Delhi High Court
A-One Alums Pvt. Ltd. vs Chemcon Fabricators (Delhi) Pvt. ... on 16 February, 2006
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
IA No. 11754/1997 (under Section 5 of the Limitation Act, 1963)
1. This is an application seeking condensation of delay in filing the objections. It is stated in the application that the respondent was served with the notice on 16.08.1997 and handed over the same to their counsel on 19.08.1997. The counsel was not keeping well for about two months and thus the objections could not be filed within time. There was a delay of about 30 days in filing the objections. For the reasons set out in the application, the application is allowed.
IA 11753/1992 (under Sections 30 and 33 of the Arbitration Act, 1940)
2. The respondent seeks to challenge the award dated 12.03.1997 of Justice J.D. Jain (Retd.) who was appointed as the sole arbitrator by an order dated 20.04.1992 in suit No. 2723/1991. the petitioner was the claimant before the arbitrator. The petitioner had taken factory sheds in New Industrial Estate, Jhansi Road, Lalitpur, UP on hire purchase basis and availed of loans to finance their project after approval from UPFC. The petitioner entered into a contract with respondent for completion of project on a turnkey basis for a total contract value of Rs 8,98,500/-. The respondent had to complete the work within three months and the contract contained an arbitration clause.
3. The grievance of the petitioner before the arbitrator was that the respondent failed to install the plant and machinery despite the payments having been made by the petitioner. The petitioner even agreed to increase the cost though unjustifibly asked for by the respondent. After installation, the machinery did not perform satisfactorily. The respondent also filed its counter claims.
4. Learned arbitrator by a detailed award has awarded a lumpsum amount of Rs 17 lakh to the petitioner for the various claims and has also held that the petitioner is entitled to interest at the rate of 16 per cent from 01.09.1992 (date of filing of the claim) till the award is made rule of the court. The petitioner has also been held entitled to costs of Rs 20,000/- and the counter claims of the respondent have been rejected.
5. A perusal of the grounds shows that the petitioner is seeking to raise issues which are not within the jurisdiction of this court. This court cannot re- appreciate evidence as it is not an appellate authority. It is not the function of this court to differ with the award even if this court was to come to a different conclusion on the same set of facts. The parties have chosen the forum of arbitration and the arbitrator is the designated person to decide the disputes. It is only in case the award is absurd, that the award would be likely to be interfered as reasonableness is not a matter to be considered by this court. A reference in this behalf may be made to the to the judgment of the Apex Court in Food Corporation of India v. Joginderpal Mohinderpal and Anr. (1989) 2 SCC 347. The Supreme Court in State of U.P. v. Allied Constructions (2003) 7 SCC 396, held that Section 30 of the Act is restrictive in its operation and unless one of the conditions specified therein is satisfied, an award cannot be set aside.
6. It is not possible to accept the plea of the respondent that once the petitioner invoked the performance guarantee, all claims of the petitioner stood satisfied or that the respondent was discharged from the liabilities as a result of the performance guarantee being encashed. The award is a well reasoned award calling for no interference on merits.
7. The only other question is of interest which has been awarded at 15 per cent per annum. In various matters, this court has been granting interest at the rate of 12 per cent per annum for the relevant period taking into consideration the prevailing rates of interest. I thus consider it appropriate to modify the rate of interest from 15 per cent to 12 per cent till date of decree.
8. The objections stand disposed of.
CS (OS) 930A/1997
9. The objections having been disposed of, award dated 12.03.1997, Justice J.D.Jain (Retd.), sole arbitrator is made rule of the Court with the modification that the petitioner is held entitled to interest at the rate of 12 per cent per annum instead of 16 per cent per annum from 01.09.1992 till date of decree. The petitioner will also be entitled to interest at the rate of 9 per cent per annum from date of decree till date of realisation. Parties are left to bear their own costs. Decree sheet be drawn up accordingly.
IA No. 6730/2001
10.Dismissed.
