Himachal Pradesh High Court
M/S Kapil Constructions Through Its ... vs Municipal Corporation & Another on 21 December, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Arb. Case No. 80 of 2011 Date of Decision: 21 .12.2015 .
M/s Kapil Constructions through its Sole Proprietor.
....Petitioner.
Versus Municipal Corporation & another. ....Respondents . Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of Whether approved for reporting? 1 No. For the Petitioner : Mr. Suneet Goel, Advocate. For the Respondents: Mr.Hamender Chandel, Advocate. Sanjay Karol, J(oral).
rt In this petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) award dated 29.07.2011, titled as Kapil Constructions through its sole proprietor Versus Municipal Corporation & another, passed by Justice V.P. Bhatnagar (Retd.) Sole Arbitrator, appointed by this Court, is subject matter of challenge.
2. For the purposes of convenience, Contractor/petitioner herein is referred to as the claimant and respondents herein, who issued tender for construction of the work and got the work executed is referred to as the Corporation.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:34:04 :::HCHP 23. On 14.11.1996, tender issued by the Corporation, for construction of work commonly known as Padam Dev Complex (Phase-II), Shimla, was opened and .
awarded in favour of the claimant. In terms of the contractual obligations , the work was to be completed within a period of two years. It is not in dispute that work stood completed sometime in the month of January 2000.
of Alleging breach of contractual obligations, claimant in terms of the contract sought appointment of an Arbitrator.
rt Undisputedly vide order dated 02.05.2005, passed by this Court, Arbitrator in question (Retd. Judge) was appointed to adjudicate the dispute inter se parties.
4. It is not in dispute that Arbitrator entered into reference and the claimant filed his claims. Noticeably no claims/counter claims were filed by the Corporation.
While adjudicating the claims, ten in number, the Arbitrator framed 14 issues. Significantly while answering the issues, though the Arbitrator found the Corporation to be in breach of the contractual obligations, yet rejected the monetary claims of the claimant. Record reveals that claimant had led evidence by way of an affidavit, placing on record certain documents. However, Corporation chose not to cross -examine the claimant's ::: Downloaded on - 15/04/2017 19:34:04 :::HCHP 3 witnesses. Record further reveals that Corporation filed its evidence by way of affidavit placing on record certain documents. However, when claimant wanted to cross-
.
examine the witnesses, none, despite opportunities afforded, came forward, resultantly claimant issued certain interrogatories which only were answered and that too in part.
of
5. Record reveals that documents placed by either of the parties have not been considered in toto by learned rt Arbitrator while deciding the issues and adjudicating the claims.
6. The award being in conflict with the public policy, by virtue of the provisions of Section 34 (2)(b)(ii) of the Act, Court is empowered to set aside the award.
What is a public policy is now well defined and needs no elaboration in view of the law laid down by the Apex Court in Oil & Natural Gas Corporation Ltd. Versus Saw Pipes Ltd., (2003) 5 SCC 705 as also in Oil and Natural Gas Corporation Limited Versus Western GECO International Limited , (2014) 9 SCC 263.
7. Undisputedly in the instant case, entire material produced by the parties has not been considered by the Arbitrator while adjudicating the lis, inter se the ::: Downloaded on - 15/04/2017 19:34:04 :::HCHP 4 parties . Findings returned by the Arbitrator cannot be said to be borne out from the record. To illustrate the point while answering issue No.7 and rejecting claim .
No.2, Arbitrator has taken recourse to Clause-12 of the agreement. But while doing so he lost sight of the fact that rates for extra items came to be determined by the Munic ipal Engineer only during the pendency of the of arbitral proceedings. Further while determining the question of delay in handing over the site, the Arbitrator failed to rt take into account the effect of the communication addressed by the Executive Engineer, conveying the order of injunction passed by a Civil Court.
Whether such communication or order restrain ed the claimant from executing the work has neither been considered nor answered while holding that the Corporation did not hand over the site in question in one go.
8. For all the aforesaid reasons, award dated 29.07.2011 passed by the learned Arbitrator, is set aside.
9. With the consent of parties, Mr. G.D. Verma, learned Senior Advocate, of this Court is appointed as an Arbitrator to adjudicate the dispu te inter se the parties afresh.
::: Downloaded on - 15/04/2017 19:34:04 :::HCHP 510. Mr. Hamender Chandel, learned counsel, points out that Corporation intends filing counter claim which right, at this stage, is seriously disputed by Mr. .
Suneet Goel, learned counsel. Leaving the question open, without goin g into right of the Corporation to do so, at this stage, liberty is reserved to the Corporation to do so, in accordance with law, but however legality thereof, of including the question of limitation, shall be considered and decided by the Arbitrator.
11. rt Parties through their learned counsel agree and undertake to fully cooperate during the arbitral proceedings. Endeavour shall be made by the learned Arbitrator to adjudicate the dispute expeditiously. Also parties agree that the learned Arbitrator shall be at liberty to decide the fee. Ordered accordingly.
12. Needless to add, learned Arbitrator shall adjudicate the dispute uninfluenced of any observations made hereinabove.
13. In view of the above, present petition stands disposed of, so also pending application(s ), if any.
( Sanjay Karol), Judge.
December 21, 2015.
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