Delhi High Court
Union Of India (Uoi) vs Polo Singh & Co. on 20 February, 2002
Equivalent citations: 2002VIIIAD(DELHI)489, 2002(62)DRJ770
Author: Dalveer Bhandari
Bench: Dalveer Bhandari, Vikramajit Sen
JUDGMENT Dalveer Bhandari, J.
1. This appeal is directed against the order dated 26.2.1997 passed by learned Single Judge in Suit No. 98/1996. The learned arbitrator awarded a sum of Rs. 2,46,482/- plus interest to the respondent. The award was filed in the Court and was later on made rule of the Court. It may be pertinent to mention that during the pendency of the matter, the respondent herein filed I.A. No. 6174/1996 before the learned Single Judge who by the Order dated 17th July, 1996 directed the appellant to pay to the respondent Rs. 86,482/- with interest at 12% per annum from 2.12.1992 till 25.12.1994 and interest at 14% per annum from 26.12.1994 till the date of payment. Out of the awarded amount Rs. 86,482 with 12% were awarded to the respondent. The learned counsel for the respondent fairly submitted that this amount had been paid to him by the appellant.
2. In the Order dated 17th July, 1996, the learned Single Judge has correctly mentioned the amount of award (as Rs. 2,46,482/-) but by a typographical error in the impugned Order dated 26th February, 1997 the amount of Rs. 2,46,482/- has been mentioned as Rs. 2,96,980/-. The Learned counsel for the respondent also submitted that because of a typographical error the amount has been wrongly mentioned whereas correct amount is Rs. 2,46,482/- which ought to have been mentioned. This is also not disputed by the learned counsel for the respondent that the remaining amount of Rs. 1,60,000/- with interest has been paid to him by the appellant. Therefore, the respondents were entitled to receive Rs. 1,60,000/- plus Rs. 86,482/-. Both these amounts were admittedly received by the respondent and now nothing is due and payable by the appellant to the respondent. The apprehension of the learned counsel for the appellant is that he may not get the credit or adjustment of the amount of Rs. 86,482/- already paid to the respondent. In that event the appellant may be compelled to pay the same amount twice. Mr. Chawla, the learned counsel for the appellant also submitted that the learned arbitrator was not justified in awarding Rs. 1,60,000/- in absence of vouchers to the claimant/respondent.
3. It may be pertinent to mention that the Superintending Engineer of the Ministry of Urban Development was appointed as the Arbitrator by the appellant. In his Award the Arbitrator has given the reasons for arriving at the amount of Rs. 1,60,000/-, relevant portion of the Award reads as under:
"On consideration of documents filed and arguments advanced by the parties, I find that the stipulated date of start and stipulated date of completion were 5.5.86 and 4.5.87 respectively. Completion date for which agreement was recorded by the Respondents on
4.8.90 when the supplementary agreement was signed. On perusal of copy of supplementary agreement filed by the Respondents, I find that the same was signed due to non-availability of peripheral main trunk services as contended by the claimants also. The claimants had informed the Respondents vide letters at Exhs. C-9, C-13 and C-14 that the cement was not issued by them and in C-16 dated 14.7.87 they had written that supply of cement has been inadequate since March-87 and their Munshi was attending the central stores daily but the quantity issued was inadequate and their labour was idle and the overheads were getting unnecessarily prolonged. Other letters on record show that the claimants had requested the Respondents for taking over Qrs. (C-42 dared 11.4.88) and had intimated that they were incurring infructuous expenditure on watch and ward and establishment. They had even requested for signing supplementary agreement which was finally signed by the Respondents on 4.8.90. In Exh. C-45, the Respondents had themselves admitted that the Qrs. were completed few months back but could not be occupied due to non-availability of services. The Respondents have stated that the delay was attributable to claimants but they themselves have granted EOT without levy of compensation. The Claimants are, therefore, entitled to reasonable compensation for the staff employed by them during the prolonged period. As per Clause 36 of the agreement (C.S. 15 page 99), the contractor was required to employ engineer and no fine for default is on record. Even considering that the claimants were required to mitigate losses, taking into account the quantum of work employment of one Supervisor, one storekeeper, one part-time mixer operator and four chowkidars in addition to engineer for the period from stipulated dated of completion to March-88 and one supervisor and four chowkidars from April-88 to July-90 is considered essential for proper execution of work and watch and ward of materials and Qrs. which were not yet taken over by Respondents. In addition, some minimum quantity of T&P would also be necessary till the work is completed."
4. The Arbitrator is a qualified Superintending Engineer, and a highly skilled technical person. The arbitrator had awarded an amount of Rs. 1,60,000/- out of a total amount claimed Rs. 6,21,350/-. The learned Single Judge has carefully considered the award of the Arbitrator and upheld the same.
5. Mr. Lakhanpal, the learned counsel for the respondent has placed reliance on a judgment of this Court entitled as Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Anr., . In this case their lordships of the Supreme Court placed reliance on the english judgment of the House of Lords.
"Lord Goddard, C.J. in Mediterranean & Eastern Export Co. Ltd. v. Fortress Fabrics Ltd. (1948) 2 All ER 186 observed at pp. 188/189 of the report as follows:
"A man in the trade who is selected for his experience would be likely to know and indeed to be expected to know the fluctuations of the market and would have plenty of means of informing himself or refreshing his memory on any point on which he might find it necessary so to do. In this case according to the affidavit of sellers they did take the point before the Arbitrator that the Southern African market has slumped. Whether the buyers contested that statement does not appear but an experienced Arbitrator would know or have the means of knowing whether that was so or not and to what extent and I see no reason why in principle he should be required to have evidence on this point any more than on any other question relating to a particular trade. It must be taken I think that in fixing the amount that he has, he has acted on his own knowledge and experience. The day has long gone by when the Courts looked with jealousy on the jurisdiction of the Arbitrators. The modern tendency is in my opinion more especially in commercial arbitrations, to endeavor to uphold awards of the skilled persons that the parties themselves have selected to decide the question at issue between them. If an arbitrator has acted within the terms of his submission and has not violated any rules of what is so often called natural justice the Courts should be slow indeed to set aside his award."
6. Mr. Lakhanpal submitted that the learned arbitrator is a very highly qualified skilled Superintendent Engineer and he has given adequate reasons for awarding the amount of Rs. 2,46,482/- out of the total claim of Rs. 6,21,350/- by the appellant and his award should not be interfered lightly. In the facts and circumstances of this case the arbitrator was totally justified in awarding the aforesaid amount.
7. We have also carefully perused the judgment of the learned Single Judge. We find no infirmity in the award which has been upheld by the learned Single Judge. No interference is called for. The appeal is, accordingly, dismissed.
8. The Bank Guarantee (No. 7/97-98 dated 7.12.1997 issued by Punjab and Sind Bank, Paharganj, New Delhi) was submitted by the respondent for withdrawing the amounts stands discharged.
The Petition is accordingly disposed of.