Kalyan Chandra Goyal And Co.And ... vs Dda And Anr.
2005 Latest Caselaw 1463 Del

JUDGMENT

Sanjay Kishan Kaul, J.

Page 2099

IA 9130/1993 (under Section 30 and 33 of the Arbitration Act)

1. The petitioner was awarded the contract relating to the work of water supply lines to be laid in sectors B, C and D in Vasant Kunj vide agreement no.3/HDXI/A/86087. Disputes arose between the parties and in view of clause 25 of the agreement between the parties containing the arbitration clause, the Engineer-Member, DDA appointed Sh. A.P. Paracer, Addl. Director General(Retd.),CPWD as the sole arbitrator. The arbitrator made and published his award dated 27.05.93 and thereafter the objections have been filed.

2. At the inception of the hearing of the objections, it was put to the learned counsel for the respondent that his submissions must be confined to the parameters of section 30 and 33 of the Arbitration Act, 1940. In this behalf it has to be appreciated that this court does not sit as a court of appeal against the award of an arbitrator and merely because a different view has to be taken, this court may come to a different view on appreciation of evidence, would be no ground to interfere with an award. The arbitration remedy was provided as an alternative remedy for settlement of disputes and the challenge was restricted in terms of the provisions of the said Act. In this behalf, judgment of the apex court in Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. and Anr., and Food Corporation of India v. Joginderpal Mohinderpal and Anr., may be referred where it Page 2100 was clearly stated that unless the award is contrary to law, and misconduct is with reference to either the personal misconduct of the arbitrator or misconduct in law, an award ought not to be interfered with. Appraisement of evidence by the arbitrator is ordinarily not a matter for the court. In the absence of the award being absurd, reasonableness is not a matter for the court to consider. The object of appointing a technical person to go into the matter is that a person familiar with the trade in question goes into the various aspects of the matter. It is in view thereof that the DDA itself appointed a person of the status of Chief Engineer/ Engineer Member to deal with the matter and it has been observed in DDA v. Bhagat Construction Co.(P)Ltd. and Anr., 2004 (3) Arb.LR 548 that in view of such a technical member going into the matter of dispute, the court should not substitute its own view with that of an arbitrator even if the court comes to a different conclusion until and unless the decision of the arbitrator is manifestly perverse or has been arrived at on the basis of wrong application of law.

3. In view of the aforesaid, learned counsel for respondent has fairly confined his submissions to the matters arising from such objection which could be liable to be considered under the provisions of section 30 and 33 of the Act.

4. The first submission of the learned counsel for the respondent is that the award is not a reasoned award. I am unable to accept this plea for the reason that award of an arbitrator is not required to be akin to a judgment of a judge. All that has to be deciphered from the award is that there is sufficient indication of the trend in which the mind of the arbitrator has worked and an outline is given. In this behalf the judgment of the Division Bench of this Court in DDA v. Bhagat Construction Co.(P)Lt. and Anr.,2004 (3) Arb.LR 481 (DB) can be relied upon.

5. Learned counsel for the respondent however insisted that such disclosure of mind also cannot be deciphered especially the way claim no.1 has been dealt with. Learned counsel submits that claim no.1, in fact, overlaps the award in respect of claims no.3 and 5. The basic grievance of the learned counsel for the respondent is that while dealing with claim no.1, the bifurcation of the award under different heads has not been disclosed.

6. In my considered view, there can be no doubt that it is normally advisable for the arbitrator to specify the amount awarded under different sub heads. This has not been done. The question, however, to be deciphered, is whether this has resulted in any duplication in the award of different claims. So long as there is no duplication, this aspect would have no material bearing.

7. A reading of the claim no.1 shows that while the submissions of the claimant were wider in nature, learned arbitrator has confined his award to three awards. The first aspect arises from the stand of the respondent that some rock was excavated by another agency which was lying along with the alignment. This the respondent failed to prove. The reference to the rebate in this claim is to be linked with this aspect. Similarly insofar as the penal rate of recovery is concerned, it has been held that the respondent failed to produce evidence by way of notice to the petitioner asking them to return the surplus material or any other document to prove their loss. No indication of any theft or pilferage was found at site. It is in view thereof a composite Page 2101 award has been made 15.03.1991. A Division Bench of this court has held in DDA v. Bhagat Construction Co.(P)Ltd. and Anr., 2004 (3) Arb.LR 548 (DB) that an arbitrator need not disclose the mathematical calculations in the award. All that it requires that he award must show the application of mind and a view which is plausible by the arbitrator. There is broad discussion indicating the mind of the arbitrator, though detailed calculations have not been given in the present case. Thus this judgment of the Division Bench would squarely apply to the facts of the present case.

8. The fact that in claim no.1, the plea of the petitioner arising from clause 10CC has been noticed while at the same time in the award no discussion has taken place in respect in respect of this plea in claim no.1 shows that no amount has been award in respect of claim of clause 10CC. This is so since the claim under clause 10CC has been specifically dealt with under claim no.3. There is thus no overlapping on this account. 9.Insofar as the claim no.5 is concerned, same deals with the deductions made from the bills as rebate. This rebate was on account of timely payment made by the respondent. The regular monthly payments for which rebate was offered were not made. Thus in respect of those bills for which there has been no timely payment, it has been held that the respondent is not entitled to the rebate. The aforesaid aspect is different from the aspect of the rebate considered in respect of claim no.1 and there is thus no overlapping in this behalf.

10. That being the position, there is no ground on which the award of the arbitrator is required to be interfered with on merits.

11. The last aspect to be considered is on the issue of interest. The arbitrator has granted interest at the rate of 18 per cent per annum. After some hearing, learned counsel for the petitioner fairly confines the claim for interest at the rate of 12 per cent per annum up to the date of decree and at the rate of 9 per cent per annum simple interest from the date of decree till date of realisation, which is accepted.

12. The application is accordingly disposed of with the aforesaid modifications in respect of interest.

CS(OS)1435/1993

The objection to the award have been disposed by the aforesaid order. The award dated 27.05.1993 of the sole arbitrator of Sh. A.P. Paracer is made rule of the court with the modification that the petitioner is entitled to simple interest at the rate of 12 per cent per annum instead of awarded amount of 18 per cent per annum up to date of decree. The petitioner is also entitled to future interest at the rate of 9 per cent per annum simple interest from the date of decree till date of realisation.

Petitioner shall also be entitled to costs of present proceedings.

Decree sheet be drawn up accordingly.