Delhi High Court
Bhai Sardar Singh & Sons vs Delhi Development Authority on 12 November, 2002
Equivalent citations: 2003(1)ARBLR387(DELHI), 2003(66)DRJ603
Author: R.C. Chopra
Bench: R.C. Chopra
JUDGMENT R.C. Chopra, J.
1. The petitioner claimant had filed this petition under Section 14 of the Arbitration Act, 1940 (hereinafter referred to as the 'Act' only) with the prayer to direct the arbitrator to file the Award dated 21.1.1990 in the Court. The respondent No.1-objector filed I.A. No. 3627/90 raising objections against the Award under Sections 30 and 33 of the Arbitration Act, 1940. The respondent-objector pleaded that the Arbitrator had misconducted himself and the proceedings and as such the Award was liable to be modified/set aside so far as it relates to the amount awarded in favor of the claimant-petitioner. It was stated that the counter claim of Rs. 196693.87 as awarded in favor of the respondent-objector may be sustained.
2. The facts relevant for the disposal of the objections filed by the respondent-objector, briefly stated, are that the petitioner and respondent had entered into an Agreement No. 8EE/HD-18/DDA-76-77 in respect of a work to be executed by the petitioner for the respondent. The Agreement between the parties contained an arbitration clause. In view of certain disputes between the parties a reference was made to Shri Sharat Chandra Gupta, who was working as Chief Engineer (Design and Training) with respondent-objector. The Arbitrator, after considering the disputes between the parties and examining the evidence/material placed before him, passed the impugned Award dated 21.1.1990 awarding a sum of Rs. 199288.00p. in favor of the claimant-petitioner.
3. Learned counsel for the respondent-objector has assailed the impugned Award in respect of Claim No.3 under which the recovery of Rs. 7670.89p was not allowed in favor of the respondent-objector on account of excess utilisation of Cement and Steel. He has also challenged the claim upheld vide Clause 0 in the sum of Rs. 23654 on the basis of difference in the measurements of the work done. He assails Claim No. 3.1 and 3.3. on account of compensation to the petitioner due to delay in the completion of the work and contends that the material on record clearly demonstrated that the delay in the completion of the work was attributable to both the parties and as such the Arbitrator had committed serious error in awarding compensation of Rs. 3 lakhs to the claimant-petitioner on account of delay.
4.On the other hand learned counsel for the claimant-petitioner has vehemently argued that the law is well settled that the Arbitrator is not required to give any detailed or elaborate reasons. It is also argued that the Court while examining objections against an Award is not required to re-assess and reappreciate the evidence that was available to the Arbitrator as if it is exercising appellate jurisdiction. It is submitted that even if an Award suffers from some factual or legal error the same has to be ignored by the Court for the reason that the Arbitrator is not a person with legal background but being a technical person is in a better position to adjudicate disputes between the parties. He submits that the Arbitrator-respondent NO.2 was a Chief Engineer of respondent-objector itself and as such it cannot be said that the claims examined and sustained by him were without proper basis.
5. Learned counsel for the claimant-petitioner further argues that the Arbitrator had rightly disallowed the claim of the respondent-objector in respect of Rs. 7670.89p on account of excess utilisation of Cement and Steel for the reason that there was nothing on record to show that the cement and steel supplied by the respondent-objector to the claimant-objector was not used in the work itself and it had been diverted or misused by the claimant-petitioner. He points out that even the Executive Engineer of respondent-object admitted before the Arbitrator that this material must have been used in the work itself. Regarding claim 'O' in respect of the measurements as accepted by the Arbitrator, the petitioner submits that the Arbitrator being a Senior Officer of DDA and a technical man was in a better position to appreciate their disputes and his findings on this issue are beyond the scope of any challenge. Regarding Claim No.3.1 and 3.3 also it is submitted that the Arbitrator had considered the entire material before him which had resulted in delay in the completion of the work and a mere token penalty of Rs. 5,000/- imposed upon the petitioner by the Superintendent Engineer while giving extension of time did not show that the entire delay was attributable to the petitioner-claimant only. it is argued that the Arbitrator had records and other material before him to find out as to which of the parties was to be blamed for the delay and as such if after considering everything before him, he had reached a conclusion that the claimant-petitioner had to be compensated for the delay caused by the respondent-objector, the Court must not interfere with his findings.;
6. On the pleading of the parties following issues were framed:-
1. Whether the objections filed are barred by limitation?
2. Whether the arbitrator has misconducted himself and the proceedings?
3. Whether the award is liable to be set aside on the grounds as mentioned in the objections petition?
4. Relief.
7. The parties filed their evidence on affidavits.
I have heard learned counsel for the petitioner-claimant and learned counsel for the respondent-objector. My findings on the issues are as under:-
ISSUE NO.1
8. This issue has not been pressed. Even otherwise it does not appear that the objections filed by the respondent-objector are barred by time. The notice of filing of Award was served upon respondent on 30.3.1990 and objections were filed on 30.4.1990. 29.4.1990 was a Sunday on which day the Courts were closed. The objections were, therefore, within time. The issue stand disposed of accordingly.
ISSUE No. 2 & 3.
9. The law is well settled that the Courts while considering objections against an Award under Section 30 and 33 of the Act do not exercise appellate jurisdiction so as to re-appreciate and re-assess the evidence and material on record. The Courts must not substitute their own view in place of the view taken by the arbitrator unless the view taken by the Arbitrator is found to be wholly capricious. In State of Rajasthan v. Puri Construction Pvt. Ltd. Indu Engineering and Textile Ltd. v. DDA the Apex Court in no uncertain terms held that the Court's endeavor should be to preserve the Awards as far as possible and a close scrutiny of the findings of the Arbitrator is not permissible. It was held that even in a case of mis-construction or mis-appreciation of the material on record, the award may not be interfered with. In Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Anr. , also the Apex Court held that the Arbitrator is the sole Judge of the quality as well as quantity of evidence and even where the Court feels that it could have arrived at a different conclusion on the basis of the evidence on record, it should not disturb the findings of an Arbitrator. In Kochar Construction Work v. DDA reported in 1998 3 RAJ p-222 (Delhi) it was held that Courts should not unnecessarily try to find faults with the Award and it was not necessary for the Arbitrator to give detailed reasons or conclusion in support of his conclusions. It was also held that some estimation was also bound to be there based on the experience and qualifications of an Arbitrator if he is a technical man.
10. It is, therefore, a well settled proposition of law that the findings arrived at by the Arbitrator should not be lightly interfered by the Court and even if there are some factual or legal errors the same should be ignored for the reasons that an arbitrator is an adjudicator selected by the parties and if he, relying upon some material on record and his own experience and qualifications takes a particular view that should be accepted by the parties as well as Courts. Only a manifestly erroneous or capricious view which result in grave miscarriage of justice can be interfered with by the Courts.
11. The first contention of learned counsel for the respondent-objector is that while dealing with Claim No.3 the Arbitrator ought to have allowed the respondent-objector to recover a sum of Rs. 7670.89 from the claimant-petitioner for excess utilisation of Cement and Steel. It is found that the Arbitrator has discussed in detailed this issue and disallowed the claim of the respondent-objector mainly for the reason that the respondent-objector had not made any allegation that the claimant-petitioner had diverted the Cement or Steel supplied to it by the respondent-objector and the excess material could have been used in the work itself. He had also noticed that Clause 42 of the Agreement between the parties was applicable only when standard weight of Cement and Steel were supplied. The Arbitrator was also influenced by the statement of the Executive Engineer of the respondent-objector that the small quantity of the cement and steel used in excess could have been utilized in the work itself and there was no allegation that the material was diverted or misused by the claimant-petitioner. This Court, therefore, is of the considered view that the Arbitrator had given good and sufficient reasons in regard to this claim and as such it calls for no interference by the court.
12. The Arbitrator had awarded a sum of Rs. 23654/- in favor of the claimant-petitioner on account of the difference in the measurements. Learned counsel for the respondent-objector contends that the Arbitrator had no justification in accepting the method of measurement as suggested by the claimant-petitioner. The Arbitrator who himself was a Chief Engineer of the respondent-objector had considered the method of measurement adopted by the respondent-objector as well as by the claimant and had come to the conclusion that the method adopted by the claimant regarding measurements was justified and as such the claimant was entitled to the aforesaid sum. It was also observed by the Arbitrator that the stand taken by the respondent-objector against the measurements as taken by the claimant was not sustainable. The Arbitrator being a qualified Engineer and a technical man, was in a better position to resolve this controversy. This Court has no reason to take a different view in the matter and as such the sub missions made by the learned counsel for the respondent-objector in regard to this question are not sustainable.
13. Learned Counsel for the respondent-objector has vehemently argued that the Arbitrator had acted capriciously in awarding a compensation of Rs. 3 lakhs to the claimants on account of delay in the completion of the work. It is submitted that delay was attributable to the claimant-petitioner also for which even a penalty of Rs. 5,000/- was imposed upon him by the Superintending Engineer but the Arbitrator did not take into consideration the delay caused by the claimant-petitioner and taking note of the delay caused by the respondent-objector only, he awarded the aforesaid compensation. Learned counsel for the claimant-petitioner has countered this argument by submitting that only a token penalty of Rs. 5,000/- was imposed upon the petitioner by Supdt. Engineer while sanctioning extension of time and such only on the basis of such a small penalty it could not be said that the delay was attributable to the claimant-petitioner only and the respondent-objector was not responsible for any delay. He points out that while discussing Claim No.3.1. the Arbitrator had taken note of the said penalty and thereafter while discussing claim No.8 in 3.3 the Arbitrator had look into C-1 in regard to the calculations made by the claimant-petitioner regarding delay and thereafter had come to the conclusion that the claimant was entitled to compensation in the sum of Rs. 3 lakhs. This Court is of the considered view that the Arbitrator being a senior officer of the respondent-objector and himself a technically qualified man was in a better position to appreciate and assess the causes of delay and then consider compensation awardable in the matter in favor of respondent-objector. No detailed calculations were required to be given and as such this Court has no grounds to interfere with the Award passed by the arbitrator in this regard. There is no ground on record to show that the Award made by the Arbitrator is liable to be interfered with. Both the issues, therefore, are disposed of by holding that there is nothing on record to show that the Arbitrator had misconducted himself or the proceedings or that the award is liable to be set aside on the grounds mentioned in the objection petition. The issues stand disposed of accordingly.
RELIEF
14. In view of the decision of issue,s the objections filed by the respondent-objector are dismissed. The Award is made Rule of the Court and a decree is passed in terms thereof. The claimant-petitioner is held entitled to interest also on the awarded amount at the rate of 12% p.a. from the date of filing of the petition till realization of the amount.