M/S Satish Chand Rajesh Kumar Pvt. ... vs Union Of India & Ors.
2009 Latest Caselaw 249 Del

             * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                             Date of Reserve: 19.01.2009
                                                          Date of Order: January 23, 2009

OMP No. 623/2007
%                                                                               23.01.2009

        M/s Satish Chand Rajesh Kumar Pvt. Ltd. ... Petitioner
                            Through: Mr. Sanjay Bansal, Advocate

                   Versus


        Union of India & Ors.                             ... Respondents
                                         Through: Mr. Adish Aggarwal &
                                         Mr. Aakash D. Pratap, Advocates


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

The petitioner was awarded a contract for construction of 60

numbers of single suits for four storeyed at Dev Nagar New Delhi vide contract

no. 08/EE/LD/1997-98. A dispute arose between the petitioner and the

respondent which was referred to the arbitration and the learned Arbitrator

(respondent no. 3) gave its award dated 20th July, 2007 allowing part of the

claims and dismissing some of the claims made by the petitioner. The petitioner

has assailed this award in respect of claim no. 2, additional claim no. 1 and

additional claim no. 2. The ground of assailing award as given by the petitioner

under each claim is that the learned Arbitrator failed to appreciate the final bill of

the petitioner, failed to appreciate the vital documents in the support of claims

and failed to appreciate the EOT performa in which the claimants had not given

any undertaking and was granted EOT without levy of compensation.

2. Under Section 34 of the Arbitration and Conciliation Act, an award

can be challenged on following grounds:

34(2) An arbitral award may be set aside by the court only if-

(a) The party making the application furnishes proof that-

        (i)        A party was under some incapacity, or

        (ii)       The arbitration agreement is not valid under the law to which

the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration:

Provided that, if the decisions on matter submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a

provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b) The court finds that -

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) The arbitral award is in conflict with the public policy of India.

3. The petitioner has failed to make any of the grounds available to

him under Section 34 for setting aside the award

4. A perusal of claim no. 2 would show that under this claim petitioner

had claimed Rs.92,321/- on account of removal of extra earth. The learned

Arbitrator observed that the petitioner had failed to substantiate this claim with

documentary evidence and therefore did not award any amount. I find this is a

sufficient reason to be given by the learned Arbitrator. If there is no evidence

produced, the learned Arbitrator cannot record any other reason. Regarding

additional claim no. 1, the learned Arbitrator had given reasons why the

claimants was not entitled to the amount claimed on account of deviated

quantities. The claimants had asserted his right to claim market rate for deviated

quantities beyond admissible deviation. The learned Arbitrator observed that to

claim extra rate, the claimants were required to demand the same with proper

analysis at the time of executing such deviated quantities. Since the claimants

failed to establish, through documentary evidence, if such a demand was made

even within a reasonable period, the claim was disallowed. Similarly, additional

claim no. 2 was disallowed. I consider that the plea taken by the petitioner that

the learned Arbitrator had given no reasons while dealing with claim no. 2 and

additional claims no. 1 & 2 is baseless plea. I find no force in the petition. The

petition is hereby dismissed.

January 23, 2009                                      SHIV NARAYAN DHINGRA, J.
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