Delhi District Court
M/S. M.G. Contractors Pvt. Ltd vs M/S. Telecommunications Consultants on 27 August, 2012
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
ARB
No.141/11
In the matter of :
M/s. M.G. Contractors Pvt. Ltd. ............Petitioner
Vs.
M/s. Telecommunications Consultants ........Respondent
27.08.2012
ORDER :
Vide this order, I shall dispose off the present petition filed u/o 34 of Arbitration & Conciliation Act.
2 Petitioner has submitted that the contract work of "Construction of ROB (including approaches & Service lanes) on BhawanigarhNabha Gobindgarh road in the State of Punjab" was awarded to respondent vide letter No. TCIL/05/343/1/2007/GGM (CIVIL) dated 23/05/2007. 3 Petitioner has further submitted that in Bill No. 5 to 9 of the "Bill of Quantities", which is part of Contract document it is stated at the very top of each Contd....P..1 of 25 : 2 : Bill that "Cement and Steel will be supplied free of cost by TCIL". The petitioner had accordingly quoted his rates for all the sub items of Bill No. 6 of BOQ and had not considered / excluding the cost of cement and steel (all types) wherever these two items were to be used. The respondent had awarded the work too to the petitioner on the above basis.
4 Petitioner has submitted that Clause 51.6 (Section II of Vol. I) of the General Conditions of Contract provide as under : "Employer would supply no material, plaint or equipment other than cement and steel. The contractor would be fully responsible for all materials, plant and equipment procured by him as well as for safe custody of materials supplied by TCIL that is required for the construction.
Cement and steel shall be supplied by TCIL free of cost to the contractor at ROB site. The contractor shall be required to submit schedule of requirement of cement and steel sufficiently in advance preferably three months in advance.
In case of cement, deviation beyond theoretical consumption as per mix design shall be recovered @ Rs.450 per bag.
In case of steel reinforcement for RCC work, deviation beyond measured consumption shall be recovered @ Rs.60,000/ per tonne." 5 Petitioner has submitted that from endorsement at top of Bill No. 5 Contd....P..2 of 25 : 3 : to 9 of "Bill of Quantities" and Clause 51.6 of GCC it is clear beyond any doubt that cement and steel will be supplied by the respondent and the rate quoted by the petitioner are excluding cost / value of cement and steel. The word 'Steel' is wide term and include all types of steel including reinforcement and structural steel.
6 Petitioner has submitted that subitem no.6.07 of the said Bill No.6 relates to the execution of M40 RCC in "crash barrier and median kerbs". For this subitem, steel is required in the shape of reinforcement bars, insert plates (854 nos. of size 150 mm x 150 mm x 8 mm), holding plates (854 nos. of size 150 mm x 225 mm x 8 mm), 16 mm bars to hold insert plates (1.35 MT quantity) and railing pipe 50 NB (1704 metre length) as per the drawings supplied by the respondent. It implies that all types of steel used for execution of work such as reinforcement steel, plate steel (both insert plate as well as holding plate), and steel pipes were required for the execution of this subitem and in terms of the heading at the top of the Bill, all these types of steel, besides cement, were supposed to be supplied free of cost by the respondent. 7 Petitioner has submitted that after the work of deck slabs was completed; the petitioner fixed the reinforcement for concrete crash barriers. For completing this subitem further, the petitioner needed steel insert and holding plates, steel pipe for hand rail and accordingly requested the respondent to Contd....P..3 of 25 : 4 : provide all these items of steel as per the Contract Agreement vide letter no. MGCPL2008/12109 dated 22/12/2008. The respondent replied vide his letter no. TCIL/05/343/1/Nabha/2008 dated 28/12/2008 that as per Agreement, cement and steel for reinforcement only upto theoretical consumption is to be supplied free of cost by respondent & that no other steel item is to be issued. The respondent also requested the petitioner to procure & install all other steel items like insert & holding down plates, steel pipe for hand rail etc. for completion of crash barrier.
8 Petitioner has submitted that vide para 2 of letter No. MGCPL2008/12114 dated 02/01/2009 stated as under:
"Item No.6.07 M40 RCC in crash barrier includes reinforcement and other steel item but as per our contract data the steel and cement will be supplied by TCIL free of cost and it includes every type of steel. It is your after thought that only reinforcement steel will be supplied by TCIL free of cost. We quoted our rates for item No. 6.07 keeping in view your condition that cement and steel will be supplied free of cost by TCIL and our rates are justified excluding the cost of steel. So you are once again requested to stick on your agreement and supply us steel for insert and holding plates and pipe for hand rail so the work may be taken in hand and can be completed."
9 Petitioner has submitted that there after the respondent advised Contd....P..4 of 25 : 5 : petitioner to procure these steel components from the market with an assurance that the petitioner will be later reimbursed the cost of these items as per the terms of the Agreement. The letter no. TCIL/05/343/1/Nabha/2009 dated 08/01/2009 of the respondent reads as under: "Item no. 6.07 M40 in Crash Barrier includes reinforcement for which reinforcement steel is being issued free of cost by TCIL but cutting bending & binding & placing in position is included in the item. Regarding other steel item you are requested to take action for procurement of plate G.I. Pipe etc for railing and the matter will be viewed strictly as per spirit of agreement." 10 Petitioner has submitted that the respondent instead of rejecting the demand by the petitioner stated that the matter will be viewed strictly as per spirit of agreement. The said reply is also in line with the assurance given by the respondent to the petitioner orally that the cost of other steel items will be later reimbursed to the petitioner as per the terms of the Agreement. 11 Petitioner has submitted that the he was satisfied with the assurance of the respondent regarding reimbursement of the cost of other steel items, therefore, completed the work of crash barrier (except railing) by procuring the said steel items i.e. insert plates (854 nos. of size 150 mm x 150 mm x 8 mm), holding plates (854 nos. of size 150 mm x 225 mm x 8 mm), 16 mm bars to hold insert plates (1.35 MT quantity) in the interest of work and keeping the Contd....P..5 of 25 : 6 : assurance given by respondent in view. The petitioner had also submitted the analysis of rates, interalia, of the cost of other steel items to the respondent for approval and reimbursement vide letter no. MGCPL2009/05117 dated 06/05/2009 and letter no. MGCPL2009/06158 dated 16/06/2009 as demanded by the respondent. The seeking of rates by the respondent demonstrates its intention to reimburse the petitioner.
12 Petitioner has submitted that after the work of this subitem was completed to a considerable extent, the petitioner found that TCIL was not measuring the quantity of 16 mm dia holding bars, which were placed in the RCC by the petitioner. The petitioner accordingly requested the respondent vide letter no. MGCPL2009/05119 dated 08/05/2009 to measure the quantity of 16 mm dia holding bars and deduct it from the issued quantity to the petitioner. The respondent refused to measure 16 mm dia bars vide letter no. TCIL/05/343/1/Nabha/2009 dated 30/06/2009 on the plea that 16 mm dia bar is a part of insertion plate and not the reinforcement and hence can not be measured. The respondent further stated that only steel reinforcement as per approved drawing upto theoretical consumption is to be issued by TCIL. 13 Petitioner has submitted that he invoked the Arbitration clause and referred the dispute to the Arbitrator. The respondent nominated Mr. A.V.V. Krishnan, G.M. (Finance), TCIL as Arbitrator.
Contd....P..6 of 25 : 7 : 14 Petitioner has submitted that the Arbitration Award dated 09/06/2011 passed by the Sole Arbitrator is against the law of the land, contrary to the settled law, Contract Act, Public Policy of India, in violation of principles of natural justice, beyond reference etc. The misconduct is clearly apparent on the face of Award. The Award deserves to set aside by the court u/s 34 of Arbitration & Conciliation Act, 1996 interalia on the following grounds: GROUNDS: A The Arbitral Award passed by the Arbitral Tribunal is contrary to the facts, provisions of Indian Contract Act, Public Policy of India, settled law, based on assumptions and presumptions, ignorance of the facts, not deciding the issues raised by the petitioner and argued and violation of principles of natural justice, unreasoned and scope of reference and has been passed in biased and partial manner. The challenge to the award squarely falls within ambit of Section 34 of Arbitration & Conciliation Act, 1996.
B That the Award deserves to be set aside as the Arbitration has not taken into consideration relevant material / evidence and has arrived at conclusions, ignoring the relevant facts. The Tribunal has acted irrationally, arbitrarily on a perverse understanding and misreading of the material on record Contd....P..7 of 25 : 8 : and there is serious error of law apparent on the face of Award. The Tribunal has rejected the claim without any basis on flimsy ground and deliberate mis interpretation of conditions of contract.
C That the Award by the Arbitral Tribunal deserves to be set aside as the Arbitrator has failed to discharge its duty to decide the dispute in accordance with the legal rights based on facts and the law and has acted as a conciliator. The Arbitrator as per settled law has no right to pass award contrary to the facts, terms and conditions the settled law and biased manner, which has been done in the present case.
D That the Award passed by the Arbitrator is an unreasoned award, thus the same is in breach of principles of natural justice and the same is in violation Section 31(3) of A&C Act, 1996 and is also misconduct by the Arbitrator. E That the Arbitrator has not stated in the Award that why he is rejecting the submission of the petitioner and accepting the contention of the respondent. As per settled lay requirement of reason in support of the Award u/s 31(3) of Arbitration & Conciliation Act is a mandatory obligation and is not a mere formality, which the Arbitrator has failed to comply with. F That the Arbitrator has ignored the fact that not only Bill No. 6 of Contd....P..8 of 25 : 9 : BOQ even Bill No.5, 7, 8 and 9 state at the top of each bill 'Cement and Steel will be supplied free of cost by TCIL'. The same is an express notice to the petitioner that all types of steel used for construction work shall be supplied by the respondent free of cost and the same is declaration by the respondent. No reason has been stated in the Award while rejecting the claims for ignoring or not considering the endorsement at top of Bill no. 5 to 9 of BOQ. The above demonstrate nonapplicable of mind and perverse finding ignoring the terms of the Contract.
G That the observation of the Arbitrator in Para 15 (a) that the petitioner should have sought clarification under clause 13 of ITB is uncalled for in the facts of the case, as there was no ambiguity / doubt in view of clause 51.6 of GCC and endorsement at top of the Bill no.5 to 9 of BOQ that cement and steel will be supplied free of cost by TCIL.
H That the observation of the Arbitration that Clause 51.6 of GCC only provides for reinforcement steel is deliberate wrong and incorrect interpretation of the Clause 51.6 and nonapplication by the Arbitrator. The said interpretation has been made with an oblique motive to negate the claim of petitioner and to help the respondent. The said interpretation given by the Arbitrator is contrary to the basic principles of interpretation of terms of the Contract. Even otherwise no basis of such an interpretation has been stated in the Award.
Contd....P..9 of 25 : 10 : I That the Tribunal failed to appreciate that in case intention of the respondent (who is author of Contract) while drafting contract and stating that word steel used in Clause 51.6 of GCC and at the top of BOQ in Bill 5 to 9 is only reinforcement steel then respondent would have used the term reinforcement steel every where and not steel.
J That from bare perusal of First Part of Clause 51.6 of GCC it is clear that the employer is to supply steel and cement free of cost. The final part Clause 51.6 use the terms reinforcement steel. Had it been intention of Author of document it would have used, reinforcement steel in First Part of Clause 51.6 of GCC and in BOQ and not steel. The term steel is a wider term, has wider meaning in trade practice and day to day use and include all type of steel items. In First Part of Clause 51.6 the term steel has been used in wider sense and it include both reinforcement and structural steel. The above view is further clear from the last part of Clause 51.6 of GCC, wherein the word used are reinforcement steel.
K That the misinterpretation of later part of Clause 51.6 of GCC by the Arbitration shall make First Part of Clause 51.6 of GCC and endorsement of cement and steel will be supplied free of cost by TCIL in BOQ redundant and dead letter words such are interpretation is contrary to the settled principles of Contd....P..10 of 25 : 11 : interpretation.
L The Tribunal failed to appreciate the basic principle of interpretation of Agreement that intention of the parties to the agreement is to be gathered from the words used therein and there can be no intention independent of that meaning. That the Tribunal had failed to appreciate that each every word in the contract has to be given due meaning and no part is to be made redundant. The finding of the Arbitrator has made First Part of Clause 51.6 and endorsement at top of the Bill 5 to 9 of BOQ redundant. It is settled law that the Tribunal has no power to negate any clause of the Contract.
M That it is settled principle of interpretation that the agreement has to be red as a whole and is a harmonious manner and each clause and word used in the agreement has to be given its due meaning and not to make one part of the contract otiose / redundant. The finding of the Tribunal is in violation of the above principle.
N That it is settled law that in case there is ambiguity in the contract, in that case the view against the author of the document and in favour of the other party has to be accepted. From bare reading of Clause 51.6 of GCC First Part and the endorsement at top of each Bill of BOQ Cement and Steel will be supplied by TCIL there is no ambiguity. As the Arbitrator has agreed with the respondent view, in that case as per Doctrine of Contra Perfendum the Contd....P..11 of 25 : 12 : measuring against the author has to be considered.
O That the Tribunal failed to appreciate that the claim sought by the petitioner was not only in terms of the Contract but also fully justified u/s 70 of the Contract Act.
P That the Tribunal failed to appreciate that the steel cost was not included in the rate quoted in BOQ as the BOQ clear stated that cement and steel will be supplied by TCIL. The cost of free issue item is never included in the rate.
Q That from the Award it is clear that the Arbitrator has not acted in an independent and impartial manner has acted in biased manner, there is no application of mind, oral submission of petitioner and the settled law have not be considered nor dealt in the Award and wrong contention of the respondent has been accepted, without any basis.
15 Respondent has filed its detailed reply and has denied all the submissions made by the petitioner. Respondent has further submitted that steel relates to reinforcement steel only as per terms of General Conditions of the Contract (GCC) and further submits that there the interpretation given by the Ld. Arbitrator that the steel was to be provided free of cost under the terms of GCC meant only reinforcement steel.
Contd....P..12 of 25 : 13 : 16 Respondent has also denied that he ever gave any assurance to the petitioner that he will be paid cost of all type of steel. 17 Respondent has also submitted that the interpretation of the contract is a matter for the Ld. Arbitrator to decide and court can not sit in appeal over the same. Respondent has also denied that the impugned award is unreasoned award and has also submitted that principles u/s 70 of Contract Act are neither attracted nor pleaded nor argued.
18 Petitioner filed a rejoinder and has denied the averments of the respondent and has reiterated the claims of plaint.
19 Ld. Counsel for petitioner has submitted that the award is silent and the Ld. Arbitrator has not referred to corrigendum no. 01 dated 12/03/2007 wherein it is provided that estimated cost of the work specifically provided that cost of cement and steel shall be supplied free of cost by TCIL. He further submitted that Ld. Arbitrator has not applied his mind and has simply reproduced the contents of the claim petition and reply and replication and has thereafter proceeded to give his decision in one paragraph. Ld. Counsel for petitioner has submitted that the impugned award needs to be set aside as it is a non speaking award.
Contd....P..13 of 25 : 14 : 20 Ld. Counsel for respondent submitted that the impugned award is a reasoned award and there is no infirmity with respect to interpretation of the word steel taken by Ld. Arbitrator. Ld. Counsel for respondent also argued that in the garb of present petition, the petitioner is seeking reappreciation of evidence and look into the mental process of the Ld. Arbitrator which is not permissible as per the settled legal position.
21 Arguments heard. Record perused carefully.
22 Petitioner is aggrieved by interpretation taken by Ld. Arbitrator of the term steel in the clause that "Cement and Steel will be supplied free of cost by TCIL" means reinforcement steel only. It has referred to Bill No.5 to 9 of "Bill of Quantities", Clause 51.6 (Sec. II of Vol. I) of GCC where the said term is incorporated. Ld. Arbitrator has observed that in Clause 51.6, which reads as "Employer would supply no material, plant or equipment other than cement and steel. The Contractor would be fully responsible for all materials, plant and equipment procured by him as well as for safe custody of materials supplied by TCIL that is required for the construction. Cement and steel shall be supplied by TCIL free of cost to the contractor at ROB site. The contractor shall be required to submit schedule of requirement of cement and steel sufficiently in advance preferably three months in advance. The word steel has to be read in light of last Contd....P..14 of 25 : 15 : paragraph of the clause which provides that in case of steel reinforcement for RCC work, deviation beyond measured consumption shall be recovered @ Rs. 60,000/ per tonne and has given its finding that the steel which was to be provided free of cost was only the reinforcement steel for RCC work. Petitioner has also submitted that the respondent in its reply dated 28/12/2008 to the letter of petitioner dated 22/12/2008 had stated that as per agreement cement and steel for reinforcement only upto theoretical consumption is to be supplied free of cost by respondent and no other steel item is to be issued. Thereafter, petitioner has referred to the letter dated 02/01/2009 sent to the respondent whereby he had stated that it quoted its rate for item no. 6.07 excluding the cost of steel keeping in view the condition that cement and steel will be supplied free of cost by TCIL and again requested to stick on to the agreement and supply steel for insert and holding plates and pipes of handrail. Petitioner has submitted that thereafter the respondent advised it to procure the same from the market vide its letter dated 08/01/2009 with an assurance that the petitioner will be later reimbursed the cost of these items as per the terms of the agreement. It has quoted as item 6.07 M40 RCC in Crash Barrier includes reinforcement for which reinforcement steel is being issued free of cost by TCIL but cutting bending and binding & placing in position is included in the item. Regarding other steel item you are requested to take action for procurement of plate G.I. Pipe etc. for railing and the matter will be viewed strictly as per spirit of agreement Contd....P..15 of 25 : 16 : 23 Petitioner has submitted that instead of rejecting the demand by the petitioner, the respondent stated that the matter will be viewed strictly as per spirit of agreement and has submitted that the said reply is in line with the assurance given by respondent to the petitioner orally that the cost of other steel items will be later reimbursed to the petitioner as per terms of agreement. 24 A perusal of letter dated 28/12/2008 written by respondent to the petitioner reveals that the respondent specifically stated to the petitioner that as per agreement cement and steel for reinforcement only upto theoretical consumption is to be supplied free of cost by TCIL and no other steel item is to be issued. Respondent had further written that petitioner is requested to procure and install all other steel items like insert and holding down plates, steel pipes for handrail etc. for completion of crash barrier. The petitioner has specifically challenged the interpretation of Ld. Arbitrator with respect to cost incurred by petitioner in completion of crash barrier. A perusal of the letter dated 28/12/2008 no where assures that respondent will make payment towards steel items except for the reinforcement steel free of cost and that also upto theoretical consumption. Rather, respondent specifically refused / denied that steel for any other item will be provided free of cost by it. In response to letter of petitioner dated 02/01/2009 again making the same submission that all type of steel is to be supplied free of cost, respondent has written in letter dated 08/01/2009 that "Item 6.07 M40 RCC in Crash Barrier includes reinforcement for which reinforcement Contd....P..16 of 25 : 17 : steel is being issued free of cost by TCIL but cutting bending and binding & placing in position is included in the item. Regarding other steel item you are requested to take action for procurement of plate G.I. Pipe etc. for railing and the matter will be viewed strictly as per spirit of agreement." Again the said statement reiterates that steel under the provisions of GCC, corrigendum dated 12/03/2007 as well as in Bill of Quantities meant reinforcement steel only. Further, the petitioner had the liberty to seek the clarifications in respect of the word steel under clause 13 of the "Instructions to Bidders and General Terms and Conditions" of the tender document.
25 A perusal of the invitation for tender reveals that the tenders were invited from experienced firms / organizations for construction of ROB, the work undertaken in the tender and the bidder had to specifically fill in Form 14 in support of its experience and quality management. Thus petitioner is in an experienced bidder and can not be expected that he did not know that steel meant reinforcement steel only.
26 A reading of the GCC and other material reveals that the tender documents read with other related documents towards execution of the work awarded through tender contains the guidelines for interpretation of the terms and conditions of the tender. Clause 2.4.2 of GCC specifically provides that the respondent do not accept any responsibility or liability for any errors. omissions, Contd....P..17 of 25 : 18 : inaccuracies or errors of judgment with respect to information or data provided in the tender document or otherwise with regard to the project or its surroundings. Clause 2.6.1 reads as that TCIL will have the sole discretion in relation to the tender document proposal and any document provided in support of the proposals and all decision in relation to the evaluation ranking of proposals. It further provides that it will have no obligation to explain or justify its such interpretation of the standard documents, the proposal or their related / supporting documents / information or justify the evaluation process, ranking process or the selection of the preferred bidder.
27 Petitioner has submitted that he had quoted the rates after excluding the rate of cement and steel from the BOQ, however, looking at the fact that the tender was awarded to the petitioner being an experienced bidder, the submission of bidder can not be accepted to be correct. Clause 4 of GENERAL AND COMMERCIAL CONDITIONS, A PART OF GCC, provides as "Nothing extra shall be paid on account of any discrepancy in nomenclature of item. Contractor shall see the site of work before quoting the rates and seek clarifications before hand." This clause again specifically provides that in case the petitioner required any clarifications, it should have sought the same before quoting the rates.
28 Clause 13 of the GCC providing for assent and consent specifically Contd....P..18 of 25 : 19 : provides "The contractor hereby states, declares, accepts and consents that the contractor has understood and is deemed to have accepted and agreed to all the terms and conditions of this tender." GCC has been signed by and on behalf of the petitioner. Accordingly, petitioner is bound by his own assent that it has understood, accepted and has agreed to all the terms and conditions of the tender.
29 GCC Vol. I, Section 2, Clause 11.1 and 12.1 read as:
11.1 The employer may make available to the contractor before the submission by the contractor of the tender, such data on hydrological and subsurface conditions as have been obtained by or on behalf of the employer from investigations undertaken relevant to the works but the contractor shall be responsible for his own interpretation thereof.
The contractor shall be deemed to have inspected and examined the site and its surroundings and information available in connection therewith and to have satisfied himself (so far as is practicable, having regard to considerations of cost and time) before submitting his tender, as to:
(a) the form and nature thereof, including the subsurface conditions,
(b) the hydrological and climatic conditions,
(c) the extent and nature of work and material necessary for the Contd....P..19 of 25 : 20 : execution and completion of the works and the remedying of any defects therein, and
(d) the means of access to the site and the accommodation he may require and, in general, shall be deemed to have obtained all necessary information, subject as above mentioned as to risks, contingencies and all other circumstances which may influence or effect his tender.
12. 1 The contractor shall be deemed to have satisfied himself as to the correctness and sufficiency of the tender and of the rates and prices stated in the BOQ, all of which shall except in so far as it is otherwise provided in the contract cover all his obligations under the contract (including those in respect of the supply of goods, materials, plant of services) and all matters and thing necessary for the proper execution and completion of the works and the remedying of any defects therein.
The contractor shall be deemed to have based his tender on the data made available by the employer and on his own inspection and examination, all as aforementioned.
30 A perusal of Clause 11.1 and 12.1 again specify that the contractor i.e. the petitioner herein shall be deemed to have based his tender on the data made available by the employer and also with respect to correctness and sufficiency of the tender and of the rates and prices stated in the BOQ.
Contd....P..20 of 25 : 21 : 31 Ld. Arbitrator while disposing of the claim petition has reproduced the pleadings of the parties in the impugned award. A reference to Clause 51.6 and 52.2 of Vol. I Section II finds mention in the impugned award. Ld. Arbitrator has discussed at length from para 11 to para 14 the matter in controversy between the parties to give his decision with respect to the issue i.e. whether respondent was to supply all kinds of steel free of cost and has referred to the relevant provisions of the tender documents and other documents in support of tender and has thereafter rejected the claim of the petitioner after enumerating the reasons in the concluding paragraphs of the impugned award after giving interpretation of the relevant clauses of GCC as well as the implication of the letter dated 08/01/2009 written by respondent to the petitioner. Thus, there is no force in the contention of petitioner that the impugned award is a non speaking award.
32 Petitioner has also relied on the letter dated 06/05/2009 written by it to the respondent asking for making the payment for the items executed by it which remained unpaid. Petitioner has submitted that the same was sent on being asked by the respondent and on its assurance that the payment with respect to all types of steel would be made by the respondent. The respondent has denied the same in its reply. Petitioner has not filed any document in support of such assurance having been given by the respondent. A reading of the letter Contd....P..21 of 25 : 22 : dated 06/05/2009 also does not reveal by its contents that it was written on the directions or assurances of the respondent.
33 Petitioner has relied on Numaligarh Refinery Ltd. Vs. Daelim Industrial Co. Ltd., 2007 (3) Arb. LR 378 (SC) where it was held that the arbitrator had put an interpretation of the clause of the agreement which was wholly contrary to law then in that case and there was no prohibition for the courts to set things right. The said decision is not applicable to the present case as Ld. Arbitrator has not applied any law by taking its wrong interpretation rather he has given only the interpretation of clauses of the contract. Petitioner has referred to decision of ONGC Ltd. Vs. Garware Shipping Corporation Ltd. reported in (2007) 13 SCC 434 where it was held "There is no proposition that the court could be slow to interfere with the arbitrator's award, even if conclusions are perverse and even when the very basis of the arbitrator's award is wrong". I do not find the conclusions of Ld. Arbitrator to be perverse nor do I find the basis of arbitrator's award to be wrong in view of various clauses of GCC referred at length in the previous part of this order. Similarly in my considered opinion the decision of 2011 (5) R.A.J. 67 (Del) in the matter of O.P. Kapoor and Ors. Vs. Raman Kapoor and Anr. also do not apply to the facts of the case as I do not find the findings of the Ld. Arbitrator to be improper or incorrect so as to be demonstrable on the face of the material on record.
Contd....P..22 of 25 : 23 : 34 Petitioner has relied on the judgment cited as United India Insurance Co. Ltd. Vs. Pushpalaya Printers, (2004) 3 SCC 694 to plead that where the words of the documents are ambiguous, they shall be construed against the party who prepared the document. However, as observed earlier the tenders were invited from experienced firms / organizations for construction of ROB, the work undertaken in the tender and the bidder had to specifically fill in Form 14 in support of its experience and quality management. Thus petitioner is in an experienced bidder and in view of the same it can not be expected that he did not know that steel meant reinforcement steel only. Further, there are several provisions in the GCC which specifically provide that bidder can seek the clarifications with respect to any and every thing with respect to terms and conditions of tender and related documents. In view of the same, in absence of any ambiguity and inaction on part of petitioner to seek clarifications seen in the background of his vast experience and the letter written by respondent to the petitioner dated 08/01/2009, the said judgment does not apply to the facts of the case.
35 Petitioner has also relied on the judgment reported as ONGC Vs. M/s. Wig Brothers Builders and Engineers Pvt. Ltd., 2010 (6) R.A.J. 383 (SC) where it was observed that if arbitrator ignores the specific terms of the contract, it would be a question of jurisdictional error. Again the said judgment does not apply to the facts of the case after reading the impugned award in light of the Contd....P..23 of 25 : 24 : various clauses of GCC and tender document referred in the earlier part of this order.
36 Ld. Arbitrator has given his findings on the basis of interpretation given by him of the clauses of Instructions to Bidders as well as of GCC and the implication of letter written by respondent on 08/01/2009. This court can not look into the mental process of the Ld. Arbitrator as per the settled legal position nor can it sit over the impugned award as a court of appeal. It has been held in ONGC Ltd. Vs. Saw Pipes Ltd., 2003 (5) SCC 705 that if the Arbitral Tribunal has committed mere error of fact or law in reaching its conclusion on the disputed question submitted to it for adjudication then the court would have no jurisdiction to interfere with the award. In the matter of M/s. J.G. Engineers Pvt. Ltd. Vs. Union of India, 2011 (5) SCC 758, it was held that a Civil Court examining the validity of an arbitral award exercises supervisory and not appellate jurisdiction.
It has been held by the Hon'ble Supreme Court in the matter of Sudarsan Trading Co. Vs. Government of Kerala, 1989 (2) SCC 38, "Further, in any event, reasonableness of the reasons given by the arbitrator cannot be challenged. Appraisement of evidence by the arbitrator is never a matter which the court questions and considers. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the sole judge of the quality as well as quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitrator."
Contd....P..24 of 25 : 25 : 37 In view of the observations made herein read with the law laid down in the aforesaid judgments, I find no infirmity in the impugned award and accordingly the present application is dismissed. No order as to cost. 38 File be consigned to Record Room after necessary compliance. Dictated and announced in the open court on 27.08.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 27.08.2012 Contd....P..25 of 25