Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 23, Cited by 0]

Delhi District Court

Union Of India vs M/S Manish Buildwell Engineers ... on 22 September, 2023

IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
     COMMERCIAL COURT-02, SOUTH-WEST,
           DWARKA COURTS, DELHI


CNR No. DLSW01-004043-2022 and DLSW01-004041-2022
OMP (Comm) No. : 12/2022 and 13/2022

In the matter of :-

Union of India
Executive Engineer
Through CBMD, M-121 (N) PWD (GNCTD)
B-6, NCC Campus, Safdarjung Enclave
New Delhi - 110029

                                      ............Petitioner

Vs.

M/s Manish Buildwell Engineers
Builders & Contractors
110, Pocket B-6
Sector - 3, Rohini, Delhi - 110085

                                          ..............Respondent

Date of institution of the petitions      : 27.04.2022
Date of final arguments                   : 24.07.2023, 07.08.2023
                                            04.09.2023 & 20.09.2023
Date of judgment                          : 22.09.2023

                                     ORDER

1. These are two petitions u/s 34 of Arbitration and Conciliation Act, filed by the petitioner seeking setting aside of impugned awards both dated 03.01.2022 and Orders dated 04.02.2022 passed by Ld. Arbitrator. Both the petitions are taken up for disposal together because of the identical dispute between parties in both cases.

OMP (Comm) No. : 12/2022 & 13/2022 1/20

2. Petitioner is a Government Department which undertakes the works of construction of various projects passed by the Government of India, whereas Respondent is class II of Contractor registered with the CPWD. During 2017­2018, petitioner floated tenders for EOR to Police Colony, Sector 16 B, Dwarka under Sub­Division­III of SWBMD, New Delhi (SH: up­ gradation of 452 Flats at Sector 16 B, Dwarka, New Delhi ) with an estimated cost of Rs. 7,10,33,560/­ (in OMP no. 12/2022) and tender for EOR to Police Colony, Sector 16 A, Dwarka under Sub­Division­III of SWBMD, New Delhi (SH: up­gradation of 208 Flats at Sector 16 A, Dwarka, New Delhi ) with an estimated cost of Rs. 3,79,24,133/­ (in OMP no. 13/2022). Respondent being successful bidder was awarded work orders by the petitioner vide letters dated 02.08.2017 for contract value of Rs. 5,19,89,463/­ and Rs. 2,77,56,673/­ respectively.

3. Stipulated date of commencement of work in both the tenders was 08.08.2017. Period for completion of work was 180 days with stipulated date of completion as 03.02.2018. However, the actual date of completion was 31.05.2019, wherein exetnsion of time was granted by the petitioner without levy of any compensation . Final bills for both the tenders were passed and paid on 15.01.2020. However, some dispute arose between the parties and therefore vide letter dated 20.07.2020, dispute was refered to Ld. Sole Arbitrator for adjudication of the disputes/claims raised by the respondent. Ld. Arbitrator passed the awards dated 03.01.2022, wherein Claims no. 1, 3, 5 & 6 were decided in favour of Claimant/Respondent. Present OMP (Comm) No. : 12/2022 & 13/2022 2/20 petitions have been filed by the petitioner challenging only the findings/calculations of Ld. Arbitrator with regard to claim no. 5, whereby an amount of Rs. 23,35,470/­ minus Rs. 3,84,045/­ i.e. Rs. 19,51,424/­ ( in Omp no. 13/2022) and amount of Rs.12,88,354/­ minus Rs. 2,52,956/­ i.e. Rs. 10,35,398/­ (in OMP no. 13/2022) had been awarded as compensation for losses due to escalation in favour of Claimant/Respondent. On 17.01.2022, petitioner filed separate applications under section 33 of Arbitration and Conciliation Act r/w section 151 CPC seeking correction and interpretation of Awards dated 03.01.2022. However, the said applications were also dismissed by Ld. Arbitrator vide order dated 04.02.2022 which is also under challenge before this court.

4. Following are the submissions of Ld. Counsel for petitioner to challenge the awards pertaining to claim no.5 :­ (1) the findings of Ld. Arbitrator with regard to Claim no. 5 in impugned award dated 03.01.2022 and order dated 04.02.2022 are perverse, illegal and suffer from error apparent on face of it as Ld. Arbitrator has misinterpreted the settled position of law and has passed the award regarding claim no.5 in most cursory and arbitrary fashion.

(2) Ld. Arbitraor has failed to appreciate that the petitioner neither admitted the claim of Respondent nor the claculations submitted. The stand of petitioner before Ld. Arbitrator was very clear, as mentioned in statement of defence, that Clause 10 CC was not applicable in view of Schedule 'F' of the Agreement.

OMP (Comm) No. : 12/2022 & 13/2022 3/20

(3) Ld. Arbitrator has failed to appreciate that the claim of claimant could only be passed as per the agreement entered into between the parties and any claim which has been restricted by the terms of agreement, the same is liable to be rejected in view of the provisions thereof.

(4) Ld. Arbitrator has further failed to appreciate that the respondent/claimant had wrongly taken the base Indices for taking the price of the material mentioned under Clause 10 CC (i) of the GCC in agreement and also has wrongly taken the quarter peiod for the purpose of calculation of the Claim under clause 10 CC, which adversely effects the calculations prepared by the respondent.

(5) Ld. Arbitrator has failed to appreciate that the last date of filing/upload of the tender through e­tender was 22.07.2017 and the works were awarded on 02.08.2017 which dates are not disputed by both the parties. Therefore, the base date of working out such escalation as per clause 10 (1) of GCC in agreement has to be 22.07.2017, when the said tenders were received by the petitioner. As per Clause 10 (i) of GCC in the agreement, the first statement of escalation shall be prepared at the end of three months, excluding the month in which the work was awarded/accepted. The first three months would start from September 2017 as per work manual.

(6) Ld. Arbitrator has failed to appreciate that the respondent himself had filed fresh calculation as ' Annexure B' after the meeting held on 01.02.2022 with the petitioner, which the respondent had very cleverly placed on record after reframing the quarter's (Three months Period) as pointed out by the petitioner OMP (Comm) No. : 12/2022 & 13/2022 4/20 and respondent in the fresh calculation, again wrongly calculated the claim by taking the wrong base index.

5. Following authorities were placed reliance upon by Ld. Counsel for petitioner:

(i) 297 (2023) Delhi Law Times 500 Union of India & Anr. Vs. Alcon Builders and Engineer Pvt. Ltd. wherein it was observed that:
"When arbitrator's decisions on multiple claims and counter­claims are severable and not inter­dependent, Court is empowered under section 34 to set aside or uphole arbitrator's decisions on individual and severable claims or counter­claims; without having to set aside entire arbitral award. That would not amount to modification of arbitral award".

(ii) Appeal no. 245 of 2009 in Arbitration Petition no. 347 of 2005 titled as M/s R.S. Jiwani Vs. Ircon International Ltd., wherein it was observed that :

" 38.....1. The judicial discretion vested in court in terms of the provisions of section 34 of the Arbitration and Conciliation Act, 1996 takes within its ambit power to set aside an award partly or wholly depending on the facts and circumstances of the given case. In our view, the provisions of sectin 34 read as a whole and in particular section 34 (2) do not ambit of interpretation which will divest the court of competent jurisdiction to apply the principle of severability to the award of the Arbitral Tribunal, legality of which is questioned before the court. The Legislature has vested wide discretion in the court to set aside an award wholly or partly, of course, within the strict limitations stated in the said provisions. The scheme of the Act, the language of the provisions and the legislative intent does not support the view that judicial discretion of the court is intended to be whittled down by these provisions.
2. The provisio to section 34 (2) (a) (iv) has to be read ejusdem generis to the man section, as in cases falling in that category, there would be an absolute duty on the court to invoke the principle of severability where the matter submitted to arbitratin can clearly be separated from the matters not referred to arbitration and decision thereupon by the Arbitral Tribunal" .

6. Undisputed facts on record are that respondent participated in the bidding process and works were awarded by petitioners vide order dated 02.08.2017. Stipulated date of commencement OMP (Comm) No. : 12/2022 & 13/2022 5/20 of work was 08.08.2017. Period for completion of works was 180 days with stipulated date of completion as 03.02.2018. Actual date of completion of work was 31.05.2019. Extension of time was granted by petitioner to the respondent for completion of works without levy of any penalty. After the dispute arose between the parties, matter was referred to Ld. Arbitrator. Claimant/Respondent made six claims and a counter claim was made by petitioner. Claims no. 1, 3, 5 & 6 were decided in favour of respondent and counter claim was dismissed. Petitioner has not challenged the findings of Ld. Arbitrator with regard to other claims except for claim no. 5. Ld. Arbitrator awarded the amount of Rs. 23,35,470/­ minus Rs. 3,84,045/­ i.e. Rs. 19,51,424/­ ( in Omp no. 13/2022) and amount of Rs.12,88,354/­ minus Rs. 2,52,956/­ i.e. Rs. 10,35,398/­ (in OMP no. 13/2022) , as compensation for losses due to escalation in favour of respondent.

7. Following are the submissions made by Ld. Counsel for respondent:

(1) that the present objections are in the nature of appeal against the Arbitrator's Award with respect to claim no. 5 only and outside the parameters of section 34 of Arbitration and Conciliation Act. Petitioner is seeking to re­examine and re­ assess the evidence led before the Arbitral Tribunal.
(2) Petitioner has not challenged any finding of fact arrived by the Ld. Arbitrator especially with respect to the delay being solely attributable to the petitioner. It is well settled that a contractor would be entitled to escalation during the extended OMP (Comm) No. : 12/2022 & 13/2022 6/20 period where there is no breach on its part notwithstanding any provision in the contract as it cannot stand in the way of award of amount for the period beyond the stipulated date of completion.

The award with respect to claim no.5 had been passed after considering the entire evidence, law and even the amount already paid under clause 10 C and 10 CA has been deducted by the Ld. Arbitrator before awarding claim no. 5. It is settled position of law that the Arbitrator is empowered to interpret the provisions of the contract. Ld. Arbitrator has accordingly interpreted the provisions of the contract and held that once the prolonged period has been extended without levy of penalty, the prolonged period becomes contractual period and therefore, 10 CC becomes applicable to the entire period. The interpretation of Ld. Arbitrator is in consonance with section 73 and 74 of the Indian Contract Act. Moreover, in case a party is permitted to perform the contact at its own ease and the party suffering from such breach is left remediless, then it is against the public policy of India in terms of Section 23 of the India Contract Act. The commercial contracts are entered into solely for the purpose of commercial gains and if the contractor is burdened with escalation for default of the employer, then not compensating the contractor would be in breach of section 23 of the Contract Act, being against the public policy. For the abovesaid, reliance was placed upon Simplex Concrete Piles (India) Ltd. Vs. Union of India MANU/DE/4538/2010.

(3) the findings in the award qua liabilty for delay and interpretation of the contract are well within the domain of the OMP (Comm) No. : 12/2022 & 13/2022 7/20 Arbitrator. The award of compensation/escalation based on CPWD formula under 10 CC has been upheld by the courts in catena of judgments. Once the Arbitrator comes to a finding of the fact that delay is not attributable to the contractor, it is within the domain of the Ld. Arbitrator to award escalation by using any well accepted formula in the trade. Respondent has not challenged the award with respect to the findings of the arbitrator in claim no. 1.

(4) Scope of Section 34 of the Arbitration and Conciliation Act is very limited and as per the settled position of law, the duty of court is limited to set aside the award if it does not withstand the legal scrutiny mandated under section 34 of the Act and not otherwise.

(5) That in Judgment titled as Rajasthan State Mines and Minerals Vs. Eastern Engineering Enterprises, it was held that court cannot interfere with the decision of the Arbitrator on the ground that its decision is based on error of law or fact and that court is precluded from reviewing even indirectly the merits of the case since setting aside of the award is no longer possible for error of law/fact.

(6) That in Judgment titled as Lakshmi Mathur Vs. Chief General Manager, MTNL, 2000 (2) LR (Bombay), it was held that the parties constitute the Arbitral Tribunal as the sole and final judge of the dispute arising between them and they bind themselves as a rule to accept the arbitral award as final and conclusive and the award is not liable to be set aside on ground OMP (Comm) No. : 12/2022 & 13/2022 8/20 that facts or law is erroneous as this will override the scope of Arbitration and Conciliation Act.

(7) that patent illegality should be apparent on the face of record and the award cannot be set aside merely on ground of an erroneous application of the law or by reappreciation of evidence. For the abovesaid reliance was placed upon Delhi Airport Metro Express Pvt. Ltd. Vs. Delhi Metro Rail Corporation Ltd. (2022) 1 SCC 131 wherein it was observed that " there is a disturbing tendency of courts in setting aside arbitral awards after dissecting and reassessing factual aspects of the cases to come to a conclusion that the awards need intervention and thereafter, dubbing the award to be vitiated by either perversity or patent illegality, apart from the other grounds available for annulment of the award, have to be kept in mind. This approach would lead to corrosion of the object of Arbitration and Conciliation Act, 1996 and the endeavors made to preserve the object which is minimal judicial interference with arbitral awards.

(8) that respondent had raised seven claims before the Sole Arbitrator and the petitioner had raised only one Counter Claim. Ld. Arbitrator has dealt with all the claims and counter claim and pronounced a well reasoned award wherein out of the seven claims, Ld. Arbitrator had rejected three claims of the Respondent. The findings of Ld. Arbitrator with regard to claim no. 5 are based upon findings of the fact that the petitioner was responsible for delay in execution of the work and the prolongation of the contract.

OMP (Comm) No. : 12/2022 & 13/2022 9/20

(9) that Ld. Arbitrator is an Engineer/Expert,retired Director General, CPWD and has been on the panel of Arbitrators of CPWD, ICA, AAI, CIAC, IITArb, NTPC, GAIL etc. The arbitrator has been appointed as per the procedure agreed between the parties and is an expert in the field. The award passed by the arbitrator cannot be scrutinized in the manner as an award made by legally trained minds. The petitioner has duly admitted that Ld. Arbitrator has taken into account the indices for taking the price of the material mentioned under schedule F. Ld. Arbitrator has further held in the order passed in application under section 33 that the claim no.5 is an award of Compensation for escaltion in prices of labour and material due to breaches on the part of respondent based on the calculations submitted by the claimant, therefore, the same needs no recalculation or any other interpretation.

8. Claimant had claimed escalation cost w.e.f. 01.08.2017. The base indices had been mentioned in Schedule F and the calculation by Ld. Arbitrator was made as per the agreement between the parties. Further Escalated cost was demanded by the claimant alongwith the claim petition, which calculation was never denied by the petitioner nor any objection was raised to this demand/calculation.

9. In reply to the said claim, it was merely mentioned by petitioner that Clause 10 CC will be applicable only if mentioned in Schedule 'F' and Escalation Payment under Clause 10 C and 10 CA, which was applicable as per Schedule 'F' has already been paid to Agency.

OMP (Comm) No. : 12/2022 & 13/2022 10/20

10. Clause 10 CC contemplates:

" If the prices of materials (not being materials supplied or services renedered at fixed prices by the department in accordance with clause 10 & 34 thereof) and/or wages of labour required for execution of the work increase, the contractor shall be compensated for such increase as per provisions detailed below and the amount of the contract shall accordingly be varied subject to the condition that such compensation for escalation in prices and wages shall be available only for the work done during the stipulated period of the contract including the justified period extended under the provisions of clause 5 of the contract without any action under clause 2. However, for the work done during the justified period extended as above, the compensation will be limited to prices/wages prevailing at the time of updated stipulated date of comletion considering the effect of extra work (extra time to be calculated on pro­rata basis only as cost of extra work X stipulated period/ tendered cost). No such compensation shall be payable for a work for which the stipulated period of completion is equal to or less than the time as specified in Schedule F......."

11. In the instant matter, the stipulated completion period was 180 days but the completion period had actually been streteched to 661 days which was not because of the lapse on the part of the Contractor/Respondent. Ld. Arbitrator reasoned that Escalation in prices was direct result of prolongation and losses due to escalation which needed to be compensated. It was observed by ld. Arbitrator that :

OMP (Comm) No. : 12/2022 & 13/2022 11/20
" Contract provides for compensation for escalation under clauses 10 C and Clause 10 CA. Clause 10 CC has been made not applicable considering that contract period, as stipulated, was only 180 days i.e. less than 12 months. Clause 10 C provides for reimbursement of increase in prices of labour and material as a result of statutory price rises. While labour wages are statutory in nature, prices of most materials do not come under it's ambit. Therefore, no compensation is available to the contract for rise in market prices of materials under this clause".

12. Clause 10 CA provides for compensation for rise in prices of cement and steel only. Therefore, under this clause also, no comepnsation is available to the contractor for rise in market prices of other materials.

13. Clause 10 CC provides for compensation due to rise in market prices of labour as well as all materials other than those covered under clause 10 CA. Therefore, Clause 10 CC combined with Clause 10 CA provides for full compensation for escalation. Clause 10 CC was inapplicable in this contract only because stipulated period was 180 days. (The rationale behind this provision is that not much change is expected in the market prices in a short period of time. Normally, as per norms of CPWD, clause 10 CC is made applicable in contracts with stipulated period of more than 12 months. It is mentioned in Schedule F of this contract also. However, contract stretched to 661 days, much beyond the stipulated period, due to various delays and mismanagement by the Respondent(Petitioner in the present matters). Respondent(Petitioner in the present matters) OMP (Comm) No. : 12/2022 & 13/2022 12/20 granted Extension of Time without levy of any compensation, thus accepting the fact that delay is not attributable to the Claimant. Therefore, the extended period became the contract period and there is no reason for clause 10 CC to remain inapplicable under the changed circumstances".

14. Clause 10 CC was not made applicable as per Schedule F, the contract period being less than 12 months. Nevertheless, there was delay of approximately 440 days, which was much beyond the stipulated period of completion, owing to the petitioner and not due to the lapse on the part of the contractor . De facto, the contract period thereby stretehced to more than 660 days which was much more than the period of 12 months. Clause 10 CC thereby became operative and applicable in view of the changed scenario.

15. During the course of arguments, in presence of Sh. Shyam Bir Singh, AR of petitioner, it was conceded on behalf of petitioner that Clause 10 CC became applicable considering the prolonged period of contract. However, it was submitted that real dispute between parties still remained with regard to Base Date of working of the escalation. As submitted, last date of filing/upload of the tender through e­tender was 22.07.2017 and the works were awarded on 02.08.2017 which dates are not disputed by both the parties. Therefore, the base date of working out such escalation as per clause 10 (1) of GCC in agreement has to be 22.07.2017, when the said tenders were received by the petitioner. It was also submitted the respondent himself had filed fresh calculation as ' Annexure B' after the meeting held on OMP (Comm) No. : 12/2022 & 13/2022 13/20 01.02.2022 with the petitioner, in which the respondent had very cleverly placed on record after reframing the quarter (Three months Period) as pointed out by the petitioner and respondent in the fresh calculation, but again wrongly calculated the claim by taking the wrong base index.

16. Ld. Counsel for respondent sought to clarify that respondent had not filed any fresh calculations as alleged by petitioner. Calculations had been filed on the basis of the same indices as taken earlier as per schedule F. However, the arbitrator found the amount claimed to be proper and further reduced the amount by deducting the payment under clause 10 already made by the petitioner. It was sufficiently explained that on the last dates of receipt of the tenders, the cost indices of 10 CA & 10 CC were published and were available for the month of April 2017 only. Accordingly, petitioner had mentioned the base indices of 10 CA at page 28 of the Agreement. Therefore, the indices of April 2017 issued on 21.07.2017 just one day before the date of receipt of tenders were not acceptable. Ld. Arbitrator had taken into account the rate indices mentioned in the Schedule F of the Agreement.

17. In para 5 of the reply filed by the respondent, it was admitted that base price mentioned in NIT for structural steel, reinforcement and Cement were based on the indices of April 2017, issued by DG/CPWD vide no. DF/10CA/41 dated 30.06.2017. It was further admitted by respondent that the indices of 10 CC for the month of July were not published on CPWD website till the receipt of tenders on 22.07.2017.

OMP (Comm) No. : 12/2022 & 13/2022 14/20

18. Work had been awarded on 02.08.2017 and the contract was executed on 08.08.2017 with Base Indices of April 2017 in Schedule F and not of July 2017. Subsequenlty, also there was no modification or amendement in applicability as price indices of April 2017. Contention of Ld counsel for petitioner that price indices of April , as per Schedule F shall not be applicable for other material, is not acceptable in view of specific mention of price indice of April 2017 in contract if price indice for July 2017 had already been published as on date of award of work and with no modification lateron. Ld. Arbitrator thereby applied the formula for calculation as per the settled practice, procedure and rules based upon the contract between the parties.

19. It is not open for this court to reappreciate the evidence as the objection u/s 34 has to be established on the basis of ground enumerated therein. Reliance is placed upon following authorities:

20. In Associate Builders Vs. Delhi Development Authority, 2014 (4) Arb. LR 307 (SC), it was observed that :

" When a court is applying the ' Public Policy' test to an arbitration award, it does not act as a court of appeal and consequently errors of facts cannot be corrected. A possible view by the arbitrator on the facts has necessary to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus, an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this scope. Once it is found that the arbitrator's approache is not arbitrary or capricious, then he is the last word on facts" .
" An arbitral tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a terms of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do".
OMP (Comm) No. : 12/2022 & 13/2022 15/20
" The expression ' justice' when it comes to setting aside an award under the public policy ground can only mean that an award shocks the conscience of the court" .

21. In Ssangyong Engineering & Construction Co. Ltd. Vs. National Highways Authority of India, Judgement dated 08.05.2019, SLP (C) no. 19033 of 2017, it was observed that :

" it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law and secondly, that such award is against the basic notions of justice or morality. Explanation 2 to Section 34 (2) (b) (ii) and Explanation 2 to section 48 (2) (b)
(ii) was added by the Amendment Act only so that Western Geco (Supra), as understood in Associate Builders (supra), and paragrpahs 28 and 29 in particular, is now done away with. In so far as domestic awards made in India are concerned, an additional ground is now available under sub-section (2A), added by the Amendment Act, 2015, to section 34. Here, there must be patent illegality appearing on the fact of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within " the fundamental policy of India Law" ,namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality.

Secondly, it is also made clear that re-appreciation of evidence, which is what an appellate court is permitted to do, cannot be permitted under the ground of patent illegality appearing on the face of the award.

To elucidate, para 42.1 of Associate Builders (supra), namely a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Paragraph 42.2 of Associate Builders (supra), however, would remain that if an arbitrator gives no reasons for an award and contravenes section 31 (3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award.

The change made in section 28 (3) by the Amendment Act really follows what is stated in paragraphs 42.3 in Associate Builders (supra), namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitratror construes the contract in a manner that no fair minded or reasonable person would; in short take or the arbitrator's view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted him, he commits an error of jurisidiction . This ground of challenge will now fall within the new ground added under section 34 (2A)" .

22. The other contention of Ld. Counsel for petitioner was pertaining to filing of application under section 33 of the Arbitration and Conciliation Act by petitioner seeking correction and interpretation of Award dated 03.01.2022. As stated, reply OMP (Comm) No. : 12/2022 & 13/2022 16/20 was called by Ld. Arbitrator from the respondent, which was filed on 02.02.2022. After receipt of the copy of reply from respondent, petitioner filed rejoiner to the said reply, however on the same day, petitioner received order dated 04.02.2022 whereby application of petitioner was rejected by Ld. Arbitrator without giving any opportunity to the petitioner to address arguments.

23. Per contra, it was submitted by Ld. Counsel for respondent that the contention of Petitioner that the petitioner had not been awarded any opportunity of hearing, over the claimed amount is a false statement as it is admitted case between the parties that the calculations submitted by the respondent was part of pleadings before the Ld. Arbitrator and it was the petitioner, who despite full opprotunity, chose not to file any response or file alternative calculations before the Arbitrator based on cogent reasons. The allegations made against the adjudicating authority is bereft of any substantive evidence. Petitioner cannot get indirectly what is not possible directly. The petitioner did not raise any contention or alternate stand before the Ld. Arbitrator despite giving opportunities and the petitioner cannot be permitted to reargue the case under section 33 of the Act which did not empower the Arbitral Tribunal to usurp the mandate which had expired on making and publishing the award as per section 32 of the Act except the limited extent provided in section 33 of section 34 (4) .

OMP (Comm) No. : 12/2022 & 13/2022 17/20

24. It was noted by Ld. Arbitrator that :

" It is evident from the statement of defence submitted by the respondent that neither the amount claimed was disputed nor any comments given on the calculations submitted by the claimant. The only plea taken by the repondent even at the arguments stage is that Clause 10 CC is not applicable, hence escalation under this clause is not payable. In fact, during hearing of arguments, respondent was given a chance to submit his comments on the calculations, but no comments were submitted. Therefore, no modification is required to be made in the award".

25. It was further noted that as far as calculation of the awarded amount under claim no. 5 is concerned, it is an award of compensation for escalation in prices of labour and material due to breaches on the part of the Respondent/Petitioner herein, based upon calculations submitted by the claimant, which were not disputed. Section 33 (1) of the Act enables the Arbitral Tribunal only to correct any computations errors, any clerical or typographical errors or any other efforts of a similar nature occurring in the award. Accordingly, the request made by the petitioner herein to recalculate the awarded amount on the basis of fresh evidence and submissions was beyond the scope of section 33 particularly when petitioner throughout the pendency of the proceedings did not controvert the calculations submitted by the respondent on record.

26. Ld. Counsel for petitioner referred to Clause 10 (i) GCC in agreement and submitted that the first statement of escalation OMP (Comm) No. : 12/2022 & 13/2022 18/20 shall be prepared at the end of three months, excluding the month in which the work was awarded/accepted. The first three months would start from September 2017 as per work manual. Reference was also made to Annexure­B filed by respondent on record wherein the calculation was based upon price indice of April 2017 but was claimed w.e.f. September 2017. Ld. Counsel for respondent conceded that period to claim escalation was to be computed w.e.f. September 2017 and to avoid any further controversy, respondent was willing to forgo the amount which was awarded for month of August 2017 by Ld. Arbitrator pertaining to OMP No. 12/2022. Pertaining to other OMP, the claim was made w.e.f. 1.11.2017 and the claim w.e.f. 01.8.2017 to 31.08.2017 was Nil. In these circumstances, since it was merely the calculation mistake to the extent as noted above in the award pertaining to OMP No. 12/2022, this court does not deem it appropriate to refer back the matter to Ld. Arbitrator when both the parties are at consensus ad­item with regard to effective period of calculation i.e. w.e.f. September 2017. Contention of Ld. counsel for petitioner with regard to non­applicability of price indice for April 2017 does not find favour with this court as was not found favour with Ld. Arbitrator. Therefore except for the calculation which shall be read w.e.f. September 2017 in the award pertaining to OMP no. 12/2022, both the awards passed by Ld. Arbitrator do not suffer from any patent illegality, perversity or against the public policy, calling for any interference from this court in objections u/s 34 of Arbitration and Conciliation Act.

OMP (Comm) No. : 12/2022 & 13/2022 19/20

27. Having discussed as above, both the petitions filed by the petitioner stand dismissed. Files be consigned to record room after completion of necessary formalities.

Digitally signed 
                                         SAVITA       by SAVITA RAO
                                                      Date:
                                         RAO          2023.09.22
                                                      14:33:54 +0530
Announced in the open                      (SAVITA RAO)
court on this 22nd day                    DISTRICT JUDGE
 of September 2023                   (COMMERCIAL COURT)-02
                                           SOUTH-WEST
                                       DWARKACOURTS, DELHI




OMP (Comm) No. : 12/2022 & 13/2022                         20/20