Delhi High Court
B.K.Roy Choudhary vs Dda on 14 January, 2010
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 08, 2009
Date of Order: January 14, 2010
+CS(OS) 1781 of 1992 & IA 9203 of 1992
% 14.01.2010
B.K. Roy Choudhary ...Petitioner
Through: Mr. Sandeep Sharma, Advocate
Versus
DDA ...Respondent
Through: Ms. Anusuya Salwan, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this order I shall dispose of the objections raised by DDA under Section 30 and 33 of Indian Arbitration Act, 1940 against an award dated 30th April, 1992 passed, made and published by the learned Sole Arbitrator.
2. It is the contention of the objector DDA that the learned Arbitrator not only mis-conducted himself but the award also contained errors apparent on the fact of it. The learned arbitrator ignored the material evidence and awarded claims for higher quantities than what was claimed by the claimant (petitioner herein). The learned arbitrator also gave the award contrary to the terms of the agreement and thus acted beyond his jurisdiction. It is submitted that the learned arbitrator against several claims awarded payments of various amounts to the contractor (petitioner herein) without considering the fact that no evidence was produced and without taking into account the evidence of the department (DDA). It is, therefore, prayed that the award qua claims nos. 1,2,3, 5,7,9,15,16 and 17 be set aside and the CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 1 Of 26 counterclaim of the objector, rejected by the arbitrator, be allowed.
3. The objector in order to substantiate its objections dealt with each individual claim awarded by the learned arbitrator.
4. Brief facts relevant for deciding these objections are that the petitioner (claimant) was awarded a contract for construction of 1440 houses of LIG Category at Rajouri Garden, New Delhi including internal development vide agreement number 18//EE/ HDVII-75-76. As it usually happens, the work was not completed within the stipulated period and the contract was terminated by DDA on 31 st December 1980 after a long correspondence exchanged between the parties and after serving a show cause notice. DDA while terminating the contract issued a notice to the contractor for a joint measurement of the work and asked the contractor‟s representative to be present for joint measurement on 9th January 1981. It was informed by DDA that after joint measurement, the final bill will be prepared. It appears that the joint measurement did not take place in terms of notice of DDA and the contractor approached the Court. This Court directed for a joint measurement and asked the parties to take joint measurement. Vide its letter dated 7th May, 1981, DDA informed the contractor that its representative did not turn up at site on 9 th April, 1981 for joint measurement in terms of the High Court‟s order and rather one officials of contractor came to the site on 9th April, 1981 to deliver a letter. DDA informed the contractor that the measurement had already been recorded and the same had been checked by the contractor from time to time. The matter again came up before the High Court on 11th May, 1981 and the High Court again directed the parties to go for joint measurement. Thus joint measurement of work done took place on 12th May, 1981 and the document to this effect was duly signed by both the parties on 12 th May, 1981. The document records that almost all measurement of the work had been finalized by the parties to the satisfaction of each other except some which were being re-measured and in case any dispute arose in respect of measurement CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 2 Of 26 the same shall be referred to the learned arbitrator. It is recorded that in this joint statement that at that time there was no such dispute over the measurement which need to be referred to the Court. It is also recorded that the contractor had deputed their engineer and other staff for revising such measurements and for this purpose prepared necessary documents and recorded in the chart of Department (DDA) and the same would be allowed to be inspected by the Department. The contractor could also inspect any document. It is also recorded that the contractor had removed all the materials lying at the site and some residual material was being removed by the contractor and this removal shall be completed as early as possible. A subsequent letter of Executive Engineer dated 3rd June, 1981 shows that the entire material was removed by the contractor from the site.
5. Reference of the dispute between the parties was subsequently made to the arbitrator. A perusal of order dated 20th July, 1981 passed by this Court in Suit No.275A of 1981 shows that the contractor was also allowed an inspection of following registers:
a. Steel Register
b. Cement Register
c. Tests Register
d. Site order book.
e. Indent Register for various materials issued by the department.
f. Inspection of relevant measurement books pertaining to 25th running
account bill.
g. Inspection of relevant measurement books pertaining to 25 th running
account bill (unpaid).
h. All running account bills paid or unpaid.
6. The learned arbitrator while considering the claims made by the claimant (contractor) found that there were certain disputed quantities mentioned even in respect of those items where a joint measurement had taken place. He, therefore, asked the parties that they should engage themselves again for a joint measurement CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 3 Of 26 at site and also take help of records like measurement books etc. After this reconciliation, as ordered by the learned arbitrator, he considered the claim filed by the claimant (contractor).
7. Claim No.1 (Item No.1.2.): The learned arbitrator allowed the earthwork claimed in respect of agreed and undisputed quantity of 520.92 cubic meters as recorded in the measurement book number 584. I find no infirmity in this part of award.
8. (Item No.1.3): The learned arbitrator rejected the claim regarding disputed quantity on the ground that actual execution was not proved by contractor and allowed only agreed quantity, thus there is no infirmity.
9. Claim No.1 (Item No.2): The second item is concrete work. In this item there were disputed quantities. The learned arbitrator allowed the claim of Rs.9,484/- to the claimant on disputed quantities observing that the respondent (DDA) had failed to give their comments on the disputed quantities. I consider that this observations of the learned arbitrator qua disputed quantities is contrary to his earlier observations where he rejected the claim on the ground that claimant has failed to prove that it actually executed the disputed quantities since joint measurement in terms of High Court direction had been recorded by parties. I find no reason how the learned arbitrator could have allowed the claim under this head about disputed quantities to the claimant, without claimant proving the execution of the disputed quantities. Thus the claim allowed by the learned arbitrator regarding disputed quantity of 173.70 cubic meters in Item No.2.2 is not tenable and is hereby set aside. Thus, the claim of Rs.9,484/- + 55.93% enhancement is not tenable as being without evidence.
10. (Claim No.1 Item No.3): With regard to Item No.3 Sub Head "RCC" sub CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 4 Of 26 Item 3.4, the learned arbitrator has allowed the disputed quantity of 18504.60 cubic meters at@ .80 per sq meters on account of an alleged admission of the respondent that recorded entries had been made in the M.Bs. However, the respondent has denied that there being any admission or a record of work in M.Bs. Record also reveals that there was no admission made by respondent (DDA) at any point of time. Therefore, this amount of Rs.14803.68 + 55.93% enhancement on it has been allowed without evidence and is liable to be set aside. It is ordered accordingly.
11. Regarding Item Nos. 3.3(d), 3.7, 3.9, the learned arbitrator has allowed quantities to the claimant in excess of the claim made therein. The quantities claimed by the claimant in its claim and the corresponding award are as under:
S. Agreement Item Claimed quantities as per Awarded
No. Annexure „A‟.
No. Quantities
1. 3.3. a 9,973.47 sq. meters 10,266.60 sq.
meters
2. 3.3 b 2,378.43 sq. meters 2,433.60 "
3. 3.3 d 133.20 sq. meters 217.20 "
4. 3.7 57,484.48 sq. meters 59,484.48 "
5. 3.9 8,489.50 meters 8,534. 42 meters
12. It is settled law that the arbitrator cannot award more than what has been claimed by the claimant. Awarding of excess amount on the account of excess quantities by the learned arbitrator was therefore not tenable. Thus, the claimant would be entitled for the quantities claimed in the table above. The amount on account of excess quantities has to be disallowed. Thus, under Item 3.3(d) 84 meter and under Item No.3.7 amount of 2000 sq. meters and under Item No.3.9, 45 sq meters are disallowed and the amount in terms of quantities claimed only are CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 5 Of 26 allowable. The award is modified to that extent.
13. Items No.3.5 and 3.6 are in respect of mild steel and tor steel. The claimant in its claim had not included these items and given a footnote that "a separate statement would be submitted". These quantities are in respect of overweight of tor steel and mild steel. The claimant claim was that in the initial stages, respondent had done sampling of mild steel and tor steel issued to the claimant/ contractor and the sampling showed an overweight of 11.18% and 4.7%. It is submitted that the quantities of mild steel issued to contractor were 10.60 metric tons more than the standard weight, for which payment was made. Similarly, in case of tor steel, a quantity of 5.201 metric tons was allegedly more in terms of weight i.e. theoretical quantities. The claimant, therefore, claimed payment in respect of additional quantities of overweight on the basis of initially sampling. The learned arbitrator agreed with this contention of claimant of overweight of the entire steel consignment submitted to the claimant on the basis of initial sampling and stated that the gross value of work of steel has to be calculated taking into account this overweight and there was a calculation mistake. I consider that the basic concept of arriving at overweight, followed by the learned arbitrator, is contrary to the law of statistics and mathematics. Tor steel and mild steel are drawn from molten steel in different thickness bars. The average weight is determined taking into account length of bar, diameter and specific gravity. In some consignments, it is possible that the diameter of bars at some places goes up while drawing these bars at the manufacturing unit. It is equally possible that in some cases the diameter goes down and the steel bars are under weight. It is always the average of different samples which determines as to whether the different consignments resulted into overweight of the total steel are underweight of the total steel. On the basis of samples of first consignment alone, the calculations of the entire supply cannot be done. It is possible that the subsequent consignments may be having underweight or may confirm to standard weight. The normal practice of supplying the bars are by weight because it is not CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 6 Of 26 practicable to count the steel bars and the length of the bars too also varies with each consignment. I fail to consider as to how, when the bars were supplied by weight they can be considered overweight and how on the basis of one sample of first consignment entire steel supply was considered overweight. This weight register maintained by DDA denoted the weight of each supply to claimant. Steel bar usage is done as per structural designs and the theoretical weight of the steel used is calculated as per standard weight. Since in this case claimant has been paid according to actual weight, there is no significance of overweight unless and until the DDA seeks to recover the excess amount for steel being used by claimant. The significance of overweight also does not come into picture while calculating the labour used as labour is paid on the basis of actual weight of steel supplied. The learned arbitrator wrongly allowed the claim for overweight of mild steel and tor steel bars. This fact is also further clear from the arbitrator later part of award wherein he considered the counterclaims no.5 of DDA. While the total quantities issued to the claimant of mild steel as agreed between the parties was 94.81 cubic meters, taking into account the overweight factor and other factors like wastage etc upto 10%, it was calculated as 101.781 metric tons, which in my view is not possible. I, therefore, consider that payment on account of overweight as allowed by the learned arbitrator was contrary to statistical norms and is not tenable. Thus, the additional claim allowed by learned arbitrator in respect of Items nos. 3.5 and 3.6 was not tenable and is hereby set aside.
14. In respect of Item no. 4 regarding quantities there is no dispute between the parties. However, in respect of Item no.4.1 whereas the claim made by claimant was for 1388.88 cubic meters, the award is in respect of 1743.370 cubic meters. Similarly, in Item no.4.2, claim is for 449.80 cubic meters while the learned arbitrator awarded the amount for 452.32 cubic meters. Likewise with respect to Item 4.5 the claim is for 18635.35 cubic meters while the awarded amount was for 18835.36 cubic meters. It is submitted by objector DDA that the award in respect of CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 7 Of 26 quantities beyond claim could not have been allowed being beyond jurisdiction. About rest of the sub items of Item no.4 no worthwhile contention is put forward. Therefore, the awarding of amount in respect of excess quantities than what had been claimed by claimant in its statement of claim is not tenable. Hence, out of the amount awarded by the learned arbitrator the award in respect of Items No.4.1,4.2 and 4.4 in excess of claimed quantities are disallowed. Rest of the award in respect of Item No.4 is not disturbed.
15. In item no.5, the learned arbitrator has taken into account the agreed quantities and disputed quantities. The contention of respondent DDA is that the arbitrator‟s insistence of joint measurement of the quantities despite the fact that a joint measurement had already taken place, under orders of the High Court, was uncalled for. It is further submitted that the running length measurements relied upon by the arbitrator was not a correct measure of weight of steel. It is also submitted that this item was in respect of wood work and constituted fixing of wooden shutters in steel frames with the screws and nuts for proper fixing of hinges etc. The item was already paid at part rate basis. However, the learned arbitrator allowed full rates to the claimant without taking into account the amount of Rs.98,600/- which had already been paid by the department (DDA) under this head. I consider that this challenge must fail because while summoning up the entire claim of the claimant, the learned arbitrator had taken into account the amount already paid under various bills and the learned arbitrator had also considered the coefficient applicable to the running length of frame as per IS Code. I, therefore, consider that objection of DDA against this Item is not sustainable and is rejected.
16. Item no.6 is regarding steel work. The learned arbitrator has given award in respect of agreed quantities. I, therefore, find no reason to upset the award on this count.
CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 8 Of 26
17. Item no.7 is with regard to flooring wherein the learned arbitrator has accepted analysis of claimant for awarding the amount and rejected the analysis of DDA. The learned arbitrator observed that respondent had indicated lesser rates than those of claimant but have not submitted justification for their rates, inspite of directions given by the arbitrator. He, therefore, was constrained to accept the rates of claimant. The respondent/DDA also submitted that claim was allowed for excess quantities and without proof of execution.
18. I consider that the learned arbitrator and the parties are bound by the contract. Where at the time of entering into the contract, the parties have agreed for a rate of item on a quantitative basis, another analysis of the contractor or of DDA cannot be considered by the learned arbitrator and the work done has to be awarded in accordance with the contractual rates. I also find that the claimant claimed additional amounts for fixing the glass strips into the joints of terrace floors. Whenever a contract is given to a contractor for preparing mosaic floors, the rate item of floor includes the complete flooring in all respects with fixing of glass strips in between the floor, so that small portions of floor are casted and leveled. In fact no flooring can be laid without first preparing a level of floor and that is done with the help of fixing glass strips first and leveling them. A pattern is made either of squares or rectangles with help of glass strips. Hence, no amount could be claimed by the claimant either for fixing glass strips or for fixing asbestos strips. The contractor was very much conscious at the time of filing tenders and giving rates of flooring. If the contractor had not considered fixing of glass strips and asbestos strips as part of laying floor, the contractor would have to point out the same in the tender documents itself that flooring would not include fixing of glass strips or asbestos strips for leveling and casting of floors. In fact single floor slabs cannot be casted as there is always possibility of the floor getting sagged at different places. The mixture of mosaic and cement is itself put into the glass strip patterns in a slurry shape and the floor takes the shape of pattern. If the glass strips are removed or are not there, CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 9 Of 26 the level of floor is bound to vary and the mixture may travel from where it is having more water or moisture to the other places gradually. It is under these circumstances that fixing of glass strips is a part of floor leveling and it cannot be an extra item. The learned arbitrator allowed the Item no.7.5 and 7.6 to the claimant which is contrary to the contract and this claim is liable to be set aside. It is ordered accordingly. The quantities of flooring as agreed between the parties were to be paid only in accordance with the contractual rates as given in the agreement/ contract between the parties.
19. In respect of Item nos. 8.6 and 8.7 the learned arbitrator has restricted the quantities to the extent as recorded by the respondent/ DDA in their final bill. The learned arbitrator has allowed full rates of the agreed quantities against part rates basis paid by the objector/ respondent. It is submitted by respondent DDA that part rates were paid because there were some work left incomplete by the contractor/ claimant. However, respondent was supposed to place on record the quantum of work left incomplete. In absence of such evidence, the learned arbitrator was justified in granting full rates.
20. Under Item No.9, the learned arbitrator had awarded claims under sub items nos.9.3, 9.4, 9.7, 9.8, 10.1, 10.3 and 10.4 at full rates for agreed quantities. However, in respect of rest of the items i.e. 9.5,9.6(a), 9.6(b),9.9 and 9(c), there were no agreed quantities and no measurements or proof but the learned arbitrator observed that respondent neither reported after verification nor produced the record and, therefore, he accepted the quantities as claimed by the claimant. I consider that this approach of learned arbitrator is contrary to his earlier approach itself, wherein he rejected the claim of claimant under earthwork on the ground that the claimant had failed to prove the execution of work. If claimant has made a claim that it executed certain quantities, it was for the claimant to prove that it had executed the work. The joint measurement in this case had already taken place under the CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 10 Of 26 directions of this Court. As already noted above, the objector had also allowed inspection of various registers to the claimant. The claimant could have summoned the record through Court under Section 43 of Arbitration Act, 1940, if the claimant wanted to prove that it had executed certain quantities. Without there being any proof of execution of work on the part of claimant and without there being any measurement recorded in the measurement book of the quantities, the learned arbitrator could not have awarded the amount against these items. The award on account of these items allowed by the arbitrator to the tune of Rs.3,62,928/- + 55.93% enhancement over it is contrary to the contract itself and without any basis and evidence. There same is liable to be set aside. It is ordered accordingly.
21. Under Item no.10 and 11, the learned arbitrator had allowed agreed quantities in respect of items 11.1, 11.3,11.6 (a), (b), 11.7, 11.13 (a) (b) and 11(d) and 11.18. Regarding Item no.2 and 9, the claimant had not pressed its claim. With regard to Item No.11.4, 11.5, 11.11 and 11.17, the learned arbitrator considered that since the claim of the claimant in respect of fittings and specials had been paid by DDA, fittings etc could have been fitted only on pipe lengths, therefore, he allowed the claim of claimant in respect of these items considering that the claimant was technically correct and held that the claimant was entitled to gross amount of Rs.3,47,247.95 regarding pipe lengths. It is not understood as to why the claimant could not have produced proof of purchase of pipe lengths if it had installed the same by purchasing from the market and if pipe length was supplied by DDA to it, it could have easily proved the supply of pipelines to it by DDA. In either case, proving of length of pipe was within the reach of the claimant and the claim could not have been allowed only on technical ground that since the claim of claimant etc in respect of fittings has been allowed, the claim of pipelines has also to be allowed. This is fraught with danger in view of the work culture which is prevalent in DDA. DDA is known as a corrupt department and under these circumstances every arbitrator has to be careful that the claims are allowed only if they are proved by claimant. The CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 11 Of 26 claims cannot be allowed on presumption or merely on technical grounds. It is not possible that the quantities of clamps and specials were measured without actually visiting. |If the other quantities had been measured, they would have measured pipe lengths along with measuring the quantities of clamps and specials and this would have been recorded in the joint measurement book. It is surprising that the clamps and fittings are measured and recorded but there is no measurement of the pipe on which these clamps etc are fitted. I consider that it was obligatory on the part of claimant to give proof of fittings of pipes either by way of supply of the pipe to it by DDA or if he had purchased the pipelines himself, by producing the bills of purchase. Without there being any proof, the claim of claimant could not have been allowed. I, therefore, consider that claim of Rs.3,47,247.95 + 55.93% enhancement was not tenable and is hereby set aside.
22. With regard to Item nos. 12,13,14 and 15, the learned arbitrator has allowed the claim in respect of admitted quantities at full rates. I find no reason to disturb the award with respect to Item nos. 12, 13, 14 and 15 of the claim.
23. Claim no.2 is in respect of various extra items and there is a statement no.16 qua these extra items. The learned arbitrator has enumerated all these extra items in his award and allowed claim for the agreed quantities and the rates as determined by respondent/DDA and calculated the amount on those rates and quantities. However, in respect of item nos. 6,9(b), 10, 18(b), 24, 25, 30, 32, 35, 41, 42 and 49, the respondent had disputed the quantities and the execution of these items. The learned arbitrator accepted claims against disputed quantities claimed by claimant on the ground that the respondent had not filed verification of the quantities claimed by the claimant. It is also submitted that the objector/ DDA that against Item in the chart at serial number 1, 18(b), 24, 25, 29, 33, 39 and 32, the quantities awarded by the learned arbitrator were much more than the quantities claimed by the claimant.
CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 12 Of 26
24. A claim of claimant cannot be allowed simply on the ground that department had failed to admit or deny the claim. If there is no clear admission of a claim by other side, the claim is to be proved i.e. execution of the work has to be proved from measurement book or other cogent evidence. Where no evidence is led to prove the execution of work, the claim has to be disallowed. If it is allowed it is liable to be set aside being without evidence. The award for 6, 9(b), 18(b), 24,28,30,32,35, 41,42 and 49 is hereby set aside.
25. A perusal of claim of claimant would also show that against extra item no.1, the claimant claimed 1401.76 cubic meters and the learned arbitrator has awarded 1618.06cubic meters. The excess quantity of 217.7 cubic meter awarded by the arbitrator was beyond his jurisdiction as he could not have awarded more than what was claimed against Item No.1. Similarly, in 18(b), 24, 25, 29 and many other items, there is difference in quantities allowed by the learned arbitrator against those claimed by the claimant. The award made by the learned arbitrator in respect of other items in excess of quantities claimed in the claim is set aside being without jurisdiction.
26. With regard to Item No.39, objections raised by the respondent are not tenable as the execution of this extra item is not disputed. The rate allowed by the learned arbitrator is the same which was agreed and being paid by respondent otherwise for identical items. Against Item no.40 objection of respondent is that the groove was provided at ceiling level in the plaster but grove was a part of the plastering process and it was not separately payable in terms of the agreement in view of revised specifications. The learned arbitrator has observed that making grove costs more than plastering. This observation of learned arbitrator is out of the blue. The grove is made in the plastering itself and cannot cost more than plastering the wall under any circumstances. It is always a part of the plastering. No reason has been given by the learned arbitrator as to why the revised specifications were not CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 13 Of 26 applicable in accordance with the contract between the parties. I, therefore, consider that in respect of Item no.40, the learned arbitrator has wrongly allowed the claim and the same is liable to be set aside and is hereby set aside.
27. Against Item no.43, the learned arbitrator has allowed claim of Rs.81,840/-. This item is regarding disposal of surplus earth removed by mechanical means up to one km. The claimant proved execution of this work on the basis of site order book. A letter was written by claimant to the Executive Engineer for payment of this item as an extra item. The payment of this was ultimately not sanctioned. The learned arbitrator had scrutinized that the calculations regarding the quantity claimed and the analysis of rates given by claimant and found them correct. He thus allowed the claim. The objections of respondent /DDA is that the learned arbitrator had failed to verify the various quantities of earth work for coming to conclusion about the quantities claimed. It is submitted that the quantities claimed by claimant could not have been allowed without proof. as this amounted to misconduct. The learned arbitrator after scrutinization of the calculations had accepted the claim of 8000 cubic meters of quantities against 9313 cubic meters claimed by claimant. This Court cannot go into the merits as to whether the process of calculating the quantities by the arbitrator was correct or not. It is apparent that the learned arbitrator had adopted some process and come to a conclusion that the quantity executed was 8000 cubic meters. I, therefore, consider that award of arbitrator of this item cannot be set aside.
28. Item no.48 is about extra amount awarded by the learned arbitrator on account of providing taper brick work in the railing of stairs. The agreement does not provide any extra amount for taper brick work on stairs and the brick work on stairs has to be counted like any other brick work. The learned arbitrator could not have awarded any amount beyond the agreement. The award on this amount on the basis of DSR Specifications or considering this type of brick work as an extra item was CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 14 Of 26 contrary to the contract. I, therefore, consider that the award in respect of Item no.48 is liable to be set aside on this ground and is hereby set aside.
29. Item no.49 is again an extra item where the learned arbitrator has allowed the claim of claimant for making chases in the wall for casting of kitchen shelves. I consider that awarding an amount on such extra item is a total misconduct on the part of the arbitrator. Whenever an item of casting kitchen shelves is provided in the contract it includes doing of necessary things for casting kitchen selves. The kitchen shelves can be casted properly only after making chases in the wall which is a part of work of casting of kitchen shelves and making chase cannot be considered as an extra item. It is just like that you give item rate for plastering of the wall and then you consider mixing of sand and the cement, fixing and raising of scaffolding for plastering as extra items. This is not permissible as they are all part of plastering the wall itself and rates of plastering include everything. Similarly casting of kitchen shelves includes making of chases for resting iron rods longitude/ diagonally/ transversely into the chases for proper grip and strength of shelves. The iron rods of the slabs have to be rested on the chases and chases have to be an integral part of casting of kitchen shelves. It cannot be considered as a separate item. The claim against Item No.49 is therefore not tenable and is hereby set aside.
30. The learned arbitrator awarded a sum of Rs.4, 52,583.98 to the claimant on the ground that the claimant was paid less than the rate as mentioned in the contract entered into between claimant and respondent for execution of various items for cement mortar because during the execution of the contract, the respondent substituted lime in place of cement mortar in various items. The claimant‟s claim was that substitution of lime in place of cement violated clause 12 (vi) of the contract which stipulated that introduction of new item could be only to the tune of 2% and not 100% as has been the case. It is thus stated that the respondent was not justified in paying to the claimant rates for lime mortars for various items which were CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 15 Of 26 to be executed with cement mortar in view of the provision of clause 12(iii) of the contract despite the fact that the work was executed in lime mortar. It is case of claimant that the respondent was supposed to pay for cement mortar. Clauses 12(iii) and 12(vi) of the agreement /contract entered between the parties read as under:
12(iii). If the altered, additional or substituted work includes any work for which no rate is specified in the contract for the work and cannot be derived from the similar class of work the contract, then such work shall be carried at the rates entered in (current C.P.W.D. Schedule of rates for Delhi).******* 1972 with up to date correct slips Minus /Plus percentage which the total tendered amount bears to the estimated costs of the entire work put to tender.
12(vi). Except in case of items relating to foundations provisions contained in sub clause (i) to (v) above shall not apply to contract of substituted items as individually exceed the percentage set out in the tender documents. (Referred to hereinbelow as deviation limit) subject to the following restrictions.
(a) The deviation limit referred to above is the net effect (algebraic sum) of all additions and deduction ordered.
(b) In no case shall the addition/ deductions(arithmetical sums) exceeds twice the deviation limit.
(c) The deviation ordered on items of any individual trade included in the contract shall not exceed plus/ minus 50% of the value of that trade in the contract as a whole or half the deviation limit; whichever is less.
(d) The value of additions of items of any individual trade not already included in the contract shall not exceed 10% of the deviation limit."
CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 16 Of 26
31. However, there is clause 12A next to clause 12 which reads as under:
"Clause 12 A. In the case of contract or substituted items which individually exceed the quantity stipulated in the contract by more than the deviation limit, except the items relating to foundation work, which the contractor is required to do under Clause 12 above, the contractor shall, within 7 days from the receipt of order, claim revision of the rates supported by proper analysis in respect of such items for quantities in excess of the deviation limit, notwithstanding the fact that the rates for such items exist in the tender for the main work or can be derived in accordance witht eprivsions of sub-caluse (ii) of clause 12 and the Engineer-in-Charge may revise their rates, having regard to the fixed. The Engineer-in-Charge may revise their rates, having regard to the prevailing market rates and the contractor shall be paid in accordance with the rates fixed. The Engineer- in-Charge shall, however, be at liberty to cancel his order to carry out such increased quantities of work by giving notice in writing to the contractor and arrange to carry it out in such a manner as he may consider advisable, but under no circumstances, the contractor shall suspend the work on the plea of non settlement of rates of items falling under this Clause.
All the provisions of the preceding paragraph shall equally apply to the decrease in the rates of items or quantities in excess of the deviation limit, notwithstanding the fact that the rates for such item exist in the tender for the main work or can be derived in accordance with the provisions of sub-clause CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 17 Of 26
(ii) of the preceding Clause 12, and the Engineer-in-Charage may revise such rates having regard to the prevailing market rates."
32. A reading of clause 12A makes it abundantly clear that in case of substitution of items which exceed the stipulated quantity in the contract and was more than the deviation limit, the contractor was required to claim revision of the rates within seven days from the receipt of order supported by proper analysis in respect of each of the items. It is also provided in clause 12 that in case of analysis of rates forwarded by the claimant/ contractor was not agreeable, the Engineer in-charge was at liberty to cancel the order to carry out such substituted increased quantities. Thus, it was mandatory for the contractor to first give the analysis of the rates for substituted items and ask the engineer in-charge to accept the rates or to cancel the order. In those cases where rates were not accepted or where analysis was not given, the contractor was to be paid only as per CPWD Schedule of rates for DSR and it was to be presumed that where the contractor has not given analysis of rates, he was agreeable to execute the contract at CPWD rates.
33. No analysis of rates could be submitted to the arbitrator or considered by the arbitrator. The arbitrator cannot perform the function of executive engineer or engineer in charge and he is equally bound by the contract. The arbitrator could not have stated that he has gone through the analysis of the rates and found the same to be correct. It was not the job of the arbitrator to analyze the rates of extra items. The arbitrator was only supposed to implement the contract. The rate analysis was to be put before the engineer incharge within seven days of receipt of the order. If the claimant was not prepared to do the work with lime mortar and had intention only to do the work with cement mortar at the cement mortar rates, the claimant could have told the engineer incharge that this substitution was not acceptable and the substitution be cancelled. But after the work had been done and final bill is paid, the CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 18 Of 26 rate analysis cannot be gone into and approved by the arbitrator and additional rates cannot be granted by the arbitrator on such an analysis done by him. The arbitrator exceeded his jurisdiction by ignoring clause 12(A). The award of Rs.4,52,583.98 is, therefore, liable to be set aside and is hereby set aside.
34. Under Claim no.2 under head „Other Misc. Items‟, the learned arbitrator awarded a sum of Rs.33,162/- to the claimant for a substituted Item No.6.1(a) of the contract. It is observed by learned arbitrator that the contract talks of fixed steel windows whereas it was top hung ventilators and hence the claimant had claimed extra vide Item No.2. The learned arbitrator after considering the claim of claimant for this substituted item allowed Rs.33,162/-. The respondent has stated that the arbitrator had included this claim of claimant at Page 36 and 38 of the award and again allowed the same at page 46-47. Pages 36 to 38 of the award gives a list of Items given in Annexure -A1 of the claim and Item No.2 is in respect of underpayment claimed by claimant. After dealing with all the extra items, the arbitrator started dealing with these extra items again at page 46. Obviously, the arbitrator had dealt with this claim twice. Moreover the observations of the arbitrator that it was a substituted item and instead of window, „top ceiling ventilators‟ were provided is in fact belied from the claim itself. The claim is in respect of P/F Steel glass doors and windows and ventilators of standard roll steel section. There is no assertion made by the claimant in Annexure A-1 that „top steel ventilators‟ were substituted in place of steel glass window. In fact ventilator is part of the contract and the claimant, if aggrieved that this was a substituted item could have given his rate analysis at that time to Engineer-in-charge. As already observed by this Court, the arbitrator cannot re-write a contract and arrive at a new contract between the parties. Clause 12A is very clear that in case of any substituted item, the claimant was supposed to give his analysis to the engineer in charge and if engineer incharge was not agreeable he could recall the order for substituted item and then withdraw the order of substituted item. The arbitrator also went wrong in dealing with the item CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 19 Of 26 twice and giving additional amount to the claimant under Misc Item no.2 while the arbitrator has already dealt with this claim.
35. Item at S.No.3 of Misc Item the arbitrator has allowed Rs.12,13,300.11 on the ground that the agreed amount payable to the claimant was less by this amount. The item is in respect of providing a fixture of 30 mm thick baton and panel door shuttering claimant had quoted as rate 104.48 whereas the respondent had sanctioned 84.53. The learned arbitrator observed that the entire rate analysis of respondent was hypothetical. He rejected the analysis and held that an amount of Rs.40,51,866.89 was payable to the claimant and since Rs.28,38,866.78 had been paid, he awarded Rs.12,13,000.11/-.
36. The learned arbitrator summed up the claim of claimant and found that the claimant was entitled to Rs.40,51,866.89. He found that an amount of Rs.28,38,866.78 had already been received by the claimant. The learned arbitrator concluded that the claimant was thus entitled to Rs.12,13,000.11. Thereafter, the learned arbitrator started dealing with other claims. Claim no.5 was raised by the claimant for Rs.3,75,000/- on the plea of escalation of wages of the workmen etc and Claim no.7 was made by the claimant for Rs.3,25,000/- for wages of labour and costs of establishment rendered idle on account of respondent. Claim no.5 was rejected by the learned arbitrator on the ground that despite directions given by the arbitrator to the claimant, the claimant failed to submit a copy of those circulars which provided for enhancement of the wages and thus this claim was not accepted. However, the learned arbitrator accepted the claim for wages of labour and costs of establishment to the tune of Rs.2,90,000/- against claim of Rs.3,25,000/- on the ground that the statement of facts given by the claimant was reliable.
37. In order to establish a claim, the claimant was supposed to lead evidence and prove that it spent the amount claimed on wages etc. No presumption could be made CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 20 Of 26 by the learned arbitrator that the facts stated in claim were correct since respondent has not commented upon them. If the claimant had paid wages to the labour and had kept labour engaged at the site without work, the claimant was supposed to prove this fact before the arbitrator by producing labour records and record of making payment of wages to the labour. In absence of any record of showing payment of wages to the labour and of maintaining an establishment, no claim could have been allowed by the learned arbitrator. The agreement between the parties specifically provided that the claimant was supposed to maintain record of persons employed and was also supposed to furnish details of persons employed by him from time to time to the respondent/DDA. The agreement provided a specified from of „employee card‟ giving the name and address of the workmen/ labour, his address and the period for which the workman was employed by the contractor and the actual number of days for which he worked. It also provided for attendance card /wage card of the workmen and maintenance of wage book of each workman by the contractor. In view of the specific provisions regarding employment of labour being part of the agreement, the claimant could not have been awarded the amount by the arbitrator without proof being placed before him by the claimant and the record pertaining to labour employed during the period when the claimant claimed that the labour remained idle. I, therefore, find that this claim allowed by the arbitrator was contrary to the terms and conditions contained in the agreement and contrary to judicial norms. Thus, the award as awarded by learned arbitrator on account of claim no.7 is liable to be set aside and is hereby set aside.
38. Against Claim No.9, the learned arbitrator observed that the claim of payment made to DESU looked exorbitant. He allowed Rs.10,000/- as payment made to DESU and he allowed Rs.27,749/- as costs for watch and ward. Again awarding of these amounts by the learned arbitrator was without any evidence and proof thereof. If payments had been made to watch and ward staff, nothing could have prevented the claimant from proving on record the amounts paid to watch and ward staff and the CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 21 Of 26 period for which watch and ward staff was paid. An amount of claim cannot be allowed by the arbitrator to the claimant just because respondent did not offer their comments of the claim. If claims are allowed only on the ground that no comments are offered then in every ex parte case where respondent does not appear, the arbitrator had nothing to do but just to say that no comments have been offered and no appearance has been put by the opposite side thus the entire claim is allowed. I, consider that this is not the intent and purpose of appointing an arbitrator for adjudication of the claims. The learned arbitrator was to go into the merits of the claim irrespective of the fact whether opposite side had given comments or not. Giving of no comments does not amount to an admission of claim. An admission has to be specific and unequivocal. Unless the reply does not amount to an admission claim cannot be allowed on ground of no comment. Normally in DDA the staff keeps on changing from time to time. The staff and engineers who were there at the time of execution of the work may not be available at the time when claim is filed or at the time when claim is considered by the learned arbitrator and the subsequent incumbents may not be aware of many things and the record may also be silent. Under these circumstances, an arbitrator cannot allow a claim on account of this silence. It is even otherwise settled law that the onus of proving a claim is on the person who filed the same and if he does not prove his claim, he is not entitled to any award thereof. A claim can be proved by leading evidence. A claim can also be allowed on the basis of admission but in absence of any admission, the evidence is the only methodology of proving a claim. No presumption can be drawn for a claim has to be right if there are no comments from the opposite side. I, therefore, set aside the award in respect to Claim No.9.
39. Claim No.15 was made by the claimant initially for a sum of Rs.2.85 lac and it was subsequently revised to Rs.5,05,972/-. Similarly, Claim No.16 was initially for a sum of Rs.15.30 lac and it was subsequently revised to Rs.7,58,197/-. Under Claim No.15, the claimant claimed 15% additional rates for the work done between 13th CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 22 Of 26 March, 1977 (i.e. the stipulated date of completion) and 13th December, 1977 and under Claim No.16, the claimant claimed 30% escalation over the tendered rates for the work done after 13th December 1977. The learned arbitrator observed that the claimant was entitled to escalation over the rates keeping in view the rise in the market since the claimant had duly notified about their resolution of enhancement of rates to the respondent. The learned arbitrator considered that over the amount of Rs.33,73,145/-, which was the work done between 16 th running bill and 23rd running bill, the claimant was entitled to claim enhanced rates and he allowed the claim of Rs.3,82,177/- under Claim No.15. Similarly, the learned arbitrator considered that after 23rd running bill, the claimant was entitled to further enhanced rates and applying the enhancement of 30% over the work done during this period. Thus, the claimant was held entitled to an additional amount of Rs.7,58,197/- (the amount claimed). There is no provision under the contract between the parties that in case the work was not completed by the stipulated date, the tenderer /contractor would be entitled for 15% enhancement up to 13 th December 1977 and after 13th December 1977 he would be entitled to 30% enhancement. In fact, the contract contained elaborate provisions regarding escalation in the rates of quantities under Clause 10(c) if the work was prolonged beyond the stipulated date. It was the claimant‟s own case that the claimant was given enhancement under Clause 10(c). There could be no double enhancement, one under Clause 10(c) and the other as claimed by the claimant before the arbitrator. The claimant, while tendering, had not specified that in case the work was not completed by 13th March 1977, he would be entitled to 15% further increase in the quantity rates up to 13th December 1977 and if the work was not completed by 13th December 1977, he would be entitled to 30% more than his quoted rates for the work done beyond that period. It is settled law that an arbitrator cannot write a new contract between the parties. He is the prisoner of the contract and has to decide the claims within the four walls of the contract. Where a contract does not provide for an increase in the tender price after a particular date and provides an escalation in the item rates under a specific clause, the arbitrator cannot CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 23 Of 26 allow a claim for enhancement of the overall rates contrary to the contract. Thus, awarding of amounts against Claims no.15 and 16 was untenable and the award made in t his respect by the arbitrator is totally perverse and without jurisdiction and is liable to be set aside and is hereby set aside.
40. While considering the counterclaim no.1 of DDA/ respondent, the learned arbitrator observed that the counterclaim was for Rs.6,04,462/-. The claimant accepted the counterclaim of Rs.5,88,277.76. However, the learned arbitrator awarded a sum of Rs.5,54,302/-. Here, the arbitrator has deducted an amount of Rs.50,160/- with regard to the difference of 125.40 metric tons of steel on the ground that the DDA/ respondent failed to produce the register for which quantities of cement actually issued were contained with dates and issuance of quantities. I consider that since respondent had failed to produce the evidence, the learned arbitrator was justified in not allowing this amount. The counterclaim no.4 has been rejected by the learned arbitrator on the ground that the claim of rebate was not justified since admittedly the payment were not made to the claimant from March, 1978 onwards. I find no fault in rejection of this counterclaim.
41. Counterclaim no.5 was in respect of Rs.2,58,515/- as costs of cement at penal rates. Since the claimant had failed to return the cement and steel used in excess of the theoretical cement. The learned arbitrator calculated the cement and steel supplied and consumed in terms of the award passed by him wherein he had taken into account the additional quantities of cement and steel. After taking into account the additional cement and steel which would have been consumed according to him and after taking into account the quantities of item which he considered required consumption of cement, the learned arbitrator observed that there was no justification for recovery of double the issued rates. He observed that under Clause 10 of the contract the contractor was not supposed to return any material unless consent of engineer in charge by a notice in writing under his hand was given. So, he CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 24 Of 26 disallowed the counter claim of respondent DDA. The respondent has contended that as per Clause 42 of the agreement, the department was entitled to recover the costs of cement not returned at twice the issued rates in respect of quantities of cement and steel, in excess of the theoretical quotations and no notice was required to be issued and the learned arbitrator wrongly rejected this counterclaim. Clause 42(ii) and (iii) of the contract reads as under:
"(ii) After the completion of the work the theoretical quantity of cement to be used in the work shall be calculated on the basis of CPWD statement showing quantity of cement to be used in different items of works provided in the Delhi Schedule of Rates applicable to the agreement or at places where D.S.R. will not be applicable in the case of agreement, it shall be calculated on the basis of standard formula laid down by the Superintending Engineer of the concerned circle. Over this theoretical quantity of cement shall be allowed a variation up to 5% plus/ minus for works the estimated cost of which as put to tender is now ore than Rs.2 lakhs; upto 4% plus/ minus for works the estimated cost of which put to tender is more than Rs.2 lakhs; but upto Rs.5 lakhs and upto 3% plus/minus for work the estimated cost of which put to tender is above Rs.5 lakhs. The difference in quantity of cement actually issued to the contractor and the theoretical quantity including authorized variations, if not returned by the contractor, shall be recovered at twice and the issue rate without prejudice to the provision of the relevant conditions regarding return of materials governing the contract. In the event of it being discovered that the quantity of cement used is less than the quantity, ascertained as hereinabove provided (allowing variations on the minus side as stipulated above), the cost of the quantity of cement not so used shall be recovered from the contractor on the basis of stipulated issue rate plus cartage to site.
CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 25 Of 26
(iii). The provisions of the foregoing sub-clause shall also apply in the case of steel reinforcement or structural steel sections except that the theoretical quantity of steel shall be taken as the quantity required as per design or as authorized by Engineer-in-Charge, including authorized lappages plus 5% wastage due to cutting into pieces. Over this theoretical quantity, plus 5% and minus 4% shall be allowed as variation due to wastage being more or less."
42. Clause 10 provides that unused material in perfectly good condition at the time of completion of work or termination of the contract shall be returned to the engineer in charge at the place directed by him, by notice in writing. It is obvious that after termination of the contract, the respondent was supposed to tell the contractor the excess cement and steel where the excess cement and steel are to be returned. In this case, it is not disputed that no such notice was issued to the contractor. I, therefore, find that the arbitrator rightly rejected this claim.
43. Except the claims and counterclaims which have been set aside by above order, rest of the award is hereby made a rule of the Court.
44. With above order, the petition as well as the objections of DDA/ respondent are hereby disposed of.
January 14, 2010 SHIV NARAYAN DHINGRA J. rd CS(OS) 1781 of 1992 B.K. Roy Choudhary vs. DDA Page 26 Of 26