Tilak Raj Gogia vs Union Of India And Ors.
2013 Latest Caselaw 4216 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Reserved on :    July 5, 2013
                               Decided on: September 17, 2013

+      FAO(OS) 304/2013, CM 9839/2013 to 9841/2013
       TILAK RAJ GOGIA                                       ..... Appellant
                      Through: Appellant in person.

                         versus
       UNION OF INDIA & ORS.                                ..... Respondents

                         Through:      Nemo.
       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE NAJMI WAZIRI

%      MR. JUSTICE NAJMI WAZIRI

1. This appeal is directed against the order of the learned Single Judge

dated 18th February, 2013 whereby the arbitral award granting the appellant

only Rs. 33,569/- with interest at the rate of 9% per annum from 30th

November, 2010 till date of payment towards EMD Rs.13,069/- + PG

Rs.20,500/- was upheld. The appellant / claimant, however, had claimed in

excess of Rs. 13.3 lakh, plus damages with interest, which were declined.

2. The facts are that the appellant was awarded a contract for annual

repair and maintenance of the Government of India office building and other

allied buildings at NH-4, Faridabad. The work was scheduled to commence

on 15th August, 2009 and be completed by 14th December, 2009. However,

as things turned out, vide letter of 1st February, 2010, the contract was

FAO(OS) No.304 /2013 Page 1 rescinded and the performance bank guarantee ("PG") forfeited. In

proceedings under Section 9 of the Arbitration and Conciliation Act, 1996,

("Act") by the petitioner before the ASJ, New Delhi, a direction was issued

for measurement of the work claimed to have been accomplished by him.

The inspection was carried on 16th September, 2011. Ever since the

arbitration clause was invoked, two sole Arbitrators, i.e. Shri Diwakar Garg

and Shri Rajiv Kumar were nominated / appointed but resigned and

eventually, the third sole Arbitrator Shri V. K. Malik pronounced the award

on 30th July, 2012 with a corrigendum thereto dated 16th August, 2012. The

petitioner had claimed a payment of Rs.13.3 lakhs against a bill he had

raised for such amount. The substance of the award has been discussed

hereinabove pursuant to which the Section 34 petition was filed before the

learned Single Judge. The appellant appears in person and has reiterated the

same contentions as he did before the learned Single Judge. In addition, he

states that no independent witness was called upon to ascertain and verify

the measurement recorded by the CPWD.

3. Having heard the petitioner and considering the materials on record,

this Court is of the view that the learned Single Judge has dealt with all the

contentions raised by the appellant herein. The only factor to be considered

FAO(OS) No.304 /2013 Page 2 was whether the appellant had executed the work as claimed by him and

whether the bills submitted by him were admissible on the basis of works

claimed to have been completed.

4. The learned Single Judge noted on the basis of the award that despite

various letters having been sent to the claimant/appellant, he failed to start

the work. Accordingly the contract was rescinded on 1st February, 2010. He

was asked to attend the site on 16th September, 2011 to verify the work as

claimed to have been executed by him. During the inspection of the site,

three officers of the department along with eight other officers having their

offices in the premises were present along with the appellant. All of them

confirmed that no external paint work had been executed in the building for

the last three years. Thus, it was rightly concluded, on the basis of obvious

evidence, that the appellant's claim for work done was totally false and the

document purporting to be a bill was in fact only an abstract of bill without

any details of measurement. Furthermore, the said document bore no

signatures of the appellant; it could accordingly not be treated as a bill. The

Arbitrator found no reason to disbelieve the statement of the other eight

officers of various offices housed in the same building. He found no reason

or motive for them to make any false statement with respect to the joint

FAO(OS) No.304 /2013 Page 3 inspection report which was filed by the CPWD. He concluded that the

claim of the appellant with respect to claim No.1 for Rs.13.30 lakhs was

bogus and accordingly rejected the claim on this count.

5. As a corollary, claim No. 2 also which sought damages towards extra

item works such as "1.5 mm thick putty over exterior plaster surface" was

also rejected.

6. With respect to claim Nos. 3 & 4, the Arbitrator found that the

forfeiture of Earnest Money Deposit ("EMD") and PG was permissible

under clause 5 of the Contract (which pertains to non commencement of

work) whereas the Executive Engineer had taken action under clause 3 of

the Contract (which pertains to delay of work.

7. Under the latter clause, this amount could not have been forfeited in

the instant case. This, the arbitrator reasoned, was in view of the fact that the

cause for forfeiture of EMD and PG would not arise under clause 3 of the

Contract, i.e., on account of delay, when the term of the contract has itself

elapsed. Accordingly, he awarded Rs. 33,569/- to the claimant with 9%

interest with effect from 30th November, 2010.

8. During the course of arguments, upon query by this Court, the

appellant - appearing in person - was unable to show any document which

FAO(OS) No.304 /2013 Page 4 could prove that he had actually executed the work or that he had made the

claims with respect to such execution of work on the basis of verifiable or

verified records. The appellant was unable to show from the records any

such documents.

9. For the reasons aforesaid, and given the limited jurisdiction that this

court exercises - especially as to issues of fact, which the appellant herein

seeks this court to interfere with - under section 34 as well as section 37 of

the Act, we find that the appeal is without any merit and we find no reason

to interfere with the reasoning or finding of the learned Single Judge.

10. The appeal is without merit and is accordingly dismissed.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) SEPTEMBER 17, 2013 'sn'

FAO(OS) No.304 /2013 Page 5