M/S.Gwalior Polypipes Ltd. vs Mahanagar Telephone Nigam Ltd.
2012 Latest Caselaw 7355 Del

$~5
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision : December 21, 2012

+                    RFA(OS) NO.142/2012

      M/S.GWALIOR POLYPIPES LTD.          ..... Appellant
                   Represented by: Mr.Sunil Goel, Advocate
                   with Mr.Tanvir Nayar, Advocate
                                  versus
      MAHANAGAR TELEPHONE NIGAM LTD.                    ..... Respondent
                 Represented by: Nemo

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

CM No.21390/2012 Allowed; subject to just exceptions. CM No.21389/2012 For the reasons stated in the application, the delay of 200 days in filing the appeal is condoned.

Application stands disposed of.

CM No.21391/2012 For the reasons stated in the application, the delay of 30 days in re- filing the appeal is condoned.

Application stands disposed of.

RFA(OS) No.142/2012

1. The appeal has to be registered as a First Appeal against Order i.e. FAO (OS) for the reason it challenges a decision dated February 01, 2012 allowing objections filed Under Section 30 and

Section 33 of the Arbitration Act 1940 by the respondent pertaining to Claim No.19.

2. Accordingly, we are treating the instant appeal as a FAO(OS).

3. Learned counsel for the appellant gives up the ground urged that the objections filed to the award were liable to be dismissed on account of delay in re-filing the same inasmuch since it is appellant's compulsion to so do. The appellant has preferred the appeal with a delay of 200 days and there is a 30 days delay in re-filing the appeal, which delays have been condoned by us.

4. As regards challenge to the impugned order pertaining to claim No.19, learned counsel concedes that the claim was towards loss of interest on amounts withheld or paid belatedly and that there was no evidence led or data available wherefrom it could be gathered as to what was the period of delay and what was the reason for the delay in releasing the payment.

5. As regards the award, while dealing with claim No.19, the learned Arbitrator has allowed a part sum on the reasoning as under:-

"19. Losses due to loss of interest on the withheld/delay payments - `4 lakhs - Although the claim is titled as loss of interest on the withheld/delayed payments, yet apart from the alleged loss of `4 lakhs the claimant also sought the payment of running bills for the works already executed etc. The claimant while making this claim did not elaborate as to how the loss of `4 lakhs occurred to them. It was also not furnished at any point of time during the proceedings as to what were the delayed payments and as to how there was loss. In view of this lack of evidence I cannot allow their claim or the alleged loss. However, in the interest of justice and fair play, the claimant is allowed the payment for the works done but not paid for by the respondents as referred/mentioned in this claim though the details were

not given while seeking loss which as per the last bill, i.e., No.30 are put at `10,03,166/- and withheld amount of retention money of `8,60,848/-. The payments for the works carried out etc. are allowed as the respondents did not follow the procedures for either short closure of the contract or for execution of the works at the risk and cost of the claimants and also did not even cause eviction of the claimants from the site of operations of the works as required as per the procedures and also as the respondents failed to expropriate these outstanding amounts by following any legally tenable process."

(Emphasis added)

6. The learned Single Judge has rightly held that once the arbitrator held that there was no evidence 'as to what were the delayed payments and as to how there was loss', the question of awarding any amount on account of 'interest of justice and fair play' was not permissible.

7. Learned counsel seeks to urge that the arbitrator did so on account of the fact he found that certain payments were yet to be released. But would concede that in respect thereof there was no pleading nor a claim. Now, a claim towards interest or loss on account of delayed payments is an entirely different head as compared to a claim for balance payment for work done.

8. The appeal is accordingly dismissed in limine. CM No.21388/2012 Since the appeal stands disposed of, instant application seeking ad- interim stay of the impugned order till disposal of the appeal stands disposed of as infructuous.

PRADEEP NANDRAJOG, J.

MANMOHAN SINGH, J.

DECEMBER 21, 2012/dkb