Sh. Ranjit Singh Rana vs Public Works Department & Anr.
2011 Latest Caselaw 4320 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No.190/2008

%                                                 5th September, 2011

SH. RANJIT SINGH RANA                .                  ......Appellant
                                Through:    Mr. Salil Kumar Jha, Advocate
                                            with Mr. Puneet Rai, Advocate.

                          VERSUS

PUBLIC WORKS DEPARTMENT & ANR.                     ...... Respondents
                        Through:            Ms. Ruchi Sindhwani,
                                            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?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this First Appeal under Section 37

of Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the

Act') is to the impugned order of the Court below dated 22.11.2007 which

has dismissed the objections of the appellant/objector under Section 34

of the Act.




FAO No.190/2008                                              Page 1 of 6
 2.          The facts of the case are that the objector was awarded by

the respondents the work of providing fencing on 60 meter right of road

in Dwarka, Delhi, vide agreement dated 14.7.1992.        Since the site of

work was not handed over by the DDA to the respondents, the work could

not be executed and therefore the respondents exercising its rights

under Clause 13 of the agreement foreclosed the work.         Disputes and

differences arose between the parties whereupon the matter was

referred to arbitration.   I may note that the contract in question was

foreclosed way back in the year 1992 and the arbitration in fact

commenced after the series of litigation only when the appellant filed its

statement of claim under the cover of its letter dated 22.5.2006.

3.                There were six claims which were raised by the

appellant before the arbitrator. The first claim was for the hire charges of

machinery. While dealing with this claim, the Arbitrator has referred to

the fact that since even the initial construction of the godown and water

tank was not permitted by the DDA officials, therefore, the appellant

should not have unnecessarily mobilized any machinery.         Further, the

Arbitrator has held that there was physical verification of only two old

concrete mixers and nothing more. The Arbitrator has also then referred

to the fact that no receipts were filed for payment of hire charges of the




FAO No.190/2008                                              Page 2 of 6
 machineries and in fact claimants removed the machinery without joint

inspection and therefore the claim remained unsubstantiated. A court

hearing objections does not sit as an Appellate Court over the findings

and conclusions of the Award. Merely because two views are possible, the

court hearing objections cannot interfere with the Award. In my opinion,

the Arbitrator has given the aforesaid valid reasons for denying this claim

and I therefore reject the argument with respect to this claim

4.          Claim No.2 as made by the appellant was for supervisory

staff and head office expenses. In this regard, the Arbitrator has noted

that no documentary evidence was there with respect to the deployment

of a graduate engineer and with respect to the other staff it could not be

said that the staff was exclusively allocated for the subject work only.

Considering the facts and circumstances, the Arbitrator awarded a sum of

Rs.12,500/-. Issues of appreciation of evidence and determination of an

amount, is in the realm of jurisdiction of the Arbitrator, and a court

hearing objections does not sit as an Appellate Court, unless the findings

are wholly illegal or beyond the provisions of the contract or perverse. In

view of the facts as found by the Arbitrator, there is no illegality or

perversity or any violation of provisions of contract so as to held that

Award with respect to the Claim no.2 is liable to be set aside.




FAO No.190/2008                                              Page 3 of 6
 5.          Claim No.3 was the claim for loss of profit. The Arbitrator has

referred to Clause 13 of the agreement which gave a right to the

respondents to foreclose the agreement without any consequential loss

including the claim towards loss of profit. In the present case, since the

site was not made available to the respondents because the DDA refused

to hand over the same the respondents exercised its power under Clause

13 and therefore, the Arbitrator by referring to such Clause as applicable

to the facts of the case has denied compensation towards loss of profit.

Once again, I do not find any illegality or violation of the provisions of the

contract or perversity in the Award for this court to interfere.

6.          The only other issue which was urged before this court was

that the interest should have been awarded with respect to Claim Nos. 4

and 6. I may note that the main arbitration proceedings commenced at

the end of May, 2006 and the Award was passed on 14.10.2006. The

Arbitrator in his wisdom has not granted any interest for this short period,

and I do not propose to interfere with the Award on this basis inasmuch

as the complete amount due under the Award has been paid by the

respondents within a period of three months of publishing of the Award.

7.          The   last   claim   was   the   claim   of   cost   of   arbitration

proceedings.   The claimant had claimed a sum of Rs.10,000/- and the




FAO No.190/2008                                                  Page 4 of 6
 Arbitrator has awarded Rs.5000/- as costs of arbitration. Unless the

Award is wholly illegal or perverse, a court hearing objections or the

Appellate Court will not unnecessarily interfere.      I do not find any

illegality or perversity in the facts and circumstances of the case and hold

that the grant of costs of Rs.5000/- instead of Rs.10,000/- is in no manner

illegal or perverse.

8.          The scope of hearing objections to an Award is limited. If the

scope of hearing objections to an Award is limited, then the scope of

hearing of an appeal against the order dismissing the objections has to

be further limited. Unless there is a gross perversity or gross illegality,

this court cannot interfere in an appeal. In view of the above facts and

conclusions with respect to each of the claim decided, I do not find that

there is any gross illegality or perversity so as to interfere with the

impugned order.

            Learned counsel for the appellant states that though the

cheque of the awarded amount was received, the same was not

encashed, and he prays that fresh cheque may now be issued.

Accordingly, let the respondents issue a fresh cheque of the awarded

amount to the appellant within a period of 4 months from today on the




FAO No.190/2008                                              Page 5 of 6
 appellant returning the unencashed cheque within a period of one week

from today.

9.            With   the   aforesaid   observations,   the   appeal   stands

dismissed, leaving the parties to bear their own costs.



SEPTEMBER 05, 2011                               VALMIKI J. MEHTA, J.

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