M/S. Mohan Lal Harbans Lal Bhayana ... vs Union Of India
2010 Latest Caselaw 928 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          OMP No.154/2003
                                                          17th February, 2010

M/S. MOHAN LAL HARBANS LAL BHAYANA & CO.

                                                               ...Petitioner
                           Through:     Mr. R. Rajappan, Advocate.
              VERSUS

UNION OF INDIA                                            ....Respondents.

                           Through:     Ms. Geeta Sharma, 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)

VALMIKI J.MEHTA, J

1. In this objection petition under Section 34 of the Arbitration &

Conciliation Act, 1996, the counsel for the petitioner has very fairly pressed

only Claim No.4, Counter Claim No.2 and Counter Claim No.10 as awarded by

the Arbitrator. I will therefore deal with the arguments raised as regards each

one of them serially.

2. Claim No.4 was the claim of the petitioner for dewatering charges

done during an extended period of the contract. The counsel for the petitioner OMP 154/2003 Page 1 contended that since the claimant/petitioner was only to do the work of

dewatering for a limited period under the contract and since, the petitioner was

forced to do extra dewatering during the extended period, the petitioner was

entitled to this claim which has been rejected by the Arbitrator. I note that the

Arbitrator while deciding this claim has referred to an undertaking given by the

petitioner in his application dated 8.7.1999 that he has suffered no loss on

account of delay and that he shall not claim damages beyond what is already

paid for the dewatering upto 10.11.1998. If that be so that the petitioner himself

has given an undertaking that he will not claim any further amount except what

is already paid to him up to 10.11.1998. I therefore do not find any fault in the

finding of the Arbitrator while dismissing this claim.

3. Counter Claim No.2 was the claim made by the respondents herein

for the additional cost to the respondent on account of the rescission of the

contract. It is not disputed that the contract was formally rescinded by the

respondent on account of the breach of the petitioner. Once there is found to be

a valid rescission of the contract, any consequential higher cost upon the

respondents has to be to the account of the petitioner. What the Arbitrator has

done is that he has estimated a higher cost with respect to various materials

during the estimated time of performance by the new contractor and thereafter

by applying a percentage formula for escalation, has awarded a sum of

Rs.1,16,483/- (after allowing forfeiture of security deposit of Rs.50,000/- and

keeping the allowing of counter claim No.3) he found that the escalation would

OMP 154/2003 Page 2 in fact be of Rs.8,10,000/-. When damages are awarded, certain guess work is

inherent in the exercise for calculation of damages. The Arbitrator has on the

basis of materials before him arrived at a figure on the basis of honest

guesswork. Once there are materials and then the Arbitrator resorts to an honest

guesstimate, it is within his realm of jurisdiction to do so and no fault can be

found with the Award on this aspect.

4. Counter Claim No.10 was the claim made by the respondents for

the bill of electricity charges issued and which were payable by the petitioner

herein. The admitted fact is that the petitioner was the only consumer of

electricity at site. Though the petitioner was to take his own electricity

connection under the contract, but since the petitioner failed to do so, therefore

the respondent allowed the petitioner to use its electricity connection at site.

Surely, since the petitioner was the only user of the electricity from the

electricity connection all bills which are received with respect to that electricity

connection, have to be paid by the petitioner. The Arbitrator has done just that

and has awarded the charges payable under the bill to the respondent. Out of

the bill of Rs.6,35,522/-, since the respondent had already recovered

Rs.3,61,335/-, the Arbitrator awarded the balance amount of Rs.2,74,187/-. No

fault, therefore, can be found with the Award on this aspect also.

5. An Award can only be set aside, if the same is illegal or violative

of the contractual provisions or the findings are so perverse that the judicial

conscience of the Court is shocked. In the present case, there is no illegality nor

OMP 154/2003 Page 3 any perversity nor any violation of the contractual provisions for this Court to

interfere with the Award under Section 34. The objection petition is therefore

dismissed, however, leaving the parties to bear their own costs.

                                                    VALMIKI J.MEHTA, J


February 17, 2010
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OMP 154/2003                                                              Page 4