Delhi Government Officers ... vs M/S Manchanda & Manchanda ...
2010 Latest Caselaw 1094 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CS(OS) No. 2139A/2000
                                                             24th February, 2010



DELHI GOVERNMENT OFFICERS CO-OPERATIVE GROUP HOUSING
SOCIETY LTD.
                                           ...Petitioner.

                               Through:     Mr. Sandeep Sharma and Ms. Kanika
                                            Singh, Advocates

M/S MANCHANDA & MANCHANDA BUILDERS PVT. LTD.
                                          ....Respondent.

                               Through:     Mr. Milanka Chaudhary and Mr.
                                            Sarojanand, Advocates
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)

VALMIKI J.MEHTA, J

I.A.No. 3645/2001 in CS(OS) No. 2139A/2000

1. These objections under Sections 30 and 33 of the Arbitration Act, 1940

have been preferred by the contractor/petitioner/objector to the Award dated

7.7.2000 passed by the sole Arbitrator Justice Satpal (Retd.) Hon'ble Judge of

this court. The dispute which arose between the parties was on account of the

CS(OS) 2139A/2000 Page 1 contract awarded to the objector for construction of about 76 dwelling units at

the respondent's site at Patparganj, Delhi. The claims therefore pertained to

various items of construction work.

2. The counsel for the objector has only pressed the objections with respect

to Claim No.1 sub items 3, 4 and 5, Claim No.2 sub items 5 and 7 and Counter-

claim awarded to the non-objector for defective work. As regards the last

objection with regard to Counter-claim for defective work, during the course of

hearing, it transpired that no such objection has been raised in the objection

petition and therefore in the absence of any objection, no argument can be

addressed as regards the Award pertaining to the Counter-claim for defective

work and which issue was therefore not pressed. As regards the other claims, I

will take up the same serially.

3. Claim No.1, sub item-3 pertains to the claim made by the objector for

extra steel consumption. The Arbitrator has recorded the inconsistency in

different running account bills as submitted by the objector and has therefore

dis-believed the claim for extra steel consumption. This finding is a finding of

fact. There is nothing perverse in this finding for this court to hold that the

Arbitrator has mis-conducted himself or the proceedings. Objection to this

claim is therefore rejected.

4. Claim No.1 sub-items 4 and 5 pertained to the escalation claims of labour

and material. The Arbitrator while dealing with these aspects, has arrived at a

factual finding that whatever was the entitlement with respect to the labour and

CS(OS) 2139A/2000 Page 2 material escalation, the same was duly paid for as per the amounts assessed by

the Architect. Again this finding is a finding of fact that the entitlement of

escalation stands duly paid. In my opinion therefore, such finding of fact

cannot be challenged under Sections 30 and 33 of the Arbitration Act, 1940 as

no perversity has been pointed to this court.

5. Claim No.2 sub item 7 was the only other claim which was challenged.

Under this claim, the objector claimed charges for providing terrazo grit finish

instead of rough sand cast plaster finish. The arbitrator has referred to the

relevant clauses of the contract namely Clause 3 of Section XII and sub Clause

( n ) of this clause. The arbitrator has held that the work done of the terrazo grit

finish falls within the scope of the work as per the aforesaid sub-Clause and

therefore no extra amount is payable. A reading of the relevant clause also

shows that the item of work is for grit finishing plaster and it is not limited to

rough sand cast cement plaster. Therefore, the Arbitrator was entitled to hold

that all types of grit finishing including terrazzo grit finishing falls within the

scope of the work under this clause. At best, as per the contention of the

counsel for the objector, two views are possible. Once two views are possible

and the view adopted by the Arbitrator is one plausible view, this court will not

interfere with the view taken by the Arbitrator merely because another view is

possible. No valid objection therefore can be raised to this part of the Award.

No other claim or issue was pressed. The objection to the Award are

accordingly dismissed.

CS(OS) 2139A/2000 Page 3 I.A. No. 2932/01in CS(OS) No.2139A/2000

6. These are objections filed by the petitioner's society. Only one objection

has been pressed by the counsel for the petitioner with respect to the claim of

unadjusted mobilisation advance of Rs.2,10,450/-. The Arbitrator has given a

finding of fact as regards this aspect in the Award that the Society has not given

any details as to how the amounts only of Rs.8,80,027/- and Rs.59,523/- stand

adjusted leaving a balance of Rs.2,10,450/- out of the total of Rs.11,50,000/-.

Even before this Court, in the objection petition, I do not find any detailed

calculations in terms of the 24 running bills which are stated to be showing that

the total of the adjustment towards mobilisation advance in each of the 24 bills

leaves the unadjusted amount of Rs.2,10,450/-. In the absence of any detailed

averments in an affidavit by way of evidence, a finding of fact has been arrived

at by the Arbitrator that the society failed to prove that an amount of

Rs.2,10,450/- is still lying unadjusted. Once the society fails to discharge its

onus to prove before the Arbitrator by giving appropriate details, the Arbitrator

committed no misconduct in dismissing this claim. Even in the objection

petition filed in this Court no details have been mentioned except a general

averment that this claim has been wrongly allowed and there was unadjusted

advance of Rs.2,10,450/-. In the facts and circumstances of the case, I do not

find that the Arbitrator has in any manner misconducted himself and the

proceedings.

CS(OS) 2139A/2000 Page 4

7. No other issue was pressed. The objection petition of the society is

therefore also dismissed. In view of the dismissal of both the objection petition,

the Award dated 7.7.2000 is made rule of the Court. Let a decree be drawn in

terms thereof. Parties are left to bear their own costs.

                                                     VALMIKI J.MEHTA, J


February 24, 2010
ib




CS(OS) 2139A/2000                                                           Page 5