Delhi High Court
M/S. Duggar Fiber Pvt. Ltd. vs M.C.D. (Desu) on 23 March, 2001
Equivalent citations: 2001IIIAD(DELHI)823, 90(2001)DLT731, 2001(3)RAJ127
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. It appears that this IA was not numbered by the registry inadvertently. Let it be numbered.
2. Petitioner had filed the objections under Section 20 of the Indian Arbitration Act, 1940 (the "Act" for short) which was registered as Suit No.990/A/92. By order dated 3rd February, 1995 direction was issued that the arbitration agreement be filed. Mr. Gian Chand Jain, a retired Judge of this Court was appointed as the Sole Arbitrator to decide the disputes raised in the petition. Although with this order nothing survived as far as main suit was concerned, however, it appears that as petitioner had also filed IA No. 2399/92 along with the Suit in which petitioner was praying for interim order. By order dated 3rd February, 1995 it was directed that respondent shall not discontinue the electricity of the petitioner on account of non-payment of the disputed bill (subject matter of arbitration) till the award is made by the learned Arbitrator. The petitioner was however required to furnish a Bond for the sum in question within two weeks from the date of order to the satisfaction of the Registrar of this Court. It appears that the matter was kept pending because of this reason inasmuch as further proceedings in the case were conducted by the Registrar/Joint Registrar in so far as furnishing of the bond is concerned.
3. In the meantime the learned Arbitrator entered upon reference and proceeded to adjudicate upon the disputed bill. The bill in question is electricity bill issued by the respondent which pertains to the period from May, 1990 to July, 1991. The demand raised in the bill is Rs.25,81,490.55 paisa. The dispute referred to arbitration for determination was couched in the following language as can be seen from order dated 3rd February, 1995.
"The dispute in question which is referred to arbitration is as to whether the aforesaid provisional supplementary bill is valid and lawful despite the fact that earlier regular monthly bills had been raised for the said period and payment stood received."
4. The learned Arbitrator after hearing the parties made and published the award dated 14th January, 1997. As per this award, the learned Arbitrator declared that the impugned bill dated 25th February, 1992 for Rs.25,81,490.55 was invalid and unlawful. After the aforesaid award was rendered, the learned Arbitrator filed the same in this Court. This was followed by application (IA No.3242/97) filed by the petitioner under Sections 14 and 17 of the Act for making the award rule of the Court. Petitioner also filed another application (IA No. 3243/97) under section 41 read with schedule II of the Act seeking the discharge of the surety bond. Notice of these applications was issued to the respondents. On receiving the notice respondents filed IA dated 14th October, 1997 raising objections under Section 30 and 33 of the Act against the impugned award dated 14th January, 1997. Reply was filed by the petitioner to these objections. On the basis of pleadings of the parties, following issues were framed on 13th November, 1998:
"1. Whether the award is liable to be set aside on the grounds taken in the objection petition?
2. Relief.
5. Both the parties stated that there was no need to produce evidence and parties would rely upon the record of the learned Arbitrator and the documents. Arguments were accordingly heard on this IA.
6. The main submission of the learned counsel for the respondent/objector was that the learned Arbitrator had ignored relevant material and evidence on record which was produced by the respondent before the learned Arbitrator. His submission was that the learned Arbitrator failed to take into consideration the statement of Mr.Narender Jain, RW-2 who was a technical person. He contended that his report/version should have been accepted when there was nothing on record to contradict the same. Further, according to him, the report of the inspecting team who conducted inspection of the premises was not taken into consideration. On the other hand, the learned Arbitrator relied upon the statement of Mr.M.C.Gurani, Assistant Engineer (RW-1) and recorded his conclusions on that basis thereby committing material irregularity. It was also submitted that on an earlier occasion inspection of the premises was conducted and petitioner, on the basis of said inspection report, was asked to remove certain irregularities which was not done by the petitioner. Therefore, adverse inference should have been drawn against the petitioner. On the basis of these submissions, it was contended that the non-consideration of these vital aspects amounted to legal misconduct which vitiated the impugned award.
7. Counsel for the petitioner on the other hand submitted that the learned Arbitrator had taken every aspect into consideration and published his award after considering the entire matter and submissions of both the parties on record which could be seen from the impugned award itself. It was further submitted that the whole attempt of the objector/respondent was to somehow show that the learned Arbitrator did not record correct findings. Apart from the fact that it was not true, in any case court was not to examine correctness of the award on merits and not to sit as an Appellate Court over the said award.
8. After hearing the parties and examining the record, I am inclined to accept the submission of the petitioner. A perusal of the petitioner. A perusal of the impugned award shows that it is well considered and reasoned award given by the learned Arbitrator. It takes into consideration each and every aspect as well as various submissions made by the respondents. There is a specific reference to the statements of Mr.Narender Jain (RW-2) and Mr.M.C.Gurani (RW-1), reports of the inspection dated 27th June, 1991 as well as irregularities alleged therein are specifically noted and dealt with. The following findings are clearly discernible from the award which are based on the analysis of the material on record:
1. There is no satisfactory evidence to prove any fraudulent abstraction of energy. Even if all the irregularities mentioned in para 2(viii) were taken as correct these themselves do not prove fraudulent abstractions.
2. The alleged irregularities at the most show that some attempt was made to tamper with the metering terminal cover. However, there is no proof whatsoever that metering cubical was opened or the meter was tampered with by the petitioner. For arriving at this conclusion, the learned Arbitrator relied upon the evidence of the respondents' own officer namely Mr. M.C.Gurani, Assistant Engineer(RW-1).
3. Though in the covering letter of the impugned bill dated 25th February, 1992 it has been stated that the bill was revised due to fraudulent abstraction of the energy detected by the inspection team on 27th June, 1991 but the bill itself shows that the impugned bill was not because of any fraudulent abstraction of energy but it was because the connected load was found as 1202.72 instead of the sanctioned load of 1008 K.W.
4. Connected load was not more than the sanctioned load. In arriving at this conclusion, the learned Arbitrator examined the capacity of the furnace with reference to evidence on record. The learned Arbitrator further observed that in view of admissions contained in the evidence of Mr.M.C.Gurani who was department's own officer, statement of Mr.Narender Jain which was even otherwise was not satisfactory, could not be preferred to the statement of respondents' own witness Mr.M.C.Gurani. More particularly, when this fact corroborated the version of the claimant that capacity of the furnace was not 1000 K.W. as alleged.
9. On the basis of aforesaid reasons, the learned Arbitrator concluded by recording the finding that it had not been proved that capacity of the furnace was more than 1000 K.W. or that the connected load was 1202 K.W. as mentioned in the impugned bill and accordingly returned the award declaring that impugned bill dated 25th February, 1992 was unlawful. The objections which are taken by the objector on the basis of which arguments are advanced by the learned counsel would clearly demonstrate that the objector is trying to challenge the correctness of the aforesaid findings of the award on merits. Once it is seen that the learned Arbitrator has not ignored any evidence and the submission of the objector is clearly fallacious on this aspect, further enquiry to examine the correctness of the award on merits is clearly impermissible. It is a well settled principle of law, which needs no elaboration, that when a court is called upon to decide the objections raised by a party against an arbitration award, the jurisdiction of the court is limited, as expressly indicated in Section 30 of the Act itself and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits. (Refer:1) Puri Construction Pvt. Ltd. Vs. Union of India , 2) Food Corporation of India Vs. Joginderpal Mohinderpal and Anr. and 3) K.S.Randhawa Vs. Union of India & Ors. reported as 2000 III AD (DELHI) 285)
10. Therefore, this attempt on the part of the objector/respondent cannot be permitted. This IA is accordingly dismissed with costs.
IA No. 3242/9711. In view of the dismissal of the objections to the award, award dated 14th January, 1997 rendered by Mr.Gian Chand Jain is made rule of the court. The result is that impugned bill dated 25th February, 1992 is unlawful and is hereby quashed. Decree in terms thereof is hereby passed. Award form part of the decree.
12. As the impugned bill dated 25th February, 1992 has been declared illegal, no amount under that bill is payable by the petitioner to respondent/objector. The surety bond furnished by the petitioner stands discharged.
S.No.990-A/92
13. No further orders are required in the suit which accordingly stands disposed of.