Sh. D.C. Kapur vs Dda And Anr.
2006 Latest Caselaw 247 Del

JUDGMENT

Sanjay Kishan Kaul, J.

IA No. 126/1996 (under Sections 30 and 33 of the Arbitration Act, 1940)

1. The petitioner-contractor was awarded the work of construction of houses and scooter garages under the SFS Scheme. The disputes arose between the parties and in terms of Clause 25, the Arbitration clause, the Engineer Member of DDA had appointed Shri. K.K. Reddy, Chief Engineer (Vigilance) as the Sole Arbitrator as per letter dated 25.9.1989. The Arbitrator resigned and subsequently Shri K.S. Gangadhar was appointed the Arbitrator in his place. The Arbitrator made and published his award on 17.3.1995.

2. The respondent aggrieved by the same have filed the present objections.

3. A perusal of the ground set out in the objection petition show that the respondent is under a mistaken belief that the present proceedings are in the nature of Regular First Appeal where matters of evidence need to be re-examined and reappreciated. In my considered view this is not the scope of enquiry in respect of the challenge to an award and unless the grounds as set out in provisions of Section 30 of the Arbitration Act 1940 (hereinafter referred to as the said Act) are satisfied the award ought not to be interferred with. The Division Bench of this Court in DDA v. Bhagat Construction Company and Anr. 2004 (3) Arbitration Law Reporter 481, observed that it is not the function of this Court to re-appreciate the evidence or to interfere with the award merely because the Court would come to a different conclusion than the one arrived at by the Arbitrator. Thus until and unless the award is contrary to law it is not ordinarily for the Court to re-appreicate the evidence. In the absence of an award being absurd reasonableness is not a matter to be considered as held by the Apex Court in Food Corporation of India v. Joginder Pal Mohinder Pal and Anr. .

4. It is relevant to note that the Supreme Court in State of UP v. Allied Constructions reiterated the view that Section 30 of the Act providing for setting aside an award is restrictive in its operation. The Arbitrator is a judge chosen by the parties and his decision is final and thus the Court is precluded from reappraising the evidence. Thus it was held that an error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record so long as the view taken by the Arbitrator is a plausible one.

5. In view of the aforesaid, in my considered view only two objections need to be examined. The first objection relates to the plea of absence of the reasons. The award has been perused but I am unable to come to the conclusion that there is absence of reasoning. The reasoning may be cryptic but it is present. The Arbitrator is not like a judge who has to write a judgment but all that is required, is that the thought process of an Arbitrator should be made available. This is present in the award. The Division Bench of this Court in DDA v. Bhagat Construction Company and Anr. 2004 (3) Arbitration Law Reporter 481 has held so and has also set forth that an Arbitrator is not required to give detailed calculations in coming to the relevant figures.

6. Learned counsel for the petitioner has also brought to my notice a judgment of the HMJ Vikramajit Sen in Suit No. 21A/1996, titled Shri Anil Garg v. DDA and Ors. decided on 17.12.1999. The judgment succinctly sets out a number of issues with which I find myself in full agreement. It has been observed that so long as an Arbitrator was mindful of the contention raised and has considered the same it cannot be said that there is absence of reasons. To support the said conclusion the learned judge has relied upon the judgment in Goa, Damam and Diu Housing Board v. Ramakant V.P. Darvotkar . The Division Bench of the Bombay High Court had taken a view while setting aside an award that it did not contain the reasoning and the award of the Arbitrator needs to be set aside. This finding was reversed by the Supreme Court. The learned judge in Shri Anil Garg (Supra) observed as under:

If, by merely referring to the rival contentions and their documents, without more, the Arbitrator in that case had been held to have given a reasoned award, where a similar practice is adopted in other cases, it would more than sufficiently comply with the need of diclosing the trend of the thought process of the Arbitrator.

7. The second issue to be considered is a plea of limitation raised by the respondent in as much as it is the contention of the respondent that the period of 90 days referred to in Clause 25 mandates the dispute to be raised from the date when it arose and not 90 days from the final bill. This issue has also dealt with in Shri Anil Garg (Supra) on the ground that such a stipulation was contrary to the general period of limitation and in these circumstances, fell within the contemplation of Section 28 of the Contract Act. The learned judge relied upon another judgment of the learned single judge of this Court in Hindustan Construction Company v. DDA . I am in full agreement with this view.

8. The only other question to be considered is of interest which has been awarded @ 12 per cent per annum pendente lite and future interest till the date of decree or date of payment, whichever is earlier. The interest has been awarded from 29.5.1989. Insofar as the pendente lite interest is concerned no interferences is called for. However, insofar as the interest from the date of award till the date of decree is concerned, the award apparently awards the said 12 per cent interest not only on the principal amount but also on the interest so awarded. Learned counsel for the petitioner after some arguments does not press this claim of interest on interest.

9. The application accordingly stands disposed of with the aforesaid modifications.

CS (OS) No. 995A/1995

1. The objections to the award having been disposed of the award dated 17.3.1995 of the Sole Arbitrator Shri K.S. Gangadhar is made rule of the Court with the modifications that the petitioner is held entitled to interest @ 12 per cent per annum both pendente lite and future only on the principal sum awarded by the Arbitrator from 29.5.1989 till the date of decree. The petitioner shall also be entitled to future interest from the date of decree till the date of realisation @ 9 per cent per annum. Parties are left to bear their own costs.

2. Decree sheet be drawn up accordingly.