Delhi High Court
S.K. Construction Co. vs Dda on 15 February, 2006
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 9563/1996 (Under Sections 30 and 33 of the Arbitration Act, 1940)
1. The petitioner-contractor was assigned the work of construction of roads and paths at Gopal pur, Redevelopment Scheme of Kingsway Camp, in pursuance to agreement no. 21/EE/CD-VII/DDA/86-87. Disputes arose between the parties and in view of Arbitration Clause 25, Engineer-Member, DDA vide letter dated 21.06.90 appointed Sh. R.C.Malhotra as the sole arbitrator. The arbitrator made and published his award dated 13.02.1993. The respondent, aggrieved by the same, has filed the present objections.
2. It may be noticed that the objections were dismissed for non prosecution on 23.02.2005, and on the application of the respondent, were restored by the order dated 11.11.2005. The matter was thereafter put on the regular board. The matter reached for hearing on 14.02.2006, but none appeared for the parties. In the interest of justice, adverse orders were deferred. Today again, none is present for the parties. Thus, I proceed to decide the objections on the basis of the pleadings.
3. The crucial question considered and discussed in counter claim no.1 relates to the rescission of the contract by the respondent and the consequent right to forfeit certain amounts. The arbitrator has found that for construction of roads and paths, the availability of a road roller was essential almost from the inception of the work. As per the contract between the parties, such a road roller had to be supplied by the respondent. They failed to do so in spite of repeated demands made by the petitioner. Ultimately the petitioner made a request vide letter dated 01.04.1987 (Ex C-10) seeking permission for arranging his own road roller to enable him to complete the work, but the permission was not granted. It is only vide letter dated 08.05.1987 that conditional permission was granted to arrange the road roller. By that time, the period stipulated for completion of work, which expired on 15.04.1987, stood lapsed. In view of this, the arbitrator has come to the finding that the time was set at large and in view of respondent itself being in breach of contract for the reason aforesaid, their action in rescinding the contract and forfeiting the security deposit and the work being got done at the risk and cost of the petitioner, could not be sustained.
4. The aforesaid finding is a pure question of fact on the appreciation of evidence. This court does not sit as a court of appeal over the finding of an arbitrator and it is not ordinarily for the court to re-appreciate the findings in the absence of the award being absurd. Reasonableness is not a matter to be considered by the court. The arbitrator is a Judge chosen by the parties and until and unless the parameters of Section 30 of the said Act are met, an award cannot be set aside. In this behalf reference may be made to the judgment of the Supreme Court in Food Corporation of India v. Joginderpal Mohinderpal and Anr. and In State of UP v. Allied Constructions . The Division Bench of this Court observed in DDA v. Bhagat Constructon Co. Pvt. Ltd. 2004 (3) Arb.LR 481 that an award cannot be interfered with merely on the basis that the court would come to a different conclusion on the material available before the arbitrator. So long as the conclusion arrived at by the arbitrator is a plausible one, no interference is called for.
5. If the aforesaid parameters are applied to the facts of the present case, there is little manner of doubt that the arbitrator has discussed the evidence, and on that basis, came to the conclusion that the respondent failed to meet the essential parameters of making available the road roller which would have permitted the petitioner to carry on the work. By the time permission was granted to the petitioner to arrange for a road roller, initial time stipulated under the contract, had elapsed and thus there could have been no occasion to rescind the contract.
6. Once it has been found that such a rescission is bad, there can be no question of recovery by the respondent for the work executed at the risk and cost of the petitioner and penalty on this count. Thus, the counter claims have been rightly rejected.
7. In the grounds, a plea has been sought to be made out that the findings arrived at in respect of claims no. 1 and 2 for refund of security deposit and for payment of amount withheld for work done is erroneous and suffers from no reasons. This plea cannot be accepted as the reasons have been clearly set out in the award. Merely because while dealing with the claim, the learned arbitrator has referred to the findings arrived at in respect of counter claim to justify the refund and the payment of the withheld amount, does not imply that the reasoning is not available. It has also to be kept in mind that an arbitrator is not like a court and thus is not required to write a judgment in that form. So long as the direction of the mind of the arbitrator is available, no fault can be found with the arbitrator as held by the Division Bench of this Court in DDA v. Bhagat Construction Co. (P) Ltd. and Anr. 2004 (3) Arb.LR 548.
8. The grounds also seek to contend that vital evidence has been ignored. These are general observations made, and, in any case, are pleas to re-appreciate the evidence which this court is not permitted to do in exercise of the present jurisdiction.
9. In view of the aforesaid, I find no merit in the objections and the same are dismissed.
CS(OS) 1657A/1996
10. The objections having been dismissed, the award dated 13.02.1993 of the sole arbitrator Sh.R.C.Malhotra is made rule of the court. The petitioner shall also be entitled to interest from the date of award till date of decree at 12 per cent and from date of decree till date of realisation at 9 per cent per annum, which is the prevailing rate of interest at the relevant stage of time and the interest being awarded in other matters by this court. Parties are left to bear their own costs.
11. Decree sheet be drawn up accordingly.
