Delhi High Court
Kali Charan Sharma And Ors. vs The New Okhla Industrial Development ... on 20 September, 1993
Equivalent citations: 1993IVAD(DELHI)1041, 1994(2)ARBLR380(DELHI), 1994(28)DRJ70
JUDGMENT Sat Pal, J.
(1) This is a petition filed by Shri Kali Charan Sharma (hereinafter referred to as 'the Contractor') under section 14 of the Arbitration Act, 1940 (for short called 'theAct'). In this petition it has been prayed that respondent No.2. the sole arbitrator in the case be directed to file the original award Along with proceedings and after filing of the award and proceedings, the notice of filing of the award be given to the parties.
(2) On receipt of the award, the notice of filing of the award was accepted by the Contractor in the Court on 22nd August, 1986 and the said notice was served on New Okhla Industrial Development Authority (for short called 'NOIDA'), respondent No. 1, on 19th September, 1986. The Contractor filed Ia No-5343/86 containing objections to the award within the stipulated period and he confined his objections only in respect of claim No.5 where he was denied pendente lite and future interest by the arbitrator (3) Noida filed its reply to the objections and cross-objections under sections 30 and 33 of the Act on 21st October, 1986. The cross-objections filed by Noida were with regard to the claim No. 1 whereby the Contractor has been allowed a sum of Rs.l l,24,085-56on account of increase in the cost of labour and materials. Since the cross objections were not filed within the period of limitation, Noida filed an application being IANo-6520/86 under section 148 of the Code of Civil Procedure (hereinafter referred to as 'the Code') and section 5 of the Limitation Act, 1963. In this application condensation of delay was prayed on the ground that the application for inspection of the ' court record was moved on 18th October, 1986 for inspection on 20th October, 1986 but the court records were made available only on 21st October, 1986 and as such the objections could be filed onlyon21st0ctober,1986i.e.onedaybeyondthe period of limitaiton.
(4) The following issues were framed;- 1) Whether the award in the instant case with regard to claim No.5 and for interest pendente lite and future is liable to be reversed and set aside on the allegations of objections of the petitioner/claimant? 2) Whether the award is liable to be set aside for the objections of respondent No. 1? 3) Whether the objections of the respondent No. 1 are within limitation, If not, whether there are sufficient grounds for condensation of delay? 4) Whether the award is not liable to be made a rule of the Court? 5) Whether this court has no jurisdiction to try this matter? 6)Relief.
(5) The parties were permitted to file affidavit in support and opposition of the objections. Acordingly, both the parties have filed affidavit by way of evidence in support of their respective case. Issue No.5.
(6) Mr. Aggarwal, the learned counsel appearing on behalf of Noida submitted that the tenders in this case were received from the site office at Noida, the same were filed and opened at Noida, District Ghaziabad. the work was executed at Noida, the payments were made at Noida, the arbitration agreement was invoked at Noida, the arbitration proceedings were held at Noida and the award has also been given at NOIDA. He, therefore, contended that this Court has no jurisdiction to try this case and the petition should be dismissed on this short ground.
(7) Mr. Pandey, the learned counsel for the Contractor drew my attention to the letter dated 26th April, 1980 issued by NOIDA. He pointed out that the letter head of this letter itself shows that the Noida is having an office in Delhi and as such the petition was maintainable in this Court. He further submitted that the said letter accepting the tender was received in Delhi and as such part of cause of action has arisen in the Union Territory of Delhi. He also submitted that in an earlier suit being Suit No-1088 - A Keshav Dass & Co. vs. New Okhla industrial Development Authority', decided by this Court on 21st December, 1978, this point was not even raised on behalf of NOIDA. He, therefore, contended that this Court has jurisdiction to try this matter. In support of his contention, the learned counsel placed reliance on a judgment of Bombay High Court in State of Maharashtra and others vs. M/s. Ranjeet Construction, .
(8) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. From the records I find that the acceptance of the tender by letter dated 26th April, 1980 was conditional. In this letter it was stated that in case the Contractor did not sign the agreement on a judicial stamp paper of Rs.5.00 within a week, the acceptance of the tender would be withdrawn. From the records I, however, find another letter dated 8th July, 1980 which was issued by the Senior Project Engineer, Noida, New Delhi. By this letter the contract bond for the above work was accepted by the said Senior Project Engineer at New Delhi. This letter clearly shows that the acceptance of the contract bond was in the Union Territory of Delhi and as such this Court has jurisdiction to try this matter. Accordingly, this issue is decided in favor of the Contractor and against the NOIDA. Issue No.3.
(9) As stated hereinabove, notice of filing of the award was accepted by Noida on 19th September, 1986. Accordingly, the objections, if any, were required to be filed by Noida on or before 20th October, 1986. But admitted the cross-objections have been filed on 21st October, 1986. Noida, however, has filed an application being Ia No.6520/86 under section 148 of the Code of Civil Procedure and Section 5 of the Limitation Act. In this application it has been stated that this Court was in recess for vacation from 12th October, 1986 to 17th October, 1986 and on 18th October, 1986 which was a Saturday, counsel for respondent No. 1, moved an application for inspection of the Court record on Monday, 20th October, 1986 so that the objections could be filed on that day. It has further been stated that on 20th October, 1986 the Court file was not brought to the inspection room because the same was with the Registrar, as a result of which the records could be inspected only on 21st October, 1986 and on the same date the objections were filed. In view of these facts the learned counsel for Noida submitted that the delay of one day in filing the objections be condoned as the delay was bona fide and not intentional. Mr. Pandey, the learned counsel for the Contractor, however, submitted that the explanation given by Noida is not satisfactory and as such the objections filed by Noida should be dismissed. In support of his contention the learned counsel placed reliance on a judgment of Supreme Court in Union of India & another vs. M/s. L.K. Ahuja and Co., . After giving my anxious consideration to the submissions made by the I need counsel for the parties and after perusing the records, I am of the view that the delay, which is of only one day, in filing the objections is bona fide in view of the facts stated in the application and it should be condoned. The ratio of the judgment in the case of L.K. Ahuja & Co. (supra) relied on by the learned counsel for the Contractor is not relevant to the facts of the present case as in that case the question whether there are sufficient grounds for condensation of delay was not before the Court. Accordingly, IA6520/86 is allowed and delay in filing the objections is condoned. In view of this, issue No.3 is decided against the Contractor and in favor of NOIDA. Issue No.2.
(10) As stated earlier Noida has challenged the award with regard to claim No. 1 only. Under claim No.1 the arbitrator has awarded a sum of Rs.l l,24,085-56 in favor of the Contractor on account of increase in the cost of labour and materials. Mr. Aggarwal learned counsel appearing on behalf of Noida submitted that there was no provision in the contract to hold Noida responsible for reimbursement for any increase either in labour rates or against levy of extra duties by any statutory orders. However, from the award I find that the arbitrator has given valid and cogent reasons in support of his findings on this claim. It has been held by the arbitrator that in terms of special conditions clause 35, the Contractor had been directed by Noida to follow the existing rules and regulations of government and labour department as amended from time to time and the contractor cannot be expected to follow these rules and regulations without the prevision of reimbursement in increase of wages and materials on account of increase by way of statutory provisions. In this connection I may refer to a judgment of the Supreme Court in Hindustan Tea Co. vs. K. Shashikant & Co., . In this case it was held that "under the law. the arbitrator is made the final arbitrator of the disputes between the parties. The award is not open to challenge on the ground that the arbitrator has reached a wrong conclusion or has failed to appreciate the facts." A referance may also be made to another judgment of the Supreme Court in Indian Oil Corporation Ltd. vs Indian Carbon Ltd., . In this case it was held that''court can set aside the award only if it is apparent from award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous." But in the present case it cannot be said that there is no evidence to support the conclusion of the arbitrator, nor it can be said that the award is based upon any legal proposition which is erroneous. In view of this the objections raised by Noida are dismissed. Acordingly, this issue is decided against Noida and in favor of the Contractor. Issue No.1 (11) As regards issue No. I, the learned counsel for the Contractor submitted that in terms of the law laid down by the Supreme Court, the Contractor is entitled to interest from the date of the award till realisation of the amount. In view of the law laid down by the Supreme Court in the case of Gujrat Water Supply & Sewerage Board vs. Unique Erectors (Gujrat)(P)Ltd.,the Contractor is entitled to interest from the date of the award till the date of decree. Accordingly, I hold that the Contractor is entitled to recover the interest at the rate of 15 per cent per annum from the date of the award. Accordingly, this issue is decided in favor of the Contractor and against NOIDA.
(12) Issues No.4 and 6 Since the objections of Noida have been dismissed, I direct that the award be made a rule of the Court. I further direct that the Contractor will be entitled to interest at the rate of 15 per cent per annum from the date of award till the date of decree.
(13) I further direct that in case the decreed amount is not paid to the Contractor within two months from the date of the decree, the Contractor will further be entitled to interest at the rate of 15 per cent per annum from the date of decree till the date of actual payment. However, the parties are left to bear their own costs. A decree may be drawn accordingly. The award will form part of the decree.