Delhi High Court
M.L. Mahajan vs Delhi Development Authority on 4 August, 1997
Equivalent citations: 1997VAD(DELHI)42, 1997(2)ARBLR430(DELHI), 69(1997)DLT734, 1997(43)DRJ73
JUDGMENT C.M. Nayar, J.
(1) The present petition is filed under Section - 14 of the Arbitration Act, 1940 for issuance of direction to the arbitrator, respondent No. 2 herein, to file the award alongwith the proceedings in this Court and on filing of the same the parties may be informed to take appropriate steps in accordance with law.
(2) Notice of the petition was issued. The award and the proceedings have been filed by the arbitrator and the petitioner as well as the respondent, Delhi Development Authority, have filed their respective objections.
(3) The petitioner had entered into an agreement with respondent No. 1 for the construction of 84 Mig houses at Bodella (Vikaspuri) Pocket-GG-III including internal development (balance work). The agreement entered into between the parties contained an arbitration clause for reference of disputes to the arbitrator in the manner, as provided in the same. Clause 25 of the Agreement reads as follows: "CLAUSE 25. Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs drawings and instruction herein before mentioned and as to the quality on workmanship or materials used on the work or as to any other questions claim, right matter or thing whatsoever, in any way arising out of or relating to the contract designs drawings, specifications, estimates, instruction, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Engineer Member Delhi Development Authority at the time of dispute. It will be no objection to any such appointment that the arbitrator so appointed is a Delhi Development Authority employee that he had to deal with the matters to which the contract relates and that in the course of his duties as Delhi Development Authority employees he had express view on all or any of the matters in dispute of difference. The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such Engineer Member Delhi Development Authority as aforesaid at the time of such transfer, vacation of office or inability to act small appoint another person to act as arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor it is also a term of this contract that no person other than a person appointed by such Engineer Member, Delhi Development Authority as aforesaid should act as arbitrator and, if for any reason that is not possible, the matter is not to be referred to arbitration at all. In all cases where the amount of the claim in dispute is Rs. 50,000.00 (Rupees Fifty thousand) and above, the arbitrator will give reason for the award. Subject as aforesaid the provisions of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration, proceeding under this Clause. It is a term of the contract that the party invoking arbitration shall specify the dispute or disputes to be referred to arbitration under this clause together with the amount or amounts claimed in respect of each such dispute. It is also a term of the contract that if the contractor(s) does/do not make any demand for arbitration in respect of any claim (s) in writing within 90 days of receiving the intimation from the Engineer-in-charge that the bill is ready for payment, the claim (s) of the contractor (s) will be deemed to have been waived and absolutely barred and the Delhi Development Authority shall be discharged and released of all liabilities under the contract in respect of those claims." The disputes having arisen between the parties, the petitioner invoked the arbitration clause vide communication dated January 19, 1991 and vide letter dated April 11, 1991 Engineer Member of the respondent appointed Shri M.S.Bhatia as the sole arbitrator. The said arbitrator, however, resigned vide his letter dated April 22, 1991. Thereafter one Shri S.C.Kaushal was appointed as arbitrator who also resigned vide his communication dated November 4, 1993. Respondent No. 2 was appointed as sole arbitrator by the Engineer Member as successor to the previous arbitrators, who resigned and he entered upon the reference on June 17, 1994.
(4) The petitioner/claimant filed the statement of facts/claims vide letter dated September 24, 1992 before the previous arbitrator and the respondents have filed the counter statement of facts/claims on December 1, 1992. The rejoinder was filed on December 3, 1992. Respondents filed the statement of facts and counter claims on October 13, 1994 before the present arbitrator to which the petitioner/claimant filed its reply vide letter dated December 5, 1994. The arbitrator has stated that both the parties made extensive replications and brought on record their submissions before him in writing from time to time culminating in the respondent's filing a written closure on August 4, 1995 followed by claimants on August, 9, 1995. The hearings were held on 18.7.1994, 9.8.1994, 8.9.1994, 13.9.1994, 11.10.1994, 14.10.1994, 1.11.1994, 2.11.1994, 14.12.1994, 16.12.1994, 16.1.1995, 18.1.1995, 15.3.1995, 18.5.1995, 12.5.1995, 3.7.1995, 4.7.1995 and concluded on 13.7.1995. The arbitrator has referred to the examination of oral and documentary evidence on record in the following manner in his award: And Now Therefore after hearing, examining and considering the statement of both the parties and the oral and documentary evidence the parties chose to produce before me and having heard and duly weighed and considered and having applied my mind to the complexities of the case after deep study of all facts that are relevant and material with due care. I, M.Kuppuswamy in the capacity of Supdtg. Engineer (Arbn) I, Sole Arbitrator Delhi Development Authority do hereby make and publish this my award concerning the matter so referred to me in the following manner:- All the preliminary objections of the respondents as to the validity of claims of the claimants under Clause 25, limitations, justifications under any of the terms and conditions of the agreement, waiver resulting in estoppel and in consequence thereof falling outside the jurisdiction of the Ld.Arbitrator shall stand regulated only as part of defense at the hands of the respondents in resisting the individual component of the claims on merits, in their respective places under each claim more so the respondents having already commenced the oral arguments and completed the claim No. 1 after the issues have been duly framed with the consent of both parties by the Ld. Arbitrator who previously presided over the said hearings and also having completed oral hearings on 2 more claims in the interim pending reply from claimants under him, and upto Claim No. 5 by reserving the pronouncement on the preliminary issues in the Award by the said Ld.Arbitrator when the case was before him, the question of threshold dismissal of the claims on the basis of belated preliminary objections does not arise, as the respondents are precisely estopped from seeking such relief by their own arguments within. In a similar vein, the dismissal of all the claim of the claimant under the preliminary objections set up against each claim, by the present arbitrator also does not arise, particularly so, when the respondents have chosen to set up a counter claim against the claimants as referred in Em's reference vide EM2(13)91/Arbn/Pt./409 dated 3.10.94, the realm of the subject matter constituting the final outcome of which pervades Claim No. 1, Claim No. 3, Claim No. 4, Claim No. 5 and in sequel Claim No. 2, Claim No. 9 and Claim No. 10."
(5) The following claims were raised before the Arbitrator: Claim No. 1: Claimants claim Rs. 1,36,797.00 on account of final bill duly submitted. and Counter Claim No. 1: Respondent claims Rs. 24,571.00 on account of final bill which was minus and was recoverable from the claimants. Claim No. 2: Claimants claim Rs. 67,694.00 on account of security deposit in the shape of Bank Guarantee. Claim No. 3: Claimants claim Rs. 14,375.00 on account of refund of rebate deducted for not fulfillling the conditions of rebate. Claim No. 4: Claimants claim Rs. 2,50,693.00 on account of payment under Clause 10(c) of the contract agreement due to rise in labour wages. Claim No. 5: Claimants claim Rs. 1,01,890.00 on account of payment under Clause-12 of the contract agreement. Claim No. 6: Claimants claim Rs. 3,00,500.00 on account of loss suffered due to idle shuttering. Claim No. 7: Claimants claim Rs. 6,35,584.00 on account of work done beyond stipulated period due to market rise. Claim No. 8: Claimants claim Rs. 3,45,000.00 on account of site and office over heads. Claim No. 9: Claimants claim interest @ 20% per annum presuit, pendente lite and future. Claim No. 10: Claimants claim Rs. 20,000.00 on account of cost of arbitration proceedings."
(6) The petitioner has filed objections under Sections 30 and 33 of the Arbitration Act against part of the award as referred to above and the following pleas have been reiterated: (a) It is well settled that in case of reasoned award, the parties are entitled to know the reasons for accepting or rejecting the award which has not been done in the present case. The arbitrator was obliged to give reasons and, therefore, by not assigning the same he has misconducted himself and the proceedings. (b) The arbitrator has ignored the material documents and misread the proceedings before the previous arbitrator dated October 18, 1993. The arbitrator ought to have allowed a sum of Rs. 1,01,890.00 under Claim No. 5 instead of awarding only a sum of Rs. 34,628.47 and disallowing the amount of Rs. 67,261.84 which was according to the detailed calculation given by the petitioner in the statement of facts. (c) The arbitrator has misconducted himself and the proceedings in rejecting Claim No. 6 for Rs. 3,00,500.00 on account of loss suffered due to idle shuttering. The arbitrator failed to appreciate that merely stating that "the claim not admissible under terms and conditions of the contract besides the claimants have failed to establish the same incontrovertibly resulting in rejection of the claim" is of no consequence as this will not amount to giving reasons which are necessarily to be assigned under the terms of the contract. The arbitrator has further misconducted himself by not awarding Claim No. 7 for a sum of Rs. 6,35,584.00 on account of the work done beyond stipulated period due to the market rise. The statement that "the claimants have failed to establish its claim incontrovertibly against the specific exempting provisions specific to this particular contract" and "it is also not established that the demand in this regard has been escalated to an arbitrable claim conforming to specific provisions of the contract" can be of no consequence as this will not amount to assigning legal reasons for rejecting the claim of the petitioner. The findings in respect of the claims may now be indicated as below: Claim No. 1 "Admitted amount by respondents in final bill Rs. 63,666.00 as per Ex.R-21. a) Amount paid less in EI/SI due to reduction in rates ; Rs. 29,713.49. The rates derived by the respondents in respect of disputed items are not in accordance with the provisions under Clause 12(iii). Accordingly the claim succeeds to Rs. 29,587.50 in terms of Ex.R-21 as per actual figures. b) Amount deducted through reduction items & deduction items Rs. 8496.41. The deductions & reductions effected (as per Ex.R-21) by the Respondents are outside the purview of the terms & conditions of the contract and without due process of law. In sequel the claim succeeds to Rs. 8496.41. c) Amount of items duly executed at site but not measured and paid :- Rs. 35,596.00 The claim fails to establish as recorded in the minutes of the relevant hearing. Accordingly this part of the claim stands disallowed. Recoveries. A) Income Tax:- The respondents shall effect necessary Income Tax deductions as per law and issue the certificate of Tds to the claimants. B) Materials :- A sum of Rs. 271.00 proposed to be recovered by Respondents in the Final Bill stands admitted by the claimants. C) Token compensation: Rs. 1500.00 . This is a levy under clause 2, which is an excepted matter under Clause 25 & outside the jurisdiction of Arbitration. D) With held amount for Qc Paras : Rs. 5000.00 . The with held amount, in the absence of proper accounting shall revert back to the claimants, Recovery disallowed. E) Recovery of Rs. 80,000.00 on A/c of non employment of Graduate Engineer. The clause 36 being silent on the discipline of Engineering, the Respondents having admitted the facts in the certificate recorded in the R/A Bills to the effect that the claimant himself is a Mech.Grad. Engineer, and passed the bill till the end, any recovery without show cause notice & the due process of Law is held void and the recovery stands disallowed.
(7) Accordingly Claim No. 1 of the claimant & the corresponding counter claim I of the Respondent shall stand determined as Rs. 63,666.00 + Rs. 29.587.50 + Rs. 8496.41 Less Rs. 271.00 = Rs. 101478.91 Less Income Tax as per law. Accordingly, I do award a sum of Rs. 1,01,478.91 Less Income Tax as per Statutes on applicable amount, in favour of the claimants and do direct the Respondents pay the said sum to the claimants against Claim No. 1 of the claimants & counter claim I of the respondents. The arbitrator considered the evidence in detail and documents on record and came to the conclusion that the claimant was entitled to the amount of Rs. 1,01,478.91. The reasoning is clearly given in the award and it will not be open for this Court to reappraise and to determine the sufficiency of the same. No fault can be found with the award of the amount under Claim No. 1 and for rejection of the counter claim of the respondent. Claim Nos. 2 & 3 There is no infirmity in award under this Head as the claimant was correctly held entitled to the release of bank guarantee in view of the findings as recorded in respect of Claim No. 1 and counter Claim No. 1. Similarly, the amount of Rs. 14,375.00 on account of refund of rebate was correctly awarded and no fault can be found in the same. Claim No. 4 This claim related to the claim of Rs. 2,50,693.00 on account of payment under Clause 10(c), of the contract due to rise in labour wages. The arbitrator dealt with this claim in the following manner: Under Clause 10(c), the claimants are entitled to the reimbursement of statutory obligations met by them as enshrined in the terms and conditions by way of paying enhanced rates of wages notified by the Competent Authority and duly superintended by the Respondents for effective implementation of the same, as evidenced from the certificates so recorded in the Running A/c & final bills, a sum of Rs. 235651.42 established after allowing only 23.5% as labour component in consonance with G.O.I. notification Exx.C-86, 87, 88, 89 and 90 against 25% claimed by the claimant, and restricting to the lesser amount claimed by the claimants due to arithmetical error, is found legitimately due to the claimants. Accordingly, I do award, a sum of Rs. 235651.42 only in favour of the claimants and direct the respondents pay the claimants the said sum under this claim. (Rupees Two lac thirty five thousand six Hundred fifty one paise forty two only)". There is no infirmity in this award as adequate reasons have been assigned on the basis of admitted documents and evidence on record. Claim No. 5 This related to the claim of Rs. 1,01,890.00 on account of payment under clause 12 of the Agreement. This was dealt within the following manner: "A sum of Rs. 34,628.47 conforming to the terms and conditions of the agreement is found justified in respect of E.I.S. No. 2 and S.I. No. 2 (Rs. 24336.81 + Rs. 10291.66) holding the recovery effected at the hands of the Respondents as ultra vires and outside the purview of the contract and without the due process of Law and also rejecting the claim for 67,261.84 by the claimants as establish ably untenable in terms of contract, I do award sum of Rs. 34,628.47 against this claim in favour of the claimant and do direct the Respondents do pay the said sum to the claimants under this claim."
(8) The award in respect of this claim can also not be found to be adjudicated beyond the jurisdiction as conferred on the arbitrator and it cannot be said that he has, in any manner, misconducted the proceedings and arrived at the conclusions without any cogent material on record. The same is also upheld.
(9) The learned counsel for the respondent-DDA has vehemently argued that the award in respect of The claims as mentioned above has to be set aside as the arbitrator has not assigned any cogent grounds to sustain the same. On the other hand, the claimant has stressed that the arbitrator has no jurisdiction to reject Claim Nos. 6 and 7 for a sum of Rs. 3,00,500.00 on account of loss suffered due to idle shuttering and for a sum of Rs. 6,35,584.00 on account of the work done beyond stipulated period due to market raise. Similarly, Claim No. 8 which was rejected has also been assailed by the claimant. In respect of Claim No. 6 the arbitrator has recorded the following finding: " This claim is not admissible under the terms and conditions of the contract besides the claimants have failed to establish the same incontrovertibly resulting in rejection of the claim and returning a Nil Award. The arbitrator has dealt with Claim No. 7 in the manner as indicated below. "The claimants have failed to establish this claim incontrovertibly against the specific exempting provisions specific to this particular contract. It is also not established that the demand in this regard has ever escalated to an arbitrable claim conforming to the specific provisions of the contract. Under the circumstances of the case the claim fails to sustain & attracts a Nil award under this claim."
(10) Similarly, for Claim No. 8 the following findings were recorded: "The claimants have not established basically that this claim conforms to any of the terms and conditions of the contract more so the exemption provisions specific to this particular contract and peculiar to it and not commonly met in normal contracts. Arbitrability of this claim also has not been established by the claimant, besides the claim has not been substantiated with cogent sustainable evidence as manifest from the documents the claimant cared to bring on record. Failure to establish the claim incontrovertibly, results in rejection and returning a Nil award under this claim."
(11) The petitioner-claimant has contended that the arbitrator has assigned no reasons which can be sustained either on facts or in law in respect of the above claims and, therefore, the findings in respect of the same are liable to be reversed.
(12) The main crux of the argument is that the arbitrator has not assigned reasons in accordance with law and, therefore, the award rendered by him is liable to be set aside. Both the parties have assailed the findings for the claims which have been awarded as well as for the claims which have been denied on similar grounds. The following judgments have been cited during the course of arguments: State and another v. V.P.Jolly 1992 (1) Arbitration Law Reporter 313; M/s Minny Enterprises v. General Manager, I.T.D.C. 1995(1) Arbitration Law Reporter 52; M/s Parmar Construction Co. v. Delhi Development Authority 1996(2) Arbitration Law Reporter 73; M/s Anant Raj Agencies v. Delhi Development Authority 1997 (1) Arbitration Law Reporter 385; Ajay Construction Company v. D.D.A and another 1997(1) Arbitration Law Reporter 92; and B.V.Radha Krishna v. Sponge Iron India Ltd. 1997(1) Arbitration Law Reporter 412.
(13) Ms Parmar Construction Co. (supra) the scope of interference in the award was discussed. Para 7 reads as follows: "7. The scope of interference to the arbitrator's award in such like case where objections are to the effect that the same is bad on the ground of error apparent on the face of the record is limited. Arbitrator's award both on facts and law is final. The Court cannot review and correct any mistake in his adjudication unless objection is to the legality of award which is apparent on the face of it. An error of law apparent on the face of the record means that you can find in the award or a document actually incorporated thereto some legal proposition which is the basis of the award, which you can then say is erroneous. It is not permissible to refer to any other document to show that the award is erroneous. The Court cannot substitute its own decision for that of the arbitrator. Assessment of evidence is a matter within the province of the arbitrator." In M/s Minny Enterprises (supra) it was held that in case of reasoned award the same shall be liable to be set aside where it does not give any reasons or gives reasons which do not exist. Para 12 of the judgment reads as follows:
" What is reasoned award? The arbitrator has to take his mind known on the basis on which he has acted. In Indian Oil Corporation Ltd. v. Indian Carbon Ltd., their Lordships had said that this would be sufficient to meet the requirement of stating the reasons in the award. Vide para 4, their Lordships have pointed out "short intelligible indications of the grounds should be available to find out the mind of the arbitrator for his action." In the opinion of this Court if that has been done, the Court before whom the arbitrator's award is challenged can test whether the arbitrator has acted irrelevantly or unreasonably." In B.V.Radha Krishna v. Sponge Iron India Ltd. (supra) the Supreme Court considered the question as to whether it will be open for the Court to examine the reasonableness of the reasons as given in the award and referred to various earlier judgments of the Supreme Court in the following paragraphs:
12. The disposal of the matter by the High Court in the manner shown above does not come within the ambit of Section 30 of the Arbitration Act. This Court, time and again, has pointed out the scope and ambit of Section 30 of the Act. In State of Rajasthan v. Puri Construction Co. and another, after referring to decisions of this Court as well as English cases, the Court observed as follows :- "On the scope and ambit of the power of interference by the Court with an award made by an arbitrator in a valid reference to arbitration, various decisions have been made from time to time by Law Courts of India including this Court and also by the Privy Council and the English Courts. Both the parties have referred to such decisions in support of their respective contentions. The factual contentions of the respective parties are proposed to be scrutinised and then the facts are proposed to be tested within the conspectus of judicial decisions governing the issues involved." 13. This Court again observed in paras 26-28 as follows :- "The Arbitrator is the final arbiter for the disputes between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarsan Trading Co. v. Govt. of Kerala it has been held by this Court that there is a distinction between disputes as to the jurisdiction of the Arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the Arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties.Whether a particular amount was liable to be paid is a decision within the competency of the Arbitrator. By purporting to construe the contract the Court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the Arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the Court. Where the reasons have been given by the arbitrator in making the award the Court cannot examine the reasonableness of the reasons. If the parties have s elected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the Court to take upon itself the tasks of being a Judge on the evidence before the Arbitrator. In Municipal Corporation of India v. Jagan Nath Ashok Kumar, it has been held by this Court that appraisement of evidence by the Arbitrators ordinarily never a matter which the Court questions and considers. It may be possible that on the some evidence the Court may arrive at a different conclusion than the one arrived at by the Arbitrator but that by itself is no ground for setting aside the award. It has also been held in the said decision that it is difficult to give an exact definition of the word `reasonable'. Reason varies in its conclusions according to the idiosyncrasies of the individual and the time and circumstances in which he thinks. In cases not covered by authority the verdict of jury or the decision of a Judge sitting as a jury usually determines what is `reasonable' in the each particular case. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably knows or ought to know. An Arbitrator acting as a Judge has to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Therefore, where reasons germane and relevant for the Arbitrator to hold in the manner he did, have been indicated, it cannot be said that the reasons are unreasonable. In this case, claims before the Arbitrators arise from the contract between the parties. It is well settled that if a question of law is referred to arbitrator and the Arbitrator comes to a conclusion, it is not open to challenge the award on the ground that an alternative view of law is possible. In this connection, reference may be made to the decisions of this Court in Alopi Parshad and Sons Ltd. v. Union of India and Kapoor Nilokheri Coop. Dairy Farm Society. In Indian Oil Corpn. Ltd. vs Indian Carbon Ltd., this Court has held that the Court does not sit in appeal over the award and review the reasons. The Court can set aside the award only it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous." In Ajay Construction Company (supra) this Court (Anil Dev Singh, J.) clearly held that the arbitrator is not required to give detailed reasons as he is not expected to write judgments as are rendered by Courts of law, but at the same time the arbitrator must mention the basis on which he reached his conclusion. In this judgment reference was made to another judgment of Jaspal Singh, J. in Bharat Furnishing Co. v. Delhi Development Authority and another 1992(1) Arb.L.R. 327. Paragraph 6 may be reproduced as follows: " I have considered the submission of learned counsel for the parties. In Raipur Development Authority etc. v. M/s Chokhamal Contractors etc., the Supreme Court, inter alia, held that when the arbitration agreement or the reference or the deed of submission or an order made by Court such as the one under Section 20 or Section 21 or Section 34, or the statute governing the arbitration provides for giving of reasons, the arbitrator is required to give reasons. In the instant case it is admitted by both sides that the arbitration clause as well as the reference to the arbitrator required the arbitrator to give reasons. This being the position, the arbitrator was bound to give reasons for the award. But it seems to me that the arbitrator has failed to give any discernible reason for arriving at the conclusion that the petitioner would be entitled to receive the said amount of Rs. 55,063 from the first respondent. While it is true that the Arbitrator is not required to give detailed reasons and is not expected to write judgments as are rendered by Courts of law, but at the same time the Arbitrator must mention the basis on which he reached his conclusion. How he acted and why he acted in the manner in which he did, should appear from the award. When the arbitrator is required to give reasons, his award should be self explanatory and should not keep the Court guessing for reasons. Reasons provides link between the conclusion and the evidence. The vital link is safeguard against arbitrariness, passion, prejudice and humor. Reason is a manifestation of the mind of the arbitrator. It is a tool for judging the award with reference to Sections 30 and 33 of the Arbitration Act, 1940. it gives an opportunity to the Court to see whether or not the arbitrator proceeded on relevant material. In Bharat Furnishing Co. v. Delhi Development Authority and another, Jaspal Singh J. emphasised the need for a reasoned award where the reference or the arbitration clause requires the arbitrator to spell out the reasons. In this regard his Lordship observed as follows:
(14) Where reason is required to be given, it becomes the very life of the award, for when the reasons ceases, the award itself ceases. What then, is meant by reason? The Fantain reason (See Vermunft and Vermt and) need not be looked into and so also the technical distinctions of reason. For our purposes, it would mean a rational ground or motive. It is any sufficient ground of explanation. Coleridge calls it "rationalized understanding". The emphasis necessarily is thus on the ground or motive or understanding being rational or sufficient. And, if that be so, who will examine the rationality or sufficiency? The Court, of course. and while examining this, the Court will insist not on a detailed judgment but "short intelligible indication of the ground.... to find out the mind of the arbitrator for his action". (Indian Oil Corporation Limited v. Indian Carbon Limited.)" The arbitrator has given sufficient reasons in respect of the claims as raised. For example with regard to Claim No. 1, the arbitrator has considered the evidence and documents on record and clearly held the amounts due to the claimant. Similarly, the rejection of counter claim of the respondent for recovery of Rs. 80,000.00 was dealt with by assigning cogent reasons to state that under Clause 36 which required the Contractor to employ one Graduate Engineer when the cost of work to be executed was more than Rs. 2 lacs and upto Rs. 5 lacs was based on Clause 36 of the agreement which reads as follows:
(15) "CLAUSE 36 The contractor shall employ the following technical staff during the execution of this work: 1. One Graduate Engineer, when the cost of work to be executed is more than Rs. 5 lacs, with at least five years experience Diploma holders in Engineering with at least ten years experience in a reputed concern or Government department will be treated at par with graduate Engineer. 2. One qualified diploma in Engineering (Overseer), when the cost of work to be executed is more than Rs. 2 lacs and upto Rs. 5 lacs. The Technical staff should be available at site, whenever required by Engineer-in-Charge to take instructions. In case the contractor fails to employ the technical staff as aforesaid he shall be liable to pay a sum of Rs. 2, 000.00 (Rupees two thousand only) for each month of default in the case of Graduate Engineer and Rs. 1,000.00 (Rupees one thousand only) for each month of default in the case of Diploma holder (Overseer)." The arbitrator noticed that the respondent admitted that the claimant was a mechanical Graduate Engineer and moreover, no recovery could be effected without issuance of show cause and without due process of law. Therefore, the counter claim of the respondent for the recovery of Rs. 80,000.00 was rejected by assigning cogent reasons and on the basis of interpretation of Clause 36 of the contract. Similarly, the learned arbitrator allowed Claim Nos. 2, 3, 4 and 5 for the amounts as awarded and no fault can be found with the same on the principles settled by law as referred to above. Claim No. 6 with regard to loss suffered by the petitioner/claimant due to idle shuttering was rejected on two grounds that the terms and conditions of the contract did not provide such an award and further that the claimant failed to establish the same. The arbitrator obviously has taken into consideration the pleas as raised by the claimants as well as by the respondent. At this stage, reference may be made to the following reply filed by the respondent, Delhi Development Authority to Claim No. 6 before the arbitrator: Claim No. 6 The claim of the claimant on a/c of loss suffered due to idle shuttering is false and denied. the claim of the claimant was denied by the respondent vide No. 4643 dated 15.11.85 R-18 and R-20, in Which it was clearly mentioned that as per general specification condition No. 1. "The work shall be executed as per work programme approved by the Engineer-in-charge. If part of the site is not available for any reason, programme of construction shall be modified accordingly and contractor shall have no claim for any extra or compensation on this account." The claimant had never got the programme approved by the Engineer-in-charge. The claim of the Claimant is untenable and thus it is denied. The department has rather suffered reputation at the hands of the claimant due to his delays. Similarly for Claim No. 7 the respondent gave the following justification before the arbitrator for rejection of the same.
(16) "CLAIM NO. 7 The claim of the claimant on a/c of the work done beyond stipulated period is false and denied. The work was extended only due to the claimant for his wrongful delay and mismanagement of the work. He had never given any programme for completing the work in time and due to that the extension was also granted with levy of compensation. Due to mismanagement and short deployment of labour the work was abandoned at different stages for which he is responsible. The claim is not based on fact, is an after thought, illegal and may be rejected. Refer letter No. 50(21) DD-IV/A/86/4567 dated 30.9.86 (R-19). The department had to face humiliation before the allottees on a/c of delays due to claimant." Claim No. 8 was also rejected as the petitioner/claimant was held not to have established or substantiated the same by cogent and sustainable evidence as manifest on the basis of the documents which were brought on record. The law is, therefore, well settled that where the reasons have been given by the arbitrator in making the award the Court cannot examine the reasonableness and sufficiency of the reasons. The arbitrator is the sole Judge of the quality as well as the quantity of evidence and it will not be for the Court to take upon itself the task of being a Judge on the evidence before the arbitrator. This was so stated by the Supreme Court in B.V.Radha Krishna (supra). The individual claims have already been discussed above and it will not be open for this Court to reappraise the facts and evidence on record and substitute its own conclusions. The findings of the arbitrator are with regard to appreciation of evidence which are clearly outside the ambit of Sections 30 and 33 of the Arbitration Act, 1940. In view of the above, the objections as raised by the petitioner/claimant as well as by the respondent Delhi Development Authority are without force and accordingly are rejected. The award dated September 28, 1995 is made Rule of the Court. The petition shall be entitled to simple interest at the rate of 12 per cent from the date of decree till realisation. Let decree be drawn accordingly. There will be no order as to costs.