Delhi District Court
M/S Satya Prakash And Bros. Pvt. Ltd vs Union Of India on 24 July, 2024
IN THE COURT OF SH. SACHIN SOOD
DISTRICT JUDGE-01 ( CENTRAL), THC,DELHI
ARBTN NO. 191/2017
M/s SATYA PRAKASH & BROS. PVT LTD
THROUGH SH. SATYA PRAKASH GUPTA
REGD. OFFICE A-1. C.C. COLONY
NEAR RAM PRATAP BAGH, DELHI ...PETITIONER
VERSUS
UNION OF INDIA
THROUGH EXECUTIVE ENGINEER
PWD M-313, OPP KHALSA COLLEGE
MALL ROAD, DELHI-54 ...RESPONDENT
DATE OF INSTITUTION : 19.12.2013
DATE OF RESERVING JUDGMENT : 20.07.2024
DATE OF JUDGMENT : 24.07.2024
JUDGMENT
1. The present petition has been filed against the arbitral award dated 01.11.2013 passed by Sh. S.R Pandey under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996.
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 1/33 BRIEF FACTS OF THE CASE
2. The respondent on 29.03.2010 through its executive engineer invited bids for street scaping and beautification of Mall Road from Delhi University to Chhatrapal Stadium (3.60 Km) for Common Wealth Games, 2010 at Delhi (Package-G SH: Carriage of Earth and Malba).
3. The estimated cost of the work in terms of the NIT was Rs. 21,74,962/- and the work was to be completed within a period 45 days from the date of the start of the work and the earnest money to be deposited was Rs. 43,499/- and a performance guarantee was to be furnished @ 5% of the tendered amount with security deposit also of the said amount.
4. That vide letter dated 03.04.2010, the bid of the claimant was accepted by the respondent and the tender was allotted to the claimant/petitioner herein whose bid for an amount of Rs. 29,33,371/- was accepted by the respondent and who accordingly as per the requirements of the tender, deposited a sum of Rs. 43,500/- towards earnest money and performance guarantee for an amount of Rs. 1,46,669/-.
5. The petitioner which was required to carry out the work as awarded within a period of 45 days to be reckoned from 10th day from the date of issuance of the aforesaid letter dated 03.04.2010. Accordingly, the commencement date of the work was 12.04.2010 and its completion date was 27.05.2010. As per the scope of work, the petitioner was required to carry the material by mechanical transport including loading, unloading and stacking including all leads and lifts as per direction of the Engineer-in-charge.
6. The disposal of the earth and malba was to be done at Sports Complex Parhlad Pur Bangar, Bawana Road, Delhi in consultation with AE M-3431.
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 2/33 In case of extra earth/malba which is not required at Sports Complex Parhlad Pur Bangar, Bawana Road, Delhi, the same was required to be disposed of as per the directions of Engineer-in-charge. In the work order, specific quantities as well as its rate and unit was specified and the payment was to be made as per the quantity lifted multiplied by its rate as follows :-
S.No. ofDescription of item Quantity Rate Unit Amount Ref. Of DSR Item 2007
1. Carriage of material by mechanical transport including loading, unloading and stacking including all leads and lifts as per direction of Engineer-in-charge.
(a) Lime moorum, 115.74 Cum 578700.00 Item 1.1.1/P-54 Building rubbish 5000
(b) Earth 144.72 Cum 1596262.00 Item 1.1.2/P-54 11030 TOTAL 21,74,962.00
7. In terms of Clause 6 and 6 (a) of the GCC, the Engineer-in-charge was required to ascertain and determine by measurement, the value of work done in accordance with the contract and all measurement of all items having financial value was required to be entered in measurement book and/or level field book so that a complete record is obtained of all works performed under the contract. Under clause 6 of the GCC, it was further provided that all the measurements and levels shall be taken jointly by the Engineer-in-charge or his authorized representative and by the contractor or his authorized representative from time to time during the progress of the work and such measurements shall be signed and dated by the Engineer-in-
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 3/33 charge and the contractor or their representatives in token of their acceptance. It was further provided that if the contractor objects to any of the measurements recorded, a note shall be made to that effect with reason and signed by both the parties. If for any reason the contractor or his authorized representative is not available and the work of recording measurements is suspended by the Engineer-in-charge or his representative, the Engineer-in-charge and the Department shall not entertain any claim from contractor for any loss or damages on this account. If the contractor or his authorized representative does not remain present at the time of such measurements after the contractor or his authorized representative has been given a notice in writing three (3) days in advance or fails to countersign or to record objection within a week from the date of the measurement, then such measurements recorded in his absence by the Engineer-in-charge or his representative shall be deemed to be accepted by the Contractor.
8. Clause 6 of GCC is reproduced as follows :-
"All measurements and levels shall be taken jointly by the Engineer-in-charge or his authorized representative and by the contractor or his authorised representative from time to time during the progress of the work and such measurements shall be signed and dated by the engineer-in-charge and the contractor or their representatives in token of their acceptance. If the contractor objects to any of the measurements recorded, a notes shall be made to that effect with reason and signed by both the parties.
If for any reason the contractor or his authorised representative is not available and the work of recording measurements is suspended by the engineer-in-charge or his representative, the engineer-in-charge and the department shall not entertain any claim from contractor for any loss or damages on this account. If the contractor or his authorised representative does not remain present at the time of such measurements after the contractor or his authorised representative has been given a ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 4/33 notice in writing three (3) days in advance or fails to countersign or to record objection within a week from the date of the measurement, then such measurements recorded in his absence by the engineer-in-charge or his representative shall be deemed to be accepted by the contractor.
Engineer-in-Charge or his authorised representative may cause either themselves or through measurement book and/or its payment in the interim, on account or final bill shall not be considered as conclusive evidence as to the sufficiency of any work or material to which it relates nor shall it relieve the contractor from liabilities from any over measurement or defects noticed till completion of the defects liability period."
9. Clause 6a of GCC reads as under :-
"Engineer-in-Charge shall except as otherwise provided, ascertain and determine by measurement the value of work done in accordance with the contract. All measurements of all items having financial value shall be entered by the contractor and complied in the shape of the computerized measurement book having pages A-4 size as per the format of the department so that a complete record is obtained of all the items of works performed under the contract. All such measurements and levels recorded by the contractor or his authorised representative from time to time, during the progress of the work shall be got checked by the contractor from the engineer-in-charge or his representatives as per interval or program fixed in consultation with engineer-in-charge or his authorized representative. After the necessary corrections made by the engineer-in-charge, the measurement sheets shall be returned to the contractor for incorporating the corrections and for resubmission to the engineer-in-charge for the dated signatures by the engineer-in-charge by the engineer-in-charge and the contractor or their representatives in toke of their acceptance.
Whenever bill is due for payment, the contractor would initially submit draft computerized measurement sheets and these measurements would be got checked/test checked from the engineer-in-charge and/or his authorized representative. The contractor will thereafter, incorporate such changes as may be done during these checks/test checks in his draft computerized measurements and submit to the department of computerized measurement book duly bound and with its pages machine numbered. The Engineer-in-charge and/or his authorized representative would thereafter check this MB and record the necessary certificates for their checks/test checks........"
10. Further, Clause 7 of GCC reads as under :-
"No payment shall be made for work, estimated to cost Rs. Twenty thousand or less ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 5/33 till after the whole of the work shall have been completed and certificate of completion given. For works estimated to cost over Rs. Twenty thousand, the interim or running account bills shall be submitted by the contractor for the work executed on the basis of such recorded measurements on the format of the department......"
11. Further, Clause 8 of GCC is as under :-
"Within ten days of the completion of the work, the contractor shall give notice of such completion to the engineer-in-charge and within thirty days of the receipt of such notice, the engineer-in-charge inspect the work and if there is no defect in the work, shall furnish the contractor with a final certificate of completion, otherwise a provisional certificate of physical completion indicating defects 9a) to be rectified by the contractor and/or (b) for which payment will be made at reduced rates, shall be issued. But no final certificate of completion shall be issued, nor shall the work be considered to be compete until the contractor shall have removed from the premises on which the work shall be executed all scaffolding, surplus materials, rubbish and all huts and sanitary arrangements required for his/their work people on the site in connection with the execution of the works as shall have been erected or constructed by the contractor(s) and cleaned off the dirt from all wood work, doors, windows, walls, floors or other parts of the building in upon or about which the work is to be executed or of which he may have had possession for the purpose of the execution thereof and not until the work shall have been measured by the engineer-in-charge. If the contractor shall fail to comply with the requirements of this clause as to remove of scaffolding surplus materials and rubbish and all huts and sanitary arrangements as aforesaid and cleaning off dirt on or before the date fixed for the completion of work, the engineer-in-charge may at the expense of the contractor remove such scaffolding, surplus material and rubbish etc., and dispose of the same as he thinks fir and clean off such dirt as aforesaid and the contractor shall have no claim in respect of the scaffolding or surplus materials as aforesaid except for any sum actually realised by the sale thereof."
12. Further clause 25 of the GCC prescribed the determination of all questions and disputes with respect to the work or execution or failure to execute the same through the mechanism of arbitration as per the Arbitration and Conciliation Act, 1996.
13. Besides the GCC, additional conditions were also made part of the contract as awarded to the petitioner. The relevant condition no. 14, 18 and 33 are reproduced herein below for the ready reference :-
"4. Before start of the work, the contractor shall submit the program of execution of work and get it approved from Engineer-in-Charge ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 6/33 and strictly adhere to the same for timely completion of the project work.
14. The contractor or his authorized representative should always be available at the site of work to take instructions from departmental officers and ensure proper execution of work. No work should be done in the absence of such authorized representative.
"18. The malba/garbage removed from the site shall be disposed or by the contractor at the MCD approved dumping site or at any other suitable place as directed by the Engineer-in-charge. "33. The disposal of earth and malba shall be done at sports complex Parhlad Pur Banger, Bawana Road Delhi in consultation with AE M- 3431. In case of extra earth/malba which is not required at Sports Complex Parhlad Pur, Banger the same shall be disposed off as per direction of the Engineer-in-charge for which nothing extra shall be payable.
14. The Respondent extended the date of completion of the contract vide letter dated 24,05.2010 issued by the Executive Engineer upto 30.06.2010 and again upto 31.07.2010 vide letter dated 26.06.2010 and again upto 31.08.2010 vide letter dated 31.07.2010 on the ground that the work has not been completed.
15. The Petitioner vide letter dated 28.08.2010 (allegedly sent through UPC and the receipt of which being disputed by the Respondent), informed to the respondent that substantial quantity of the items has been executed and that its payment may be released. However the Respondent once again extended the scheduled date for completion of work till 30.09.2010 on the ground that the work has still not completed vide letter dated 31.08.2010.
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 7/33
16. That in continuation to the letter dated 28.08.2010, letter dated 04.10.2010 (allegedly sent through UPC and the receipt of which being disputed by the Respondent) was issued by the petitioner to the respondent requesting for release of payment for the complete work having been executed by the petitioner. As per the Petitioner the aforesaid letters were issued through UPC.
17. That the Petitioner was issued a show-cause notice by the executive engineer of the respondent under the cover of letter dated 25.03.2011 under Clause 3(a) and (b) of the agreement on the ground that due to the wrongful delay on the part of the petitioner, the work entrusted to the petitioner had not been started within the extended date of completion.
18. That the aforesaid show-cause notice was replied by the petitioner vide letter dated 02.04.2011 (sent through Speed Post) bringing to the knowledge of the executive engineer of the respondent that the work stood completed long back and despite the same, no payment has been released to it and further the respondent was called upon to carry out the joint inspection to assess the leftover work. However, no joint inspection was carried out but the respondent.
19. The petitioner submitted its first and final bill vide letter dated 05.04.2011 calling upon the respondent to pay an amount of Rs. 47,17,508/- followed by reminders dated 27.04.2011 and 04.05.2011 with copy of the same to Superintendent Engineer and Chief Engineer.
20. That the respondent instead of releasing the payment towards the first and the final bill as submitted by the petitioner, issued letter dated 21.05.2011 thereby determining the contract and forfeiting the earnest money and the performance guarantee.
21. That the Petitioner vide letter dated 25.05.2011, issued to the ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 8/33 Superintendent Engineer of the respondent and also to the Chief Engineer of the respondent vide letter dated 05.07.2011 brought out the entire conspectus of facts leading to the unjustified action of the executive engineer of the respondent in as much as determining the contract.
22. That since there was an inaction on the part of the Superintendent Engineer as well as the Chief Engineer, the Petitioner vide letter dated 24.08.2011 issued to Chief Engineer requested to appoint a Sole Arbitrator to adjudicate the claim of the petitioner.
23. That accordingly vide letter dated 06.01.2012, two claims were preferred by the petitioner i.e. Claim no. 1 : Recovery of an amount of Rs. 47,17,508/- towards non-payment of final bill and Claim no. 2 : Interest @ 18% on the amount of the final bill.
24. That the respondent acting through its Chief Engineer vide letter dated 01.05.2012, appointed Sh. S.R Pandey as the Sole Arbitrator to adjudicate upon the disputes as raised by the petitioner under Clause 25 of the Agreement with the noting that the arbitrator was required to give a reasoned award in terms of Clause 25 of the Agreement.
25. That under the cover of letter dated 13.05.2012, the petitioner submitted two additional claims in addition to the claims already made i.e. towards refund of the earnest money @ Rs. 43,500/- and secondly for the return of the original performance guarantee which expired on 12.08.2010 which too were referred to the Ld. Sole Arbitrator vide letter dated 02.07.2012 issued by the Chief Engineer of the respondent.
26. That pursuant to reference having been made, the Ld. Sole Arbitrator as appointed by the respondent, vide letter dated 09.05.2012 issued notice for holding a preliminary hearing on 19.05.2012 for framing a time schedule for pleadings, rejoinder etc. with direction to the parties to attend the ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 9/33 preliminary hearing.
27. That in the preliminary hearing held on 19.05.2012, the Ld Sole Arbitrator drew a summary record of the proceedings as follows :-
1.0 SOC shall be filed by the claimant in four weeks 2.0 SOD shall be filed by the respondent in next two months. 3.0 Rejoinder shall be filed in another 15 days.
4.0 Parties were directed to remit part fees as directed without further delay.
5.0 It was decided to hold the next hearing after SOC, SOD and rejoinder stages are completed
28. That in continuance of letter dated 01.05.2022, the two additional claims as filed by the petitioner were also referred to the Ld. Sole Arbitrator vide letter dated 02.07.2012 by the Chief Engineer of the Respondent.
29. The petitioner thereafter in terms of the summary of proceedings and the reference of the two additional claims, filed its statement on the aforesaid facts and documents on 22.08.2012 with a copy to the respondent.
30. Since despite the filing of the statement of facts alongwith the documents and since the respondent failed to file its statement of defence despite the expiry of approx. 7 months having elapsed from the date of filing of statement of facts and documents by the petitioner, the Ld. Sole Arbitrator vide letter dated 21.03.2013, taking due note of the letter dated 18.12.2012 and 15.02.2013 where a request has been made by the petitioner to continue with the proceedings in the absence of the statement of defence, called upon the respondent to file its statement of defence latest by 30.04.2013 duly intimating the respondent that on its failure to file its statement of defence by 30.04.2013, the sole arbitrator under the provisions of Section 25(b) would continue the proceedings without treating the failure of ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 10/33 respondent in filing statement of defence as admission of the allegation by the respondent.
31. That as perused from the letter dated 05.08.2013 as issued by the Ld. Sole Arbitrator, since despite the directions issued to the respondent to file statement of defence in terms of letter dated 21.03.2013 by 30.04.2013, since the respondent failed to file its statement of defence by even 30.04.2013 and despite the letter dated 26.07.2013, one more opportunity was granted by the Ld. Sole Arbitrator to the respondent latest by 30.09.2013.
32. The respondent thereafter filed its statement of defence alongwith R1 to R17 as is evident from the letter dated 27.08.2013. In their reply the Respondent took the stand that the work as awarded to the petitioner was not started and the concerned Assistant Engineer intimated to the Executive Engineer vide letter dated 10.05.2010 and 25.05.2010 that the claimant has not started the work till those days and accordingly the time was provisionally extended upto 30.06.2010 without prejudice to the right of compensation vide letter dated 24.05.2010 which was further extended upto 31.07.2010 vide letter dated 26.06.2010 to which extension of time, no objection was raised by the petitioner. It has further been contended that the keeping in view the urgency of work, the stipulated date of completion was again extended provisionally by the Executive Engineer, PWD, M-343 upto 31.08.2020 vide letter dated 31.07.2010 and upto 30.09.2010 vide letter dated 31.08.2010. It has further been contended that the date of completion was extended from time to time so as to keep the contract alive and to provide ample opportunity to the petitioner to perform the contract.
33. On merits, it has been contended that the letters dated 28.08.2010, 01.10.2010 and 04.10.2010 allegedly sent through UPC were never ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 11/33 received by the respondent. It has further been contended that since work was not started by the petitioner, notice under Clause 3(a) (b) of the agreement was issued to the petitioner on 25.03.2011. It has further been contended that the work was being looked after by two sub-divisions namely M-3433 and M-3434, Assistant Engineers M-3433 and M-3434 intimated vide their letter dated 10.05.2010 and 25.05.2010 that the work was not even started by the petitioner and the same was again confirmed by the then AE M-3434 vide letter dated 16.05.2011 that the petitioner had not executed any work under the said agreement and no per-measurement were done by the petitioner to execute the work and presented before him as a pre condition so as to start the work.
34. The respondents had denied all the claims as raised by the petitioner on the strength of Schedule (F) of the agreement and had also contended that the measurement of the work was required to be recorded as per Clause 6 of the GCC of the contract i.e. the measurement of all the items required to be recorded in the measurement book jointly by the Engineer Incharge or his representative from time to time during progress of work and such measurements shall be signed with date by the Engineer-in-Charge and the contractor or their authorized representatives in token of their acceptance of measurements. Therefore, the measurement sheets submitted by the claimant vide letter dated 02.07.2012 of Statement of fact does not have any meaning because the measurements were recorded by the petitioner are not signed by the Engineer-in-charge or his representative.
35. It has been further contended by the Respondent that as per condition no.
33 of Additional condition of Contract which is partly reproduced as "The disposal of earth and malba shall be done at sports complex, Parhlad Pur Banger, Bawana Road, Delhi in consultation with AE M-3431" and the ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 12/33 certificate of AE M-3431 for dumping of malba at the specified site for this quantity is also not submitted by the petitioner. It is further been contended that the same condition was also mentioned below in the Schedule of quantity but no such record was produced by the claimant and no earth/malba was disposed at the recommended site by the petitioner. Accordingly, it was contended that the petitioner has not executed any work and neither any measurements have been recorded by the concerned officials nor any measurement sheets have been submitted to the officers in charge of the work by the petitioner and also that the claims being baseless be rejected.
36. The Ld. Sole Arbitrator thereafter vide letter dated 22.09.2013 issued notice of the next hearing to the parties for the meeting scheduled on 08.10.2013 with the direction that in case either of the parties failed to appear in the meeting scheduled for 08.10.2013, the hearing would be held ex-parte.
37. From the perusal of the record of the arbitration which pursuant to its destruction by the Ld. Sole Arbitrator was submitted to the court after its reconstructed. Perusal of the reconstructed arbitral record shows that there are no minutes of meeting/proceeding sheet of the hearing held on 08.10.2013 and in the absence of the same, it is not possible to decipher as to what happened in the meeting scheduled for 08.10.2013 which was held after the completion of the pleadings. However para 0.8 of the arbitration award states as under:
"0.8. In all, two hearings were held and with consent of both parties, oral hearings were concluded on 08.10.2013. Neither party wished to file any written submission."
38. Thereafter from the perusal of the stamp paper on which the arbitration ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 13/33 award has been engrossed goes to show that the same was purchased by the petitioner on 20.10.2013 for the purposes of the engrossment of the arbitration award and the same was supplied by the petitioner to the Ld. Sole Arbitrator.
39. That vide letter dated 01.11.2013, the Ld. Sole Arbitrator intimated the parties that he has made and signed the award and a copy of the award dated 01.11.2013 was sent to the parties.
40. Vide the award dated 01.11.2013, the Ld sole arbitrator rejected claim no. 1 and 2 and had allowed the additional claims no. 1 and 2 of the Petitioner who rejected the counter claim of the respondent.
41. Vide the present petition preferred under Section 34 of the Arbitration and Conciliation Act,1996, the award has been assailed on the following grounds :-
a. No issues have been framed in the present matter and the claims have been decided without any adjudication as to what were disputes between the parties given the fact that while the execution of work was being affirmed by one party and was being denied by the other. b. The parties were not afforded an opportunity to lead evidence to prove their respective cases.
c. The Ld. Sole Arbitrator has reached arbitrary conclusions and has returned arbitrary findings in the exercise of his jurisdiction illegally and with material irregularity.
d. The award as rendered by the Ld. Sole Arbitrator is contrary to the public policy since the same has been passed without giving any opportunity of leading evidence and of proving the case under dispute.
42. Learned counsel for the Petitioner has contended that the petitioner was not afforded an opportunity to lead any evidence on the lines of the grounds of ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 14/33 the challenge made under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996. He has further contended that in all two hearings were held and the award has been passed contrary to the mandate of Section 18,19 and 24 of the Arbitration and Conciliation Act. He has further contended that in the present matter no issues have been framed and no procedural order for the hearing held on 08.10.2013 has been drawn. In support, Ld. Counsel has cited the following judgments :-
Sukhbir Singh vs. Hindustan Petroleum Corporation Ltd 2020 SCC Online Delhi and Jagpreet Singh Lyallpuri (dead) through Lrs vs. Unitop Apartments and Builders Ltd, (2020) 2 SCC 279.
43. He has further submitted that besides the aforesaid, the Ld. Sole Arbitrator has reached arbitrary conclusions and has returned arbitrary findings in the exercise of his jurisdiction illegally and with material irregularity and also that the award as rendered by the Ld. Sole Arbitrator being contrary to the public policy is liable to be set-asid.
44. Per contra, the counsel for the respondent has supported the award on the lines of the counter statement of facts as submitted by the respondent. On the first contention as raised by the Counsel for the Petitioner, the court in the present matter is required to decide the question as to whether an award can be set aside on the grounds set forth in section 34 of the Arbitration and Conciliation Act, 1996, given the mandate of Section 4, 18, 19 and 24 of the Act where both the parties instead of choosing to lead evidence have addressed final arguments on the basis of the pleadings and the documents accepting the procedure adopted by the Learned Sole Arbitrator without raising any objection to the same and whether the unsuccessful party is permitted to take the plea that the procedure adopted denied an opportunity to lead evidence.
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45. Before examining this grounds of objection raised by the Petitioner, it would be necessary to reproduce the relevant sections of the Arbitration and Conciliation Act as follows:
Section 4 of the Arbitration and Conciliation Act deals with the aspect of a waiver of right to object. Vide the aforesaid Section, it has been provided that a party who knows that (a) any provision of this part from which the parties may derogate or (b) any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the objections to such non-compliance without undue delay or even time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object. Vide Section 5 of the Arbitration and Conciliation Act, the principle of minimal judicial intervention has been provided and the judicial authorities are mandated not to interfere in matters governed by Part I except where so provided in Part I of the Arbitration and Conciliation Act , 1996. Chapter V of Part I of the Arbitration and Conciliation Act deals with the conduct of arbitral proceedings and Section 18 provides that the parties are required to be treated with equality and each party is required to be given a full opportunity to present his case.
46. As per Section 19, it has been provided as follows :-
Determination of rules of procedure- (1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872), (2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings, (3) Failing any agreement referred to in sub- section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner its considers appropriate, (4) The power of the ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 16/33 arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence. From the perusal of Section 19, it is clear that the Tribunal is not bound to observe the provisions of Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 with all of its rigour. However the parties are free to agree to follow the procedures to be followed by the Arbitral Tribunal and in case where the parties have not agreed for a procedure, the arbitrator is free to conduct the proceedings following the procedure in the manner which he considers appropriate.
As per section 24 of the Arbitration and Conciliation Act, 1996, it has been provided as follows:
"Section 24: Hearing and Written Proceedings: (1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials:
Provided that the arbitral tribunal shall hold oral hearings, at an appropriate stage of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held. (2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property.
(3) All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.
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47. Thus in terms of Section 24 of the Arbitration and Conciliation Act, 1996 the Arbitral Tribunal is empowered to determine the question as to whether an oral hearing should be allowed to a party for presentation of evidence or for oral arguments. The provisions makes it clear that on request by a party to have oral hearings, it shall be the duty of the Arbitral Tribunal to conduct oral hearing unless the parties agreed not to have oral hearing. In interpreting the procedural provisions of the Act, and assessing the integrity of the arbitral process in a given case, Section 18 provides the guiding principle. Equal treatment of the parties and grant of full opportunity to present their cases is central to the credibility of arbitration as a binding form of alternative dispute resolution. The procedure determined by a Tribunal under Section 19 and any exercise of discretion in procedural matters must fulfill these requirements. Section 24 deals with the aspect as to whether oral hearings are to be held - either for presentation of evidence or for oral arguments - may be a matter upon which the parties have reached agreement. If so, it is clear from the opening words of Section 24(1), and consistent with the doctrine of party autonomy, that their agreement would prevail. Absent such agreement however, the Arbitral Tribunal is vested with discretion to decide this question. It appears from the first proviso to Section 24(1) that the discretion of the arbitrator in this regard is subject to one of the parties requesting an oral hearing. The principle of the provision is that the requirement of due process includes a right to oral hearing at the appropriate stage, if a party so desires. The Hon'ble High Court of Delhi in the matter of Sukhbir Singh vs. Hindustan Petroleum Corporation Ltd, 2020 SCC Online 228, on the interpretation of Section 24(1) has held that the first proviso to Section 24(1) requires a party's request for oral hearings at the stage of evidence or ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 18/33 arguments to be granted. Unless the right to require oral evidence or oral arguments has been waived by a prior agreement to the contrary between the parties, the proviso to Section 24(1) expresses a legislative preference for the grant of oral hearing at the request of the either party and the proviso to Section 24(1) provides for an exception to the general provision, that the arbitrator has discretion on the question of whether or not permit oral hearings.
48. In the present case, it is not in dispute that the final arguments were addressed by both the parties on the basis of the pleadings and the documents filed by them. Neither party during the pendency of the matter before the sole arbitrator desired to lead evidence and had instead chosen to address final arguments on the basis of their respective pleadings and material on record. Perusal of the record shows that the arguments in the present matter were concluded on 08.10.2013 and there was a gap of around 21 days from the date of conclusion of the final arguments and the publication of the award. Even during this period none of the parties raised any objections to the procedure adopted by the Learned Sole Arbitrator who seemed to have been satisfied by the same and neither of the parties requested for an oral hearing for the presentation of the evidence. The Petitioner even purchased the stamp paper for the engrossment of the award thereupon and supplied the same to the learned sole arbitrator without raising any objection to that extent at any point of time before passing of the impugned award before the Ld. Arbitrator . Both the parties adhered to the procedure adopted by the Ld. Sole Arbitrator and neither of the parties wished to lead any evidence either by making oral or written request or by filing any other application before the Ld. Sole Arbitrator. It is noteworthy that the petitioner was duly represented by a consultant and yet ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 19/33 no objection at any point of time prior to publishing of the award has been raised by the petitioner who after addressing oral arguments went a step further and supplied the stamp papers for the purposes of engrossment/publication of the award thereupon. Thus from the aforesaid it can be concluded that the parties had accepted the procedure as adopted by the learned Sole Arbitrator and being satisfied with the same concluded oral arguments on the basis of pleadings and documents filed by them in the hearing held on 08.10.2013 and have not requested for an oral hearing for the presentation of the evidence nor raised any objection to the procedure adopted by the Ld. Sole Arbitrator. In view of the same, the Petitioner is thus estopped from raising the contention that the arbitrator misconducted himself or that they have not been afforded an opportunity to fully present their case or to lead evidence in the present matter when no request for the same was made. Thus, the parties having agreed upon the procedure to be followed in the arbitral proceedings and being satisfied with the same who in terms thereof have addressed oral arguments without requesting for an oral hearing for the presentation of evidence, the petitioner herein is estopped from raising a challenge thereto on the principles of estoppel, acquiescence and waiver. Such an estoppel, acquiescence and waiver is evident from the conduct of the parties.
49. The Hon'ble Supreme Court of India in the matter of Jagjeet Lyallpuri (Dead) Through Lrs vs. Unitop Apartments & Builders Ltd., (2020) 2 SCC 279 after analyzing Section 19 of the Arbitration and Conciliation Act which provides that the arbitral tribunal is not bound by the Code of Civil Procedure or the Evidence Act and also the fact that parties are free to agree on the procedure to be followed in the arbitral tribunal and after noting the fact that the parties having consented to the procedure as adopted by the ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 20/33 arbitral tribunal, would not be permitted to approbate and reprobate so as to raise a different contention on the same. It was further held that the parties having accepted the procedure as adopted by the Ld. Sole Arbitrator, would be estopped from raising a challenge to the award on the ground that the arbitrator has misconducted himself and had not permitted the parties to lead evidence.
50. From the aforesaid facts and circumstances and in view of the judgment rendered by the Hon'ble Apex Court in the matter of Jagjeet Lyallpuri (supra) the Petitioner having consented to the procedure adopted by the Ld. Arbitrator, is ill suited to challenge the unfavourable award who is estopped from approbating and reprobating so as to raise a different contention or to allege that the arbitrator misconducted himself by not permitting the parties to lead evidence when no request to that effect was made.
51. The facts of the case in the matter of Sukhbir Singh vs. Hindustan Petroleum Corporation Ltd 2020 SCC Online Delhi 228 are different from the facts in the present case. In the cited case, the request for an opportunity to cross-examine the witness was denied by the arbitrator and accordingly the Hon'ble High Court of Delhi held that the request having been made could not have been rejected.
52. Accordingly, the challenge to the impugned Award on the grounds that the petitioner was afforded no opportunity to lead evidence or that the petitioner was deprived of proving its case or that no issues were framed in the present matter on the aforesaid facts and circumstances and the position of law is accordingly rejected.
53. The petitioner has also challenged the award on the ground that the Ld. Sole Arbitrator has reached arbitrary conclusions without any adjudication and without appreciating the disputes between the parties and has returned ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 21/33 arbitrary findings without appreciating the documents/material placed on record by the petitioner and as such the award as passed by the Sole Arbitrator being contrary to public policy is liable to be set-aside.
54. Section 34 of the A&C Act, prior to amendment effected vide Act No. 3 of 2016 with retrospective effect from 23.10.2015, reads as under:
Section 34 of the Arbitration Act provides as under :
34. Application for setting aside arbitral award.
(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section(3). (2)An arbitral award may be set aside by the Court only if(a) the party making the application furnishes proof that--
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that-- (I) the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India.
Explanation.--Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section(1),the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 22/33 order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.
55. Before dealing with these contentions of the Petitioner, it is apt to note that the powers of the Court under Section 34 of the Act are very limited and an application under Section 34 of the Arbitration Act, 1996 is in the nature of summary proceedings and not in the nature of a regular suit. It is a settled law that a Court reviewing an award under Section 34 of the Act does not sit as an appellate court over the award passed by the Arbitrator or to re-examine or to re-appreciate the evidence as an Appellate Court if the view taken by the Arbitrator is plausible in terms of the judgments passed in the matter of Canara Nidhi Ltd. v/s M. Shashikala 2019 SCC Online SC 1244 and Associated Construction v/s Pawanhans Helicopters Ltd. (2008) 16 SCC 128.
56. In Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 4 emphasised that the public policy test to an arbitral award does not give jurisdiction to the court to act as a court of appeal and consequently errors of fact cannot be corrected. Arbitral tribunal is the ultimate master of quality and quantity of evidence. An award based on little evidence or no evidence, which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Every arbitrator need not necessarily be a person trained in law as a Judge. At times, decisions are taken acting on equity and such decisions can be just and fair should not be overturned under Section 34 of the A&C Act on the ground that the arbitrator's approach was arbitrary or capricious.
57. Similarly in Sumitomo Heavy Industries Ltd. v. ONGC Ltd: The observations in para 43 thereof are instructive in this behalf.
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 23/33 "(Sumitomo case 21, SCC p. 313) 43. ... The umpire has considered the fact situation and placed a construction on the clauses of the agreement which according to him was the correct one. One may at the highest say that one would have preferred another construction of Clause 17.3 but that cannot make the award in any way perverse. Nor can one substitute one's own view in such a situation, in place of the one taken by the umpire, which would amount to sitting in appeal. As held by this Court in Kwality Mfg. Corpn. vs. Central Warehousing Corpn. (2009) 5 SCC 142, the Court while considering challenge to arbitral award does not sit in appeal over the findings and decision of the arbitrator, which is what the High Court has practically done in this matter. The umpire is legitimately entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the agreement. If he does so, the decision of the umpire has to be accepted as final and binding."
58. In McDermott International Inc. vs. Burn Standard Co. Ltd. (2006) 11 SCC 181, it was further noted that the interpretation of a contract is a matter for the Arbitrator to determine, even if it gives rise to determination of a question of law. Once, it is held that the arbitrator had the jurisdiction, no further question shall be raised and the court will not exercise its jurisdiction unless it is found that there exists any bar on the face of the award.
59. In Dyna Technologies Pvt. Ltd. v. Crompton Greaves Ltd. [2019 SCC Online SC 1656] laid down the scope of such interference. The Hon'ble Supreme Court of India observed as follows:
"26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 24/33 of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated."
60. PSA SICAL Terminals (P) Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin, 2021 SCC OnLine SC 508, in which the Hon'ble Supreme Court of India reiterated its view on MMTC Limited v. Vendanta Limited, (2019) 4 SCC 163 wherein it was observed that:
"As far as Section 34 is concerned, the position is well-settled by now that the Court does not sit in appeal over the arbitral award and may interfere on merits on the limited ground provided under Section 34(2)(b)(ii) ..." "It is only if one of these conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b)(ii), but such interference does not entail a review of the merits of the dispute, and is limited to situations where the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the Court is shocked, or when the illegality is not trivial but goes to the root of the matter. An arbitral award may not be interfered with if the view taken by the arbitrator is a possible view based on facts." "...the court cannot undertake an independent assessment of the merits of the award, and must only ascertain that the exercise of power by the court under Section 34 has not exceeded the scope of the provision."...
61. As per the statement of claim, it is the case of the claimant that the execution of the work as awarded to the claimant/petitioner herein was to be completed within 45 days from the date of start i.e. 12.04.2010 which was to be completed by 27.05.2010 and the same was unilaterally contractually extended by the Executive Engineer upto 30.06.2010 vide letter dated 24.05.2010 and again upto 31.07.2010 vide letter dated 26.06.2010 and again upto 31.08.2010 vide letter dated 31.07.2010. The complainant has further submitted that vide letter dated 28.08.2010, it was informed to the respondent that substantial quantity of the items has been executed and that its payment ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 25/33 may be released and yet again the time was extended upto 30.09.2010 vide letter dated 31.08.2010.
62. It is further the case of the claimant/petitioner that vide letter dated 04.10.2010, the respondents were informed that no payment has been released to them as requested vide letter dated 28.08.2010 and it was further intimated that the work has been completed. The claimant has further submitted that a show-cause notice dated 25.03.2011 was issued to the claimant under Clause 3 (a) and (b) on the ground that the work has not been started and as to why the action be not taken under Sub-Clause 3 (a) and (b) of the agreement. The petitioner has further submitted that in reply to the show-cause notice vide letter dated 02.04.2011, it was informed to the Executive Engineer that the work stands completed and despite the same, no payment has been released to the claimant and thereafter vide letter dated 05.04.2011, first and final bill for an amount of Rs. 47,17,508.05/- was issued . However, instead of releasing the payment to the petitioner, the contract was terminated vide letter dated 21.05.2011 and thereafter since no action was taken by the respondents, the petitioner under the cover of letter dated 06.01.2012 submitted two claims i.e. Claim towards the final bill for an amount of Rs. 47,17,508/- and also claim toward the interest.
63. It is worth mentioning that in support of the claimed amount, the petitioner relied upon Annexure-I of the statement of claim which are the register entries maintained by the claimant/petitioner and the said entries at no place contain the signatures of the engineer in charge or any other junior engineer or assistant engineer and whereby the claimant has stated as follows :-
"Carriage of material by mechanical transport including loading, ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 26/33 unloading and stacking including all leads and lifts as per direction of Engineer-in-charge" and "Carriage of material by mechanical transport, including loading, unloading and stacking including all leads and lifts as per direction of Engineer-in-charge. Lime, moorum, building rubbish."
64. On the other hand, it is the case of the respondent that the work as awarded to the claimant was not even started by the claimant and the same was informed by the Assistant Engineer vide letter dated 10.05.2010 and 25.05.2010 to the Executive Engineer and accordingly provisional extensions of the contract were granted upto 30.06.2010 without prejudice to the rights of the respondent to claim compensation under Clause 2 of the agreement and no objection whatsoever was made to the same. Thereafter, the respondent issued notice dated 25.03.2011 to the claimant under Clause 3 (a) and (b) of the agreement based upon the reports of the Assistant Engineers M 3433 and M 3434 vide letters dated 10.05.2010 and 25.05.2010 and also that no per-measurement was done by the Petitioner/claimant to execute the work and presented before the Assistant Engineers which was the pre-condition to start the work and accordingly the action under Clause 3 of the agreement was initiated. It has further been submitted by the respondent that besides the aforesaid two letters, the Assistant Engineer concerned vide his letter dated 20.09.2010 and 16.05.2011, had intimated that the claimant has not executed any work.
65. As per the respondent, in terms of Schedule (F) of the agreement, the measurement of this work was required to be recorded as per Clause 6 of the GCC of the contract i.e. the measurement of all the items were required to be recorded in the measurement book jointly by the Engineer Incharge or his representative and by the contractor or his authorized representative ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 27/33 from time to time during progress of the work and such measurement was required to be signed with date by the Engineer-in-charge and the contractor in token of their acceptance of measurement.
66. Accordingly, it was put forth by the respondent that the measurements submitted by the claimant have no meaning since the same has not been signed by the Engineer-in-charge or his representative. Besides the aforesaid, it has been put forth by the respondent that as per condition no. 33 of the additional conditions of the contract, the disposal of the earth and malba was to be done at Sports Complex Prahalad Pur, Banger, Bawana Road, Delhi in consultation with AE, M 3431 and which certificate for dumping of malba of the quantities specified by the claimant has not been submitted and no record for the disposal of the malba/earth at the recommended site has been produced by the complainant which goes to show that the work was not executed by the claimant and neither any measurement has been recorded by the department officials/officers nor any measurement sheet were submitted to the officers who were incharge of the work at that time by the claimant.
67. The Ld. Sole Arbitrator vide his award on the basis of the pleadings, documents and oral arguments and interpretation of the terms of the contract and after critically analyzing the claimant's case and case put forward by the respondent, has returned the following findings :-
"Given the provision of Clause 6 of the agreement, other condition of the agreement and considering the nature of the work which is not susceptible to measurement or verification of measurement after it has been executed by a contractor in such cases could be computed only by following the method as under :
(i) Joint pre-measurement of malba and earth to be removed and recording the same in measurement books duly signed by both parties.
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 28/33
(ii) Joint verification at the site of malba/earth to confirm that the pre-
measured stacks of malba/earth have been actually lifted and recording the same in measurement books.
(iii) Joint verification at the site of disposal to confirm that the malba/earth as lifted have been disposed of at the designated site and not elsewhere and recording a certificate to this effect in the measurement books,
68. The Ld. Sole Arbitrator in accordance with the condition laid down under the Schedule of quantity of the agreement as well as condition 33 of the Additional Conditions of the contract returned a finding that no documentary evidence has been placed on record by the claimant to show that the petitioner ever consulted the Assistant Engineer or any other representative of the respondent even once, given the fact that the disposal of malba/earth was to be carried out in consultation with Assistant Engineer M-3431.
69. It was further held by the Ld. Sole Arbitrator that the claimant has not put on record any averment in the entire statement of claim that it ever made a request to the respondent for joint measurement of the stacks of the malba and earth or any direction issued by the respondent to maintain the record of the disposal of the malba to the petitioner contrary to the conditions of the contract which directions would have been unprecedented but would have been unusual and would have the effect of completely abrogating the conditions of the contract and would have rendered the respondent completely at the mercy of the petitioner leading to a situation where in the absence of any verification by the respondent, the measurements put forward by the claimant/petitioner had to be accepted and the payments based upon the unverified measurements had to be made. The Ld. Sole Arbitrator held that the respondent has not pleaded anywhere that any information was provided to the respondent from time to time with respect ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 29/33 to the details of the stacks which as per the own version of the claimant were measured unilaterally and entered in its own register or that despite the said information, the respondent kept quiet and on the basis of the aforesaid, the Ld. Sole Arbitrator accordingly held that the claimant has thus have failed to fulfill the very fundamental condition of the contract with respect to the recording of the measurements.
70. The Ld. Sole Arbitrator after going through the entire pleadings, documents placed on record including the letter dated 28.08.2010 returned a finding that no details whatsoever were furnished and neither the same were backed by any basis in as much as claiming payments under the contract without any joint measurement having taken place or verification having been carried out or counter signatures of the respondent having been obtained on any of the quantity of the stacks of earth and malba allegedly removed by the claimant.
71. The Ld. Sole Arbitrator further held that even the unilaterally maintained register of stack measurement was not provided either with the letter dated 28.08.2010 or 04.10.2010 and no details of the so called stack measurement had been provided under the cover of the two letters allegedly sent through UPC, the receipt of which was denied by the respondent. It was further observed by the Ld. Sole Arbitrator that even at the time of submission of the full and final bill sent under the cover of letter dated 05.04.2011, the petitioner has chosen not to submit the so called register of stacks measurement which even if had been submitted, for want of signatures by the respondent would not have entitled the petitioner for the payments claimed under the unilaterally maintained register. Accordingly, it was held by the Ld. Sole Arbitrator that the register of pre-measurement of stacks which had seen the light only in the arbitration proceedings and ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 30/33 relied upon for the quantum of work claimed to have been done for want of knowledge of the respondent and for want of signatures by the respondent's representative cannot under the terms of the contract form the basis of claiming payments under the contract.
72. Ld. Sole Arbitrator further held that the argument of the respondent to the effect that since the stipulated date of completion of the work was 27.05.2010 and since the work was not even started and yet no action was taken by the respondent under the provisions of Clause 2 and 3 of the contract and since despite the receipt of letter dated 02.04.2011, 05.04.2011, 07.04.2011, 04.05.2011 and 25.05.2011, no reply was received to the aforesaid letters and also in view of the specific language of the letters granting provisional extension of time wherein it has been mentioned that the work has not been completed rather than that the work has not been started is misconceived since the claim of the petitioner was for the recovery of the amount for the work claimed to have been done. It was held by the Ld. Sole Arbitrator that since the claimant has failed to produce any direct or unassailable evidence in support of his claims hence the claims towards work done and not paid were not admissible.
73. The Ld. Sole Arbitrator with respect to the arguments of the petitioner to the effect that the respondent has failed to file any documentary evidence to the effect that it got the malba/earth removed through any other agency or departmentally goes to prove the fact that the work has been completed by the petitioner as per the scope and terms of the contract held that the non- production of documentary proof by the respondent in support of removal of malba/earth through any other agency does not positively mean that the same was removed by the claimant and since the claimant has failed to prove by any concrete evidence that the work has been performed by it ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 31/33 hence the claims of payment of work is not admissible.
74. The Ld. Sole Arbitrator similarly dealing with the contention pertaining to the request for joint measurement as requested by the claimant/petitioner vide the reply dated 02.04.2011 and not adhering to the same by the respondent, held that even if in the joint inspection had been carried out wherein it was found that there was no malba/earth at site, the same could not be taken as a proof that the same was removed by the claimant, given the fact that the claimant had not adduced any evidence with respect to the quantity of the earth/malba if at all removed by the claimant.
75. On the aspect of the stack measurement register which formed the sole basis of the claim for payments by the petitioner alleging the execution of the work, it was held by the. Ld. Sole Arbitrator that the aforesaid stack measurements were never brought to the knowledge of the respondent which were only filed at the time of submission of the claims in the arbitration proceedings and not at any time prior thereto. It was held that the said measurements have no sanctity given the condition of the contract and cannot form the basis of any payments and accordingly held that the claims of the petitioner towards payments for the work done were frivolous and have not been substantiated by any evidence.
76. The Ld Sole Arbitrator with respect to claim no. 2 held that since the claim towards payment of the work done were rejected in its totality accordingly claim towards interest does not survive. However, the learned sole Arbitrator, awarded the claimant the additional claims on the ground that at the time of issuance of the show-cause notice, the contract was not alive hence its determination was unlawful and illegal. The Learned Sole Arbitrator also rejected the counter claims as the contract was unlawful and illegal.
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 32/33
77. Thus from the aforesaid, it can be concluded that the award as passed by the Ld. Sole Arbitrator is based upon the appreciation of the pleadings, documents and the Ld. Sole Arbitrator has exhaustively dealt with all the arguments as put forward by the parties. The award as passed by the Learned Sole Arbitrator contains reasons for the conclusions reached based upon the interpretation of the conditions of the contract. Accordingly, challenge to the award on the ground that the Ld. Sole Arbitrator has reached arbitrary conclusions without any adjudication and without appreciating the disputes between the parties does not lie. The learned sole arbitrator has passed the Award impugned herein after having minutely appreciating the terms and conditions of the contract, pleading of the parties, the documents filed therewith and appreciation of the arguments as advanced. The findings returned by the Learned Sole Arbitrator are supported by reasons. Hence it cannot be said that award suffers from any perversity or illegality where arbitrary findings have been returned without appreciating the documents/material placed on record by the petitioner. Accordingly, it cannot be held that the award passed by the Ld. Sole Arbitrator falls within any of the grounds as contemplated in Section 34 of the Arbitration and Conciliation Act. Accordingly, the present petition being devoid of merits is hereby dismissed.
SACHIN Digitally signed
by SACHIN SOOD
SOOD Date: 2024.07.24
14:59:38 +0530
Announced in the Open Court (SACHIN SOOD)
on 24th July, 2024 DJ-01/ Central District
Tis Hazari Court/Delhi
(Judgment contains 33 pages)
ARBTN NO. 191/2017 M/S SATYA PRAKASH VS. UOI PAGE NO. 33/33