Vijay Krishan vs B.L.Gupta Construction (P) Ltd.
2012 Latest Caselaw 6714 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          Date of Decision: 23.11.2012


%      FAO(OS) 560/2012

       VIJAY KRISHAN                            ..... Appellant
                                Through:   Mr. Parveen Kumar Mehdiratta,
                                           Advocate

                       versus


       B.L.Gupta Construction (P) Ltd.          ... Respondent
                        Through:


       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J.

C.M. No. 19531/2012 (exemption)

Exemption allowed, subject to all just exceptions.

FAO (OS) No. 560/2012

1. The appellant has preferred the present appeal to assail the order dated 31.08.2012 passed by the learned Single Judge in O.M.P. No. 796/2012 whereby the appellant's objection to the arbitral award

dated 03.05.2012 made by the sole Arbitrator has been dismissed.

2. The appellant/contractor was awarded the work of internal electrification of Group Housing for Malibu Town (B-1 and B-2) at Gurgaon, by the respondent under agreements dated 30.08.1995 and 05.01.1996. Since disputes arose between the parties, they were referred to arbitration which eventually were referred to the Sole Arbitrator Shri Dinesh Dayal, DHJS (Retd.). The learned Arbitrator rendered the award, inter alia, holding issue Nos. 1 and 5 to 10 against the appellant. The appellant was aggrieved by the award to the extent that the sole Arbitrator decided issue Nos. 1 and 5 to 10 against the appellants. The learned Single Judge has not found favour of the appellant, and dismissed the said objections.

3. Before us, learned counsel for the appellant has made only one submission. His submission is that the arbitral tribunal and the learned Single Judge erred in concluding under Issue No. 1 that the appellant had abandoned the work since 19th June, 2001. In support of his submission, learned counsel for the appellant has sought to place reliance on some of the evidence placed before the learned Arbitrator in the form of correspondence between the parties. In particular, reference has been made to the appellant's communication dated 27.07.2001 (Ex.C-10), 18.08.2001 (Ex.C-11) and dated 07.05.2005 (Annexure P-9) of the respondent.

4. A perusal of the impugned award shows that the learned Arbitrator has in depth considered the evidence led before him, on issue No. 1. The discussion on issue No. 1 contained in the impugned award reads as

follows:-

"ISSUE No.1 Whether the claimant completely abandoned the work since 19.06.2001? If so to what effect?

26. The learned counsel for the respondent has pointed out that the Claimant has admitted during his cross examination on 26.10.2010 that he did not go to the office of the respondent for checking of the bills after 9.8.2001. It has been argued that it was specifically stated in this letter (Ex CW1/X-9) dated 9.8.2001 that the claimant had abandoned the site since 19.6.2001. It was also mentioned that a sum of Rs.23,43,576.00 is outstanding against the claimant. The Claimant never refuted any of these allegations.

27. The respondent wrote another letter dated 12.9.2001 (Ex CW 1/X-10) wherein it was again reiterated that the claimant has abandoned the work since 19.6.2001. Again the claimant never refuted this allegation.

28. The learned counsel for the claimant has argued that the letter dated 9.8.2001 was in response to the claimants letter dated 27.7.2001 (EX.CW1/13) and the letter dated 12.9.2001 was in reply to the claimants letter dated 18.8.2001 (EX CW1/14).

29. It is true that these letters form a sequence as pointed out by the learned counsel for the claimant but still the letter of the claimant dated 18.8.2001 (Ex. CW 1/14) is most significant for the decision of this issue. In response to the allegation that the claimant has abandoned the work it is stated by him that "The work has been virtually completed by us and we have done this in order to maintain cordial business relations and you have already handed over number of flats to Malibu Towne." "As we have completed the work to your satisfaction and are still ready to execute the work, if any

left over, on the condition that you release payments of our bills and other outstanding amount immediately. It is further stated that we also undertake to deploy labourers and other workers if required for the work which as per your letter has not been completed by us though you failed to mention the details of the incomplete work. It is further reiterated that we have completed the work and still if any work according to you has not been attended we undertake to rectify/attend the same provided you release the payments of our bills and other outstanding amount to us before that and till that time you are restrained from executing the work."

30. The stand of the claimant is quite clear from this letter dated 18.8.2001. The claimant has withdrawn from the site and according to him the work has been virtually completed. He is not prepared to do any work until payments claimed by him are made by the respondent.

31. Admittedly no payments were made by the respondents after this date. The claimant now wants to show by circumstances that he had carried out the testing as instructed by the respondent and MEPL.

32. The learned counsel for the claimant has argued that the respondent wrote a letter dated 17.01.2003 (EX CW 1/15) requiring the claimant to carry out testing of electrical installation, panels and fire alarm systems etc. If the claimant had abandoned the work on 19.6.2001 there was no occasion for writing this letter. It has been argued that in this letter the respondent has not stated that the claimant had abandoned the work.

33. Reading the letter closely, would show that the respondents clearly mentioned in this letter that the said work was pending for last two years and also referred to their letters dated 09.08.2001 and 12.09.2001. The respondents also clearly mentioned in this letter that in case the claimant did not take any action within two days

it will be presumed that he was not interested in this job and the work will be got done at his cost and risk.

34. The learned counsel for the claimant has placed reliance on the final bill Ex RW 1/X-4. According to the learned counsel for the claimant the respondents have released 100% payment. This document shows that payment for testing has also been released. Thus it would be wrong to say that the claimant had abandoned the work on 19.6.2001.

35. Ex RW 1/X-4 are the final bill which were submitted by the claimant on 12.04.2005/27.05.2005. Admittedly no payments have been made to the claimant on account of these final bills. Merely because the bills were checked by the respondents would not show that the work had been done by the claimant.

36. The learned counsel for the respondents has pointed out that there are two procedures of deducting 5% when testing has not been done. One procedure is to deduct 5% against each item and the second procedure is to deduct the total amount at the end. The respondents have adopted the second procedure while checking the final bills submitted on 12.4.2005 and the total deductions of Rs.2,69,935.00 and 2,34,524.00 have been made at the end in the two bills in the column of recoveries. It has also been pointed out that these bills were only checked but were never passed for payment.

37. The learned counsel for the claimant has referred to MBs Ex RW 1/X2 and EX RW 1/X3. It has been argued that these MBs show the work done by the claimant.

38. The statement of RW 1 Sanjay Sharma shows that these MBs were maintained by the respondents. It also shows that the site was handed over to Malibu Towne after the measurements contained in EX. RW1/X2 and RW 1/X3 were checked by MEPL. Apparently MEPL had no privity of contract with the claimant. They were

concerned only with the work delivered by the respondent. These MBs do not reflect the work done by the claimant.

39. The claimant has relied on a letter 11.7.2001 at page 97 of EX.CW1/X-14. Both the parties agree that from somewhere in 1998 the respondent had been making direct payments to the suppliers from whom material was procured by the claimant. The respondent was also making cash payments to the claimant on his request for making payments to the labour. This letter is one such letter by which the claimant requested the respondent to make payment to M/s Anant Associates against their bill No.2541 dated 28.4.2001. The payment against this request letter was made by the respondent on 15.9.2001 but it does not show that the claimant was still working at the site on that date. The payment was made against an old bill of April 2001.

40. In fact there is nothing on the record to show that the claimant had done any work at the site after 19.06.2001. There is sufficient evidence to show that the respondents had been writing to the claimant that he had abandoned the work on 19.6.2001 and there was no rebuttal from the respondent at any time. The respondent had written to the claimant immediately after he abandoned the work. In case the claimant had any presence at the site he should not only have rebutted the allegation but should have been extra careful to keep a record of the work done after that date. The learned counsel for the claimant argued that he had no such record to show his presence even before 19.6.2001. In the circumstances it would have been natural for the claimant to create some record to refute the allegations of the respondent.

41. I therefore hold that the claimant had completely abandoned the work since 19.06.2001. The effect of this finding is being dealt with under subsequent issues."

5. Appreciation of evidence is an aspect which falls completely within the domain of the learned Arbitrator. It cannot be said on a perusal of the aforesaid discussion in the award that the learned Arbitrator has, either ignored the relevant evidence and materials, or taken into consideration extraneous materials, or that his finding is completely perverse, i.e., contrary to the evidence. It also cannot be said that the finding of the learned Arbitrator is based on no evidence. It is not for the court dealing with objections of the Award to appreciate the evidence. Consequently, it was neither open to the learned Single Judge, much less, is it open to us to re-appreciate the evidence by looking into some of the correspondence sought to be relied upon by the appellant.

6. The learned Arbitrator made a well reasoned award including on issue No. 1. Consequently, we find no merit in this appeal and dismiss the same.

VIPIN SANGHI, J

SANJAY KISHAN KAUL, J

NOVEMBER 23, 2012 sl