Delhi High Court
Iilm Academy Of Higher Learning vs S S Mann on 11 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th February, 2019
+ FAO(OS) 12/2019
IILM ACADEMY OF HIGHER LEARNING ..... Appellant
Through: Mr. Puneet Mittal, Sr. Adv. with
Mr. Sandeep Mittal, Ms. Vasudha
Bajaj and Mr. Vinod Kathwalia, Advs.
versus
S S MANN ..... Respondent
Through: Mr. Sandeep Sharma, Mr. Aman
Dhyani and Ms. Kanchan Semwal,
Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM. No. 3013/2019 (for exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM. No. 3014/2019 (for delay)
This is an application filed by the applicant / appellant seeking
condonation of 10 days delay in filing the appeal. For the reasons stated
in the application delay of 10 days in filing the appeal is condoned.
Application stands disposed of.
FAO(OS) 12/2019
1. The challenge in this appeal filed under Section 37 of the Arbitration
and Conciliation Act, 1996 (in short of Act of 1996) is to the order dated 29th
October, 2018 in OMP No. 643/2011, which is a petition under Section 34 of
the Act of 1996, whereby the learned Single Judge has disposed of the said
petition.
2. Mr. Puneet Mittal, learned Sr. Counsel appearing for the appellant had
made two submissions, with regard to Claim No. 5 which was claim towards
material, construction of labour hutments, godowns and construction of site
office. Against the said claim, learned Arbitrator has granted an amount of
Rs.9,60,000/- in favour of the respondent herein by deducting 20% of the
value as given by the respondent, i.e., Rs. 12 Lacs. The finding of the learned
Arbitrator in this regard as has been reproduced by the learned Single Judge
in Para 9 of the impugned order is reproduced as under:
"...3 After hearing the parties and considering the
documents on record I find that the claimant on
24.8.2006 on the request of the respondent prepared
a list of materials and indicated the value and
submitted the said list to the President of the
Respondent Academy. The said letter dt. 24.4.2008
was duly received by the respondent along with
valuation of the materials lying at site. After four
days i.e. on 28.8.2006, the respondent terminated
the contract of the claimant without issuance of any
show cause notice. Thereafter the claimant was not
allowed access to the site and was not allowed to
take back his materials & tools/plants. In the
arbitration proceedings the value of the materials
have not been controverted nor any suggestion or
arguments advanced by the Respondent as to what
was the actual value of the material left by the
claimant at site. The claimant Shri S.S. Maan in his
evidence has proved that he has sent the detailed list
of materials, T&P etc. along with their valuation
and the said list was prepared by his Engineer in his
presence after due verification and counting the list
of rate and purchase of the material was duly
approved. The said evidence has not been
controverted nor there is any cross-examination by
the respondent on this aspect. In the cross
examination Shri Maan had submitted that after the
termination of the contract on 28.4.2006 the
respondent had stopped his entry at the site and his
staff and labour were removed from the site. The
relevant extract from his cross examination is
"Thereafter the respondent stopped my entry at the
site and our staff & labour were removed from the
site. Our material, tools and plants were taken by
the respondents in their custody". There is nothing
contrary on record to show that the materials , tools
& plants of the claimant were removed. I, therefore,
hold that the claimant is entitled to the material left
at site by the claimant. I accept the valuation of the
material as assessed by the claimant vide his letter
dated 24.8.2006. Since the value of the materials
shown in letter dated 24.8.2006 as Rs. 36,20,200/-
pertained to all the three contracts, the claimant is
entitled to only 1/3rd of its value under the present
contract i.e. Rs. 12,00,000/-. However, I consider it
appropriate to deduct 20% in the value as given by
the claimant. I therefore award Rs. 9,60,000/- under
this claim."
3. According to him, there is no basis for the learned Arbitrator to deduct
only 20% of the value given by the claimant. According to him, it should
have been more than that. He also states that 20% has no basis. Mr. Mittal
could not justify the higher value.
4. Learned Arbitrator having deducted 20% from the value of the claim of
the respondent which is agreed to by the learned Single Judge, this court is of
the view that the same does not require any interference by this court.
5. The other challenge made by Mr. Mittal is with regard to interest of
9% granted by the learned Arbitrator which has been upheld by the learned
Single Judge. According to Mr. Mittal, the appropriate interest should have
been 6%. He states, this aspect was also agreed to by the respondent during
the proceedings before the learned Single Judge. In that regard, he has drawn
our attention to Para 13 of the impugned order. We are not impressed by the
submission made by Mr. Mittal for the simple reason that the respondent had
agreed for 6% interest if the appellant herein undertakes to make payments
due under all the four awards on or before 31st May, 2019. Admittedly, the
appellant did not agree to make the payment under all the four awards.
Accordingly, the learned Single Judge had proceeded with the arguments and
decided the petition. Under such circumstances, the grant of 9% is justifiable
and cannot be interfered with.
The present appeal is dismissed.
CM. No. 3012/2019 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
FEBRUARY 11, 2019/jg
