Hindustan Steel Works ... vs Strength & Suppors Builders Pvt ...
2012 Latest Caselaw 5701 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         Date of Decision: 21 .09.2012


%      FAO (OS) No. 457/2012

       HINDUSTAN STEEL WORKS CONSTRUCTION
       LTD                                     ..... Appellant
                    Through: Ms. Shipra Ghose, Advocate
                       Versus


       STRENGTH & SUPPORS BUILDERS PVT LTD
       & ANR                               .....               Respondent

                            Through:    Mr. Raman Kapur, Sr. Adv. with Mr.
                                        Ankur Gosain, Mr. Dhiraj Sachdeva
                                        and Mr. R.P. Singh, Advocates


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


VIPIN SANGHI, J. (Oral)

C.M. No.16518/2012 Issue Notice. Notice is accepted by learned counsel for the

respondent. The delay of 30 days in filing the appeal is condoned subject to

payment of Rs.5,000/- as costs to the respondent.

FAO (OS) No.457/2012 & C.M. No.16515/2012 (Stay)

1. The appellant has preferred the aforesaid appeal to assail the order

dated 05.07.2012 passed by the learned Single Judge dismissing the

appellants objections under section 30 and 33 of the Arbitration Act, 1940

(the Act) to the arbitral award dated 25.10.2000 made by the learned Umpire

in respect of disputes that arose between the parties arising from eight

different construction contracts in Libya.

2. As noticed by the learned Single Judge, the appellant Hindustan

Steel Works Construction Ltd. (HSWCL) awarded the work of school

buildings in Libya to the respondent Strength and Suppors Builders Pvt. Ltd.

(SSBPL) under eight different contracts. Each of these contracts contained

an arbitration agreement. Since disputes arose between the parties, the

arbitration agreements were invoked. In respect of all the contracts, both

parties appointed one arbitrator each, and the two arbitrators, in turn,

appointed the Umpire. As the two arbitrators failed to reach an agreement,

the matter was referred to the Umpire, who rendered the award in question.

3. A perusal of the impugned order shows that since the

appellant/objector did not appear before the learned Single Judge, he took

pains to go through and appreciate each of the objections raised by the

appellant in the objection petition. The learned Single Judge then dealt with

the objections one by one and finding no merit in either of them, disposed of

the objection petition after modifying the award only to the extent that in

respect of claim concerning construction of a 12 class room school at Derna,

HSWCL would pay SSBPL LD 6836.00 and therefore the total sum awarded

stood modified from LD 20580.31 to LD 20480.31. In all other respects the

award stood confirmed.

4. Before us, learned counsel for the appellant has sought to urge two

aspects. The first relates to the alleged double payment for the labour

supplied at Gariyan. It is contended that the respondent was awarded an

amount of LD 2302.284 on this account. The learned Single Judge observes

that no such contention appears to have been raised before the learned

Umpire. He further observes that from the impugned award it could be seen

that the learned Umpire, on scrutinizing Measurement Book (MB) No.5

found as a matter of fact, that "no payment was made to the claimant",

though the first and final bill had been prepared. The learned Single Judge

observes, and in our view rightly so, that the finding of the learned Umpire

was a pure finding of fact arrived at upon examination of the relevant records

and, therefore, the Court hearing the objections under section 30 and 33 of

the Act could not interfere with the same.

5. Before us, learned counsel for the appellant has once again sought

to advance the same arguments by placing reliance on MB No.5. We are not

inclined to interfere with the impugned orders on this account as the learned

Single Judge while hearing objections to the award was not dealing with an

appeal on facts. Pertinently, it is not the appellants case that the said claim

had been allowed without any basis or material. The material is contained in

the form of MB No.5, which has been relied upon by the learned Umpire.

The learned Umpire rejected the respondent's claim for extra items and

payment for labour supplied at Gariyan. However, while dealing with the

said claim, he further observed that:

"As regards labour supplied at Gariyan, I have scrutinized the Xerox copy of MB No.5 and find that no payment was made to the claimant, though 1st & final bill was prepared. I award LP 2302.284 as recorded in MB and not paid".

6. It is, therefore, clear that the award of LD 2302.284 was founded

upon the recordings made in the MB No.5 and was not baseless. It was not

for the learned Single Judge while hearing objections to the award, and is

certainly not for us in appeal from the judgment of the learned Single Judge,

to re-appreciate the evidence and to arrive at a different finding.

7. The next submission of learned counsel for the appellant is with

regard to the award made by the learned Umpire directing refund of the

security amount to the respondent. It is argued that during the arbitral

proceedings held on 21/22.08.2000, it had been agreed that the security

amount shall be retained by the appellant. In this regard, reliance placed on

the following extract from the minutes/proceedings above referred to:

"Both parties agreed that the total security money for all works retained by the respondents is LD 5913.229 and income tax deducted was LD 2027.004".

8. We do not find any merit in this submission for the reason that the

aforesaid extract only shows the parties agreed with regard to the

quantification of the amount of security, amount retained by the appellant, as

also the income tax deducted by the appellant. One cannot read into the

aforesaid extract a concession made by the respondent that the respondent

shall not claim refund of security deposit or of the income tax deducted at

source.

9. A perusal of the impugned award shows that the defence of the

appellant before the learned Umpire to retain the security amount was that

the respondent had left the work incomplete and, therefore, the security

amount was liable to be forfeited and/or adjusted against liquidated damages.

This argument of the appellant was rejected by the learned Umpire by

accepting the respondents submission that the respondents primary

obligation was to provide labour and that they had completed whatever

works were allotted to them. He also observes that the appellant had not

submitted any evidence of having incurred any extra expenditure to complete

the work, if left incomplete. Once again, these are findings of fact with

which neither the learned Single Judge, nor this Court could have interfered

while hearing objection to the award, unless they were shown to be contrary

to the evidence on record or to be completely unsupported by any evidence.

The appellant has failed to make out such a case before us.

10. For the aforesaid reasons, we dismiss the appeal leaving the parties

to bear their respective costs.

VIPIN SANGHI, J

SANJAY KISHAN KAUL, J SEPTEMBER 21, 2012 sr