Delhi High Court
M/S. Brij Lal & Sons vs Union Of India And Anr. on 22 April, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.435/2011
% 22nd April, 2014
M/S. BRIJ LAL & SONS ..... Appellant
Through: None.
Versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Ms. Aarti Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 37 of the Arbitration
& Conciliation Act, 1996 (hereinafter referred to as 'the Act')
impugning the judgment of the court below dated 21.5.2011 by which
the objections filed by the appellant under Section 34 of the Act against
the Award of the arbitrator dated 23.10.2006 were dismissed. The
appellant/contractor was given the contract of repairing of approach road
around Fish Market Complex Phase-I in Trans-Yamuna Area in Delhi
and with respect to which disputes arose resulting in arbitration
proceedings.
FAO 435/2011 Page 1 of 6
2. The arbitrator by the Award dated 23.10.2006 dismissed the
claim Nos.1,2 and partly allowed claim No.3. Appellant filed objections
against the rejection of the claim Nos.1, 2 and 3. These objections have
been dismissed by the court below by making the following relevant
observations:-
"7. The petitioner pleaded that while deciding the claim no.
1, the respondent no.2 had not rightly interpreted the two
statements furnished by the parties to ascertain the rate for the
work. Perusal of the record reveals that while deciding the said
claim, the respondent no. 2 duly considered the submissions and
the documents including Ex.C-1, Ex.C-2 and Ex.C-3 furnished by
both the parties in support of their case. The respondent no.2
clearly held that one had to go by the record of pre measurement,
since measurements were not feasible after pot holes had been
filled up; it was for the petitioner to satisfy himself the all per-
measurements of pot holes were recorded in MB before he filled
them up; his statement in Ex.C-2 dated 17.07.1997 and Ex.C-3
dated 24.07.1997 had been made after the work of filling pot
holes was carried out. While deciding the said claim the arbitrator
has also duly considered the letter dated 06.09.1997 Ex.C-8. It is
also revealed that on 27.6.2006, the petitioner was asked to file
additional proof, if any, in support of his claim, which he failed to
furnish. In the present petition, the petitioner has not challenged
any of the said findings given by the respondent no.2 for
dismissal of the said claim. As such, the said findings have
attained finality.
8. Regarding the claim no.2, the petitioner pleaded that the
respondent no.1 back dated the date of completion of the work
and the respondent no.2 had not rightly considered his plea.
Perusal of the award reveals that the arbitration recorded and
FAO 435/2011 Page 2 of 6
considered the submissions of the respective parties. The
respondent no.2 also given the opportunity to the petitioner to
produce any document to substantiate that he carried our
additional work and the measurements were recorded to that
effect. However, no such record was produced by him. The
respondent no.2 also observed that if the petitioner had actually
done so much additional work as claimed by him, it was not clear
why he signed even under protest and then claimed the final bill.
The petitioner has not challenged the findings of the respondent
no.2 while dismissing his said claim and the same has attained
finality.
9. Regarding the claim np.3, the petitioner pleaded that the
respondent failed to produce the receipt of bitumen or issue the
bitumen in MAS account duly signed by the petitioner. Hence, his
whole claim should have been allowed. To dispose of hte said
claim, the respondent no. 2 placed reliance on Ex.C-8 and drawn
an inference that the bitumen was supplied at least partly. The
claimant has not pleaded that the reliance of the respondent no. 2
on the said document and the inference drawn by him was not
correct. As such, the same has attained finality.
10. In fact, the petitioner has completely filed to mention and
explain under which provision of section 34 of the Act, his
objection lie. The main grievance of the petitioner is that while
passing the award, the respondent np.2 has not interpreted the
documents and material available on record according to his
version. Perusal of the arbitration record reveals that while
deciding the claims filed by the petitioner the respondent no.2
dealt with each and every plea raised by the petitioner in the
present petition. While discussing the said pleas and the
documents available on record, the respondent no. 2 passed a
reasoned and speaking award. As discussed above, the petitioner
has not challenged the findings of the respondent no.2 and the
same have attained finality. In the present case, it can be said that
FAO 435/2011 Page 3 of 6
the grievance of the petitioner is that the respondent np.2 should
have adopted the other interpretation of the documents than the
interpretation which he adopted while passing the award. It is a
settled law that while deciding the petition u/s 34 of the Act, the
court should not sit as an appellate court and thereby its own
interpretation to judge the sustainability of the award. In my view,
merely because the another interpretation could be possible, is not
a ground under section 34 of the Act to interfere and set aside the
award." (underlining added)
3. The court below has rightly considered the facts of the case
and scope of Section 34 of the Act and rightly held that arbitrator has
taken one possible view from the appreciation of evidence and it cannot
be interfered by a court hearing objections under Section 34 of the Act.
If the scope of hearing objections under Section 34 of the Act is limited,
then, surely scope of an appeal against an order dismissing objections
will have to be further limited.
4. The Award of the arbitrator in this case shows that so far as
claim No.1 is concerned, it was a claim for the area filled up in pot holes
but the issue of measurement was raised after the pot holes were filled
up and therefore there was no evidence available after the pot holes were
filled up and more so when the appellant had accepted the first bill in
which the quantities filled up were stated and which were not disputed.
FAO 435/2011 Page 4 of 6
Claim No.1 was therefore rightly rejected and objections against which
were rightly dismissed by the court below.
5. So far as the second claim with respect to additional work
done is concerned, the arbitrator notes that the claimant did not submit
any proof in support of the claim that he had executed work of 3335 sq
mtrs. The appellant/claimant was asked to produce documents regarding
order to carry out additional work and measurements recorded if any,
but the same was not produced. Appellant also had signed the bill
issued and in which there was no signature of signing under protest.
Accordingly, arbitrator dismissed the claim no.2 and which cannot
therefore be disputed within the scope of hearing objections under
Section 34 of the Act.
6. So far as claim No.3 of claim of additional bitumen is
concerned, the arbitrator notes that records were lost and consequently
by the best assessment taken, part of the claim was allowed, and to
which neither the court hearing objections under Section 34 and nor this
Court could do any better.
FAO 435/2011 Page 5 of 6
7. In view of the above, there is no merit in the appeal, and the
same is therefore dismissed, leaving the parties to bear their own costs.
APRIL 22, 2014 VALMIKI J. MEHTA, J.
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