Delhi High Court
Tilak Raj Gogia vs Bsnl Through The Executive ... on 26 February, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 450/2013
% 26th February, 2014
TILAK RAJ GOGIA ......Appellant
Through: Petitioner in person
VERSUS
BSNL THROUGH THE EXECUTIVE ENGINEER ...... Respondent
Through: Mr. Ajay Gaind and Mr. Ashish Kr.
Gupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. I have heard the appellant who is appearing in person and who
appears in person in various cases before this Court as well as in other
courts.
2. This first appeal is filed under Section 37 of the Arbitration and
Conciliation Act, 1996 impugning the judgment of the court below dated
8.8.2013 by which the objections filed by the appellant under Section 34 of
the Arbitration and Conciliation Act, 1996 were dismissed.
3. The appellant as a contractor was awarded the work of
Recarpeting of damaged bituminous road in Telecom Staff Quarters at
FAO 450/2013 Page 1 of 4
Vivek Vihar, Delhi-95. After completion of work disputes and differences
arose with respect to payments of the work done and, therefore, arbitration
proceedings took place. Arbitration proceedings resulted in the Award by
the arbitrator dated 1.3.2007. Arbitrator with respect to claim no.1 for an
amount of Rs.2,82,000/- for giving of a thicker coat of carpeting awarded
not the entire amount claimed but only an amount of Rs.1,27,908/- which
pursuant to the Award stands paid to the appellant. There were other claims
which were dismissed including for the reason that claimant himself was
guilty in not giving details as of his relatives in the department resulting in
delay of the work. The claimant had also made a claim with respect to idle
labour on account of alleged hindrance in the work and this was also not
proved and the arbitrator notes that neither the hindrance register recorded
any hindrance nor could the claimant produce any such written instruction
for stopping of the work.
4. Before me, it is argued that the Award of the arbitrator is bound
to be set aside because appellant had filed an application under Section 33
for enhancing the awarded amount with respect to claim no.1, however, the
same has been wrongly dismissed by the order dated 12.6.2009. This order
which has been passed by the arbitrator on the application of the appellant
FAO 450/2013 Page 2 of 4
under Section 33 of the Act is dated 12.6.2009 and the relevant portion of
which reads as under:-
"As per Hon'ble Court order No.126/07, dated 03.05.2008 hearing
was held on 2.06.2008 in the chamber of Sole Arbitrator at New Delhi.
The following persons attended the hearing;.
1. Sh. Tilak Raj Gogia Claimant.
2. Sh. Rajiv Sharma Respondent
This hearing is being conducted after request of Claimant dated
28.3.2007 under Section 33 of the Arbitration Act. and Court Judgment of
Hon'ble Additional District and session Court, Delhi on application of the
claimant No.126.07 under section 33.
No new facts have been given by the claimant. Further it is noticed
that the application cited above under section 33 is a request for review of
award in disguise. It is tenable as per law. Hence rejected.
Earlier published award stands.
Both the parties were intimated of this decision in the hearing itself
in person.
(S.K.BABBAR)
SOLE ARBITRATOR"
5. The provision of Section 33 of the Arbitration Act is not an
application in the nature of a review as per Section 114 and Order 47 CPC.
Application under Section 33 is in sum and substance an application similar
to Section 152 CPC for correction of clerical mistakes in the Award.
Arbitrator has therefore rightly dismissed the application observing that the
provision of Section 33 cannot be used for filing of a review petition.
FAO 450/2013 Page 3 of 4
6. Even though appellant has not argued, I mention that the issues
of appreciation of evidence and what is the amount to be consequently
awarded as a result of particular amount of work, does not pertain to realm
of violations of contract or perversity or public policy for a court hearing
objections under Section 34 of the Act to interfere. In fact, I am constrained
to note that possibly even claim no.1 could not have been awarded in favour
of the appellant herein because actually the Award does not show as to how
any instructions were given to the appellant to do a thicker carpeting and for
which this claim has been allowed. If the appellant did a particular type of
carpeting, and without any instructions of the department, really even claim
no.1 also could not have been awarded in favour of the claimant/appellant.
7. In view of the above, there is no merit in the appeal, and the
same is therefore dismissed with costs of Rs.20,000/-. Costs shall be paid
within a period of six weeks from today. In case costs are not paid,
Respondent is at liberty to recover the cost in accordance with law.
FEBRUARY 26, 2014 VALMIKI J. MEHTA, J.
ib
