Himachal Pradesh High Court
Bhupinder Lal Kaushal vs State Of Himachal Pradesh And Another on 23 August, 2019
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Arb. Case No. 45 of 2018
.
Decided on: 23.08.2019.
Bhupinder Lal Kaushal ....Petitioner.
Versus
State of Himachal Pradesh and another ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the applicant : Mr. Vivek Sharma, Advocate.
For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with M/s Amit
Kumar Dhumal and Divya Sood,
Deputy Advocate Generals and
Sunny Datwalia, Assistant
Advocate General.
Ajay Mohan Goel, Judge (Oral)
By way of this petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, a prayer has been made for setting aside of arbitration Award dated, 10.08.2017, passed by Arbitrator-cum-Superintending Engineer, Arbitration Circle, HPPWD, Solan, in the matter of arbitration between Shri Bhupinder Lal Kaushal, Contractor R/O 252, Ram Bazaar Shimla Versus Executive Engineer, Arki Division, HPPWD, Arki, for the work C/O Balance work ::: Downloaded on - 29/09/2019 02:32:30 :::HCHP of Mamligh Kuftoo road with a bridge over Kuni Khud in District Solan Km. 6/180 to 14/0 (SH:-Widening 5/7 Mtr .
wide road from Km.7/135 to 10/570.: Agreement No. 64 of 2001-2002.
2. Brief facts necessary for the adjudication of the present petition are that petitioner was awarded the work of construction of balance work of Mamligh-Kuftoo road with a bridge over Kuni Khud in District Solan Km.6/180 to 14/0 (SH:-Widening 5/7 Mtr wide road from Km.7/135 to 10/570) vide award letter dated 18.08.2001 for a sum of 11,08,074/-.
Agreement No. 64/01-02 was entered into between the parties to this effect. The period of completion of work was six months, however, the same could not be completed within the stipulated period and the same was completed on 30.03.2006. According to the petitioner/contractor, the reasons for delay in execution of work were failure on the part of the respondents to clear and hand over unobstructed site to the petitioner as also failure on the part of the respondents in obtaining necessary forest clearances, coupled with obstructions which were caused by the residents of the area residing within the alignment of the road. Disputes which arose between the parties during the execution of the said ::: Downloaded on - 29/09/2019 02:32:30 :::HCHP work stood referred to the arbitration of sole arbitrator-cum-
Superintending Engineer, Arbitration Circle, HPPWD, Solan, .
Vide award dated 06.01.2012, he partly allowed the claims of the petitioner.
3. Feeling aggrieved, petitioner filed objections against the said award in this Court by way of Arbitration Case No. 10/2012. These objections were decided by this Court on 22.11.2016 and the matter stood remanded back to the arbitration after quashing the impugned award with respect to Claim No. 2 with a direction to the Arbitrator to consider Claim No. 2 afresh.
4. Thereafter, vide impugned award dated 10.08.2017, learned Arbitrator has decided Claim No. 2 in favour of petitioner/claimant as under:-
##$ %$&''( &$)%$*%'( +"
!
! "
5. These objections stand filed by the petitioner/ contractor being dissatisfied with the award so passed by learned Arbitrator.
::: Downloaded on - 29/09/2019 02:32:30 :::HCHP%
6. Before proceeding further and before dealing with objections filed by the petitioner herein against the award .
under challenge, it is pertinent to mention that other claims which were adjudicated upon by learned Arbitrator vide earlier award were upheld by this Court, therefore, in the present petition, this Court is only concerned with legality of Claim No. 2 now adjudicated upon by learned Arbitrator afresh. r
7. Despite opportunities having been granted, no rejoinder to the reply filed to the objections, was filed by the petitioner and today, learned Counsel for the petitioner made a statement that the petitioner does not intends to file any rejoinder.
8. Award now passed by learned Arbitrator to Claim No. 2 stands assailed by the petitioner on the following grounds:-
(a) The Arbitrator being an employee of respondent No. 1 failed to make necessary statutory disclosure under Section 12 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as the ' 1996 Act').
b) Award was a result of misreading and non-application of mind on the part of the Arbitrator as when it stood ::: Downloaded on - 29/09/2019 02:32:30 :::HCHP & established that reasons of delay in completion of work were not attributable to the petitioner, the Arbitrator was not .
justified in restricting the award for intermediate period only.
c) Arbitrator has erred in carving out a fictional distinction, inter-se the various intervals in between the entire period taken for completion of work without there being any tangible material to warrant it.
d) Arbitrator has erred in not taking into consideration the material on record which proved that delay in the execution of the contract was on account of non-performance of reciprocal promises by the respondents, which led to bankruptcy and the machinery deployed by him remained idle throughout the period of continuance of work.
9. I have heard learned Counsel for the parties and also gone through the award under challenge as well as record of the case.
10. In Emkay Global Financial Services Limited versus Girdhar Sondhi, (2018) 9 SCC 49, Hon'ble Supreme Court has reiterated that speedy resolution of arbitral disputes has been the reason for enacting the 1996 Act and continues to be the reason for adding amendments to the said Act to strengthen the aforesaid object.
::: Downloaded on - 29/09/2019 02:32:30 :::HCHP#
11. The first objection raised by the petitioner herein that the award was void and otiose as Arbitrator being an .
employee of respondent No. 1 failed to make necessary statutory disclosure under Section 12 of the Arbitration and Conciliation Act, deserves outright rejection for the reason that it is not as if the petitioner was not aware about the status of the Arbitrator. Yet he submitted to the jurisdiction of the said Arbitrator for the purpose of said Arbitration without any objection. Secondly, except for Claim No. 2, passed by learned Arbitrator afresh, other claims which stood adjudicated by him earlier vide award dated 06.01.2012, have been upheld by this Court, as is evident from the averments made in the present petition itself by the petitioner. Therefore also, this objection deserves rejection.
12. Now I will refer to the remaining objections which have been raised by the petitioner against the award in issue.
Remaining objections, which the petitioner has raised against the award are not covered under the provisions of Section 34(2)(a)(i) to 34(2)(a(v) and 34(2)(b)(i), but at the most, contention of the petitioner on the basis of remaining objections can be said to be that as per petitioner, the award is in conflict with public policy of India. Explanation (1) added ::: Downloaded on - 29/09/2019 02:32:30 :::HCHP , to Section 34 (2) of the Act provides that an award is in conflict with public policy of India only if the making of the .
award was induced or affected by fraud or corruption or was in violation of Sections 75 and 81 of the Act, which indeed is not the case of the petitioner.
13. By way of Claim No. 2, the claimant had claimed an amount of 66,24,588/- on account of compensation in respect of idle machinery. Though, initially this claim was awarded in favour of the claimant to the tune of 2,61,522/-, however, after remand, the award amount is 5,94,048/-. A perusal of the award demonstrates that in order to decide Claim No. 2 afresh, learned Arbitrator divided the period from 28.9.2001 to 31.7.2005 into seven time periods as under:-.
(i) Period 28.9.01 to 18.12.01=82 days
(ii) Period 6.7.02 to 26.12.02=174 days
(iii) Period 21.11.03 to 31.7.04=253 days
(iv) Period 1.8.04 to 19.8.04=19 days
(v) Period 3.9.04 to 20.9.04=18 days
(vi) Period 30.11.04 to 13.1.05=45 days
(vii) Period 15.3.05 to 31.7.05= 139 days ::: Downloaded on - 29/09/2019 02:32:30 :::HCHP '
14. Thereafter, by way of a detailed and reasoned award, learned Arbitrator has concluded as to for what time .
machinery of the contractor remained idle.
15. During the course of arguments, learned Counsel for the petitioner could not demonstrate that the findings so returned by the learned Arbitrator were perverse findings and not borne out from the record. That being the case, the award under challenge calls for no interference. This is for the reason that the scope of interference under Section 34 of the 1996 Act is very limited. In order to ascertain as to whether the award is against the public policy of India or not, this Court is not to act as an Appellate Court and re-appreciate the pleadings and evidence on record, nor it is to entail a review on the merits of the dispute. It is not the case of the petitioner that the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81 of the 1996 Act. Learned Counsel for the petitioner could not demonstrate that the award is in contravention of fundamental policy of Indian Law or is in conflict with the most basic notions of morality or justice.
Therefore, as it is evident that learned Arbitrator on the basis of material before it, has passed an award, ::: Downloaded on - 29/09/2019 02:32:30 :::HCHP ) findings returned in which are duly borne out from the record, this Court sees no reason to interfere with the same .
and accordingly, present petition being devoid of merit is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.
(Ajay Mohan Goel) Judge August 23, 2019.
(narender) ::: Downloaded on - 29/09/2019 02:32:30 :::HCHP