Delhi District Court
Satyavir Singh vs . The Chief Engineer And Anr. on 22 November, 2018
Satyavir Singh Vs. The Chief Engineer and Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
ARBN. NO. : 97/2017
UNIQUE CASE ID NO. : 195/2017
IN THE MATTER OF :
Sh. Satyavir Singh
Govt. Contractor
R/o Asalatpur Khawad,
New Delhi110043. ....Petitioner/Objector
VERSUS
1. The Chief Engineer
Public Works Department
MSO Building, I.P. Estate,
New Delhi - 110002.
2. Deputy Director (Hort.)
Horticulture Division
M124, Public Works Department,
Govt. of Delhi,
13th Flor, MSO Building,
I.P. Estate,
New Delhi110002. ....Respondents
Arbt. No.97/2017 Page 1 of 27
Satyavir Singh Vs. The Chief Engineer and Anr.
OBJECTIONS PETITION UNDER SECTION 34 OF THE ARBI
TRATION AND CONCILIATION ACT, 1996 PRAYING FOR
SETTING ASIDE THE IMPUGNED AWARD DATED
07.12.2016 PASSED BY SH. BAGESHWAR PRASAD, SOLE
ARBITRATOR, DAC, NEW DELHI.
Date of institution of the Petition : 07/03/2017
Date on which Judgment was reserved : 22/10/2018
Date of Judgment : 22/11/2018
JUDGMENT
By way of present judgment, this court shall conscien tiously adjudicate upon the petition/ objections filed on behalf of Sh. Satyavir Singh under Section 34 of the Arbitration and Concili ation Act, 1996 for setting aside the arbitral award dated 07/12/2016.
1. The Petitioner/Objector was awarded the work by the Respon dents and the detail of the same is as under: Name of Work : Upgradation of street light works at Anuvart Marg S.H. : Hort. Work on Central verge Agreement No. : 88/DD/HDM124/PWD) 200910 Tendered amount : Rs.31,09,519/ Arbt. No.97/2017 Page 2 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
Date of start (As per : 14.08.2009 agreement) Date of completion (As per : 13.11.2010 agreement) Actual date of completion : 28.06.2011 Gross amount of work : Rs.12,38,137/ done
2. The Claimant/Petitioner/Objector has raised the following claims/ demands from the respondents vide letter dated 11.06.2012:
a) Claim For less Execution of work Rs.28,79,184 - 11,69,516 = 15% of Rs.17,09,668/ = Rs.2,56,450/
b) Claim No.2 The Contract prolonged upto March, 2012 Instead of 13.11.2010, hence extra labour and Staff employed Rs.9,59,728/
c) Claim No.3 - Late Payment received Rs.3,00,000/
d) Claim No.4 -
Rs.50,000/ On account of Arbitrator proceedings Total Claim Rs.15,16,178/ plus 21% interest p.a.
3. In addition to the aforesaid claims, the Claimant/Petitioner/Objector has also raised Claim No. 5 for Rs.2,00,000/ towards interest on the amount of Rs.20 lakh Arbt. No.97/2017 Page 3 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
kept as spare for the purpose of execution of the aforesaid contract for 10 months before the Ld. Arbitrator.
4. The Respondents broadly submitted as under:
(a) The petitioner was made final payment for the actual work executed by him and the final payment was accepted by petitioner willingly, unconditionally and without any protest and in full and final settlement. The petitioner had admittedly, as per his own version, stated that as per terms of contract, he was to complete the work within 15 moths only i.e. upto 13.11.10 but he had failed to complete the work in time.
(b) The final measurement was taken on 28.6.11 which was willingly accepted by petitioner and petitioner had rectified the defects in work on 2.12.11 and as such, there is inordi nate delay in completion of work within stipulated time. The petitioner did not start the work from the date of start and also made slow progress.
(c) In terms of clause 13 of the agreement, the respondent had the right to decide to abandon or reduce the scope of work. In terms of the contract, as per clause 5.2.6 in the event of alteration in execution of work the petitioner could have claimed the revision of rates under clause 12.3 for decrease of work in excess of limits but the petitioner had never Arbt. No.97/2017 Page 4 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
claimed the revision of rates and had accepted the final payment of bill willingly and without any protest.
(d) The petitioner is responsible for the delay in execution of work for any reason whatsoever and hence, not required the whole or any part of work to be carried out. The scope of work was reduced due to delay in execution of the work and the said facts were well within the knowledge of the pe titioner. It is stated that at the time of calling the tender the site was available and clear without any hindrance.
(e) The claims made by the petitioner under various heads be fore the Arbitrator were afterthought and baseless as the petitioner had received the final payment without protest and even in his letter 11.6.12 the alleged claims made were different and on different counts. The said facts were al ready intimated to the petitioner orally as well as vide letter dated 19.1.13.
5. PRINCIPLES OF SETTING ASIDE OF AWARD UNDER SEC TION 34 OF THE ARBITRATION AND CONCILIATION ACT On a panoramic appreciation of the earlier existing judi cial thought on the issue, as manifested by decisions ranging from Renu Sagar Power Company Ltd. v. General Electric Company 1994 Supp. (1) SCC 644 to Associated Builders v. DDA (2015) 3 SCC 49, the Hon'ble High Court in its deci Arbt. No.97/2017 Page 5 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
sion in NHAI v. Hindustan Construction Company Ltd. MANU/DE/2699/2017 delineated the following propositions:
(i) The four reasons motivating the legislation of the Act, in 1996, were
(a) to provide for a fair and efficient arbitral proce dure,
(b) to provide for the passing of reasoned awards,
(c) to ensure that the arbitrator does not trans gress his jurisdiction, and
(d) to minimize supervision, by courts, in the arbi tral process.
(ii) The merits of the award are required to be examined only in certain specified circumstances, for examining whether the award is in conflict with the public policy of India.
(iii) An award would be regarded as conflicting with the public policy of India if
(a) it is contrary to the fundamental policy of In dian law, or
(b) it is contrary to the interests of India,
(c) it is contrary to justice or morality,
(d) it is patently illegal, or
(e) it is so perverse, irrational, unfair or unreason able that it shocks the conscience of the court.
Arbt. No.97/2017 Page 6 of 27Satyavir Singh Vs. The Chief Engineer and Anr.
(iv) An award would be liable to be regarded as contrary to the fundamental policy of Indian law, for example, if
(a) it disregards orders passed by superior courts, or the binding effect thereof, or
(b) it is patently violative of statutory provisions, or
(c) it is not in public interest, or
(d) the arbitrator has not adopted a "judicial ap proach", i.e. has not acted a fair, reasonable and objective approach, or has acted arbitrarily, capri ciously or whimsically, or
(e) the arbitrator has failed to draw an inference which, on the face of the facts, ought to have been drawn, or
(f) the arbitrator has drawn an inference, from the facts, which, on the face of it, is unreasonable, or
(g) the principles of natural justice have been vio lated.
(v) The "patent illegality" had to go to the root of the mat ter. Trivial illegalities were inconsequential.
(vi) Additionally, an award could be set aside if
(a) either party was under some incapacity, or
(b) the arbitration agreement is invalid under the law, Or
(c) the applicant was not given proper notice of ap pointment of the arbitrator, or of the arbitral pro Arbt. No.97/2017 Page 7 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
ceedings, or was otherwise unable to present his case, or
(d) the award deals with a dispute not submitted to arbitration, or decides issues outside the scope of the dispute submitted to arbitration, or
(e) the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, or in accordance with Part I of the Act, or
(f) the arbitral procedure was not in accordance with the agreement of the parties, or in accor dance with Part I of the Act, or
(g) the award contravenes the Act, or
(h) the award is contrary to the contract between the parties.
(vii) "Perversity", as a ground for setting aside an arbitral award, has to be examined on the touchstone of the Wednesbury principle of reasonableness.
(A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corpora tion (1948) 1 KB 223).
It would include a case in which
a) the findings, in the award, are based on no evi dence, or
(b) the Arbitral Tribunal takes into account some thing irrelevant to the decision arrived at, or Arbt. No.97/2017 Page 8 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
(c) the Arbitral Tribunal ignores vital evidence in arriving at its decision.
(viii) At the same time,
(a) a decision which is founded on some evidence, which could be relied upon, howsoever compen dious, cannot be treated as "perverse",
(b) if the view adopted by the arbitrator is a plausi ble view, it has to pass muster,
(c) neither quantity, nor quality, of evidence is open to reassessment in judicial review over the award.
(ix) "Morality" would imply enforceability, of the agree ment, given the prevailing mores of the day.
"Immorality", however, can constitute a ground for inter fering with an arbitral award only if it shocks the judi cial conscience.
(x) For examining the above aspects, the pleadings of the parties and materials brought on record would be rele vant.
(xi) The court cannot sit in appeal over an arbitration award. Errors of fact cannot be corrected under Section
34. The arbitrator is the last word on facts."
6. This Court is dealing with the arguments of the Claimant/ Applicant claim by claim.
Claim No. 1 for Rs.2,56,450/ The Ld. Counsel for the Claimant/Petitioner/Objector Arbt. No.97/2017 Page 9 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
has argued as under:
i) The work had been got executed as per requirement and availability of site. The Department had not written any letter regarding non execution of the work/ slow progress. Also no show cause notice has ever been issued. Hence whatever the site was available was completed within time and the remaining site was not provided for execution of the work.
ii) The extension of time had been approved by Department without levy of any compensation. This also shows that hindrances were there in the work and same were beyond the control of Department. Contractor was not at fault at any stage. The hindrances occurred in the work, have accounted by Department while approving the extension of time.
iii) The Department had fully satisfied with progress of work as per availability of site/ site condition hence no letter had been written by claimant to respondent.
iv) That no penalty/ recovery had been proposed in final bill paid to claimant. The actual date of completion was 28.06.2011 against stipulated date of completion was 13.11.2010. Further in this connection may please be noted that despite date of completion on 28.06.2011, Arbt. No.97/2017 Page 10 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
the completion certificate was given on 02.12.2011. In this connection, it may be noted that Executive Engineer had given recommendation for completion on 17.11.2011.
v) In the completion certificate it was clearly mentioned that the maintenance work/ rectification after the work completed, was done by the claimant vide letter on Page R196 and the claimant had rectified the work to their satisfaction which is clearly mentioned at Page R197 as per the letter given by the claimant and the AD has also signed and endorsed the same and only thereafter the payment was made. Therefore, it is stated that the claimant/ contractor has executed the work beyond the stipulated date of completion and hence under the circumstances, the claimant had:
a. Deputed more staff and also used material, wa ter etc., which incurred cost and hence the costs were increased as the work was continued beyond the stipulated date of completion of agreement to the completion of work.
Further it is stated that the as against the agreement amount of Rs. 31,09,519/the actual work executed by the claimant was Rs.12,38,137/.Arbt. No.97/2017 Page 11 of 27
Satyavir Singh Vs. The Chief Engineer and Anr.
vi) The actual time for completion was 15 months in the original agreement. (Copy of letter is already admitted and annexed at page no. 47 with the objections) However, the site was given 3 months late and work was started thereafter. If the respondent had any problem, then they could have given notice under clause 13 of the agreement and rescinded the contract, however, they gave the site and also completion certificate stating that the work is satisfactory. The site was not available hence there was delay, however, despite delay completion certificate was given for less work of satisfactory work. Had there been any problem rescinding of contract would have been given.
vii) The Ld. Arbitrator has also observed that in his award in Para No. 5.2.1 on page 29 stated that as per the agreement, the employer has right to determine the contract by giving a notice of 7 days to the contractor for slow progress or inferior quality of work without making compensation to the contractor. Further in Para 5.2.7 on page 29, the Ld. Arbitrator has referred to clause 13 of the agreement stating the preclosure of contract due to reduction and abandonment of scope of work if pre closure of contract is ordered by the employer due to reduction or abandonment in scope of work due to any Arbt. No.97/2017 Page 12 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
reason whatsoever, the employer is to issue a written notice to the contractor.
viii) In this connection, it is pertinent to mention that no written notice whatsoever was ever served before the closure of the work by the contractor and the Ld. Arbitrator has ignored this legal aspect of law as per Section 34 of the Arbitration Act about the violation of the natural rights of the claimant and hence denial of natural justice to the claimant and hence the award is liable to be set aside on this ground alone.
ix) The respondents themselves have admitted this fact by filing their affidavit before the Ld. Arbitrator page No. 37 to 40 of the documents filed by the claimant wherein in para No. B13 page No. 38, they have clearly stated that the notice as per clause No. 13 was intimated to the contractor vide letter No. 36 dated 19.01.2013.
x) In this connection, there is no justification in the issuing the notice dated 13.01.2013 for invoking clause No. 13 when as per their assertion, the actual date of completion was 28.06.2011, hence the respondents have not given any notice as required in the clause 13 of the agreement about the abandonment of the contract hence they have clearly breached the terms and conditions of the agreement, therefore, the claimant is Arbt. No.97/2017 Page 13 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
entitled for loss of profit @15% of the contract amount. In this connection, the claimant is referring to two judgments which have already been submitted before this Hon'ble Court at the time of arguments, i.e. M/s A.T. Brij Paul Singh and Bros. Versus State of Gujarat, 1984 SC 1703 and Mohd. Salamatullah and others Versus Government of Andhra Pradesh, AIR 1977 Supreme Court 1481. Further the claimant is also filing copy of the Arbitration award passed by Sh.S.S. Jain, Sole Arbitrator dated 16.01.2009 in the matter Satyavir Singh Versus Delhi Development Authority, wherein the Ld. Arbitrator has awarded 15% of the contract amount as compensation due to abandonment. As per CPWD Manual, the contractor is entitled to 15% profit which comes to Rs.2,80,707 (claimed less Rs.2,56,450/).
The Ld. Counsel for Respondent has argued as under:
(a) With reference to the claim no.1, the Ld. Arbitrator had given detailed reasons in his award. The claim of profit and other counts are not only hypothetical but imaginary and are not tenable. The petitioner was made final payment for the actual work executed by him and the final payment was accepted by petitioner willingly, unconditionally and without any protest and in full and final settlement.
Arbt. No.97/2017 Page 14 of 27Satyavir Singh Vs. The Chief Engineer and Anr.
(b) The petitioner had admittedly, as per his own version, stated that as per terms of contract, he was to complete the work within 15 months only i.e. upto 13.11.10 but he had failed to complete the work in time. The final measurement was taken on 28.6.11 which was willingly accepted by petitioner and petitioner had rectified the defects in work on 2.12.11 and as such, there is inordinate delay in completion of work within stipulated time. The petitioner did not start the work from the date of start and also made slow progress.
(c) The petitioner is not entitled to any amount for loss of profit, as alleged or based on the case law cited by the petitioner. The claim of the petitioner is rightly rejected by the Ld. Arbitrator. The claim of loss of profit put forth by petitioner has no basis and is imaginary and is not admissible.
(d) In terms of clause 13 of the agreement, the respondent had the right to decide to abandon or reduce the scope of work. In terms of the contract, as per clause 5.2.6 in the event of alteration in execution of work the petitioner could have claimed the revision of rates under clause 12.3 for decrease of work in excess of limits but the petitioner had never claimed the revision of rates and Arbt. No.97/2017 Page 15 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
had accepted the final payment of bill willingly and without any protest.
(e) The petitioner in terms of clause 5.2.7 of the contract cannot have any claim for payment of compensation on account of any profit or advantage which he might derive from the execution of work in full. The petitioner is responsible for the delay in execution of work for any reason whatsoever and hence, not required the whole or any part of work to be carried out. The said facts were already intimated to the petitioner orally as well as vide letter dated 19.1.13. The scope of work was reduced due to delay in execution of the work and the said facts were well within the knowledge of the petitioner. It is stated that at the time of calling the tender the site was available and clear without any hindrance. The claims made by the petitioner under various heads before the Arbitrator are an afterthought and baseless as the petitioner had received the final payment without protest and even in his letter 11.6.12 the alleged claims made were different and on different counts.
FINDINGS OF THE COURT The court cannot lose the sight of the fact that the work was related to Commonwealth Games and time was the essence of contract. The date of work was 14.08.2009 and completion was on Arbt. No.97/2017 Page 16 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
13.11.2010. There was not even single document which was written by the Contractor to the Respondents that the hindrance was created by the Respondents and therefore the work was started with delay. The contractor has also failed to bring on record that the complete site was not made available to the petitioner/ objector. It is admitted position that work of an amount of Rs.31,09,519/ was awarded and even in 15 months admittedly Claimant/Petitioner/Objector was able to complete only about 40% of the work to the tune of Rs.12,38,137/. The last date of completion of entire tender work was 13.11.2010 and claimant was not able to complete even about 40% of the work till 28.06.2011. The respondents were benevolent enough not to raise any claim or counterclaim against the Petitioner/Objector for delay in the work and settled the account of the work done on mutual consent. No doubt the written notice was not given by the respondents but the perusal of the records clearly reveals and the inference can be drawn that the work was mutually abandoned. The Claimant/Petitioner has not worked after 28.06.2011. The Claimant/Petitioner has claimed the Final bill and the mutual measurement was done. The Claimant/Petitioner without any whisper of any claim received the entire amount and after receiving the entire amount, thereafter, raised the claim after about 10 months on the actual date of completion of work i.e. 28.06.2011. I am fully in agreement with the arguments of the Respondents. The Arbt. No.97/2017 Page 17 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
Ld. Arbitrator has dealt the entire issue in detail and I did not find any infirmity in the findings of the Arbitrator.
Claim No. 2 for Rs.9,59,728/ The Ld. Counsel for the Claimant/Petitioner/Objector has argued as under:
i) The actual date of completion of the work was within 3 months while the actual work was carried out for ten and half months as can be seen in the completion certified recorded by the Department. Further even after the completion certificate, it took another 6 months to rectify the defects which was due to the fact that the respondents neglected in the maintenance, watering etc., of the plants and hence the contractor had to rectify the defects due to the negligence of the respondent in not maintain the site properly and hence the completion was done on 02.12.2011.
ii) Therefore due to no response from the Department/ communication from the Department, the additional labour was deputed for rectification and watering, maintaining of the site and also sometimes due to idle sitting of the labour due to non communication on the part of the respondent.
iii) Further, there was no dispute ever raised by the respondent during the progress of the work, sitting of Arbt. No.97/2017 Page 18 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
idle labour, rectification of the work due to fault of the respondent in not maintaining the site, watering etc., sometimes replanting was done due to fact that the plants had died for want of water and non maintenance which was not done by the respondent.
iv) Hence, due to the hindrances and other part, Department had approved the extension of time without levy of any compensation. It proves that claimant/ contractor is not at fault at any stage. Hence the above claim is quite justified as per below detailed summary: Extra labour employed for 10 months against 10½ months. Detail of cost for 1 month:
1. Beldar/ malis 8 no. @ Rs.60,000/ Rs.7500/
2. Engineer 1 no. @ Rs.28,000/ Rs.28,000/
3. Supervisor/ plumber/ head Rs.8,000/ mistry 1 no. @ Rs.8,000/ This is exclusively of non inclusion of contractor expenditure and overhead
1. Cost for 10 months for labour Rs. 9,60,000/
2. Cost of T&P pipe bucket etc., Rs. 5,728/ pick axis etc.
3. Total Rs. 9,65,728/
4. Less for Engineer salary Rs. 6,000/ Arbt. No.97/2017 Page 19 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
G. total Rs. 9,59,728/ Therefore, as mentioned in paras in claim No. 1, the abandonment of the contract in violation of clause 13 without any notice to the contractor is deemed to mean otherwise i.e. the contractor was under obligation for upkeep of the work and hence the claim is justified.
The Ld. Counsel for Respondent has argued as under:
(a) The claim for maintenance was terminated two months before and the petitioner had accepted the bill, final payment and the measurement on M.B willingly.
(b) The petitioner had started the work 5 months late and thereafter also delayed/prolonged the work for another 5 months for the rainy season to come.
(c) The petitioner had delayed the execution of work to save money because of nonavailability of cheap labour during the summer season and moreover, during summer the soil gets hard and much water is required due to which the petitioner had lingered the work up to rainy season.
(d) There was no correspondence made or intimation or notice served by petitioner to respondent regarding Arbt. No.97/2017 Page 20 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
idling of labour at site nor any protest was recorded by the petitioner till the final bill was passed.
FINDINGS OF THE COURT The Ld. Arbitrator came to following conclusion: "...that based upon the available documents filed by the parties, the claimant has himself stated in para 7.13 that no dispute arisen during the progress of work, sitting of idle labour etc at site of work, hence no letter had been written by Claimant to respondent. The respondent has also stated in reply that there was no correspondence made by the contractor to department regarding idling of labour for want of work during extended period of contract nor any proof submitted nor any protest had been recorded. Respondent has also stated that the work has been delayed by contract to save money. Obviously the claim is an afterthought." I am fully in agreement with the aforesaid findings of the Ld. Arbitrator and the arguments raised by the Respondents. I did not find any infirmity in the said findings.
Claim No. 3 for Rs.3,00,000/ The Ld. Counsel for the Petitioner/Objector has argued as under: i. As per DSR, the rates of labour/ plants remains same throughout the year.
ii. Delay in work not due to contractor but it is due to site problems/ hindrances as already clarified in preceding paras.
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iii. Payment not received month wise. As per agreement contractor is entitled for monthly payment. iv. Contractor is bound to stay and complete the same upto agreement amount. Hence no work is being in hand by the contractor.
As mentioned in paras in claim No. 3, the abandonment of the contract in violation of clause 13 without any notice to the contractor is deemed to mean otherwise i.e. the contractor was under obligation for upkeep of the work and hence the claim is justified.
In view of above, claim amounting to Rs.3,00,000/ is quite justified against the agreement amount of Rs.31,09,519/ and work done of Rs.12,38,137/ only.
The Ld. Counsel for the Respondents has argued as under:
(a) The petitioner is responsible for the delay in execution of work. The petitioner has not served any intimation or notice to respondents for the hindrance at site.
(b) The allegations of hindrance are an afterthought and are denied. The petitioner was to maintain for 12 months provided he completes the work in stipulated time upto 13.11.10.
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(c) It is denied that the maintenance work continued and the expenses were incurred for maintenance beyond the period of stipulated time of completion of work. The findings of the Ld. Arbitrator are in order.
FINDINGS OF THE COURT I am fully in agreement with the arguments raised by the respondents. The findings as mentioned in respect to claim no.1 is not reiterated herein. The Ld. Arbitrator has rightly rejected the claim. The Petitioner/Claimant/Objector has raised the Claim after receiving the full and final settlement amount and the same was totally after thought. I did not find any infirmity in the findings of the Ld. Arbitrator.
Claim No.4 is regarding the Claim of Arbitration Fees. Before adverting to the said claim, let me examine the Claim No.5.
Claim No. 5 for Rs.2,00,000/ The Ld. Counsel for the Petitioner/Objector has argued under: i. The claimant was not at fault at any stage. Department was at fault. The decision of fault etc., does not require any repetition.
ii. As per agreement condition, Department has to pay monthly payment.
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iii. Contractor has kept Rs.20 lakh spare for the purpose of execution of this contract for 10 months, therefore 12% should be given on the amount.
iv. Extension of time has been granted, as regards pointing out the defect appearing at site due to poor quality of work at site, it is too clarified that the work pertains to horticulture work. The actual completion of work was 28.06.2011 while the site had been inspected by SE Project Manager on 14.11.2011 i.e. about 4½ months later than stipulated date of completion. However, final payment had been received by contractor after removing all defects. Quality of work has never been mentioned by Department that it was a poor quality. Please refer An nexure AI dated 21.08.2012 whereby Dy. Director (Hort.) has mentioned the quality of workmanship of work executed by the contractor was satisfactory. Simi larly completion certificate recorded in MB No. 1116/ HDM124 Page 20 dated 28.06.2011 (vie P15 Annexure) by SO(H), AD 1245, DDH124 has clearly mentioned that: The work has been physically completed on dated 28.06.2011 vide MB No. This page 19 and no defects are apparent and contractor has removed all surplus material from the site.
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v. As regard grant mobilization amount is a matter of record. It is irrespective whether mobilization advance had been demanded by contractor or not but at the same time Department should pay him when provision of agreement allow.
The Ld. Counsel for the Respondents has argued as under:
(a) The claim for interest on idle funds of Rs.20.00 lakh lying with petitioner is too hypothetical, imaginary and is without any basis and is not tenable.
(b) That no such claim was put forth by the petitioner in his initial letter of claim dated 11.6.12. It is submitted that the respondent had paid to the petitioner 2 running bills timely with his acceptance and quality of work done by him. There were in the quality of work which were rectified the contractor on 2.12.11. Moreover, the petitioner had never asked for mobilization advance and as petitioner had completed the work in piecemeal the claim made by petitioner under this head is baseless and not tenable.
FINDINGS OF THE COURT I am fully in agreement with the arguments raised by the respondents. The findings given hereinabove in respect of Claim Arbt. No.97/2017 Page 25 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
No.1 is not reiterated. I did not find any infirmity with findings of Ld. Arbitral Tribunal.
Claim No. 4 for Rs.50,000/ This amount is claimed on account of arbitration proceedings. The Ld. Arbitrator has rejected the entire claims of the petitioner/objection and this court does not find any infirmity in the findings of the Ld. Arbitrator. The Ld. Arbitrator has rightly rejected the claim.
FINDINGS OF THE COURT ON QUESTION OF LAW UNDER SECTION 34(2) OF ARBITRATION AND CONCILIATION ACT, 1996 The award passed under Arbitration and Conciliation Act, 1996 (in short ACA) can be challenged on limited grounds given under Section 34 (2) of ACA. In the facts of the present case, none of the grounds mentioned in the said sections are made out by the Petitioner. Even in the Objection petition filed by Petitioner there is no averment or pleading by the Petitioner as to which part of Section 34(2) is attracted in the present case and vitiates the award passed by the Ld. Arbitrator. In terms of provision of Section 34(2) of ACA, power of judicial review and scope of interference in the award is very limited and the court hearing objections against award cannot act as the first appellate court as if the award was a decree passed by a trial court. Further the court cannot substitute its own view for that of the Arbitrator to do what it considers to be justice. It is also well settled law that the merits of the award are Arbt. No.97/2017 Page 26 of 27 Satyavir Singh Vs. The Chief Engineer and Anr.
required to be examined only in certain specified circumstances, for examining whether the award is in conflict with the public policy of India. I did not find that the Award to be against the Public Policy of India. The Petitioner/Applicant /Objector have failed to bring any grounds for interference of the Award within the parameters circumscribed under Section 34(2) of the Arbitration and Conciliation Act,1996 or the principles as enunciated by the Hon'ble Apex Court in various Judgments. RELIEF:
Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
1. The Petition /Application/Objection under Section 34 of the Arbitration and Conciliation Act of the Petitioner is dismissed.
2. The impugned Award dated 07/12/2016 is hereby confirmed.
3. No order as to costs in the present petition. The parties shall bear their own respective costs.
File be consigned to Record Room after due compliance. Announced in the open court on this 22nd Day of November, 2018 (ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Arbt. No.97/2017 Page 27 of 27