M/S S.K. Grover & Co. vs Union Of India
2009 Latest Caselaw 4632 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  I.A. No.1294/1996 in C.S. (OS) No. 2519A/1995
                                       12th November, 2009.


M/s S.K. Grover & Co.                                     ..Petitioner
                         Through:   Mr. D.Moitra, Advocate
                         VERSUS


Union of India                                         ...Respondent
                         Through:   None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?

     3. Whether the judgment should be reported in the Digest?
 %
JUDGMENT (ORAL)

I.A. No.1294/1996 in CS(OS) No.2519-A/1995

1. These objections have been filed against the Award dated

28.9.1995 under Sections 30 and 33 of the Arbitration Act, 1940 by

the contractor whose claims have been either rejected or only partly

allowed.

C.S(OS)No.2519-A/1995 Page 1

2. Mr. Moitra who appears for the objector has pressed objections

as regards Claim Nos.1, 3, 6, 7 and 10.

3. As regards Claim No.1 in which nominal amounts have already

been awarded (and in fact which claims were also for negligible

amounts only) on account of the fact that no proofs were given with

respect to these claims. After arguing this claim, Mr. Moitra says that

he does not press the objection with respect to Claim No.1.

4. Claim No.3 was also argued and thereafter Mr. Moitra has said

that he will not press this claim as this claim was based on clause 10CC

of the agreement and there is a factual finding of the Arbitrator that

clause 10CC does not even form part of the contract. During the

course of the arguments, I asked Mr. Moitra to show anything from

the contract as to how clause 10CC forms a part of the contract. Mr.

Moitra however was unable to do so. No fault can therefore in any

case be found with this portion of the Award.

5. Claim No.6 in the Award is with respect to loss of business profit

for not being given the complete amount of work. The arbitrator has

arrived at finding of fact that the deviation limit i.e. lower work

C.S(OS)No.2519-A/1995 Page 2 awarded is within the deviation limit permissible as per clause 12.

Again, I put to Mr. Moitra to show me from the contractual

documents how much was the work given against which deviation

was permitted and also the value of the work, however, Mr. Moitra

was not able to show any factual basis to challenge the finding of the

Arbitrator that the balance work reduced was not within the deviation

limit. Accordingly, this objection also fails.

6. Claim No.7 is based on charges towards idle labour, tools and

plants. In this regard, the Arbitrator has arrived at a finding of fact

and held that during the stipulated period of contract, no tangible

breaches were attributable to the non-objector/respondent before the

Arbitrator. This is a finding of fact and the Objector had to show

perversity for this Court to interfere under Sections 30 & 33. Again,

Mr. Moitra has not been able to refer to anything at all to show that

this finding is in any manner perverse. I am, therefore, unable to

agree with this objection.

7. That takes me to the final objection with respect to Claim

No.10. This claim is a claim for Rs.90,000/- on account of 20%

C.S(OS)No.2519-A/1995 Page 3 additional enhancement for the work done after the stipulated date of

completion. In this regard, the Arbitrator has clearly noted that the

extended period of work (which was just of about 3 months) was as

per the consent of the parties meaning thereby the objector never

objected or claimed any rights for delay when the contract was being

performed and which is a legal requirement under Section 55 of the

Contract Act 1872. This claim, therefore, was also misconceived and

therefore, the Arbitrator was justified in rejecting the same.

8. Before I conclude I must record that this case has been regularly

and repeatedly coming up for arguments before this court right from

4.10.2009. Mr. Moitra has however been taking adjournments.

Firstly, adjournment was taken on the ground that he did not have

the proper file. Thereafter, Mr. Moitra said that these are objections

are of a widow (as the contractor has died) and, therefore, he sought

further accommodation. This case was thereafter called out when no

one was present and has now been taken up today. Ordinarily,

considering that this is a very old case of the year 1995 and since

repeated adjournments have been granted at the request of the

C.S(OS)No.2519-A/1995 Page 4 objector, I would have, indeed imposed very heavy costs, however,

on the plea of the counsel for the objector that the widow of the

contractor is not in a sound financial condition, I am not imposing

costs in the matter. Accordingly, with the above observations, the

objections and also the suit stand disposed of. The Award dated

28.9.1995 is made rule of the Court.

                                            VALMIKI J.MEHTA, J
November 12, 2009
ib




C.S(OS)No.2519-A/1995                                           Page 5