M/S Chander Kant & Co. vs Delhi Development Authority
2009 Latest Caselaw 1562 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               FAO(OS)349/2003

                                                          April 21, 2009


      M/s Chander Kant & Co.                             ..... Appellant
                       Through :      Mr. R.Rajappan, Advocate


                   versus


      Delhi Development Authority               ..... Respondent
                       Through : Ms. Sangeeta Chandra, Advocate


      CORAM:
      HON'BLE MR. JUSTICE MUKUL MUDGAL
      HON'BLE MR. JUSTICE VALMIKI J. MEHTA

1.    Whether the Reporters of local papers may be allowed
      to see the judgment?                                           No.
2.    To be referred to the Reporter or not?                         No.
3.    Whether the judgment should be reported in the Digest?         No.

                   J U D G M E N T(ORAL)

%

MUKUL MUDGAL, J.

1. This appeal challenges the judgment of learned Single Judge in

respect of two claims i.e., claim No.1 and claim No.24.

2. We take the issue of claim No.24 first. In so far as claim No.24 is

FAO(OS)349/2003 Page 1 concerned, it is not disputed that Clause No.10C requires not only increase

of statutory wages but also proof of payments thereof. In the present case,

the proof of payments to the workmen concerned had not been produced by

the appellant/claimant, and, accordingly, there is no documentary proof in so

far as claim no.24. Therefore, finding on claim No.24 was rightly set aside

by the learned Single Judge.

3. In so far as claim No.1 is concerned, the finding of arbitrator is as

under:

"The details of claim are as follows:

-Bricks - 199000 No. Rs. 400 per thousand 79600

-M.S. sq. bars-12 MT Rs. 5000 per mt. 60000

-Brick tiles- 90000 Rs. 400 per thous. 36000 175600 Respondents have submitted photo copies of departmental registers for issue of materials.

Curiously in many places contractors signatures are not there even though required. There are no records produced by respondent of receipt of materials by claimant. Whenever any material is issued by respondent to claimant an unstamped Receipt is to be invariably taken (USR). Such USRs are not there. If USRs were not signed any prudent person will not issue further materials. No cogent

FAO(OS)349/2003 Page 2 reason has been put forward by respondent for continued issue of material without USR. The only record produced is MAS account which is respondents departmental record and there also there is no receipt on these items from claimant, even though for some other items such receipt is there. Therefore, I do not consider as valid that materials were continued to be issued even though claimants had not signed USR. The acceptance signature on a bill is to get payment and I do not consider that as a valid receipt for the materials as contended by respondent".

4. Significantly, the arbitrator is an expert in the field being a retired

Director General of Works, CPWD. Learned Single Judge has set aside the

above finding on claim No.1 by relying on running bill R-27. In our view,

the learned Single Judge has upset a finding of the fact recorded by an

Arbitrator which fell in his province as it is the Arbitrator who is the fact

finding authority. The arbitrator records that for the materials for which

adjustment sought by the DDA, there were no receipts (USRs) available as

signed by the appellant/contractor. Learned Single Judge had not dealt with

this finding of the arbitrator. There was no receipt available in the file and

FAO(OS)349/2003 Page 3 nor was the Registers for issue of the materials by the DDA signed at many

places by the contractor and in spite of these factors, the learned Single

Judge has merely placed only reliance on R-27 which shows that certain

deductions had been made by DDA. In our view a finding of fact recorded

by the arbitrator ought not to have been reversed by the learned Single Judge

as the arbitrator is entitled to arrive at a finding of fact and unless it is

wholly perverse in that such a finding of fact could never have been arrived

at a court hearing objections against an award ought not to set aside such a

finding of fact when two views were possible and an arbitrator had taken one

plausible view.

5. We partly allow the appeal and sustain claim no.1 preferred by the

appellant and dismiss the appellant's plea in respect of disallowance of claim

no.24. We feel that the interest of justice will be met if this claim is allowed

without grant of any interest.

6. We however hold that the appellant is entitled to interest at the rate of

9% per annum instead of 12% stated in the award in terms of the recent

trend of judicial opinion in Rajendra Construction Co. Vs. Maharashtra

Housing & Area Development Authority and others, 2005 (6) SCC 678,

McDermott International Inc.Vs. Burn Standard Co. Ltd. and others, 2006

FAO(OS)349/2003 Page 4 (11) SCC 181 & Rajasthan State Road Transport Corporation v. Indag

Rubber Ltd., (2006) 7 SCC 700 & Krishna Bhagya Jala Nigam Ltd. Vs.

G.Harischandra, 2007 (2) SCC 720.

The appeal stands disposed of accordingly.

                                          MUKUL MUDGAL,J



                                          VALMIKI J. MEHTA, J
APRIL 21, 2009
ib




FAO(OS)349/2003                                                 Page 5