Delhi High Court
Ram Prakash vs North Delhi Municipal ... on 19 March, 2014
Author: Valmiki J. Mehta
7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 313/2013
% 19th March, 2014
RAM PRAKASH ......Appellant
Through: Mr. Rajeev Kumar, Advocate
VERSUS
NORTH DELHI MUNICIPAL CORPORATION & ANR....... Respondents
Through: Mr. Pranav Sapra, Mr. Sunil Goel,
Advocates
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 and
Conciliation Act, 1996 (hereinafter 'the Act') impugning the judgment of the
court below dated 12.2.2013 by which the objections filed by the
appellant/objector under Section 34 of the Act against the Award dated
8.6.2010 have been dismissed.
2. Appellant was awarded the work of "Improvement and Stg. of BBM
Road from Mall Road to Mukherjee Nagar Bandh" on 1.4.2004, Work
commenced on 15.4.2004 and was completed on 8.6.2004. As per the
appellant, he did extra work, but was not paid, and an amount of Rs.
46,498/- was wrongly withheld by the respondent.
3. The case of the appellant/claimant was that having executed extra
work he was liable to be paid for the same. This claim has been dismissed
by the arbitrator and also objections were dismissed by the court below. The
relevant observations of the court below are contained in paras 9 & 10 of the
impugned judgment and which read as under :
"9. Keeping the basic postulate of the Act in mind, when the
case in hand is adverted to, it is found that both the parties had
duly put in an appearance before the arbitrator, put forward their
pleadings, produced the documents on which they were relying
upon respectively, led their evidence and extended the
arguments. To prove this case, it was the sole responsibility of
the petitioner to establish that he had done the extra work, he
was emphasizing upon and that this work was done by him with
the consent and permission/order of the respondent. Whenever,
any construction work is undertaken to be done, while executing
the work order certain works do get done which are ancillary to
the work order, but which cannot be segregated. The payments
are always made by the employer as per the work order which
was placed upon the contractor and not as per any whimsical
work done by him without the consent of the authority. As far
as the contractual amount is concerned, there is no dispute that
the work was commenced and completed within the stipulated
period and necessary payment has been made and the delay in
the payment has been amply compensated by awarding
reasonable interest to be paid by the respondent to the petitioner.
10. In the petition itself, the petitioner has narrated, in
isolation, the observation made by the Arbitrator in the award
regarding the acknowledgment by the MCD that certain extra
work was done, but if the observations are read in conjunction
with other observations made, what transpires is that certain
extra work, if any was done without the overt permission and
consent of MCD. Therefore if some work was not ordered to be
done, obviously MCD would not be paying for that work.
However, it was for the petitioner to prove the extent and details
of work so done by him, which he failed to do so despite
opportunity having been granted to him by arbitrator. Therefore,
the arbitrator has rightly held that the petitioner failed to prove
that he was entitled to the claimed amount of Rs. 46,498/- for
any extra work done by him." (underlining added)
4. I completely agree with the aforesaid observations because it was for
the appellant to show that the work executed by him, was an extra work
beyond the scope of the original contract and also assuming the work was
extra work beyond the contract then to show who ordered him to do the
extra work. On these aspects the appellant miserably failed, and therefore,
the objections were dismissed.
5. The scope of hearing objections under Section 34 of the Act is
limited. If the scope for hearing objections is limited then the scope of an
appeal against the order dismissing objections has to be further limited.
Courts do not reappraise findings of facts and conclusions arrived at by the
arbitrator unless the findings are totally perverse or beyond contract/
agreement. In the present case, the appellant has failed to prove that the
extra work done is beyond the scope of the original work and even if the
extra work done is beyond the scope of the original work then who ordered
him to do that extra work or that there was a contract entered into for extra
work.
6. In view of the above, there is no merit in the appeal, which is
accordingly dismissed, leaving the parties to bear their own costs.
MARCH 19, 2014 VALMIKI J. MEHTA, J
godara
