Delhi High Court
M/S Brij Lal & Sons vs Union Of India & Anr. on 18 July, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 304/2007
% 18th July, 2017
M/S BRIJ LAL & SONS ..... Appellant
Through: Appellant in person.
versus
UNION OF INDIA & ANR. ..... Respondents
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 under Section 37 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as „the Act‟) impugns
the judgment of the court below dated 13.4.2007 by which the
objections filed by the appellant under Section 34 of the Act have been
dismissed against the Award of the arbitrator dated 10.8.2006. The
only dispute raised before this Court with respect to the objections
under Section 34 of the Act is with respect to item no.4 of the extra
work done. It may be noted that appellant was awarded the work of
doing cross drainage at Road No.57 near subway in East Delhi.
2. After completion of work appellant/contractor claimed
payment for extra items of work done, and one such payment claimed
is with respect to item no.4. This item no.4 has been decided by the
Arbitrator against the appellant by holding that the work done of
Cement Concrete (C.C) in the ratio of 1:5:10 is not of 94.23 cum as
was the case of the appellant/contractor, but the work of Cement
Concrete of 1:5:10 was only of 2.15 cum. The relevant portion of the
Award with respect to item no.4 reads as under:-
"Item 4: Against 52.92 cum of C.C. 1:3:6 paid by Department, contractor
has claimed Nil. Against 2.15 cum of C.C. 1:5:10 paid by Department,
contractor has claimed 94.23.cum. Respondent pointed out that contractor
has quoted Rs.1,400/- per cum for C.C. 1:5:10 but Rs.900/- per cum for C.C.
1:3:6 and there is no reason for Department to go in for C.C. 1:5:10.
However, the calculations of cross-sectional area in MB do not appear to be
in order since Respondent agreed that C.C. work was projecting above pipe
surface. Approximate calculation for sectional area of C.C. around pipe is
as follows:
Base: 2.1x 0.3=0.63 sqm
Overall up to center of pipe: 2.1 x 0.75 = 1.575
Above center of pipe: 22/7 x 1.05 x 1.05/2= 1.732
Deduct for pipe 22/7 x 0.75 = (-) 1.768
Net area= 2.169 sqm
Quantity for pipe length = 45.11 x 2.169 = 97.84 cum
Add for manhole 2.60 x 1.5 x 0.3 = 1.17 cum
Total quantity = 99.01 cum.
As such, total quantity of 94.23 cum claimed by contractor is accepted.
Amount of C.C 1:5:10 = 2.15 x 1400= 3,010
Amount of C.C. 1:3:6=92.08 x 900== 82,872
Total amount= Rs.85,882/-
Payment already made = Rs.50,638/-
Additional payment worked out= Rs.35,244/-."
3. Arbitrator is a technical person as admittedly he was an
engineer. The Arbitrator has held that though there is no dispute that
total quantity of work done under item no.4 was of 94.23 cum but the
work done of the Cement Concrete of 1:5:10 was only 2.15 cum and
not 94.23 cum inasmuch as the balance work of 92.08 cum out of the
total of 94.23 cum was done in the ratio of 1:3:6. This Court cannot sit
as an appellate court over the findings and conclusions of the
Arbitrator and it is not even pointed out to this Court that there is any
measurement book of the work showing that work done of 94.23 cum
is done in the ratio of 1:5:10 instead of only 2.15 cum work done at
1:5:10 as recorded in the Award. I therefore do not find any error in
the Award which makes the Award illegal or perverse or in violation
of the ingredients of Section 34 of the Act.
4. The court below has also held that the Arbitrator after
considering respective cases, when he takes a view, a civil court
hearing objections under Section 34 of the Act is not to sit as an
appellate court to re-apprise the findings of facts and conclusions of
the Arbitrator. I agree.
5. Though appellant relies upon a theoretical statement,
however, a theoretical statement prepared and submitted during the
course of work done by Union of India cannot change the fact that the
final measurements recorded for the work show the work of Cement
Concrete work done in the ratio of 1:5:10 only of 2.15 cum.
6. There is no merit in the appeal and the same is therefore
dismissed.
JULY 18, 2017/ib VALMIKI J. MEHTA, J
