Delhi High Court
Atree Associates vs Delhi Development Authority on 22 May, 1996
Equivalent citations: 1996IIIAD(DELHI)769, 1996(38)DRJ493
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
(1) The Petitioner M/s Atree Associates and the Delhi Development Authority entered into a contract with reference to the work of providing water supply, sanitary installations and internal development in Poeket-BD, Block -B, Janakpuri, New Delhi.
(2) Disputes arose between them and they were referred to Shri S.C Kaushal, Se (Arbitralion)-II, for adjudication. The Arbitrator passed the award on 20th September 1994 allowing a few claims and rejecting the rest and awarded interest @ 12% per annum with effect from 3rd June 1993 to 30th May 1994 towards the pendentelite interest.
(3) The Delhi Development Authority filed objection vide Ia No. 1440/95. Mr. V.K. Sharma learned counsel for the Delhi Development Authority rendering real assistance to the court made submission with reference to Claims Nos 1,2,3,9,17, 18 and 19. Mr. Sharma was very thorough in his preparation and he could easily make me to appreciate the real controversy in the matter.
(4) The brief facts of the case are as follows: ESTIMATED cost Rs. 57,00,006.00 Tender cost Rs. 84,64,509.00 Tender percentage 45% above Dsr 1981 Date of start 6.4.1985 Dale of completion 5.7.1986 Actual date of completion 3.5.1989 (5) The payments were made only in 1992.
(6) On Claim No.1 The Contractor claimed a sum of Rs.1,37,24().00 on account of various rebates illegally recovered from various running bills/final bill without fulfillling contingent conditions. The Arbitrator awarded a sum of Rs. 1,23,487.30. Mr. V.K. Sharma learned counsel for the Dda contended that no reason has been given by the Arbitrator and that vitiates the award. The objection in this regard is stated in para (a) at page 2 of the objection. The Contractor in reply stated that the material placed by the Contractor on record would prove the case of the Contractor. The Contractor has also referred to Ex.R-III, R-IV, R-IVA and R-1 in volume Iv of the record of the Arbitrator. The learned counsel for the Dda relied on these documents and also Annexure I, Annexure Iii to the final bill and also showed me the dates relating to the payment and also the rebates recovered from the Contractor. Though I am dealing with the petition under Section 30 I wanted to satisfy myself whether the award could be sustained on the material placed on record. The Arbitrator has stated " The letter of Award contains four conditions of rebate. Respondents) have not fulfillled the contractual obligations, for availing the rebate as per agreed terms of contract. The claim of the Claimant(s) is justified for Rs. 1,23,487.30 (Rs. one lakh twenty three thousand four hundred eighty seven and paise thirty) only, and I decide that the Rcspondcnt(s) do pay this amount to the Claimant(s)." The Arbitrator is an Engineer and he has come to the conclusion after considering the documents. Therefore, I do not find any error apparent on the face of the record and it cannot be said that the Arbitrator has misconducted himself in not giving the judgment as it were as contended for by the DDA. The finding given by the Arbitrator that the Dda had not fulfillled the contractual obligation cannot be challenged in the light of the material placed before the Arbitrator.
(7) On Claim No. 2 In this claim a sum of Rs. 4,90,000.00 is claimed by the Contractor for the work done but not paid by the Department. The Arbitrator had allowed partly claim Nos 2(i) and 2(iii) and 2(xi) rest of the claims shown in the sub-head were rejected by the Arbitrator. Claim No. 2(i) The arbitrator had awarded a sum of Rs. 12,808.50. Here also the contention that the award is not valid as the Arbitrator has not given any reasons for decision. In reply the Contractor slated: Against the said Claim No. 2(i) a sum of Rs. 12,808.50 was awarded, the Respondent during the arbitration proceedings admitted the execution of work as to 73.24 .3 however it did not deny the rate claimed by the Petitioner nor the Respondent furnished any rate analysis in respect of the item in question, it contended only that there is no difference between the lintel bends and ordinary beams. After giving full opportunity to the parties to make their submissions and after taking into consideration the learned Arbitrator held that "lintel bends are different than ordinary beams, therefore the Respondents have wrongly measured and paid". Hence, the said sum of Rs. 12,808.50 was rightly awarded by the learned Arbitrator. The Award contains the sufficient reasons. The above findings of fact are not amenable to review and or the Court can go into the reasonableness of the reasons recorded in the Award under Section 30 and 33 of the Arbitration Act, 1940. The said findings of fact are based on evidence. The Arbitrator has said : "CLAIMANT(S)claim for extra payment on account of lintel bends. As, the lintel bends are different than ordinary lintel beams, therefore the Respondents) have wrongly measured and paid. I, decide that the claim of the Claimant(s) is justified upto Rs. 12,808.50 (Rs. twelve thousand eight hundred eight and paise fifty) only which the Respondent(s) do pay." After considering the materials and the arguments, I am of the view that the Arbitrator is not guilty of any misconduct and there is no error apparent on the face of the record. Therefore, the award on this claim is confirmed.
(8) On Claim No. 2(iii) The Arbitrator had awarded Rs.6,660.50 towards costs of butt hinges and welding to the frame and cost of lugs etc. In the objection petition the Dda has stated that the Arbitrator had come to the conclusion without giving any reasons one is not able to find the intelligible working of the mind, therefore, the Award is vitiated. The contractor in reply thereto has slated that the Arbitrator had considered the claim in the light of Provisions being Items No. 5.1 and 6.1 of the Agreement and the Arbitrator has only said that the claim is partly justified and, therefore, that cannot be challenged by the Dda under Section 30 of the Arbitrator Act, 1940. The Arbitrator has said: "THE cost of butt hinges and welding to the frame and cost of lugs have been included in the frame item, as per nomenclature of item No. 5.1 of Agreement and under item No. 6.1, hence, extra for cost of provision of lugs and hinges is not justified. The Claimant(s) claim is partly justified for payment of extra cost for base tie/sill tie, I, hold that the claim is partly justified to Rs. 6,660.50 (Rs. six thousand six hundred sixty & paise fifty) only, which the Respondent(s) do pay to the Claimant(s)".
Here also I do not find any error warranting interference under Section 30 of the Arbitration Act, 1940.
(9) On Claim No. 2(xi) The Arbitrator had passed the Award for Rs.23,461.00 , The Dda in its objection petition has stated that the Arbitrator has not given any reasons for arriving at this decision. It is not known how his mind was working in coming to the conclusion. In reply the Contractor states: "AGAINST the said Claim No. 2(xi) a sum of Rs. 23.461.00 was awarded. It is submitted that the quantity of earth disposed was not disputed by Respondents. However the Respondent contended that the rates for such quantity are payable in accordance with the it me No. 1.4 of the Agreement for the disposal of earth within one Km and in that only disputed the lead of 5 Km as claimed by the Petitioner. The learned Arbitrator considered the relevant Item No.l.4 of the Agreement and in terms of the submissions/admissions of the Respondent the learned Arbitrator awarded a sum of Rs. 23,461.00 . No reason exist to challenge the Award of Rs. 23,461.00 in respect of Claim No.2(xi). It is submitted that the Award contains the sufficient reasons, that "the claim of the Claimants is partly justified as also admitted by the Respondent(s) during the hearing that no payment have been made for item No. 1.4 of the Agreement though executed".
The above findings of fact are not amenable to review and or the court cannot go into the reasonableness of the reasons recorded in the Award under Sections 30 and 33 of the Arbitration Act, 1940". The Arbitrator has relied upon Clause 1.4 of the agreement and also stated that the Dda had admitted no payment had been made for item No. 1.4 of the agreement even though the work was done and therefore, the arbitrator has said that the Dda shall pay a sum of Rs. 23,461.00 . I am unable agree that with the learned counsel for the Dda that there is any error apparent on I he face of the record. Accordingly, this part of the award is confirmed.
(10) On Claim No. 3 The Arbitrator had awarded Rs. 6,703.00 as against the claim of Rs. 85,000.00 on the ground that certain amount was illegally held by the DDA. In the objection petition the Dda has taken a point that the Arbitrator has not given any reasons. In reply thereto the contractor states: "AGAINST the said Claim No.3, a sum of Rs. 6703.00 was awarded, the Respondent withhold only a sum of Rs, 6703.00 and released the remaining withheld amount during the arbitration proceedings, that is out of Rs. 70,000.00 illegally withheld by the Respondent it had released only a sum of Rs. 63,297.00 . It was substantiated and justified and even evident that Rs. 6703.00 was admittedly still remained withheld by the Respondents without any reasons and justifications and in fact none exist. Moreover no reasons was furnished by the Respondent as to hwy and what purpose it had withheld the said sum of Rs. 6703.00 . Hence, after considering the submissions of the parties the learned Arbitrator has rightly awarded the balance withheld sum of Rs. 6703.00 in favour of the Petitioner, the award contains the sufficient reasons. The above findings of fact based on evidence arc not amenable to review under Section 30 and 33 of the Arbitration Act, 1940."
Here also I do not find any error in the award passed by the Arbitrator.
(11) On Claim Nos 4 to 8: These claims have been rejected by the Arbitrator and it is confirmed.
(12) On Claim No. 9 The Contractor has claimed a sum of Rs. 1500.00 on account of cartage of C.I. Pipes. Though I am inclined to say it is not worth considering but because Mr. Sharma pressed his objection, I am adverting to the same. The learned Counsel for the Dda stales that in the objection petition it is stated that Rs. 1500.00 has been awarded on the basis of Annexure V filed by the defendant but according to the objection annexure V filed only a sum of Rs. 472.00 being due. In reply the Contractor has stated that at the time of hearing before the Arbitrator the Dda had admitted a sum of Rs. 472.00 is due but it was substantiated before the Arbitrator that a sum of Rs. 1500.00 liable to be awarded in terms of the principle set out by the Respondents in Annexure V. According to the Contractor after considering the submissions made by the parties, the arbitrator awarded a sum of Rs. 1500.00 . the Arbitrator has said: "AS per rates for cartage of pipe worked out by Respondent(s) (Annexure-V), the claim of the Claimant(s) justified for Rs. 1500.00 (Rs. One Thousand Five Hundred) only, which Respondent(s) do pay to the claimant(s)."
I do not find any error apparent on the face of the record. I confirm the award on this claim.
(13) On Claims 10 to 16: Claims 10 to 16 were rejected by the Arbitrator.
(14) Claim No. 17 As against Claim of Rs.5744.00 a sum of Rs. 1258.70 has been awarded by the Arbitrator, The Arbitrator has stated: "THERespondent(s) have proposed a penal rate recovery of Rs. 1,258.70 in the final bill for excess issue of cement and S.C.I pipes to claimant(s). The Respondent(s) have not produced any evidence of such material available at site which means the material even though found in excess as per theoretical consumption statement, but, have been used for bonafide use of work. Moreover, no loss sustained have been established by the Respondent(s) on this account. The claim of the claimant(s) is, therefore, justified and the Respondent(s) do pay Rs. 1258.70 to the Claimant(s)."
I do not find any error apparent on the face of the record and no valid material has been produced by the Dda for taking a different view in the matter.
(15) On Claim No. 18 A sum of Rs. 6406.00 has been claimed on account of illegal recovery made for so called work done at risk and cost. The Dda in the objection petition alleges that no reasons have been given by the Arbitrator and therefore, it is vitiated. In reply to this the Contractor has submitted that the Arbitrator had given full opportunity to the parties to make their submissions . and on the material placed by the parties on record, the Arbitrator has come to the conclusion, the Arbitrator has stated: "THERespondent(s) have recorded completion certificate subject to certain work to be done. The provision of A.C. sheet on expansion Joint does not appear in the said list. Also, as per Final bill, the item appears to be executed paid for. The claim of the Claimant(s) is justified and I decide that the Respondent(s) do pay Rs. 6406.00 (Rupees Six thousand four hundred, six) only to the Claimant(s)."
I do not find any merit in the objection taken by the Dda on this. Therefore, the Award on this claim is confirmed.
(15) On Claim No. 19 This claim relates to the rate of interest. The Contractor had claimed interest @ 24% per annum on all under three heads: A)Pre-reference interest. b) Pendentelite interest. c) Future interest.
The Arbitrator had awarded pendentelite interest @ 12% per annum from 3.6.1993 to 30.5.1994 only. As I had noticed above, the Arbitrator has exercised his discretion reasonably and I do not find any reason to interfere with the award on this claim. Accordingly, the award is made rule of the court. The amount payable by the Dda to the Petitioner/Contractor is as follows:
1. Claim 1 Rs.l,23,487.30 2. Claim 2(i) Rs. 12,808.50 3. Claim 2 (iii) Rs. 6,660.50 4. Claim 2 (xi) Rs. 23,461.00 5. Claim 3 Rs. 6,703.00 6. Claim 9 Rs. 1,500.00 7. Claim 17 Rs. 1,258.70 8. Claim 18 Rs. 6,406.00 Total Rs. 1,82,285.00 There shall be a decree directing the D.D.A. to pay to the Petitioner/Contractor the following amounts: A)A sum of Rs. 1,82,285.00; b) Interest of Rs. 15147.50 (on a sum of 1,82,285.00 @ 12% per annum from 3.6.1993 to 30.5.1994) c) to pay interest @ 12% per annum from 20.9.1994 upto the date of realisation.
There shall no no order as to costs.