Delhi District Court
Wapcos Ltd vs Theov El Surveys on 7 March, 2026
IN THE COURT OF ANUBHAV JAIN,
LD. DISTRICT JUDGE-05, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
DLND010145732016
ARBTN/19714/2016
In the matter of
Wapcos Ltd.
5th Floor Kailash Building,
26 K. G. Marg,
New Delhi-110001
....Petitioner
Versus
M/s Theovel Surveys,
No.81, 1A Main Road,
Domlur Layout,
Bangalore-560071
....Respondent
Date of institution : 22.11.2016
Date when Judgment reserved : 11.11.2025
Date of Judgment : 07.03.2026
ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 1 of 16
ORDER ON APPLICATION U/S 34 OF ARBITRATION AND CONCILIATION ACT, 1996
1. Present order shall dispose off the objections under Section 34 of Arbitration and Conciliation Act, 1996 filed by the petitioner Wapcos Ltd. against the Arbitration Award dated 08.08.2016.
For the sake of convenience, parties shall be referred to as original nomenclature as they were referred to before the Ld. Arbitral Tribunal i.e. "M/s Theovel Surveys as claimant" and "Wapcos Ltd. as respondent".
CLAIM OF THE CLAIMANT (M/S THEOVEL SURVEYS)
2. In brief, facts of case are that claimant M/s Theovel Surveys has filed a statement of claim before Arbitral Tribunal seeking recovery of Rs.51,20,069/- along with interest @ 18 % p.a. from the respondent Wapcos Ltd.
2.1 It was stated by the claimant in his claim before Ld. Arbitral Tribunal that Wapcos Ltd., New Delhi is a Government of India Undertaking, Ministry of Water Resources, River Development and Ganga Rejuvenation which invited bids for "preparation of passing maps, conducting topographical survey for 1100 unsewered, integration of data in GIS for Delhi area for master planning of sewerage system".
ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 2 of 162.2 It is further stated that said job was awarded to M/s Theovel Surveys, Bangalore vide contract dated 09.08.2010 for cost of Rs.1,97,03,000/- plus Service Tax. Further, as per the contract, the time limit for completion of work was 6 months i.e. 08.02.2011.
2.3 As per the claimant, he completed the job on 16.01.2012 and submitted the entire work as per prescribed specifications and upon the same, completion certificate in this regard was also issued to the claimant.
2.4 It is further stated that although the actual survey was conducted of total 2665.032 Kilometers, however the payment so made merely for survey work of 2500 Kilometers and accordingly the respondent has paid only Rs.1,69,10,098/- against the due outstanding amount of Rs.2,17,32,409/-.
2.5 By way of the said claim, the claimant has sought recovery of Rs.51,20,069/- along with interest @ 18 % p.a. pertaining to survey of access area of 165.032 Kilometers.
STATEMENT OF DEFENSE (BY WAPCOS LTD.)
3. In reply thereto, it was averred by respondent that the claimant has not come up with clean hand. It is stated that Delhi Jal Board has awarded the above said work for preparation of Master Plan of Delhi for 2031 to AECOM and WAPCOS LTD. Further, Wapcos Ltd. sub-contracted the work to M/s Theovel Surveys.
ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 3 of 163.1 It is further stated that the claimant executed the work in delayed and unsystematic manner which resulted into undue long delay in the execution of project and there were many defects which appeared in the work. Respondent further relied upon certain communications made by the claimant in this respect.
3.2 It is further stated that the completion certificate dated 16.01.2012 so relied upon by the claimant was issued on the request of M/s Theovel Surveys vide email dated 11.01.2012 for the exclusive purpose of qualification criteria in some other project and not meant to be used as completion certificate for the project in question at all.
3.3 It is further stated that as per the emails so sent by the claimant, he has not completed the work and it is the claimant who has to refund the extra payment made to him by the respondent.
3.4 Answering respondent denied all the averments so made by claimant in his claim and prayed for dismissal of claim of the claimant.
COUNTER CLAIM
4. The respondent Wapcos Ltd. further filed a counter claim against the claim of the claimant stating that the claimant has not completed the work and further failed to rectify the defects pointed out to him by various communications. It is further stated that Delhi ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 4 of 16 Jal Board made a site inspection report and pointed out the discrepancies in survey dated 11.11.2013 and the respondent asked the claimant to depute the survey team and resurvey the areas identified as erroneous but the claimant did not pay heed to the instructions and the errors have not been rectified till date.
5. By way of present counter claim, the counter claimant has sought following amount on the following grounds:
a) Amount of Rs.48,68,611/- on the ground that 40 % of the payment was to be released upon the work being accepted and since the work of the claimant was never accepted, he is entitled to return the said amount;
b) Amount of Rs.19,70,300/- for liquidate damages for not completing the work within time schedule of 6 months;
c) Amount of Rs.2,25,44,456/- for financial loss to respondent due to unsatisfactory work and
d) Amount of Rs. 1 Crore for reputation loss due to unsatisfactory work.
IMPUGNED AWARD
6. That upon completion of proceedings before Ld. Arbitrator, Impugned Arbitration Award dated 08.08.2016 was passed, wherein the majority of Arbitrators have directed the respondent/petitioner to pay a total sum of Rs.69,20,068/- within 60 days of the work.
Further, it was specified that in case the amount is not paid ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 5 of 16 within 60 days, respondent shall further be liable to pay interest @ 18% p.a. from 19.03.2016.
7. Further, the counter claim of the respondent was dismissed vide order dated 08.08.2016.
8. Further, as per the minority award, the Ld. Arbitrator concluded that the claimant is entitled to receive Rs.21,09,929/- from the respondent along with interest @ 10 % p.a., in case the award is not paid within 60 days.
Further, the counter claim of the counter claimant was dismissed by the minority opinion as well.
GROUNDS OF OBJECTIONS U/S 34
9. Present objections u/s 34 of Arbitration and Conciliation Act, 1996 is filed by the petitioner Wapcos Ltd. against the Impugned Award dated 08.08.2016 (followed by Correction Award dated 22.08.2016), on the following grounds:
a) That the Ld. Tribunal has wrongly considered the document dated 16.01.2012 as completion certificate;
b) That the Ld. Tribunal has not considered that as per clause 8 of the agreement, the payment has to be made in stages and that the completion certificate dated 16.01.2012 is best related to 60% of payment;ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 6 of 16
c) That claimant has not carried out the complete work of proposed sewerage network design, as per the agreement.
10. In reply thereof, the respondent denied the averments so made by the petitioner in its petition and prayed for dismissal of the same. Further, the averments made in the reply are not being reproduced herein for the sake of brevity.
11. I have heard the arguments and perused the case file carefully.
LAW ON SEC. 34 ARBITRATION & CONCILIATION ACT
12. In light of the observation made above that present petition u/s 34 of the ACT is governed by post Amendment Act (same being filed on April 2016), this court deems it appropriate to discuss in here law with regards to scope of Section 34 of the Act. For the same, I may gainfully refer to the observation made by Hon'ble Apex Court in Delhi Airport Metro Express Pvt. Ltd. vs. Delhi Metro Rail Corporation Ltd. (09.09.2021 SC): MANU/SC/ 0623/2021
24. This Court has in several other judgments interpreted Section 34 of the 1996 Act to stress on the restraint to be shown by courts while examining the validity of the arbitral awards. The limited grounds available to courts for annulment of arbitral awards are well known to legally trained minds.
However, the difficulty arises in applying the well-established principles for interference to the facts of each case that come up before the ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 7 of 16 courts. There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award. This approach would lead to corrosion of the object of the 1996 Act and the endeavours made to preserve this object, which is minimal judicial interference with arbitral awards. That apart, several judicial pronouncements of this Court would become a dead letter if arbitral awards are set aside by categorising them as perverse or patently illegal without appreciating the contours of the said expressions.
25. Patent illegality should be illegality which goes to the root of the matter. In other words, every error of law committed by the Arbitral Tribunal would not fall within the expression 'patent illegality'. Likewise, erroneous application of law cannot be categorised as patent illegality. In addition, contravention of law not linked to public policy or public interest is beyond the scope of the expression 'patent illegality'. What is prohibited is for courts to re-appreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award, as courts do not sit in appeal against the arbitral award. The permissible grounds for interference with a domestic award Under Section 34(2-A) on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one, or interprets a Clause in the contract in such a manner which no fair-
minded or reasonable person would, or if the ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 8 of 16 arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them. An arbitral award stating no reasons for its findings would make itself susceptible to challenge on this account. The conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality. Also, consideration of documents which are not supplied to the other party is a facet of perversity falling within the expression 'patent illegality'.
26. Section 34(2) (b) refers to the other grounds on which a court can set aside an arbitral award. If a dispute which is not capable of settlement by arbitration is the subject-matter of the award or if the award is in conflict with public policy of India, the award is liable to be set aside. Explanation (1), amended by the 2015 Amendment Act, clarified the expression 'public policy of India' and its connotations for the purposes of reviewing arbitral awards. It has been made clear that an award would be in conflict with public policy of India only when it is induced or affected by fraud or corruption or is in violation of Section 75 or Section 81 of the 1996 Act, if it is in contravention with the fundamental policy of Indian law or if it is in conflict with the most basic notions of morality or justice.
In Ssangyong (supra), this Court held that the meaning of the expression 'fundamental policy of Indian law' would be in accordance with the understanding of this Court in Renusagar Power Co. Ltd. v. General Electric Co. MANU/SC/0195/1994 : 1994 Supp (1) ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 9 of 16 SCC 644. In Renusagar (supra), this Court observed that violation of the Foreign Exchange Regulation Act, 1973, a statute enacted for the 'national economic interest', and disregarding the superior courts in India would be antithetical to the fundamental policy of Indian law. Contravention of a statute not linked to public policy or public interest cannot be a ground to set at naught an arbitral award as being discordant with the fundamental policy of Indian law and neither can it be brought within the confines of 'patent illegality' as discussed above. In other words, contravention of a statute only if it is linked to public policy or public interest is cause for setting aside the award as being at odds with the fundamental policy of Indian law. If an arbitral award shocks the conscience of the court, it can be set aside as being in conflict with the most basic notions of justice. The ground of morality in this context has been interpreted by this Court to encompass awards involving elements of sexual morality, such as prostitution, or awards seeking to validate agreements which are not illegal but would not be enforced given the prevailing mores of the day."
SCOPE OF SECTION 34 OF ARBITRATION ACT
13. In judgment Delhi Airport Metro Express Pvt. Ltd (supra), Hon'ble Apex Court has categorically observed that every error of law committed by the Ld. Arbitral Tribunal would not fall within the expression 'patent illegality' nor erroneous application of law or contravention of law not linked to public policy or public interest is within the scope of the expression 'patent illegality'. Furthermore, ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 10 of 16 courts are further restrained from re-appreciating the evidence to conclude that the award suffers from patent illegality. However, courts u/s 34 of the Act can interfere into the award on the ground of patent illegality when:
a) The arbitrator takes a view which is not even a possible or interprets a Clause in the contract in such a manner which no fair-minded or reasonable person would;
b) If the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them;
c) Where an arbitral award failed to state reasons for its findings;
d) The conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse; or
e) On the ground of conflict with public policy of India i.e. when it is induced or affected by fraud or corruption or is in violation of Section 75 or Section 81 of the 1996 Act;
f) If it is in contravention with the fundamental policy of Indian Law i.e. contravention of a statute only if, it is linked to public policy or public interest;
g) If an arbitral award shocks the conscience of the court;ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 11 of 16
h) If it is in conflict with the most basic notions of morality or justice i.e. awards involving elements of sexual morality, such as prostitution, or awards seeking to validate agreements which are not illegal but would not be enforced given the prevailing mores of the day.
OBSERVATIONS ON MERITS
14. Coming to the present case in hand on merits, it is admitted case between the parties that the respondent i.e. Wapcos Ltd. has issued a work order in favor of claimant with respect to survey of 1100 unsewered areas in Delhi city which comprises approximately about 2500 Kilometers. As per the claimant, they have completed the said survey of above said 1100 area, however the same runs into 2665.032 Kilometers. The claimant seeks remaining balance amount towards survey of additional survey of 165.032 Kilometers (2665.032 - 2500).
15. The Impugned Arbitration Award is challenged by the petitioner primarily on the ground that the Ld. Arbitral Tribunal has wrongly placed reliance upon the Completion Certificate dated 16.01.2012 and further that the Ld. Arbitral Tribunal have not considered that the claimant failed to complete the work as per the work order/agreement.
16. Bare perusal of record so filed by the claimant before Ld. Arbitral Tribunal goes to show that the claimant vide email dated ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 12 of 16 11.11.2011 has forwarded the respondent hard copy of 297 colonies covering 2665.032 Kilometers along with pending bills. In this regard, another mail was sent by the claimant on 21.11.2011 along with excel sheet mentioning coverage of length of 2665.032 Kilometers. Further, on 26.11.2011, GIS Integrated File was forwarded by claimant to respondent. Further, vide mail dated 01.12.2011, it was informed by the claimant to the respondent that JE of Delhi Jal Board have acknowledged their approval of final drawings and they further selected some areas and check the topography and further acknowledged their acceptance. Claimant further forwarded the survey report in hard copy to the respondent.
17. That thereupon a completion certificate dated 16.01.2012 was issued by respondent Wapcos Ltd. to the claimant stating that the claimant has submitted the surveyor drawings and the work is completed using latest sophisticated equipment.
18. Further, perusal of record reveals that thereafter on 21.01.2014, an email was issued by the claimant to the respondent seeking payment of Rs.5,12,00,629/-, which was duly replied by the respondent on 01.02.2024 stating that as per letter issued by Delhi Jal Board dated 11.11.2013, during inspection certain discrepancies were found. Respondent further asked the claimant to depute a survey team to resurvey the areas and correct to the same to the satisfaction of the client.
ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 13 of 16Further, as per the record pursuant thereto several emails/correspondences were exchanged between the parties with regards to the same.
19. At this stage, it is pertinent to note in here that in none of the emails sent by Wapcos Ltd. to the claimant, they disputed the surveyed area of 2665.032 Kilometers. The only objections so raised by them with respect to non-clearing of payment is that upon inspection by Delhi Jal Board, certain discrepancies were found, which are required to be rectified.
20. In this regard, perusal of the emails exchanged between the parties goes to show that the claimant in the year 2011 itself has informed the respondent Wapcos Ltd. with respect to the completion of work on his part and further stated that even the officials of Delhi Jal Board have inspected certain areas randomly and further accepted the work being done by the claimant.
21. Despite the same, the respondent Wapcos Ltd. waited for more than 2 years and only in the year 2014 informed the claimant regarding inspection being conducted by Delhi Jal Board in November 2013 and found certain discrepancies in the work being conducted by the claimant. During the entire course of arguments there was no reasonable justification filed or provided as to the delay of two years on the part of respondent herein. Furthermore, respondent Wapcos Ltd. has not filed any evidence or adduced any witness from Delhi Jal Board in order to corroborate that there were ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 14 of 16 discrepancies in the work done by the claimant, resulting into withholding his payment.
22. Be that as it may, as discussed above the scope of power of this Court u/s 34 of the Arbitration and Conciliation Act, 1996 is extremely limited and circumscribed, confined solely to setting aside an arbitral award on the specific grounds i.e. party incapacity, invalid arbitration agreement, absence of proper notice or inability to present one's case, disputes not falling within the arbitration submission, or conflict with India's public policy (including patent illegality on the face of the award, violation of fundamental Indian law policy, India's interests, or justice/morality).
23. It is further settled proposition of law that while adjudicating the objections u/s 34 of Arbitration Act, the Court does not sit as a court of appeal to re-appreciate evidence, correct errors of fact or law, or substitute its views for those of the Arbitral Tribunal.
24. Ld. Arbitrators in the impugned award has categorically observed that discrepancies in survey were intimated by the respondent to the claimant for the first time on 01.02.2014 i.e. after more than two years of submission of all reports by the claimant. It was further observed that during the period of said two years the respondent had not pointed out any discrepancy in the survey done by the claimant. Ld. Arbitral Tribunal further observed that considering the discrepancies were pointed out by the respondent in the work of the claimant only after period of two years of ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 15 of 16 submission of final report, it cannot be said that the work was abandoned by the claimant or that same was not completed to the satisfaction of the respondent.
25. At this stage, it is further pertinent to note in here that, the petitioner herein, by way of present petition has not sought that his counter claim be allowed nor any submissions with regards to the same was made. Furthermore, there is nothing argued to stated that the order passed by Ld. Arbitral Tribunal with respect to counter claim so filed by the petitioner is patently illegal or fall within the ambit of sec. 34 of Arbitration and Conciliation Act, 1996.
26. In view of the law and facts discussed above, this court find no ground to interfere with the observations made by Ld. Arbitral Tribunal (Majority) in the Impugned Award dated 08.08.2016. In view of the same, present objections so filed by petitioner u/s 34 of Arbitration and Conciliation Act, 1996 stands dismissed.
File be consigned to record room after due compliance.
Digitally signed by ANUBHAV ANUBHAV JAIN
Announced in the open Court JAIN Date:
2026.03.10
on 07.03.2026 16:34:20 +0530
(Anubhav Jain)
District Judge-05 (New Delhi District)
Patiala House Courts, New Delhi
Note: This Judgment contains 16 pages and each page has been signed by me.
ARBTN/19714/16 Wapcos Ltd. v. M/s Theovel Surveys Page 16 of 16