Delhi High Court
V.Arindam Const Pvt Ltd vs Ircon International Ltd. & Anr. on 31 March, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 26.03.2009
Date of Order: 31.03.2009
OMP 374/2005
% 31.03.2009
V.ARINDAM CONST PVT LTD. ... Petitioner
Through: Mr.Sanjoy Ghose, Adv.
Versus
IRCON INTERNATIONAL LTD. & ANR ..Respondents
Through: Mr. Chandan Kumar, 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, the petitioner has
assailed an award dated 1st July, 2005 passed by the sole
Arbitrator on the ground that the learned Arbitrator wrongly
rejected a part of the claims of the petitioner and allowed only
a part of the claims.
2. A contract was entered into between IRCON
International Limited and the petitioners, M/s. V. Arindum
Construction Pvt. Ltd. and Vinod Kumar (a Joint Venture) for
supply of boulders to the respondent. The boulders were to be
OMP 374/2005 Page 1 of 5
supplied for use in Bangladesh. The boulders were to be
loaded in India in railway wagons and were to be received in
Bangladesh. The contract provided for 15% of the voids in the
loaded boulder. The quantity in cubic meters was to be
measured at both the places, that is at the time of loading and
at the time of unloading the wagons. All wagons after loading
in India were sealed and the seal was taken off at the time of
unloading the wagons.
3. It was found that the shrinkage in the quantity
received at Bangladesh was much more than 3% permissible
shrinkage as per contract and it went upto 19% in some cases.
The measurements were taken in India at the time of loading
in presence of the representatives of both the parties and
recorded. However, the measurements in Bangladesh were
taken by the representative of the respondent at the time of
unloading, in terms of the contract. The contract did not
provide for joint measurement in Bangladesh.
4. The contention of the petitioner is that the
measurement in Bangladesh was taken by unskilled labours
and not by some supervisor who was skilled in taking
measurements and the shrinkage of around 19% shown at the
OMP 374/2005 Page 2 of 5
time of receiving the material could not have been there. The
respondent had paid to the petitioner on the basis of
measurements taken at the receiving end resulting into raising
of a dispute by the petitioner. The learned Arbitrator
considering the fact that the measurements at the receiving
end were taken by unskilled labours devised a formula of
taking average of the measurement taken at the loading time
and taken at the unloading time and awarded an additional
amount to be paid to the petitioner on the basis of this
average. The petitioner has contended that this average
arrived at by the learned Arbitrator was not a proper
method/formula and the petitioner was entitled for payment in
accordance with the measurement done on Indian site at the
time of loading. This is the main ground of challenge to the
award.
5. I consider that this contention of the petitioner must
fail. The contract specifically provided that the maximum
voids at the time of loading should not exceed 15%. It was for
the petitioner to ensure at the time of loading that the loading
is done in such a manner and boulders of such sizes are
adjusted in the wagons in such a manner that the voids among
OMP 374/2005 Page 3 of 5
different boulders was not more than 15%. The contract also
provides that the shrinkage in the volume should not be more
than 3% than what was loaded when the boulders are received
in Bangladesh. If the voids are not taken care of at the time of
loading and the persons who load the boulders do not adjust
the boulders in such a manner that there are minimum voids
and not more than 15% voids, the volume is bound to shrink
much more than 3% by the movement of the wagons and by
vibrations which are produced during the movement of the
wagons. Since the shrinkage in volume had gone upto 19%,
this only shows that precautions were not taken by the
petitioner at the time of loading to ensure voids to be 15% or
less. There is no force in the plea of measurement being
wrongly taken at Bangladesh by unskilled labour. The wagon
base has standard measurement and for finding volume only
height of boulders was to be measured. Not much of the skill
or expertise is required in measuring height of level of
boulders in the wagon.
6. I therefore consider that no fault can be found with
the award given by the Arbitrator, on this ground. The
OMP 374/2005 Page 4 of 5
Arbitrator rather devised a formula which was in favour of the
petitioner and not against the petitioner.
7. The petitioner drew my attention to a document
called PA-34 which petitioner placed before the Arbitrator
during arguments. This document was not part of the
documents relied upon by the petitioner or proved during
evidence and was rightly not considered by the Arbitrator.
According to the petitioner this document showed the quantity
of boulders received at Bangladesh was more than the
quantity as pleaded by the respondent. I consider unless this
document was put to the respondent during the proceedings
before the Arbitrator, no reliance can be placed on this
document at this stage. The Arbitrator rightly did not consider
this document.
I find no merits in the objections raised by the
petitioner. The petition is hereby dismissed.
March 31, 2009 SHIV NARAYAN DHINGRA, J.
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