Delhi High Court
Ultra Builders vs Municipal Corporation Of Delhi on 3 August, 2001
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. The petitioner was awarded work by the respondent Corporation. The work in question relates to DSW & SC Undertaking which was earlier a part of MCD and is now separate entity as Delhi Jal Board. Amended memo of parties would accordingly be filed by the petitioner during the course of the day. Some disputes arose and the petitioner preferred its claims. Mr. J.D. Goel was appointed as arbitrator by the Commissioner, MCD vide his orders dated 4th December, 1989 and the disputes were referred to him for adjudication. The arbitrator after hearing the parties made and published his award dated 12th March, 1990. The respondent has filed objections to this award.
2. Learned counsel for the respondent, in the first instance, submitted that the learned arbitrator has wrongly awarded claim No. 1 which was for labour escalation. She referred to clause 24 of the General Conditions on the basis of which it was sought to be contended that no claim in the fluctuation of the market rate and equipment, for whatsoever reasons shall be entertained. Perusal of the award shows that the learned arbitrator took note of the stipulation. However, he also found that contract between the parties which contains clause 10-C clearly provides for payment of labour escalation. In view thereof, the arbitrator observed that these two clauses were contradictory and acting on clause 10-C of the agreement, the claim was entertained and a sum of Rs. 3,00,800/- has been awarded under this claim. I do not find any infirmity in the approach adopted by the learned arbitrator. In standard conditions of contract, conditions are prescribed by the MCD itself. If clause 10-C of the agreement provided for payment of escalation and on the other hand clause-24 of the General Conditions of Contract stipulated otherwise, benefit has to be given to the contractor. Even otherwise, when two views are possible and the arbitrator takes a particular view, the court while examining such an award is not to sit at an appellate authority and substitute the other view with that of the view taken by the arbitrator.
3. Other objection of the respondent is to award of claim No. 2 which was preferred by the petitioner for extra expenditure on doing welding by diesel plant instead of electric plant. Relying upon conditions 19 and 26 of the particular specifications, it was submitted that the diesel plant was to be used only when electric power was not available and in the instant case, when electric power was available, it was not permissible for the petitioner to use the diesel plant, and therefore, no such claim could be preferred by the petitioner. It may be mentioned that the arbitrator has taken note of this stand of the MCD before him. However, he found on record document C-52 which is a copy of orders of the Chief Project Officer wherein he has ordered that welding be allowed by generator sets only as there was heavy fluctuation in voltage in power supply from DESU. In view of these orders passed by the officer of MCD itself directing the petitioner to use generator sets only for welding, the petitioner had no choice but to use the generator sets, and therefore, the petitioner was entitled to prefer the claim for extra expenditure for using the generator sets. This objection is also therefore without any merit.
4. The learned counsel for the MCD lastly pressed the objection against award of claim No. 11. Claim No. 11 was made by the petitioner for anticipatory profits on the balance cost of work which was curtailed by the respondent. It is not in dispute that the total value of the work awarded by MCD to petitioner was Rs. 11,05,319.19 paisa and actual work got executed from him was Rs. 6.44 lacs. He claimed anticipatory profits at the rate of 10 per cent on the balance cost of work i.e. Rs. 4.61 lacs which was not got executed from him although awarded by him. It was submitted by the learned counsel for respondent that this claim was not admissible in view of clause 13 of the Conditions of contract. This clause, however, prescribes for curtailment of quantum of work awarded to the petitioner by specifically stating that if this is to be done, the Engineer in charge shall give notice in writing to this effect. The arbitrator found that since no notice was given as stipulated in clause 13, this clause was not applicable. I do not find any infirmity in the award in view of the admitted fact that no such notice as prescribed in clause 13 was given.
5. Objections are accordingly dismissed. Judgment in terms of award is pronounced. Award is made rule of the court. Decree shall follow. It is pointed out that the amount in terms of award has already been paid by the MCD to the petitioner on furnishing the surety bond by the petitioner. Therefore decree stands satisfied and bond stands discharged.
6. Suits stands disposed of.