could not be sustained, could take her submission no further. Award under claim No. 1 is based on consent.

14. Objection to claim no. 1 as per IA. No. 1439/95, vide para 4(D) states as under :

''(D) That the findings of the learned arbitrator with respect to modified claim No. 1 is erroneous on the face of it and errors of judgment are apparent. The learned arbitrator has not given any reason for making an award and the award with respect to this claim, therefore, deserves to be set aside.''

15. Adequate reasons are forthcoming in the award pertaining to claim No. 1. Pertaining to claim No. 1, how does the award suffer from an error on the face of the record or an error of judgment has not been shown. The objection is accordingly rejected.

16. Against claim no. 2, learned arbitrator has awarded a sum of Rs.5,256.90. Objection taken by DDA to the said sum being awarded is that claim being for delayed payments under running bills was in the nature of interest for pre-suit period. Learned arbitrator accordingly awarded interest @ 17.5% per annum. There was no term of the contract stipulating interest. Ms. Anusuya Salwan urged that interest payable would be as per the provisions of Indian Interest Act, 1978. Interest which could be awarded could not be more than the interest paid by scheduled banks on fixed deposits.

17. As noted above, claim No. 11 was for interest on the claims of the petitioner. Learned arbitrator awarded interest @ 18% per annum on the amount awarded under claim No. 1 and modified claim No. 2 from the date when petitioner filed the petition under Section 20 of the Arbitration Act, 1940. Learned arbitrator directed that if payment was not made within 90 days from the publication of the award, petitioner would be entitled for future interest on the awarded sum @ 18% per annum.

18. Since claim under claim No. 2 and under claim No. 11 was for interest, I would be dealing with the submissions of the parties pertaining to claim No. 11 as well, while dealing with claim No. 2.

19. Learned counsel for DDA could hardly shake the findings of facts recorded by learned arbitrator in the context of documentary evidence being Ex.C-9, 10, 16 to 18, which established that the petitioner was repeatedly bringing to the notice of DDA that running bills were not being paid in time. In reference to Ex.R-2, learned arbitrator noted the amount cleared for payment as per running bills and the date on which payment was tendered. For the delayed period, taking interest @ 17.5% per annum, learned arbitrator awarded Rs.5,256.90 under claim No. 2. Under claim No. 11, as noted above, learned arbitrator directed payment of sum awarded under claim No. 1 and claim No. 7 to carry interest @ 18% per annum from the date when suit was instituted in the Court i.e. the date when petitioner moved the petition under Section 20 of the Arbitration Act, 1940 for appointment of arbitrator and reference of disputes. Learned arbitrator further held that if awarded sum was not paid within 90 days from the date of publication of award, claimant would be entitled to future interest @ 18% per annum.

20. There is admittedly no clause in the contract stipulating rate of interest on delayed payment. There is no clause in the contract prohibiting payment of interest. Accordingly, for the pre-suit period, interest would be payable under the Interest Act, 1978.

21. Mr. Harish Malhotra, learned counsel for the petitioner stated that the interest awarded under claim No. 2 for delayed payment of running bills is a small sum of Rs.5,256.90.

22. Interest on delayed payments under the running bills comes to Rs.5,256.90 if rate of interest is taken at 17.5% per annum. Though there is no evidence on record, schedule banks were offering interest @ 12% per annum compounded quarterly on fixed deposits in the year 1983 till the year 1992-93.

23. Learned arbitrator has arrived at the figure of Rs.5,256.90 by taking simple interest @ 17.5% per annum. If interest has to be awarded under the Interest Act, 1978, interest would be payable @ 12% per annum, compounded quarterly for the reason that the scheduled banks credit interest if not withdrawn every quarter and compound the same. Interest would accordingly come to the same figure as awarded by the learned arbitrator under claim No. 2.

24. Pertaining to grant of interest under claim No. 11, as noted, learned arbitrator has awarded interest @ 18% per annum on claim No. 1 and 7, from the date when petition under Section 20 of the Arbitration Act was filed by the petitioner. Learned arbitrator has further held that if the awarded sum is not paid within 90 days, awarded amount would bear interest @ 18% per annum from the date of award till the date of payment or decree by the Court.

25. Mr. Harish Malhotra, learned counsel for the petitioner urged that claim of interest under claim No. 11 was for the period pendente lite and future and would, therefore, be not governed by the Interest Act, 1978, as principles of Section 34 CPC would apply. Ms. Anusuya Salwan, learned counsel for DDA relied upon a decision of the Supreme Court , Govt. of Orissa and Anr. Vs. Sarbeswar Rout and urged that pendente lite period commenced when the learned arbitrator enters upon reference and directs the parties to submit their statement of claims.

26. Decision of the Supreme Court in Sarbeswar Rout's case (supra) would reveal that their Lordships were dealing with a case where arbitrator was appointed without intervention of the Court and claim for interest was as per Interest Act, 1839. Arbitrator was appointed by the department on 16.3.1982. Date on which he entered reference is not forthwith coming from the judgment of their Lordships. As noted in para 7 of the decision, learned arbitrator directed the parties to submit their statement of claims by 20.4.1982. Their Lordships held in para 8 that by directing the parties to file a statement of claims by 20.4.1982, learned arbitrator clearly indicated that he accepted the offer to arbitrate. The proceedings must, therefore, beamed to have instituted not later than this date. Besides, it has to be noted that when contract was entered into, Interest Act 1978 was in force. On 5.8.85 Ex.C-25, petitioner had served notice claiming interest @ 18.5% per annum. Thus pre suit interest has to be as per Interest Act, 1978.

27. In the instant case, arbitrator was appointed pursuant to directions issued by the Court in Suit No. 2992/89 being petitioner's petition under Section 20 of the Arbitration Act, 1940.

28. Learned arbitrator has allowed interest from the date when petition under Section 20 of the Arbitration Act, 1940 was lodged in this Court by the petitioner and that too pertaining to claim No. 1 and 7. Decision in Sarbeswar Rout's case (supra) does not apply to the facts of the present case. Arbitration proceedings commence as per Section 37 of the Arbitration Act, 1940 when a party invokes the arbitration clause. In the instant case, DDA chose not to appoint an arbitrator when petitioner sought reference of disputes to the arbitrator. This court had to intervene. I find not merits in the objection of DDA pertaining to claim No. 2 and claim No. 11. The same are accordingly rejected.

29. Claim No. 3 in the sum of Rs.6,37,087/- was on account of balance due for extra and substituted items of work and interest thereon @ 17.5% per annum on the amounts stated to be wrongly withheld. Period being from January,1984 to October,1989. A ward shows that the arbitrator has observed that claim for extra and substituted items would be considered under claim No. 7 which pertained to unpaid amount as per final bill and accordingly, learned arbitrator considered only the issue of inters under this claim. Learned arbitrator concluded that a sum of Rs.1,89,291.85 remained unpaid for extra and substituted works carried out by the contractor. He held that the said sum was payable in any case w.e.f. 1.1.1984. Learned arbitrator a lowed interest thereon from 1.1.1984 to 30.10.1989 @ 17.5% per annum.

30. Challenge to grant of interest is on the same grounds as is the challenge to interest under claims No. 2 and 11.

31. For the reasons stated in para 23 to 28 above, I am not inclined to interfere with the rate of interest awarded. As noted in para 23 above, scheduled banks were offering interest @ 12% per annum, compounded quarterly, during January, 1984 to October,1989. Learned arbitrator has granted interest @ 17.5% per annum on simple interest basis. If interest @ 12% per annum, compounded quarterly, interest payable would be much higher.

32. Learned counsel for the objector did not show as to how the sum of Rs.1,89,291.85 treated as blocked capital was incorrect. Accordingly, objection to award of a sum of Rs.1,93,235/- under claim No. 3 is repelled.

33. As noted above, claims No. 4 and 5 were disallowed. Contractor has not challenged the said rejection. Award has accordingly become final.

34. Claim No. 6 was in the sum of Rs.31,35,517/-. Claim was on account of compensation for the work done beyond the contract stipulated date due to default of DDA. Learned arbitrator has awarded a sum of Rs.14,89,296.41 under this claim.

35. Award of the learned arbitrator reflects that evidence led by the parties was considered by him. Documents being Ex. C-5, C-6, C-17, C-21, C-23, C-29, C-38, C-59, C-70, C-71, C-72 and C-76, as also Ex.R-4 to R-8 and R-47 were considered. As noted above, in para 9(V)(b), basis of claim was delay in execution of work attributable to DDA. defense of DDA was that delay was occasioned due to shortage of labour and material to be arranged by the claimant. Additional defense of DDA was as extracted from the statement of defense of DDA in para 9(V)(d) above.

36. Learned arbitrator held that the Engineer-in-Charge of DDA, while extending time for completion of contract without levy of compensation recorded delay of 1012 days, delay not being attributable to the claimant. On the basis of the evidence, learned arbitrator has recorded a finding of fact that entire delay was attributable to DDA.

37. Based on the cost indices available, vide Ex.C-69, learned arbitrator determined that the sum of Rs.14,89,296.41 was payable. Basis of arriving at the said figure is to be found on pages 29-30 of the award.

38. Ms. Anusuya Salwan, learned counsel for the DDA urged that in view of clause 10 of the agreement and clause 1 of the Specifications and Conditions of Contract, contract prohibited any compensation on account of price rise during extended period of contract. Learned counsel cited 1999 (III) ALR 335, Steel Authority of India Limited Vs. J.C. Budhiraja, Government and Mining Contractor, 1999 (III) ALR 350, Rajasthan State Mines and Minerals Ltd. Vs. Eastern Engineering Enterprises and Anr. and 1999 (supp) ALR 440, Ch. Ramalinga Reddy Vs. Superintending Engineer and Anr., to urge that where a contract stipulated that no compensation would be claimed for the extended period of contract, arbitrator could not award any compensation due to price rse. If awarded, award would be beyond mandate of the arbitrator and would be liable to be set aside.

39. It is trite that an arbitrator is the creature of contract between the parties and is, therefore, bound to act within the terms of contract while making and publishing the award.

40. In , Steel Authority of India Vs. J.C. Budhiraja, it was held :

''The arbitrator derives the authority from the contract and if he acts in manifest disregard of the contract, the award given by him would be an arbitrary one. ............ It is true that interpretation of a particular condition in the agreement would be within the jurisdiction of the arbitrator. However, in cases where there is no question of interpretation of any term of the contract, but of solely reading the same as it is and still the arbitrator ignores it and awards the amount despite the prohibition in the agreement, the award would be arbitrary, capricious and without jurisdiction.''

41. In , New India Civil Erectors Private Ltd. Vs. O.N.G.C., it was held :-

''.................. The arbitrator being a creature of the agreement, must operate within four corners of the agreement and cannot go beyond it.''

42. If an arbitrator decides a dispute ignoring specific terms of contract, it certainly would be a jurisdictional error for the reason that an arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part but it may tantamount to malafide action. An arbitrator is not a conciliator and cannot ignore the law or contract which governs the parties. He cannot award what he thinks just and reasonable. If the contract contains a formula on which payment has to be worked out, jurisdiction of the arbitrator would be confined to examine whether computation is in accordance with the formula. However, where the terms of the contract required interpretation, as noted in J.C. Budhiraja's case (supra), it would be within the jurisdiction of the arbitrator to interpret the contract.

43. Pithly stated, if there is no question of interpretation of any term of the contract, but of only reading the same as they stand, the arbitrator cannot ignore the contract. However, if the term of the contract requires interpretation, it would be within the jurisdiction of the arbitrator to interpret the contract.

44. Terms of the contract being Clause No. 10 and Clause No. 1 of the Conditions and Specifications of contract which required to be looked into, have been looked into by the learned arbitrator. Said clauses have been noted by me in para 9(V)(e) above.

45. Interpretation of DDA to the said clause as pleaded in the counter statement of facts has been noted by me in para 9(V)(d) above.

46. A perusal of the pleadings of DDA would reveal that it understood and interpreted the two clauses to mean that contractor could have no claim for compensation if there was delay up to 6 months. This interpretation was inspired due to the following words in clause 10 :

''Provided further that the contractor shall be bound to execute the entire work if the materials are supplied by the DDA within the schedule time for completion of the work plus 50% thereof (Schedule time plus 6 months if the time of completion exceeds 1 months)''

47. Learned arbitrator has accepted the aforesaid interpretation placed by DDA and has held that since delay was much beyond 6 months, clause 10 becomes non-applicable.

48. Ms. Anusuya Salwan, learned counsel for DDA sought to urge that clause 10 was a complete prohibition for the contractor to claim compensation for delay.

49. I am afraid, DDA itself interpreted the clause as noted in para 9(V)(d) above. Probably, DDA was confident that on facts it could establish that it was the contractor who was responsible for the delay. DDA wants to urge an interpretation contrary to what it had projected before the learned arbitrator.

50. Be that as it may, clause 10 has an inbuilt proviso, making the contractor bound by the rates within the scheduled time of completion of work plus 50% thereof. It is not a case where it could be said that clause requires no interpretation but only a reading and application. The counter statement of facts by DDA itself shows that clause required an interpretation and DDA sought to interpret the same. Learned arbitrator has accepted the interpretation propounded by DDA but, held that delay was of nearly four years and, therefore, restriction contemplated by the clause is not applicable.

51. On the other clause, being condition No. 1 of the Specifications and Conditions under the heading ''General'', learned arbitrator has noted the word ''unavoidable'' in the said clause and has held that while reading the said clause, due weight age has to be given to the word ''unavoidable''.

52. Learned arbitrator has held that said clause was applicable if there was unavoidable delay in supply of materials by the department thereby altering the programme of construction, which would stand modified under the clause, and under such circumstances, the contractor shall have no claim for any extra work or compensation on this account. Learned arbitrator held that the word ''unavoidable'' in the clause meant that delay was due to circumstances not within the control of DDA. Since on acts, learned arbitrator had held DDA to be responsible for the delay, which was not established as unavoidable, he held that DDA could not take benefit of the clause.

53. I find that the learned arbitrator has actually read the clause as it is and applied it. What he did was to analyze the clause and determine as to what stands attracted and what stands excluded. In view of the word ''unavoidable'' preceding the word ''delay'' in the clause, learned arbitrator has held that if DDA established that delay was unavoidable, clause would have prohibited the claim for price rise during the extended period of contract i.e. for delay.

54. I find no merits in the objection raised pertaining to claim No. 6 as awarded.

55. Claim No. 7 in the sum of Rs.17,56,762/- was on account of the amount payable as per contract for the work done. Learned arbitrator has awarded a sum of Rs.3,80,693/-. Learned arbitrator has looked into documentary evidence and the contract clause. Learned arbitrator determined the quantity of work done and applying the contract stipulate rates determined the amount payable. Learned arbitrator has acted under clause 12 of the contract which enjoins upon the parties to determine the rats for said works as per DSR,1977.

56. Learned counsel for DDA could not point out any jurisdictional infirmity or an error apparent on the face of the record as far as this claim was concerned.

57. Claim No. 8 in the sum of Rs.5,83,200/- on account of ward and watch for delay on the part of DDA to take possession of the flats has been allowed by the learned arbitrator in the sum of Rs.1,62,000/-.

58. Learned arbitrator has referred to Ex.C-7, C-10, C-12, C-18, C-26 and C-40 being the letters of the contractor requesting DDA to take possession of flats. Learned arbitrator held that keeping in view the number of flats, minimum 10 chowkidars would be required to maintain watch and ward over the flats. Applying the minimum wages payable, learned arbitrator held that a sum of Rs.540/- per month would be payable to each chowkidar. Taking note of the fact that the flats were completed on 15.6.1986 but possession taken over by DDA on 14.6.1989, learned arbitrator recompensed the contractor for salary of 10 chowkidars for a period of 30 months.

59. Learned arbitrator has noted the defense of DDA, being that the petitioner did not complete the rectification work and that was the reason why petitioner remained at site.

60. Learned arbitrator took note of the fact that the defect liability period was 6 months. Since works were completed on 5.6.1986, defect liability period came to an end on 4.12.1986. Learned arbitrator has held :

''The contention of the respondents that the claimant had remained at site because of the rectification of defects is devoid of any merit and is not borne out by the evidence.''

61. Ms. Anusuya Salwan, learned counsel for DDA could not point out any evidence to show that DDA required the contractor to rectify the defects and the contractor rectified the same only in the month of June,1989. In this regard, I may note that the learned arbitrator has taken note of Ex.R-43 being DDA's letter written in the year 1988 pointing out some defects, but he has also noted that this solitary letter was written much beyond the defect liability period.

62. Objection to the award under claim No. 8 is accordingly rejected.

63. Claim No. 9 has been rejected and there being no objection by the petitioner to the award, I need not deal with this claim.

64. Claim No. 10 in the sum of Rs.90,075/- on account of fixing chokhats and windows in existing openings, cutting of holes and making good the same has been allowed by the arbitrator in the sum of Rs.45,000/-.

65. Learned arbitrator has held that the amount would be payable as per DSR,1977 vide Item No. 13.3.1 and 14.3.2.

66. Learned counsel for DDA could not make good the objection which I find is generic, as to how the award has vitiated pertaining to claim No. 10.

67. I accordingly dismiss IA. No. 1439/95.

68. Award is made a rule of the court. Post decretal interest would be payable to the petitioner at the same rate as awarded by the learned arbitrator i.e. @ 18% per annum from the date of decree till the date of payment. Petitioner would also be entitled to costs against DDA. Costs assessed in the sum of Rs. 5,000/-.