M/S. Ravi Builders vs Union Of India
2009 Latest Caselaw 4445 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                      Date of Reserve: September 04, 2009
                                         Date of Order: November 03, 2009

+OMP No.308/2009
  %                                                             03.11.2009

      M/S. RAVI BUILDERS                        ..... Petitioner
      Through:    Ms. Manmeet Arora & Mr. Abhijeet, Advs.

                    versus

      UNION OF INDIA                                  ..... Respondent
      Through:   Nemo


      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 the Arbitration and Conciliation

Act, the petitioner has sought setting aside of the award dated 27th

August, 2008 passed by the learned Arbitrator in respect of those claims

for which the award had gone against the petitioner.

2. A dispute between the petitioner and the respondent regarding

construction of 'Road Under Bridge' at Patparganj Road near Madhuban

Chowk was referred to the Arbitral Tribunal. The petitioner filed a

statement of claims containing 17 claims totaling to Rs.85,36,259/-. During

pendency of arbitration, petitioner modified statement of claims and

withdrew some of the claims. He withdrew claim no. 2 regarding 'cost

bank protection', claim no. 4 regarding 'idling of labour', claim no. 6(i) and

6(ii). Against claim no. 6(iv) claimant had mentioned no amount. Thus nil

award was given.

3. The Tribunal considered rest of the claims which were not

withdrawn and were pressed before the Arbitral Tribunal. After

considering evidence of both the sides and the material placed before it,

the Arbitral Tribunal came to conclusion that the claimant and the

respondent both equally contributed to the delays. Considering claim no.

1 for Rs.23,37,373/- Tribunal observed that similar claim, during pendency

of the contract, was referred to the previous Arbitral Tribunal and the

previous Arbitral Tribunal had awarded a sum of Rs.7,48,500/- as the extra

costs to the claimant for lowering the water table by 'well point system'

for a six months period despite observing that during normal period of

execution of work, de-watering by 'well point system' was an essential

activity in the non-schedule item no.1. However, since the claimant was

allowed extra payment by earlier interim award on the basis of contract

extending beyond the specified contractual period, the Tribunal adopted

the same logic and considering that since both the petitioner and the

respondent were equally liable for delay, allowed 50% of the claim made

by the petitioner. The Tribunal also allowed claim no. 5 in full to the tune

of Rs.9,000/-. The Tribunal allowed claim no. 6(vi) in full to the of

Rs.1,58,000/- and claim no. 6(vii and ix) therefore were allowed to the

tune of 50%. Cost of arbitration was also directed to be shared by the

parties equally. Thus, the Tribunal allowed the claim of claimant to the

tune of Rs.16,10,950/-. The Tribunal did not allow pendent lite and future

interest.

4. A perusal of objections against the award would show that the

petitioner has assailed all disallowed claims or partly allowed claims on

merits. The contention of the petitioner is that the Tribunal allowed 50%

amount of the claim no. 1 by misreading earlier interim award and

committed an error in allowing only partial costs of lowering water table,

instead of full cost by holding that petitioner and the respondent both

were equally responsible for the delay. It is further submitted that the

Tribunal committed an error by not compensating the petitioner for losses

caused due to increase overhead cost and Tribunal wrongly held that

certain claims of the petitioner were not supported by conditions of

contract. The Tribunal wrongly rejected the claim no. 6 (iii) and 6(v) of the

claimant and the decision of Tribunal was contrary to the material placed

on record.

5. It is settled law that while considering objections under Section 34

of the Arbitration and Conciliation Act, this Court does not sit as a Court of

appeal and cannot re-appreciate the evidence and come to a different

conclusion. The Court cannot pass a fresh award instead of the award

passed by the learned Arbitrator by holding that the claims were not

properly decided by the Tribunal. Under Section 34 of the Arbitration and

Conciliation Act, 1996 an award can be set aside on the following grounds

as laid down by the Supreme Court in DDA vs. R.S.Sharma & Company,

New Delhi JT 2008 (9) SC 362:

"(a) An Award, which is

(i) contrary to substantive provisions of law; or

(ii) the provisions of the Arbitration and Conciliation Act, 1996; or

(iii) against the terms of the respective contract; or

(iv) patently illegal, or

(v) prejudicial to the rights of the parties, is open to interference by the Court under Section 34(2) of the Act.

(b) Award could be set aside if it is contrary to :

(a) fundamental policy of Indian Law; or

(b) the interest of India, or

(c) justice or morality:

(c)The Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court.

(d) It is open to the Court to consider whether the Award is against the specific terms of contract and if so, interfere with it on the ground that it is patently illegal and opposed to the public policy of India."

6. The petitioner has failed to make out any of the above grounds. I

find no force in this petition. The petition is hereby dismissed.

November 03 , 2009                            SHIV NARAYAN DHINGRA, J
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