Delhi High Court
M/S N.P.A.Engineers & ... vs Government Of India & Ors. on 1 April, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 26.03.2009
Date of Order: 01st April, 2009
OMP No.323/2006
% 01.04.2009
M/s. N.P.A.Engineers & Contractors ... Petitioner
Through: Mr.G.Lal, Adv.
Versus
Government of India & Ors. ... Respondents
Through: Mr. V.K. Tandon, Adv.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
Order
1. By this petition under Section 34 of Arbitration and
Conciliation Act, the petitioner has assailed an award dated 9 th May,
2006 passed by the Arbitrator whereby the Arbitrator allowed part
of the claim of the petitioner and disallowed part of the claim.
2. The petitioner filed these objections to the award claim-
wise. Regarding claim no.2, petitioner has stated that the Arbitrator
did not apply his mind to the facts admitted by the respondent
regarding delay. There was admitted delay of 348 days as recorded
by the Arbitrator. The Arbitrator while dealing claim no. 1
considered this delay but while partly disallowing claim no. 2
OMP No.323/2006 M/s. N.P.A.Engineers & Contractors v. Government of India & Ors. Page 1 of 4
observed that out of this delay of 348 days 180 days delay was
because of the petitioner. It is stated that this was an obvious
contradiction to the observation made by the Arbitrator in claim no.
1 and the Arbitrator wrongly considered that 180 days' delay was on
the part of the petitioner. The other ground taken by the petitioner
is that the Arbitrator wrongly took into consideration the income tax
return of the petitioner to assess the profitability of the petitioner.
3. The petitioner is also aggrieved that the Arbitrator did
not allow his claim no. 3 for Rs.2,83,000/- on account of expenses
incurred by the petitioner on maintaining necessary staff during
extended period of contract. The claim was of Rs.2,83,000/-
whereas the Arbitrator allowed only Rs.35,000/-. Similarly,
petitioner is aggrieved by rejection of claim no. 4. A claim of
Rs.5,10,000/- was made by the petitioner for deploying men &
machines etc. during the period of work. The petitioner claimed this
amount because the duration of the work got prolonged. The
contention of the petitioner is that the Arbitrator wrongly rejected
the claim holding that the petitioner had not deputed Engineers, etc.
during the entire period since work stood standstill for quite a long
time. The petitioner has also assailed awarding of 6% interest
against 18% interest claimed by the petitioner and awarding of only
proportionate costs.
4. I have heard counsel for the parties. It is settled law
that this Court while considering challenge to an award under
OMP No.323/2006 M/s. N.P.A.Engineers & Contractors v. Government of India & Ors. Page 2 of 4
Section 34 does not act as a Court of appeal and cannot re-
appreciate the evidence and arrive at an independent conclusion as
to what would have been a just decision. Under Section 34, an
award can be challenged only on limited grounds as enumerated
therein. The petitioner has not assailed the award on any of the
grounds as enumerated under Section 34. The sole contention of
the petitioner during entire arguments was that there were
contradictions in the award and the learned Arbitrator has wrongly
held that part of the delay, i.e. 180 days was due to the petitioner.
5. A perusal of award would show that the learned
Arbitrator has given reasons for allowing only a part of the claims
and rejecting rest of the claims made by the petitioner. The
Arbitrator has also considered the delay in execution of the work
and who was responsible for the delay. There was an admission on
the part of the petitioner as recorded by the Arbitrator that the
labour of the petitioner had gone to their respective villages during
harvesting season. Part of the work could not be carried out during
rainy season and due to flood in Yamuna. The delay attributed to
the respondent has been found 53 days plus 13 days delay in
obtaining permission and 26 days delay for tree felling as recorded
by the Arbitrator. The Arbitrator has specifically observed that
respondent could not be held responsible for 180 days delay when
contractor's labour was not available or there was flood in river
Yamuna etc. Beside that 39 days' delay was treated by both the
OMP No.323/2006 M/s. N.P.A.Engineers & Contractors v. Government of India & Ors. Page 3 of 4
parties as dies non. Thus, no fault can be found with the award on
this count.
6. This Court cannot re-consider the evidence and arrive at
a different conclusion from what has been arrived at by the
Arbitrator, neither this Court can sit in appeal over the decision of
the Arbitrator. I find that there is no infirmity in the award. The
objections raised by the petitioner to the award must fail. The
petition is hereby dismissed.
April 01, 2009 SHIV NARAYAN DHINGRA, J.
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