M/S Puri & Ors vs Indian Institute Of Technology
2009 Latest Caselaw 4023 Del

F-2

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1534/1994 & IA 2133/1996

                                           6th October, 2009

       M/S PURI & ORS                          ..... Petitioner
                         Through :   Mr. V.K.Misra, Advocate
                    versus


       Indian Institute of Technology         .....Defendant
                           Through : Mr. Suresh Singh, Advocate.


       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)

1. These objections have been filed by the petitioner M/s Puri &

Co. against the award dated 18.5.1994 of the arbitrator. The award

pertained to the disputes between the parties which arose on the

petitioner being awarded the additional work of construction of AIU

Building, above the 4th Floor Level in the building portion including

CS(OS) 1534/94 & IA 2133/96 Page 1 water supply and sanitary installation. The disputes which arose

between the parties because of the arbitration clause were referred to

the arbitration of Sh. V.R.Vaish sole arbitrator who has passed the

award which is being challenged by the petitioner.

2. The counsel for the petitioner has challenged the award with

respect to claim nos.1, 4 and 7.

3. The objections with regard to claim no.1 pertains to the objection

that according to the petitioner, a rebate of 2% on the contract price

was not available in the subject agreement (which is a second

agreement) since the rebate of 2% in the overall price was given only

for the first contract if the offer of the objector was accepted in time.

The issue, therefore, before the arbitrator was whether with respect to

the subject contract, the respondent/Indian Institute of Technology was

entitled to a rebate of 2% on the overall price of the contract. The

arbitrator has in this regard specifically referred to the letter of award

issued with respect to the subject contract on 18.01.2004 which

contained clause no.2 which ran as under :-

"2. The agreement amount of Rs. 9,29,148 is inclusive of 3.5% rebate as per the present agreement No.303 of 1982-83 and give an enhancement of 8% as per your offer dated 25.11.83."

4. In view of the above clause, the arbitrator has given a clear cut

finding that since in the letter of award itself there was a mention of

CS(OS) 1534/94 & IA 2133/96 Page 2 the rebate of 3.5% which included the rebate of 2% towards overall

price and the petitioner/contractor had never objected to this letter of

award and in fact acted upon the contract on that basis there does not

arise any question of rebate not being available in the second contract.

There is no perversity in this finding of the arbitrator as it is a

reasonable finding based on the letter of the award itself which makes

a provision for this rebate. This objection is accordingly dismissed with

costs of Rs.2,500/-.

5. The second objection which is raised by the objector pertains to

claims on account of delays caused by the respondent/non objector.

The claims in this behalf are claim no. 4 for increase in the rates of

material and wages and claim no. 7 with respect to the establishment

and overhead expenses. While discussing these claims no.4 and 7, the

arbitrator has given a finding of fact that delays were caused both by

the petitioner as also by the respondent. Consequently, in sum and

substance, the arbitrator considering the delays on the part of the

objector also, awarded finally a sum of Rs.40,000/- towards both these

claims instead of Rs.2,55,400/- claimed by the objector. The arbitrator

is a master of facts and finding of facts so arrived at by the arbitrator

cannot be challenged by the objector. In fact, nothing has been

pointed to this court as to why the finding of fact that both the

petitioner and the respondent were responsible for the delay is

CS(OS) 1534/94 & IA 2133/96 Page 3 incorrect. Accordingly, there is no merit in these objections with

respect to claims no. 4 and 7 also which are dismissed with costs of

Rs.2500/-. The award is therefore made a rule of the court and the

objections are dismissed.

6. Accordingly, the objection petition being I.A No. 2133/96 is

dismissed with total costs of Rs.5000/- payable by the petitioner to the

respondent within a period of one month from today failing which

simple interest on such cost will be paid @ 12% per annum till actual

payment.

                                                VALMIKI J. MEHTA,J
OCTOBER 06, 2009
ib




CS(OS) 1534/94 & IA 2133/96                                       Page 4