Delhi High Court
M/S Lal Builder vs Union Of India & Ors. on 18 May, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 12.5.2009
Date of Order: May 18, 2009
+ OMP No. 356/2005
%
18.05.2009
M/s Lal Builder ...Petitioner
Through : Mr. Sukesh Kumar, Advocates
Versus
Union of India and others ...Respondent
Through:Ms. Geetanjali Mohan, Advocate
and Ms. Vaishnavi, Advocate
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?
JUDGMENT
1. By this petition under Section 34 of Arbitration and
Conciliation Act, the Petitioner has assailed an award dated 5th July,
2005 passed by the Arbitral Tribunal whereby the Tribunal had partly
allowed the claims of the petitioner and partly disallowed the claims of
the petitioner.
2. The award has been challenged on the ground that Learned
Arbitral Tribunal failed to give reasons for denial of the claims. It is
submitted that claim No.1 was denied by the Arbitral Tribunal on the
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ground of improper planning and assumption, which shows lack of
application of mind by the Arbitral Tribunal. None of the parties had
claimed that there was improper planning and assumption. The total
work awarded was for Rs.60,46,651/-. There was no evidence that the
work was reduced due to improper planning. It is also submitted that
the Arbitrators were not experts who could have arrived at a conclusion
about the planning in the matter of civil contracts.
3. The other ground of challenging the award is that the
Arbitral Tribunal rejected some of the claims of the petitioner on the
basis of measurement recorded in the measurement book (MB), while
in fact the petitioner had done much more work than all the work
shown in the MB. It is submitted that the original work awarded was
more than of Rs.60,00,000/- . After the petitioner had left the work
remaining work was awarded for a sum of Rs.14,00,000/- only to the
subsequent contractor. If the petitioner had not done the work to the
extent of Rs.46,00,000/- the remaining work would not have been of
Rs.14,00,000/-. Thus, the Arbitral Tribunal should have taken this into
consideration and should have reached the conclusion that the MB had
not correctly recorded the work done. The petitioner also challenged
awarding of Rs.89,449/- by the Arbitral Tribunal to the respondent on
the ground that the Arbitral Tribunal lost sight of the fact that the
applicant could not have removed any material from the site without
prior permission of the authorities concerned.
4. The petitioner assailed the award also on the ground that
claim No.3 of the petitioner was rejected without any basis. The
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Arbitral Tribunal failed to appreciate the evidence produced by the
petitioner. Regarding claim No.4, it is stated by the petitioner that the
Arbitral Tribunal did not consider Clause 21.5 in proper prospective.
The Arbitral Tribunal should have decided this claim on the basis of
work done as claimed by the petitioner. Similarly, regarding claim No.5
it is stated that the Arbitrators did not even pronounce upon the claim
of Rs.5,00,000/- made by the petitioner for mental agony and hardship
caused to the claimant due to unilateral recession of the contract.
5. A perusal of the award would show that the Learned
Arbitral Tribunal had considered the claims of the petitioner and
counter-claim of the respondent on the basis of measurement book
which records the measurement of the work done. The contention of
the petitioner that the measurement book did not reflect the true
quantity of work done by the petitioner could not have been considered
by the Arbitrators. In any civil contract where measurement book is
maintained and the work done is recorded in the measurement book,
the contractor cannot lay claim for a work which is not recorded in the
measurement book unless during the continuation of work, the
contractor had protested to the authorities that a particular work done
by him was not recorded in the measurement book. It is not the case
of the petitioner that he had protested against non recording of work
done by him in the measurement book by the concerned Engineer.
Measurement book is the authentic record of the work done. No
contractor can claim for a work allegedly done which is not recorded in
the measurement book. I, therefore consider that the Learned Arbitral
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Tribunal rightly based the award on the measurement book.
6. It is a settled law that under Section 34 of the Arbitration
and Conciliation Act, the Court does not act as an Appellate Court and
cannot re-appreciate the evidence to arrive at a conclusion different
from that of the Arbitrator. An award can be challenged under Section
34 only on one of the grounds as mentioned in Section 34 of the Act.
Petitioner in the present case has made challenge to the award on the
basis of non-appreciation of evidence and misinterpretation of contract,
challenge on such grounds cannot be considered.
7. It is also settled law that an Arbitrator is prisoner of the
contract. The Arbitrator cannot travel beyond the contract. The
tortuous liabilities or claims for mental agony etc. cannot be raised
before the Arbitrator. Only the claims which flow from the contract and
which are not tortuous liabilities can be considered by the Arbitrator.
The Arbitrator therefore rightly did not touch the claim for mental
agony.
8. I find that the present petition under Section 34 of the
Arbitration and Conciliation Act, 1996 is not maintainable and is hereby
dismissed.
May 18, 2009 SHIV NARAYAN DHINGRA J.
'neeraj'
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