Delhi High Court
Dsc Ltd. vs Earthcon System (I) Pvt. Ltd. on 14 July, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ OMP No. 374/2015
% 14th July, 2015
DSC LTD. ..... Petitioner
Through: Mr. Sushil Kr. Kabra, Adv.
versus
EARTHCON SYSTEM (I) PVT. LTD. ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This is a petition under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as 'the Act') challenging the
Award passed by the sole Arbitrator on 4.3.2015. By the impugned Award, the
Arbitrator has allowed the claim petition and granted amounts to the respondent
herein, claimant in the arbitration proceedings, for the value of the work done
as also interest thereon.
2, The arbitrator framed the following issues:-
"Issue no.1. Whether the Statement of Claim has been instituted
in accordance with law and whether Mr. Rajiv Goel
who has signed the claim petition is duly and
OMP 374/2015 Page 1 of 4
authorized to institute, sign and verify the Statement
of Claim on behalf of the claimant?
Issue no.2. Whether the claims made by the claimant in the
claim petition arise out of two separate and
independent work orders/Purchase orders relating to
the same projects issued by the respondent, if yes,
whether the present arbitration proceedings arising
out of claims which are based on two separate
independent work orders/Purchase orders are
maintainable?
Issue no.3. Whether the claimant is entitled to a sum of
Rs.30,67,306/- on account of the work executed and
supplies made by it under the work orders dated
14.07.2009 and 06.02.2010 and Purchase Order
dated 20.03.2010?
Issue no.4. Whether the claimant is entitled to interest @ 18%
p.a. w.e.f. the date on which the amount became due
till the realization of amount, inclusive of pendentlite
and future interest at the same rate?
Issue no.5. Whether the claimant is entitled to the damages of
Rs.5,00,000/- on account of harassment suffered by
it due to delayed payment of bills?
Issue no.6. Whether the claimant is entitled to a sum of
Rs.5,00,000/- towards litigation cost?"
3. The Arbitrator then notes in the impugned Award that petitioner
herein, respondent in the arbitration proceedings, has not cross-examined the
witness of the claimant that no amount as claimed is payable. Arbitrator also
notes that petitioner herein in spite of being given several opportunities did not
lead evidence and ultimately the right of the petitioner herein to lead evidence
was closed. Hence the claimant in the arbitration proceedings, respondent
OMP 374/2015 Page 2 of 4
herein, proved its case and consequently the Arbitrator allowed the claim with
respect to the work executed by the respondent herein under the Work Orders
dated 14.7.2009 and 6.2.2010 and the Purchase Order dated 20.3.2010. While
awarding Claim No.1 the Arbitrator has noted the exact measurement of work
which was done as per the petitioner herein, and for such measured work only
Arbitrator has allowed the Claim No.1. With respect to Claim No.1 Arbitrator
awarded an amount of Rs.25,81,566/- for the work done. Arbitrator has
thereafter awarded interest at 9% per annum and which in the opinion of this
Court is a reasonable rate of interest.
4. The grievances of the petitioner herein are two-fold. Firstly, it is
argued that so far as the Purchase Order dated 20.3.2010 is concerned, there
was no arbitration clause and hence the Arbitrator could not have passed an
Award with respect to disputes which were not covered under the Arbitration
Agreement.
5. This contention urged on behalf of the petitioner is misconceived
because it is noted that disputes were referred to an Arbitrator pursuant to
Section 11 petition filed in this Court being Arb. Petition No. 60/2013 and the
Arbitrator has acted pursuant to the order of this Court dated 21.3.2013
referring the disputes to arbitration. This order dated 21.3.2013 has achieved
finality. Whatever disputes were specifically referred to arbitration have only
OMP 374/2015 Page 3 of 4
been decided by the Arbitrator and therefore the decision under Section 11 of
the Act operates as res judicata against the petitioner, and petitioner cannot
contend that the Arbitrator was not competent to decide the disputes referred to
the Arbitrator and accordingly decided by the Arbitrator. This argument urged
on behalf of the petitioner therefore is hence rejected.
6. The second grievance of the petitioner is that the rate of interest
which has been awarded has been awarded from a date which has no rationale
or basis being 30.11.2011. However I note that the Arbitrator has rightly taken
this date being the commencing date for payment of interest because part
payment was made by the petitioner to the respondent herein on 30.11.2011
meaning thereby as on 30.11.2011, work was done, and payment was due to the
respondent herein from 30.11.2011.
7. In view of the above, I do not find that the Arbitrator has
committed any violation of law or violation of provisions of contract or that the
Award is perverse for this Court to interfere with under Section 34 of the Act.
8. Dismissed.
JULY 14, 2015 VALMIKI J. MEHTA, J.
ib
