Delhi High Court
M/S Virender Kumar Jain vs M/S. Bharat Heavy Electricals ... on 21 July, 2015
Author: Badar Durrez Ahmed
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.07.2015
+ FAO (OS) 385/2015
M/S VIRENDER KUMAR JAIN .... Appellant
versus
M/S. BHARAT HEAVY ELECTRICALS LTD. ..... Respondent
Advocates who appeared in this case:
For the Appellants : Mr Sanjay Bansal, Advocate.
For the Respondents : None.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No.12648/2015 (exemption)
Exemption is allowed subject to all just exceptions.
CM Nos.12646/2015 (for condonation of delay in re-filing the appeal)
The delay in re-filing the appeal is condoned.
The appeal stands disposed of.
CM Nos.12647/2015 (for condonation of delay in filing the appeal)
The delay in filing the appeal is condoned.
The appeal stands disposed of.
FAO (OS) 385/2015
1. This appeal is filed against the order dated 10.03.2015 passed by
the learned Single Judge of this Court in OMP No.524/2013 which was a
petition under Section 34 of the Arbitration & Conciliation Act, 1996
(hereinafter referred to as "the said Act"), which in turn was directed
against the Award dated 14.01.2013, passed by the Sole Arbitrator, in
disputes between the appellant and the respondent.
2. The parties had entered into an agreement on 30.04.2007 for
execution and handing over of civil works for yard and control room
building of 220/33 KV S/Stn at Masjid Moth in New Delhi. We need not
refer to the other details of the contract. The only point urged by the
learned counsel for the appellant is that Claim No.3 raised by the
appellant before the learned Arbitrator had not been considered and that
even the agreed upon and accepted items were not paid for. The learned
Single Judge has examined this aspect of the matter in detail in
paragraphs 12, 13 & 14 which are reproduced herein below:-
"12. It was next submitted by Mr. Bansal
that the learned Arbitrator erred in rejecting
the claim for work executed under Claim
No.3 and in particular for the extra work. It
was submitted that the learned Arbitrator
did not actually call for the records and the
Respondent also did not produce the
records deliberately before the learned
Arbitrator. Since excavation was of a
quantity more than what was contracted for,
there would be corresponding increase in
the backfilling. It was stated that as far as
extra item No.2 was concerned, the learned
Arbitrator failed to consider the quantity as
jointly measured for 159.60 sq.m. A
balance further sum of Rs.25,584 was
required to be paid to the Petitioner as
regards extra item No.3 since what was
executed was an extra item and not a BOQ
item. The learned Arbitrator erred in
calculating the rate @ Rs.93.55 per cubic
meter instead of Rs.83.44 per RM.
13. In reply, it was submitted by Ms.
Cherian that these were questions of facts
and since the Court in exercise of its
jurisdiction under Section 34 of the Act is
not sitting in appeal, there is no question of
interfering with the Award only because
another view is possible to be taken. It is
pointed out that the Petitioner itself
subsequently filed a petition under Section
33 of the Act which was allowed by the
learned Arbitrator. It was clarified that the
amount accepted against all items of the
final bill including Rs.891 against Item No.l
(a) worked out to Rs.4,47,674.53. This
extra amount was in fact paid to the
Petitioner.
14. The Court does find that the application
filed by the Petitioner under Section 33 of
the Act was in respect of Claim No.3 for
which again a separate hearing was
conducted by the learned Arbitrator. The
extent to which the Petitioner had sought
clarification was allowed since the
Respondent did not object to it. It is also
noted that the said extra amount which has
been ordered in terms of the subsequent
order dated 9th May 2013 of the learned
Arbitrator in the application filed under
Section 33 of the Act by the Petitioner has
already been paid to the Petitioner.
Consequently, this Court does not find any
merit in the contention of the Petitioner."
3. Apart from this, we have also seen the order passed by the learned
Arbitrator on the aforementioned application under Section 33 of the said
Act whereby the appellant had sought clarifications in respect to Claim
No.3. Paragraph 3 of the said order, which is dated 14.04.2013, is
reproduced herein below:-
"03. Claimant submitted that against their
claim no.3, order had been passed for
disputed items only and other items of final
bill which had been executed by them and
also accepted by the Respondent and which
were also a part of the said claim no.3 had
remained overlooked in the AWARD."
4. This is the exact point which the learned counsel for the appellant
has raised before us inasmuch as he has submitted that the award over
looks even items which had been accepted by the respondent and form
part of Claim No.3. But, in view of the application under Section 33 and
the order passed thereon, we find that the submission which is being
advanced before us that the learned Arbitrator had overlooked this aspect
of the matter cannot be sustained. Clearly, the learned Arbitrator has
examined the same, at least, in the order under Section 33 of the said Act,
even though the learned Arbitrator was, prima facie, of the view that the
said application was time barred as the respondent had no objection to the
application being considered. Ultimately the Arbitrator held as under:-
"05. In view of the above submissions of the
Parties, final bill accepted by the
Respondent for an amount of Rs 447,674.53
was discussed. It was observed that order
had already been passed for item nos. 1(a), 3
& 4 of BOQ and the amount of claim
accepted as per the AWARD against these
items matched with the amounts shown in
the final bill submitted by the Respondent.
All other items of this bill with their
quantities and amount were acceptable to
both Parties. Under the conditions, claim
against final bill is accepted for Rs
447,674.53. Since it includes the amount of
Rs 18,964.29 against item 1(a) and NIL
amount against items 3&4, this amount of
Rs.18,964.29 is to be paid as a part of final
bill of Rs. 447,674.53 and not in addition to
it. In effect, amount accepted against all
Items of final bill, Including Rs 18,964.29
against item 1(a), is Rs 447,674.53. In
addition, amount accepted for Extra work
Item nos. 1 to 5, which also form a part of
claim no. 3, shall be paid as already given in
the AWARD dated 14.01.2013.
06. The AWARD dated 14.01.2013 stands
modified to the extent mentioned in clause 05
above.
07. It is also stated that although clause 18.0
of the AWARD contained order on final bill,
above clarifications are issued to bring total
clarity for the amount accepted against final
bill and claim no. 3."
5. It is in this context that the learned Single Judge observed that the
petitioner, who had sought clarification under Section 33 of the said Act
by virtue of the abovementioned application, had also received payment
in respect of the amount which was awarded thereupon. Consequently,
the learned Single Judge did not find any merit in the contentions of the
appellant with regard to Claim No.3. We agree with the learned Single
Judge.
6. All other aspects of the award and the order of the learned Single
Judge pertain to factual findings in respect of which no interference is
called for.
7. Consequently, the appeal is dismissed. There shall be no order as
to costs.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
JULY 21, 2015
st
