B.K.Roy Choudhary vs Dda
2010 Latest Caselaw 180 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                  Date of Reserve: September 08, 2009
                                                       Date of Order: January 14, 2010

+CS(OS) 1781 of 1992 & IA 9203 of 1992
%                                                                          14.01.2010
     B.K. Roy Choudhary                                            ...Petitioner
     Through: Mr. Sandeep Sharma, Advocate

         Versus

         DDA                                                       ...Respondent
         Through: Ms. Anusuya Salwan, Advocate


         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?


         JUDGMENT

1. By this order I shall dispose of the objections raised by DDA under Section 30

and 33 of Indian Arbitration Act, 1940 against an award dated 30th April, 1992

passed, made and published by the learned Sole Arbitrator.

2. It is the contention of the objector DDA that the learned Arbitrator not only

mis-conducted himself but the award also contained errors apparent on the fact of it.

The learned arbitrator ignored the material evidence and awarded claims for higher

quantities than what was claimed by the claimant (petitioner herein). The learned

arbitrator also gave the award contrary to the terms of the agreement and thus

acted beyond his jurisdiction. It is submitted that the learned arbitrator against

several claims awarded payments of various amounts to the contractor (petitioner

herein) without considering the fact that no evidence was produced and without

taking into account the evidence of the department (DDA). It is, therefore, prayed

that the award qua claims nos. 1,2,3, 5,7,9,15,16 and 17 be set aside and the

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 1 Of 26 counterclaim of the objector, rejected by the arbitrator, be allowed.

3. The objector in order to substantiate its objections dealt with each individual

claim awarded by the learned arbitrator.

4. Brief facts relevant for deciding these objections are that the petitioner

(claimant) was awarded a contract for construction of 1440 houses of LIG Category

at Rajouri Garden, New Delhi including internal development vide agreement number

18//EE/ HDVII-75-76. As it usually happens, the work was not completed within the

stipulated period and the contract was terminated by DDA on 31 st December 1980

after a long correspondence exchanged between the parties and after serving a show

cause notice. DDA while terminating the contract issued a notice to the contractor for

a joint measurement of the work and asked the contractor‟s representative to be

present for joint measurement on 9th January 1981. It was informed by DDA that

after joint measurement, the final bill will be prepared. It appears that the joint

measurement did not take place in terms of notice of DDA and the contractor

approached the Court. This Court directed for a joint measurement and asked the

parties to take joint measurement. Vide its letter dated 7th May, 1981, DDA informed

the contractor that its representative did not turn up at site on 9 th April, 1981 for

joint measurement in terms of the High Court‟s order and rather one officials of

contractor came to the site on 9th April, 1981 to deliver a letter. DDA informed the

contractor that the measurement had already been recorded and the same had been

checked by the contractor from time to time. The matter again came up before the

High Court on 11th May, 1981 and the High Court again directed the parties to go for

joint measurement. Thus joint measurement of work done took place on 12th May,

1981 and the document to this effect was duly signed by both the parties on 12 th

May, 1981. The document records that almost all measurement of the work had

been finalized by the parties to the satisfaction of each other except some which

were being re-measured and in case any dispute arose in respect of measurement

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 2 Of 26 the same shall be referred to the learned arbitrator. It is recorded that in this joint

statement that at that time there was no such dispute over the measurement which

need to be referred to the Court. It is also recorded that the contractor had deputed

their engineer and other staff for revising such measurements and for this purpose

prepared necessary documents and recorded in the chart of Department (DDA) and

the same would be allowed to be inspected by the Department. The contractor could

also inspect any document. It is also recorded that the contractor had removed all

the materials lying at the site and some residual material was being removed by the

contractor and this removal shall be completed as early as possible. A subsequent

letter of Executive Engineer dated 3rd June, 1981 shows that the entire material was

removed by the contractor from the site.

5. Reference of the dispute between the parties was subsequently made to the

arbitrator. A perusal of order dated 20th July, 1981 passed by this Court in Suit

No.275A of 1981 shows that the contractor was also allowed an inspection of

following registers:

        a.      Steel Register
        b.      Cement Register
        c.      Tests Register
        d.      Site order book.
        e.      Indent Register for various materials issued by the department.
        f.      Inspection of relevant measurement books pertaining to 25th running
                account bill.
        g.      Inspection of relevant measurement books pertaining to 25 th running
                account bill (unpaid).
        h.      All running account bills paid or unpaid.

6. The learned arbitrator while considering the claims made by the claimant

(contractor) found that there were certain disputed quantities mentioned even in

respect of those items where a joint measurement had taken place. He, therefore,

asked the parties that they should engage themselves again for a joint measurement

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 3 Of 26 at site and also take help of records like measurement books etc. After this

reconciliation, as ordered by the learned arbitrator, he considered the claim filed by

the claimant (contractor).

7. Claim No.1 (Item No.1.2.): The learned arbitrator allowed the earthwork

claimed in respect of agreed and undisputed quantity of 520.92 cubic meters as

recorded in the measurement book number 584. I find no infirmity in this part of

award.

8. (Item No.1.3): The learned arbitrator rejected the claim regarding disputed

quantity on the ground that actual execution was not proved by contractor and

allowed only agreed quantity, thus there is no infirmity.

9. Claim No.1 (Item No.2): The second item is concrete work. In this item

there were disputed quantities. The learned arbitrator allowed the claim of Rs.9,484/-

to the claimant on disputed quantities observing that the respondent (DDA) had

failed to give their comments on the disputed quantities. I consider that this

observations of the learned arbitrator qua disputed quantities is contrary to his

earlier observations where he rejected the claim on the ground that claimant has

failed to prove that it actually executed the disputed quantities since joint

measurement in terms of High Court direction had been recorded by parties. I find no

reason how the learned arbitrator could have allowed the claim under this head

about disputed quantities to the claimant, without claimant proving the execution of

the disputed quantities. Thus the claim allowed by the learned arbitrator regarding

disputed quantity of 173.70 cubic meters in Item No.2.2 is not tenable and is hereby

set aside. Thus, the claim of Rs.9,484/- + 55.93% enhancement is not tenable as

being without evidence.

10. (Claim No.1 Item No.3): With regard to Item No.3 Sub Head "RCC" sub

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 4 Of 26 Item 3.4, the learned arbitrator has allowed the disputed quantity of 18504.60 cubic

meters [email protected] .80 per sq meters on account of an alleged admission of the respondent

that recorded entries had been made in the M.Bs. However, the respondent has

denied that there being any admission or a record of work in M.Bs. Record also

reveals that there was no admission made by respondent (DDA) at any point of

time. Therefore, this amount of Rs.14803.68 + 55.93% enhancement on it has been

allowed without evidence and is liable to be set aside. It is ordered accordingly.

11. Regarding Item Nos. 3.3(d), 3.7, 3.9, the learned arbitrator has allowed

quantities to the claimant in excess of the claim made therein. The quantities claimed

by the claimant in its claim and the corresponding award are as under:

 S.       Agreement      Item    Claimed   quantities    as   per   Awarded
 No.                             Annexure „A‟.
          No.                                                       Quantities

 1.       3.3. a                 9,973.47 sq. meters                10,266.60          sq.

                                                                    meters

 2.       3.3 b                  2,378.43 sq. meters                2,433.60           "

 3.       3.3 d                  133.20 sq. meters                  217.20             "

 4.       3.7                    57,484.48 sq. meters               59,484.48          "

 5.       3.9                    8,489.50 meters                    8,534. 42 meters

12. It is settled law that the arbitrator cannot award more than what has been

claimed by the claimant. Awarding of excess amount on the account of excess

quantities by the learned arbitrator was therefore not tenable. Thus, the claimant

would be entitled for the quantities claimed in the table above. The amount on

account of excess quantities has to be disallowed. Thus, under Item 3.3(d) 84 meter

and under Item No.3.7 amount of 2000 sq. meters and under Item No.3.9, 45 sq

meters are disallowed and the amount in terms of quantities claimed only are

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 5 Of 26 allowable. The award is modified to that extent.

13. Items No.3.5 and 3.6 are in respect of mild steel and tor steel. The claimant in

its claim had not included these items and given a footnote that "a separate

statement would be submitted". These quantities are in respect of overweight of tor

steel and mild steel. The claimant claim was that in the initial stages, respondent had

done sampling of mild steel and tor steel issued to the claimant/ contractor and the

sampling showed an overweight of 11.18% and 4.7%. It is submitted that the

quantities of mild steel issued to contractor were 10.60 metric tons more than the

standard weight, for which payment was made. Similarly, in case of tor steel, a

quantity of 5.201 metric tons was allegedly more in terms of weight i.e. theoretical

quantities. The claimant, therefore, claimed payment in respect of additional

quantities of overweight on the basis of initially sampling. The learned arbitrator

agreed with this contention of claimant of overweight of the entire steel consignment

submitted to the claimant on the basis of initial sampling and stated that the gross

value of work of steel has to be calculated taking into account this overweight and

there was a calculation mistake. I consider that the basic concept of arriving at

overweight, followed by the learned arbitrator, is contrary to the law of statistics and

mathematics. Tor steel and mild steel are drawn from molten steel in different

thickness bars. The average weight is determined taking into account length of bar,

diameter and specific gravity. In some consignments, it is possible that the diameter

of bars at some places goes up while drawing these bars at the manufacturing unit.

It is equally possible that in some cases the diameter goes down and the steel bars

are under weight. It is always the average of different samples which determines as

to whether the different consignments resulted into overweight of the total steel are

underweight of the total steel. On the basis of samples of first consignment alone,

the calculations of the entire supply cannot be done. It is possible that the

subsequent consignments may be having underweight or may confirm to standard

weight. The normal practice of supplying the bars are by weight because it is not

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 6 Of 26 practicable to count the steel bars and the length of the bars too also varies with

each consignment. I fail to consider as to how, when the bars were supplied by

weight they can be considered overweight and how on the basis of one sample of

first consignment entire steel supply was considered overweight. This weight register

maintained by DDA denoted the weight of each supply to claimant. Steel bar usage is

done as per structural designs and the theoretical weight of the steel used is

calculated as per standard weight. Since in this case claimant has been paid

according to actual weight, there is no significance of overweight unless and until the

DDA seeks to recover the excess amount for steel being used by claimant. The

significance of overweight also does not come into picture while calculating the

labour used as labour is paid on the basis of actual weight of steel supplied. The

learned arbitrator wrongly allowed the claim for overweight of mild steel and tor steel

bars. This fact is also further clear from the arbitrator later part of award wherein he

considered the counterclaims no.5 of DDA. While the total quantities issued to the

claimant of mild steel as agreed between the parties was 94.81 cubic meters, taking

into account the overweight factor and other factors like wastage etc upto 10%, it

was calculated as 101.781 metric tons, which in my view is not possible. I, therefore,

consider that payment on account of overweight as allowed by the learned arbitrator

was contrary to statistical norms and is not tenable. Thus, the additional claim

allowed by learned arbitrator in respect of Items nos. 3.5 and 3.6 was not tenable

and is hereby set aside.

14. In respect of Item no. 4 regarding quantities there is no dispute between the

parties. However, in respect of Item no.4.1 whereas the claim made by claimant was

for 1388.88 cubic meters, the award is in respect of 1743.370 cubic meters.

Similarly, in Item no.4.2, claim is for 449.80 cubic meters while the learned

arbitrator awarded the amount for 452.32 cubic meters. Likewise with respect to

Item 4.5 the claim is for 18635.35 cubic meters while the awarded amount was for

18835.36 cubic meters. It is submitted by objector DDA that the award in respect of

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 7 Of 26 quantities beyond claim could not have been allowed being beyond jurisdiction.

About rest of the sub items of Item no.4 no worthwhile contention is put forward.

Therefore, the awarding of amount in respect of excess quantities than what had

been claimed by claimant in its statement of claim is not tenable. Hence, out of the

amount awarded by the learned arbitrator the award in respect of Items No.4.1,4.2

and 4.4 in excess of claimed quantities are disallowed. Rest of the award in respect

of Item No.4 is not disturbed.

15. In item no.5, the learned arbitrator has taken into account the agreed

quantities and disputed quantities. The contention of respondent DDA is that the

arbitrator‟s insistence of joint measurement of the quantities despite the fact that a

joint measurement had already taken place, under orders of the High Court, was

uncalled for. It is further submitted that the running length measurements relied

upon by the arbitrator was not a correct measure of weight of steel. It is also

submitted that this item was in respect of wood work and constituted fixing of

wooden shutters in steel frames with the screws and nuts for proper fixing of hinges

etc. The item was already paid at part rate basis. However, the learned arbitrator

allowed full rates to the claimant without taking into account the amount of

Rs.98,600/- which had already been paid by the department (DDA) under this head.

I consider that this challenge must fail because while summoning up the entire claim

of the claimant, the learned arbitrator had taken into account the amount already

paid under various bills and the learned arbitrator had also considered the coefficient

applicable to the running length of frame as per IS Code. I, therefore, consider that

objection of DDA against this Item is not sustainable and is rejected.

16. Item no.6 is regarding steel work. The learned arbitrator has given award in

respect of agreed quantities. I, therefore, find no reason to upset the award on this

count.

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 8 Of 26

17. Item no.7 is with regard to flooring wherein the learned arbitrator has

accepted analysis of claimant for awarding the amount and rejected the analysis of

DDA. The learned arbitrator observed that respondent had indicated lesser rates than

those of claimant but have not submitted justification for their rates, inspite of

directions given by the arbitrator. He, therefore, was constrained to accept the rates

of claimant. The respondent/DDA also submitted that claim was allowed for excess

quantities and without proof of execution.

18. I consider that the learned arbitrator and the parties are bound by the

contract. Where at the time of entering into the contract, the parties have agreed for

a rate of item on a quantitative basis, another analysis of the contractor or of DDA

cannot be considered by the learned arbitrator and the work done has to be awarded

in accordance with the contractual rates. I also find that the claimant claimed

additional amounts for fixing the glass strips into the joints of terrace floors.

Whenever a contract is given to a contractor for preparing mosaic floors, the rate

item of floor includes the complete flooring in all respects with fixing of glass strips in

between the floor, so that small portions of floor are casted and leveled. In fact no

flooring can be laid without first preparing a level of floor and that is done with the

help of fixing glass strips first and leveling them. A pattern is made either of squares

or rectangles with help of glass strips. Hence, no amount could be claimed by the

claimant either for fixing glass strips or for fixing asbestos strips. The contractor was

very much conscious at the time of filing tenders and giving rates of flooring. If the

contractor had not considered fixing of glass strips and asbestos strips as part of

laying floor, the contractor would have to point out the same in the tender

documents itself that flooring would not include fixing of glass strips or asbestos

strips for leveling and casting of floors. In fact single floor slabs cannot be casted as

there is always possibility of the floor getting sagged at different places. The mixture

of mosaic and cement is itself put into the glass strip patterns in a slurry shape and

the floor takes the shape of pattern. If the glass strips are removed or are not there,

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 9 Of 26 the level of floor is bound to vary and the mixture may travel from where it is having

more water or moisture to the other places gradually. It is under these circumstances

that fixing of glass strips is a part of floor leveling and it cannot be an extra item. The

learned arbitrator allowed the Item no.7.5 and 7.6 to the claimant which is contrary

to the contract and this claim is liable to be set aside. It is ordered accordingly. The

quantities of flooring as agreed between the parties were to be paid only in

accordance with the contractual rates as given in the agreement/ contract between

the parties.

19. In respect of Item nos. 8.6 and 8.7 the learned arbitrator has restricted the

quantities to the extent as recorded by the respondent/ DDA in their final bill. The

learned arbitrator has allowed full rates of the agreed quantities against part rates

basis paid by the objector/ respondent. It is submitted by respondent DDA that part

rates were paid because there were some work left incomplete by the contractor/

claimant. However, respondent was supposed to place on record the quantum of

work left incomplete. In absence of such evidence, the learned arbitrator was

justified in granting full rates.

20. Under Item No.9, the learned arbitrator had awarded claims under sub items

nos.9.3, 9.4, 9.7, 9.8, 10.1, 10.3 and 10.4 at full rates for agreed quantities.

However, in respect of rest of the items i.e. 9.5,9.6(a), 9.6(b),9.9 and 9(c), there

were no agreed quantities and no measurements or proof but the learned arbitrator

observed that respondent neither reported after verification nor produced the record

and, therefore, he accepted the quantities as claimed by the claimant. I consider that

this approach of learned arbitrator is contrary to his earlier approach itself, wherein

he rejected the claim of claimant under earthwork on the ground that the claimant

had failed to prove the execution of work. If claimant has made a claim that it

executed certain quantities, it was for the claimant to prove that it had executed the

work. The joint measurement in this case had already taken place under the

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 10 Of 26 directions of this Court. As already noted above, the objector had also allowed

inspection of various registers to the claimant. The claimant could have summoned

the record through Court under Section 43 of Arbitration Act, 1940, if the claimant

wanted to prove that it had executed certain quantities. Without there being any

proof of execution of work on the part of claimant and without there being any

measurement recorded in the measurement book of the quantities, the learned

arbitrator could not have awarded the amount against these items. The award on

account of these items allowed by the arbitrator to the tune of Rs.3,62,928/- +

55.93% enhancement over it is contrary to the contract itself and without any basis

and evidence. There same is liable to be set aside. It is ordered accordingly.

21. Under Item no.10 and 11, the learned arbitrator had allowed agreed

quantities in respect of items 11.1, 11.3,11.6 (a), (b), 11.7, 11.13 (a) (b) and 11(d)

and 11.18. Regarding Item no.2 and 9, the claimant had not pressed its claim. With

regard to Item No.11.4, 11.5, 11.11 and 11.17, the learned arbitrator considered

that since the claim of the claimant in respect of fittings and specials had been paid

by DDA, fittings etc could have been fitted only on pipe lengths, therefore, he

allowed the claim of claimant in respect of these items considering that the claimant

was technically correct and held that the claimant was entitled to gross amount of

Rs.3,47,247.95 regarding pipe lengths. It is not understood as to why the claimant

could not have produced proof of purchase of pipe lengths if it had installed the same

by purchasing from the market and if pipe length was supplied by DDA to it, it could

have easily proved the supply of pipelines to it by DDA. In either case, proving of

length of pipe was within the reach of the claimant and the claim could not have

been allowed only on technical ground that since the claim of claimant etc in respect

of fittings has been allowed, the claim of pipelines has also to be allowed. This is

fraught with danger in view of the work culture which is prevalent in DDA. DDA is

known as a corrupt department and under these circumstances every arbitrator has

to be careful that the claims are allowed only if they are proved by claimant. The

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 11 Of 26 claims cannot be allowed on presumption or merely on technical grounds. It is not

possible that the quantities of clamps and specials were measured without actually

visiting. |If the other quantities had been measured, they would have measured pipe

lengths along with measuring the quantities of clamps and specials and this would

have been recorded in the joint measurement book. It is surprising that the clamps

and fittings are measured and recorded but there is no measurement of the pipe on

which these clamps etc are fitted. I consider that it was obligatory on the part of

claimant to give proof of fittings of pipes either by way of supply of the pipe to it by

DDA or if he had purchased the pipelines himself, by producing the bills of purchase.

Without there being any proof, the claim of claimant could not have been allowed. I,

therefore, consider that claim of Rs.3,47,247.95 + 55.93% enhancement was not

tenable and is hereby set aside.

22. With regard to Item nos. 12,13,14 and 15, the learned arbitrator has allowed

the claim in respect of admitted quantities at full rates. I find no reason to disturb

the award with respect to Item nos. 12, 13, 14 and 15 of the claim.

23. Claim no.2 is in respect of various extra items and there is a statement no.16

qua these extra items. The learned arbitrator has enumerated all these extra items in

his award and allowed claim for the agreed quantities and the rates as determined by

respondent/DDA and calculated the amount on those rates and quantities. However,

in respect of item nos. 6,9(b), 10, 18(b), 24, 25, 30, 32, 35, 41, 42 and 49, the

respondent had disputed the quantities and the execution of these items. The learned

arbitrator accepted claims against disputed quantities claimed by claimant on the

ground that the respondent had not filed verification of the quantities claimed by the

claimant. It is also submitted that the objector/ DDA that against Item in the chart at

serial number 1, 18(b), 24, 25, 29, 33, 39 and 32, the quantities awarded by the

learned arbitrator were much more than the quantities claimed by the claimant.

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 12 Of 26

24. A claim of claimant cannot be allowed simply on the ground that department

had failed to admit or deny the claim. If there is no clear admission of a claim by

other side, the claim is to be proved i.e. execution of the work has to be proved from

measurement book or other cogent evidence. Where no evidence is led to prove the

execution of work, the claim has to be disallowed. If it is allowed it is liable to be set

aside being without evidence. The award for 6, 9(b), 18(b), 24,28,30,32,35, 41,42

and 49 is hereby set aside.

25. A perusal of claim of claimant would also show that against extra item no.1,

the claimant claimed 1401.76 cubic meters and the learned arbitrator has awarded

1618.06cubic meters. The excess quantity of 217.7 cubic meter awarded by the

arbitrator was beyond his jurisdiction as he could not have awarded more than what

was claimed against Item No.1. Similarly, in 18(b), 24, 25, 29 and many other items,

there is difference in quantities allowed by the learned arbitrator against those

claimed by the claimant. The award made by the learned arbitrator in respect of

other items in excess of quantities claimed in the claim is set aside being without

jurisdiction.

26. With regard to Item No.39, objections raised by the respondent are not

tenable as the execution of this extra item is not disputed. The rate allowed by the

learned arbitrator is the same which was agreed and being paid by respondent

otherwise for identical items. Against Item no.40 objection of respondent is that the

groove was provided at ceiling level in the plaster but grove was a part of the

plastering process and it was not separately payable in terms of the agreement in

view of revised specifications. The learned arbitrator has observed that making grove

costs more than plastering. This observation of learned arbitrator is out of the blue.

The grove is made in the plastering itself and cannot cost more than plastering the

wall under any circumstances. It is always a part of the plastering. No reason has

been given by the learned arbitrator as to why the revised specifications were not

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 13 Of 26 applicable in accordance with the contract between the parties. I, therefore, consider

that in respect of Item no.40, the learned arbitrator has wrongly allowed the claim

and the same is liable to be set aside and is hereby set aside.

27. Against Item no.43, the learned arbitrator has allowed claim of Rs.81,840/-.

This item is regarding disposal of surplus earth removed by mechanical means up to

one km. The claimant proved execution of this work on the basis of site order book.

A letter was written by claimant to the Executive Engineer for payment of this item

as an extra item. The payment of this was ultimately not sanctioned. The learned

arbitrator had scrutinized that the calculations regarding the quantity claimed and

the analysis of rates given by claimant and found them correct. He thus allowed the

claim. The objections of respondent /DDA is that the learned arbitrator had failed to

verify the various quantities of earth work for coming to conclusion about the

quantities claimed. It is submitted that the quantities claimed by claimant could not

have been allowed without proof. as this amounted to misconduct. The learned

arbitrator after scrutinization of the calculations had accepted the claim of 8000 cubic

meters of quantities against 9313 cubic meters claimed by claimant. This Court

cannot go into the merits as to whether the process of calculating the quantities by

the arbitrator was correct or not. It is apparent that the learned arbitrator had

adopted some process and come to a conclusion that the quantity executed was

8000 cubic meters. I, therefore, consider that award of arbitrator of this item cannot

be set aside.

28. Item no.48 is about extra amount awarded by the learned arbitrator on

account of providing taper brick work in the railing of stairs. The agreement does not

provide any extra amount for taper brick work on stairs and the brick work on stairs

has to be counted like any other brick work. The learned arbitrator could not have

awarded any amount beyond the agreement. The award on this amount on the basis

of DSR Specifications or considering this type of brick work as an extra item was

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 14 Of 26 contrary to the contract. I, therefore, consider that the award in respect of Item

no.48 is liable to be set aside on this ground and is hereby set aside.

29. Item no.49 is again an extra item where the learned arbitrator has allowed

the claim of claimant for making chases in the wall for casting of kitchen shelves. I

consider that awarding an amount on such extra item is a total misconduct on the

part of the arbitrator. Whenever an item of casting kitchen shelves is provided in the

contract it includes doing of necessary things for casting kitchen selves. The kitchen

shelves can be casted properly only after making chases in the wall which is a part of

work of casting of kitchen shelves and making chase cannot be considered as an

extra item. It is just like that you give item rate for plastering of the wall and then

you consider mixing of sand and the cement, fixing and raising of scaffolding for

plastering as extra items. This is not permissible as they are all part of plastering the

wall itself and rates of plastering include everything. Similarly casting of kitchen

shelves includes making of chases for resting iron rods longitude/ diagonally/

transversely into the chases for proper grip and strength of shelves. The iron rods of

the slabs have to be rested on the chases and chases have to be an integral part of

casting of kitchen shelves. It cannot be considered as a separate item. The claim

against Item No.49 is therefore not tenable and is hereby set aside.

30. The learned arbitrator awarded a sum of Rs.4, 52,583.98 to the claimant on

the ground that the claimant was paid less than the rate as mentioned in the contract

entered into between claimant and respondent for execution of various items for

cement mortar because during the execution of the contract, the respondent

substituted lime in place of cement mortar in various items. The claimant‟s claim was

that substitution of lime in place of cement violated clause 12 (vi) of the contract

which stipulated that introduction of new item could be only to the tune of 2% and

not 100% as has been the case. It is thus stated that the respondent was not

justified in paying to the claimant rates for lime mortars for various items which were

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 15 Of 26 to be executed with cement mortar in view of the provision of clause 12(iii) of the

contract despite the fact that the work was executed in lime mortar. It is case of

claimant that the respondent was supposed to pay for cement mortar. Clauses 12(iii)

and 12(vi) of the agreement /contract entered between the parties read as under:

12(iii). If the altered, additional or substituted work includes any work for

which no rate is specified in the contract for the work and cannot be

derived from the similar class of work the contract, then such work

shall be carried at the rates entered in (current C.P.W.D. Schedule of

rates for Delhi).******* 1972 with up to date correct slips Minus /Plus

percentage which the total tendered amount bears to the estimated

costs of the entire work put to tender.

12(vi). Except in case of items relating to foundations provisions contained in

sub clause (i) to (v) above shall not apply to contract of substituted

items as individually exceed the percentage set out in the tender

documents. (Referred to hereinbelow as deviation limit) subject to the

following restrictions.

(a) The deviation limit referred to above is the net effect (algebraic sum)

of all additions and deduction ordered.

(b) In no case shall the addition/ deductions(arithmetical sums) exceeds

twice the deviation limit.

(c) The deviation ordered on items of any individual trade included in the

contract shall not exceed plus/ minus 50% of the value of that trade in

the contract as a whole or half the deviation limit; whichever is less.

(d) The value of additions of items of any individual trade not already

included in the contract shall not exceed 10% of the deviation limit."

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 16 Of 26

31. However, there is clause 12A next to clause 12 which reads as under:

"Clause 12 A.

In the case of contract or substituted items which individually

exceed the quantity stipulated in the contract by more than the

deviation limit, except the items relating to foundation work,

which the contractor is required to do under Clause 12 above,

the contractor shall, within 7 days from the receipt of order,

claim revision of the rates supported by proper analysis in

respect of such items for quantities in excess of the deviation

limit, notwithstanding the fact that the rates for such items

exist in the tender for the main work or can be derived in

accordance witht eprivsions of sub-caluse (ii) of clause 12 and

the Engineer-in-Charge may revise their rates, having regard to

the fixed. The Engineer-in-Charge may revise their rates,

having regard to the prevailing market rates and the contractor

shall be paid in accordance with the rates fixed. The Engineer-

in-Charge shall, however, be at liberty to cancel his order to

carry out such increased quantities of work by giving notice in

writing to the contractor and arrange to carry it out in such a

manner as he may consider advisable, but under no

circumstances, the contractor shall suspend the work on the

plea of non settlement of rates of items falling under this

Clause.

All the provisions of the preceding paragraph shall

equally apply to the decrease in the rates of items or quantities

in excess of the deviation limit, notwithstanding the fact that

the rates for such item exist in the tender for the main work or

can be derived in accordance with the provisions of sub-clause

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 17 Of 26

(ii) of the preceding Clause 12, and the Engineer-in-Charage

may revise such rates having regard to the prevailing market

rates."

32. A reading of clause 12A makes it abundantly clear that in case of substitution

of items which exceed the stipulated quantity in the contract and was more than the

deviation limit, the contractor was required to claim revision of the rates within seven

days from the receipt of order supported by proper analysis in respect of each of the

items. It is also provided in clause 12 that in case of analysis of rates forwarded by

the claimant/ contractor was not agreeable, the Engineer in-charge was at liberty to

cancel the order to carry out such substituted increased quantities. Thus, it was

mandatory for the contractor to first give the analysis of the rates for substituted

items and ask the engineer in-charge to accept the rates or to cancel the order. In

those cases where rates were not accepted or where analysis was not given, the

contractor was to be paid only as per CPWD Schedule of rates for DSR and it was to

be presumed that where the contractor has not given analysis of rates, he was

agreeable to execute the contract at CPWD rates.

33. No analysis of rates could be submitted to the arbitrator or considered by the

arbitrator. The arbitrator cannot perform the function of executive engineer or

engineer in charge and he is equally bound by the contract. The arbitrator could not

have stated that he has gone through the analysis of the rates and found the same

to be correct. It was not the job of the arbitrator to analyze the rates of extra items.

The arbitrator was only supposed to implement the contract. The rate analysis was to

be put before the engineer incharge within seven days of receipt of the order. If the

claimant was not prepared to do the work with lime mortar and had intention only to

do the work with cement mortar at the cement mortar rates, the claimant could have

told the engineer incharge that this substitution was not acceptable and the

substitution be cancelled. But after the work had been done and final bill is paid, the

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 18 Of 26 rate analysis cannot be gone into and approved by the arbitrator and additional rates

cannot be granted by the arbitrator on such an analysis done by him. The arbitrator

exceeded his jurisdiction by ignoring clause 12(A). The award of Rs.4,52,583.98 is,

therefore, liable to be set aside and is hereby set aside.

34. Under Claim no.2 under head „Other Misc. Items‟, the learned arbitrator

awarded a sum of Rs.33,162/- to the claimant for a substituted Item No.6.1(a) of the

contract. It is observed by learned arbitrator that the contract talks of fixed steel

windows whereas it was top hung ventilators and hence the claimant had claimed

extra vide Item No.2. The learned arbitrator after considering the claim of claimant

for this substituted item allowed Rs.33,162/-. The respondent has stated that the

arbitrator had included this claim of claimant at Page 36 and 38 of the award and

again allowed the same at page 46-47. Pages 36 to 38 of the award gives a list of

Items given in Annexure -A1 of the claim and Item No.2 is in respect of

underpayment claimed by claimant. After dealing with all the extra items, the

arbitrator started dealing with these extra items again at page 46. Obviously, the

arbitrator had dealt with this claim twice. Moreover the observations of the arbitrator

that it was a substituted item and instead of window, „top ceiling ventilators‟ were

provided is in fact belied from the claim itself. The claim is in respect of P/F Steel

glass doors and windows and ventilators of standard roll steel section. There is no

assertion made by the claimant in Annexure A-1 that „top steel ventilators‟ were

substituted in place of steel glass window. In fact ventilator is part of the contract

and the claimant, if aggrieved that this was a substituted item could have given his

rate analysis at that time to Engineer-in-charge. As already observed by this Court,

the arbitrator cannot re-write a contract and arrive at a new contract between the

parties. Clause 12A is very clear that in case of any substituted item, the claimant

was supposed to give his analysis to the engineer in charge and if engineer incharge

was not agreeable he could recall the order for substituted item and then withdraw

the order of substituted item. The arbitrator also went wrong in dealing with the item

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 19 Of 26 twice and giving additional amount to the claimant under Misc Item no.2 while the

arbitrator has already dealt with this claim.

35. Item at S.No.3 of Misc Item the arbitrator has allowed Rs.12,13,300.11 on the

ground that the agreed amount payable to the claimant was less by this amount. The

item is in respect of providing a fixture of 30 mm thick baton and panel door

shuttering claimant had quoted as rate 104.48 whereas the respondent had

sanctioned 84.53. The learned arbitrator observed that the entire rate analysis of

respondent was hypothetical. He rejected the analysis and held that an amount of

Rs.40,51,866.89 was payable to the claimant and since Rs.28,38,866.78 had been

paid, he awarded Rs.12,13,000.11/-.

36. The learned arbitrator summed up the claim of claimant and found that the

claimant was entitled to Rs.40,51,866.89. He found that an amount of

Rs.28,38,866.78 had already been received by the claimant. The learned arbitrator

concluded that the claimant was thus entitled to Rs.12,13,000.11. Thereafter, the

learned arbitrator started dealing with other claims. Claim no.5 was raised by the

claimant for Rs.3,75,000/- on the plea of escalation of wages of the workmen etc and

Claim no.7 was made by the claimant for Rs.3,25,000/- for wages of labour and costs

of establishment rendered idle on account of respondent. Claim no.5 was rejected by

the learned arbitrator on the ground that despite directions given by the arbitrator to

the claimant, the claimant failed to submit a copy of those circulars which provided

for enhancement of the wages and thus this claim was not accepted. However, the

learned arbitrator accepted the claim for wages of labour and costs of establishment

to the tune of Rs.2,90,000/- against claim of Rs.3,25,000/- on the ground that the

statement of facts given by the claimant was reliable.

37. In order to establish a claim, the claimant was supposed to lead evidence and

prove that it spent the amount claimed on wages etc. No presumption could be made

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 20 Of 26 by the learned arbitrator that the facts stated in claim were correct since respondent

has not commented upon them. If the claimant had paid wages to the labour and

had kept labour engaged at the site without work, the claimant was supposed to

prove this fact before the arbitrator by producing labour records and record of

making payment of wages to the labour. In absence of any record of showing

payment of wages to the labour and of maintaining an establishment, no claim could

have been allowed by the learned arbitrator. The agreement between the parties

specifically provided that the claimant was supposed to maintain record of persons

employed and was also supposed to furnish details of persons employed by him

from time to time to the respondent/DDA. The agreement provided a specified from

of „employee card‟ giving the name and address of the workmen/ labour, his

address and the period for which the workman was employed by the contractor and

the actual number of days for which he worked. It also provided for attendance card

/wage card of the workmen and maintenance of wage book of each workman by the

contractor. In view of the specific provisions regarding employment of labour being

part of the agreement, the claimant could not have been awarded the amount by the

arbitrator without proof being placed before him by the claimant and the record

pertaining to labour employed during the period when the claimant claimed that the

labour remained idle. I, therefore, find that this claim allowed by the arbitrator was

contrary to the terms and conditions contained in the agreement and contrary to

judicial norms. Thus, the award as awarded by learned arbitrator on account of claim

no.7 is liable to be set aside and is hereby set aside.

38. Against Claim No.9, the learned arbitrator observed that the claim of payment

made to DESU looked exorbitant. He allowed Rs.10,000/- as payment made to DESU

and he allowed Rs.27,749/- as costs for watch and ward. Again awarding of these

amounts by the learned arbitrator was without any evidence and proof thereof. If

payments had been made to watch and ward staff, nothing could have prevented the

claimant from proving on record the amounts paid to watch and ward staff and the

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 21 Of 26 period for which watch and ward staff was paid. An amount of claim cannot be

allowed by the arbitrator to the claimant just because respondent did not offer their

comments of the claim. If claims are allowed only on the ground that no comments

are offered then in every ex parte case where respondent does not appear, the

arbitrator had nothing to do but just to say that no comments have been offered and

no appearance has been put by the opposite side thus the entire claim is allowed. I,

consider that this is not the intent and purpose of appointing an arbitrator for

adjudication of the claims. The learned arbitrator was to go into the merits of the

claim irrespective of the fact whether opposite side had given comments or not.

Giving of no comments does not amount to an admission of claim. An admission has

to be specific and unequivocal. Unless the reply does not amount to an admission

claim cannot be allowed on ground of no comment. Normally in DDA the staff keeps

on changing from time to time. The staff and engineers who were there at the time

of execution of the work may not be available at the time when claim is filed or at

the time when claim is considered by the learned arbitrator and the subsequent

incumbents may not be aware of many things and the record may also be silent.

Under these circumstances, an arbitrator cannot allow a claim on account of this

silence. It is even otherwise settled law that the onus of proving a claim is on the

person who filed the same and if he does not prove his claim, he is not entitled to

any award thereof. A claim can be proved by leading evidence. A claim can also be

allowed on the basis of admission but in absence of any admission, the evidence is

the only methodology of proving a claim. No presumption can be drawn for a claim

has to be right if there are no comments from the opposite side. I, therefore, set

aside the award in respect to Claim No.9.

39. Claim No.15 was made by the claimant initially for a sum of Rs.2.85 lac and it

was subsequently revised to Rs.5,05,972/-. Similarly, Claim No.16 was initially for a

sum of Rs.15.30 lac and it was subsequently revised to Rs.7,58,197/-. Under Claim

No.15, the claimant claimed 15% additional rates for the work done between 13th

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 22 Of 26 March, 1977 (i.e. the stipulated date of completion) and 13th December, 1977 and

under Claim No.16, the claimant claimed 30% escalation over the tendered rates for

the work done after 13th December 1977. The learned arbitrator observed that the

claimant was entitled to escalation over the rates keeping in view the rise in the

market since the claimant had duly notified about their resolution of enhancement of

rates to the respondent. The learned arbitrator considered that over the amount of

Rs.33,73,145/-, which was the work done between 16 th running bill and 23rd running

bill, the claimant was entitled to claim enhanced rates and he allowed the claim of

Rs.3,82,177/- under Claim No.15. Similarly, the learned arbitrator considered that

after 23rd running bill, the claimant was entitled to further enhanced rates and

applying the enhancement of 30% over the work done during this period. Thus, the

claimant was held entitled to an additional amount of Rs.7,58,197/- (the amount

claimed). There is no provision under the contract between the parties that in case

the work was not completed by the stipulated date, the tenderer /contractor would

be entitled for 15% enhancement up to 13 th December 1977 and after 13th December

1977 he would be entitled to 30% enhancement. In fact, the contract contained

elaborate provisions regarding escalation in the rates of quantities under Clause

10(c) if the work was prolonged beyond the stipulated date. It was the claimant‟s

own case that the claimant was given enhancement under Clause 10(c). There could

be no double enhancement, one under Clause 10(c) and the other as claimed by the

claimant before the arbitrator. The claimant, while tendering, had not specified that

in case the work was not completed by 13th March 1977, he would be entitled to 15%

further increase in the quantity rates up to 13th December 1977 and if the work was

not completed by 13th December 1977, he would be entitled to 30% more than his

quoted rates for the work done beyond that period. It is settled law that an arbitrator

cannot write a new contract between the parties. He is the prisoner of the contract

and has to decide the claims within the four walls of the contract. Where a contract

does not provide for an increase in the tender price after a particular date and

provides an escalation in the item rates under a specific clause, the arbitrator cannot

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 23 Of 26 allow a claim for enhancement of the overall rates contrary to the contract. Thus,

awarding of amounts against Claims no.15 and 16 was untenable and the award

made in t his respect by the arbitrator is totally perverse and without jurisdiction and

is liable to be set aside and is hereby set aside.

40. While considering the counterclaim no.1 of DDA/ respondent, the learned

arbitrator observed that the counterclaim was for Rs.6,04,462/-. The claimant

accepted the counterclaim of Rs.5,88,277.76. However, the learned arbitrator

awarded a sum of Rs.5,54,302/-. Here, the arbitrator has deducted an amount of

Rs.50,160/- with regard to the difference of 125.40 metric tons of steel on the

ground that the DDA/ respondent failed to produce the register for which quantities

of cement actually issued were contained with dates and issuance of quantities. I

consider that since respondent had failed to produce the evidence, the learned

arbitrator was justified in not allowing this amount. The counterclaim no.4 has been

rejected by the learned arbitrator on the ground that the claim of rebate was not

justified since admittedly the payment were not made to the claimant from March,

1978 onwards. I find no fault in rejection of this counterclaim.

41. Counterclaim no.5 was in respect of Rs.2,58,515/- as costs of cement at penal

rates. Since the claimant had failed to return the cement and steel used in excess of

the theoretical cement. The learned arbitrator calculated the cement and steel

supplied and consumed in terms of the award passed by him wherein he had taken

into account the additional quantities of cement and steel. After taking into account

the additional cement and steel which would have been consumed according to him

and after taking into account the quantities of item which he considered required

consumption of cement, the learned arbitrator observed that there was no

justification for recovery of double the issued rates. He observed that under Clause

10 of the contract the contractor was not supposed to return any material unless

consent of engineer in charge by a notice in writing under his hand was given. So, he

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 24 Of 26 disallowed the counter claim of respondent DDA. The respondent has contended that

as per Clause 42 of the agreement, the department was entitled to recover the costs

of cement not returned at twice the issued rates in respect of quantities of cement

and steel, in excess of the theoretical quotations and no notice was required to be

issued and the learned arbitrator wrongly rejected this counterclaim. Clause 42(ii)

and (iii) of the contract reads as under:

"(ii) After the completion of the work the theoretical quantity of cement to be used in the work shall be calculated on the basis of CPWD statement showing quantity of cement to be used in different items of works provided in the Delhi Schedule of Rates applicable to the agreement or at places where D.S.R. will not be applicable in the case of agreement, it shall be calculated on the basis of standard formula laid down by the Superintending Engineer of the concerned circle. Over this theoretical quantity of cement shall be allowed a variation up to 5% plus/ minus for works the estimated cost of which as put to tender is now ore than Rs.2 lakhs; upto 4% plus/ minus for works the estimated cost of which put to tender is more than Rs.2 lakhs; but upto Rs.5 lakhs and upto 3% plus/minus for work the estimated cost of which put to tender is above Rs.5 lakhs. The difference in quantity of cement actually issued to the contractor and the theoretical quantity including authorized variations, if not returned by the contractor, shall be recovered at twice and the issue rate without prejudice to the provision of the relevant conditions regarding return of materials governing the contract. In the event of it being discovered that the quantity of cement used is less than the quantity, ascertained as hereinabove provided (allowing variations on the minus side as stipulated above), the cost of the quantity of cement not so used shall be recovered from the contractor on the basis of stipulated issue rate plus cartage to site.

CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 25 Of 26

(iii). The provisions of the foregoing sub-clause shall also apply in the case of steel reinforcement or structural steel sections except that the theoretical quantity of steel shall be taken as the quantity required as per design or as authorized by Engineer-in-Charge, including authorized lappages plus 5% wastage due to cutting into pieces. Over this theoretical quantity, plus 5% and minus 4% shall be allowed as variation due to wastage being more or less."

42. Clause 10 provides that unused material in perfectly good condition at the

time of completion of work or termination of the contract shall be returned to the

engineer in charge at the place directed by him, by notice in writing. It is obvious

that after termination of the contract, the respondent was supposed to tell the

contractor the excess cement and steel where the excess cement and steel are to be

returned. In this case, it is not disputed that no such notice was issued to the

contractor. I, therefore, find that the arbitrator rightly rejected this claim.

43. Except the claims and counterclaims which have been set aside by above

order, rest of the award is hereby made a rule of the Court.

44. With above order, the petition as well as the objections of DDA/ respondent

are hereby disposed of.

January 14, 2010                                      SHIV NARAYAN DHINGRA J.
rd




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