Delhi High Court
Delhi Development Authority vs Anant Raj Agencies on 15 May, 2006
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. The present petition has been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as 'the said Act') for setting aside the award dated 24.10.2003 given by Shri S.K. Sinha, sole arbitrator.
2. The dispute relates to the contract awarded to the respondent by the petitioner for construction of MIG houses in part-III, Rohini, Delhi. Since the dispute arose between the parties and there being an arbitration clause, the matter was referred to the sole arbitrator. It may be noticed that the respondent had filed an application under Section 20 of the Indian Arbitration Act, 1940 being CS(OS) No. 3330/1992 which was allowed by the Order dated 30.1.2001. The dispute is governed by the new Act in view of the agreement between the parties.
3. A perusal of the Order of reference shows that only four claims were referred to arbitration being the claim for final bill, reimbursement for expenditure on account of delay, reimbursement of charges for handing over possession of flats and interest.
4. At the stage, when the matter was taken up for final hearing on 19.4.2006 learned Counsel for the petitioner sought to contend that by reference to page 3 of the award that the arbitrator had failed to decide the preliminary objections raised by the petitioner in respect of limitation and had only observed that since reference had been made to the arbitrator, no adjudication on this issue was required. This plea, arising from the issue of limitation, was thus sought to be raised within the parameters of Section 34(2)(b)(ii) of the said Act. Learned Counsel for the respondent on the other hand had submitted that the Order of reference dated 30.10.2001 would have to be perused to see whether this issue was left open. In view thereof, file of CS(OS) No. 3330/2002 was called for and the Order dated 30.10.2001 has been perused.
5. A perusal of the aforesaid order shows that a specific plea in this behalf was raised by the petitioner and had been rejected while making the reference under Section 20 of the Indian Arbitration Act, 1940. In view thereof, now learned Counsel for the petitioner cannot seriously dispute the stand of the learned Counsel for the respondent that such a question could not have been examined by the arbitrator in view of the Order of reference.
6. Learned Counsel for the petitioner further seeks to contend that a final settlement was arrived at between the parties and thus no disputes remained to be referred to arbitration. In this behalf learned Counsel has referred to 39th running bill and the measurement recorded therein. The total value of the work done is specified as also the net amount payable. A certificate has been issued thereafter which is counter-signed by the contractor. The said certificate is as under:
II. Certificate and Signature
1. The measurement on which are based the entries in column 1 to 6 of ... by Brijesh Kumar J.E., on 12.10.88 at page 1-82 of measurement Book No. 59.
2. Certified that in addition to and quite a part from the quantities of work as shown in column 4 of the account 1 some work has actually been done in connection with and the value of such work (after deducting there from proportionate amount of recurred advance recoverable on account of the quantities of the materials used therein) is in no case less than measurement as per item 2 of the memorandum if payments made or proposed to be made for the ... contractor in anticipation of and subject to the result of detailed measurements which will be possible.
7. Learned Counsel states that the aforesaid amount was thereafter paid on 20.12.1988. Learned Counsel for the respondent on the other hand submits that if the certificate is perused, it does not amount to a full and final settlement of the claims.
8. I am in agreement with the submissions of learned Counsel for the respondent on facts of the given case. The legal position cannot be disputed that if actually a full and final settlement is arrived at, it is not open to the parties to thereafter seek a reference and in this behalf the Judgment of the Apex Court in Nathani Steels Ltd. v. Associated Constructions 1995 Supp (3) Supreme Court Cases 324 expounds the position. It was held that once there is a full and final settlement in respect of any particular dispute or difference in relation to a matter covered under the Arbitration Clause then such a dispute or difference does not remain as an Arbitrable dispute and the Arbitration Clause cannot be invoked. The question thus remains whether such a certificate amounts to a certificate to full and final satisfaction of the claims of the respondent. A perusal of the certificate shows that it is qualified in its nature and refers to the measurement. That mere fact that the total value is mentioned before the certificate will not amount the certificate being qualified as full and final settlement of claims. It is this factor which had weighed with the arbitrator and the view taken by the arbitrator cannot be said to be perverse or implausible. The settled legal position is that even if this Court was come to a different plausible view, it would not be a ground for this Court to interfere with the award.
9. The other objections which the learned Counsel for the petitioner seeks to raise are on account of lack of proper appreciation of the material placed before the arbitrator, lack of justification in upholding the claim of the respondent, failure to appreciate that there was delay on the part of the respondent. I am of the considered view that these all are matters relating to appreciation of evidence and do not fall within the parameters of exercise of jurisdiction under sub-Section 2 of Section 34 of the said Act.
10. The last aspect sought to be raised by learned Counsel for the petitioner is on account of interest. Simple interest had been awarded @ 12% per annum. This is also the rate of interest awarded by this Court in numerous matters and therefore, I see no reason to interfere with the same.
11. Learned Counsel in this behalf also contends that though the bill was settled as far back on 20.12.1988, the arbitration was invoked only in June, 1991. Learned Counsel thus states that the petitioner should at least not be burdened with interest for the delay on the part of the respondent.
12. Learned Counsel for the respondent initially sought to rebut the plea but thereafter agreed in view of the given facts and circumstances to the plea that no interest be claimed till 30.6.1991. The interest would thus be payable only from 1.7.1991.
13. The petition stands disposed of in view of the aforesaid terms, leaving the parties to bear their own costs.
14. Learned Counsel for the parties agree that in case the payment is made within 60 days from today, no interest will be paid by the petitioner from today till the date of payment, failing which interest would run in terms of the award, as modified aforesaid.
15. dusty to learned Counsel for the parties.
