Brij Lal & Sons vs Uoi
2014 Latest Caselaw 2522 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO No. 1/2013
%
                                                                19th May, 2014

      BRIJ LAL & SONS                                            ......Appellant
                    Through:             Mr. Tilak Raj, partner of the appellant
                                         In person.

                          VERSUS

      UOI                                                ...... Respondent
                          Through:       Mr. Vinay Kumar Garg, Adv.

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 39 of the Arbitration Act, 1940

impugning the judgment of the court below dated 25.7.2012 by which the

objections filed by the appellant under Sections 30 and 33 of the Act against

the Award of the arbitrator dated 30.6.95 have been dismissed.


2.    Shorn of the details I find that what the appellant objects so far as the

Award deals with his claims no. 1, 3, 4 (partly), 5 and 7. The financial

implication so far as the claim no. 1 {read with counter number 1(a) and 1(b)

} is concerned the same is of Rs.4072. The financial implication is of

FAO 1/2013                                                                   Page 1 of 5
 Rs.828.04 for claim no. 3. So far as claim no. 4 is concerned, the financial

implication to the appellant is Rs.2,423/-. Claims no. 7 and 5 were claims

towards extra work done and damages, and which have been dismissed as

they were not substantiated by evidence.


3.    I have heard the appellant's partner who appears in person in all the

cases of the appellant.


4.    I must concede that there is a difficulty in understanding persons who

are not legally trained. Courts have a particular procedure and a system

whereby some sort of legal training is required for the persons who address

the court so that the court can understand what is being argued, more so in

technical matters of arbitration pertaining to calculation of the work done

under the contract. This Court has therefore, endeavoured to understand the

appellant's submissions keeping in mind the scope of hearing an appeal

against a judgment dismissing objections and which scope is limited.


5.    At the outset it bears note that aspects of appreciation of evidence are

not in the realm of objections under Sections 30 and 33 of the Arbitration

Act, 1940 inasmuch as what is the conclusion to be arrived at in view of the

facts and circumstances is to be decided by the arbitrator and not by the


FAO 1/2013                                                                 Page 2 of 5
 court hearing objection against an Award, much less a court hearing an

appeal against an order dismissing the objections.


6.    So far as the challenge to claim nos. 5 and 7, which have been

dismissed are concerned, there is no illegality in the Award and the

impugned judgment, because, the Award records that no evidence was filed

to substantiate these claims once that is so, the objections to claim nos. 5

and 7 have to be dismissed because on mere pleadings claims cannot be

allowed i.e without they being proved by filing of requisite evidence.

7.    So far as claim no. 1 is concerned, I have already stated the dispute is

really for an amount of Rs.4,722 and which amount the respondent/Union of

India has been allowed to adjust from the claim no.1 which has been partly

allowed, on account of excess payment having been made during the

currency of the contract to the appellant . This being a matter of appreciation

of evidence, more so because the amount in the respectful opinion of this

Court is just an amount of Rs.4,722, and the court below and the arbitrator

has examined this issue in detail, this Court is not inclined to go into aspects

of re-appreciation of evidence.




FAO 1/2013                                                                   Page 3 of 5
 8(i)   That takes us to claim nos. 3 and 4, and which were with respect to

claims on account of increase of labour and material charges during the

performance of contract.

(ii)   So far as claim no. 3 of higher labour rates is concerned, the arbitrator

has awarded 90 per cent of the higher rates, as the contract provides for grant

of 90 per cent of the higher rates, and I do not therefore find any illegality

in the Award on the ground that the claimant had already given the claim by

reducing 10 per cent because when I put a question to the appellant to show

me from the arbitration record how the higher rates of labour rates are

proved and that he had claimed 90 per cent only of the higher rates, nothing

specific was pointed out to me from the record. The same position prevails

so far as the claim no. 4 is concerned. As already stated above, issues of

appreciation of evidence cannot be gone into by this Court.


9.     I may also state that before the court below the appellant had sought

to file fresh evidence in the form of fresh calculations, and the court below

in para 6 of the impugned judgment has referred to this aspect that technical

details filed for the first time before the Court in written arguments cannot

be looked into. Para 6 of the impugned judgment in this regard reads as

under:-

FAO 1/2013                                                                   Page 4 of 5
              "After remand back of the case, I have heard the
      arguments form both the sides and gone through the record.
      Counsel for the respondent Sh. Sanjay Diwan has not pressed
      the counter objections of the respondent and he laid emphasis
      on the judgment passed by Ld.Predecessor Sh. Lal Singh on
      22.04.1997 by submitting his point of view. On the other hand,
      petitioner/objector has himself argued supporting the averments
      as made in his objection petition. He has also placed on record
      written arguments, wherein he has given the technical details of
      his case in support of his claims/objections. However, all these
      details are not mentioned in his objection petition. Moreover,
      in reply to the counter objections of the respondent, the
      petitioner has while taking objection on limitation replied on
      merits that Ld. Arbitrator had not misconducted the proceedings
      and had not gone beyond the terms of reference in the
      agreement executed between the parties and he had fully
      considered the evidence proved on record. He has gone to the
      extent by submitting in para No.3 of the reply on merits that Ld.
      Arbitrator being technical person holding the post if
      Superintending Engineer in the department has given the
      thoughtful consideration to this fact and acted judiciously. This
      was so stated in reference to the objection of the respondent.
      In response to all the objection put forth by the respondent,
      petitioner/objector has sought to justify the award by Ld.
      Arbitrator while categorically stating that he has not gone
      beyond the terms of reference nor misconducted the
      proceedings for himself. In the obtaining scenario, the scope of
      setting aside award is negligible U/s 34 of the Arbitration Act."


10.   In view of the above this appeal is without any merit, and is

accordingly dismissed. Parties are left to bear their own costs.




MAY 19, 2014                                  VALMIKI J. MEHTA, J.

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