Delhi Development Authority vs M/S Hargovind Jaggi
2008 Latest Caselaw 905 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+                      FAO(OS) No.98/1997


Delhi Development Authority                        .....Appellant
                              Through: Ms.Anusuya Salwan,
                                       Advocate

                            Versus


M/s Hargovind Jaggi                              ...Respondent
                               Through: nemo

CORAM:

HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR

1.Whether reporters of the local news papers be allowed to see
the judgment?
2.To be referred to the Reporter or not ?
3. Whether the judgment should be reported in the Digest ?

                            ORDER

2.7.2008

1. This appeal is directed against the order of the learned

single Judge dismissing the objections of the appellant to the

award of the Arbitrator and making the award a rule of the Court.

2. The award of the Arbitrator was published on 21st

February, 1990. Objections were filed by the appellant with

regard to claims No.1,2,3,7,8 and additional claim No.1. The

FAO(OS) No.98/1997 page 1 of 3 present appeal is confined only to the objections in respect of

claims No.2 and 3.

3. Claim No.2 was made by the respondent for a sum of

Rs.10,197.50 deducted by the appellant for late supply of

cement. The Arbitrator has held that the recovery made by the

appellant for late supply of cement is in the form of penalty and

that the appellant has failed to establish that any loss has been

caused to it for which such penalty could be imposed. The

Arbitrator has come to the conclusion on facts that the appellant

has failed to establish any loss having been incurred by it. He

held that no such recovery could be made from the respondent.

This finding of the Arbitrator is essentially a finding of fact arrived

at on appreciation of evidence and this Court cannot sit on appeal

on such finding of fact.

4. Claim No.3 is for a sum of Rs.4,165/- deducted by the

appellant from the various bills for alleged short supply of cement

bags. It is the case of the appellant that the respondent supplied

42 bags of cement short. The recovery of the said shortage of

cement bags was done in different R/A bills under special

condition No.7(f) i.e. at the rate of Rs.2,100/- per metric tonne.

FAO(OS) No.98/1997 page 2 of 3 The Arbitrator on appreciation of evidence came to the conclusion

that the penal rate recovery in the absence of any proof of loss

suffered by the appellant is bad in law and hit by Section 74 of

the Indian Contract Act. Accordingly the Arbitrator held the

recovery to the extent of Rs.2,205/- to be justified and the

balance amount, namely, Rs.1,960/- to be unjustified and allowed

the said sum of Rs.1,960/- in favour of the respondent.

5. In our opinion, it is not permissible for this Court to

interfere with this finding of fact of the Arbitrator. In the result

the appeal fails and the same is hereby dismissed.

                                      CHIEF JUSTICE




                                       S.MURALIDHAR
JULY 02, 2008                             (JUDGE)
"nm"




FAO(OS) No.98/1997                                         page 3 of 3