Jharkhand High Court
Vardaan Builders And Anr. vs Veer Krishna Sahay on 14 June, 2007
Equivalent citations: AIR2008JHAR4, 2008(1)ARBLR530(JHAR), AIR 2008 JHARKHAND 4, 2007 (3) AIR JHAR R 363, 2007 A I H C 3623, 2008 (1) ARBI LR 530, (2008) 1 ARBILR 530
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Karpaga Vinayagam, C.J.
1. The appellants are the builders. The respondent is the owner of the land. This appeal filed by the builders is directed against the order dated 7-9-2005 passed by learned Sub-Judge, VI, Ranchi, in Misc. Case No. 1 of 2005, dismissing the application filed by the appellants-builders under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter called as the Act) confirming the award dated 31-10-2004 passed by the learned sole Arbitrator.
2. The short facts leading to filing of this appeal are as follows:
On 1-10-1998, M/s. Vardaan Builders, the appellant herein, the builder, entered into a development agreement with one Veer Krishna Sahay, respondent herein, who is the owner of the 33 Kathas of land in M.S. Plot No. 1480 at 70, S.K. Sahay Road, Ranchi. The said development agreement was for construction of a Multi-storeyed Residential Apartment. After the aforesaid agreement was entered into, the construction work of the building had commenced.
As per the agreement, the building was to be completed within. 18 months from the date of agreement and a grace period of 6 months was also provided. Thus, total time for completion and handing over of the possession of the residential multi-storeyed building was 24 months, i.e. from 1-10-1998 to 1-10-2000. The said agreement provided that if the builder fails to complete the building within 24 months, he shall pay to the owner a penalty of Rs. 30,000/- per month for the first six months and thereafter Rs. 50,000/- per month. As agreed by the agreement, a sum of Rs. 6 lacs was deposited by the builder with the owner as security deposit, which is refundable by the owner to the builder within 15 days from the date of completion of the building.
On 3-5-1999 the construction of the building was suspended on account of a notice issued by the Circle Officer, Ranchi, challenging and questioning the title of the owner and the legal right of the builder to construct the building. Then both the builder and the owner challenged the said notice by way of filing the writ petition in CWJC No. 2795/1999R in High Court. On 3-2-2000, High Court passed an interim order restraining the Government authority from taking any action over the construction. Thereafter from 4-2-2000, work of construction was resumed. However, the said building was not completed within the stipulated period of 24 months. Therefore, the owner sent a legal notice to the builder on 21-3-2002 stating that builder failed to perform his contractual obligation within the period and hence, he is liable to pay penalty of Rs. 30,000/- per month for the first 6 months and thereafter Rs. 50,000/- per month till completion of the building to the owner. The builder replied to the legal notice dated 21-3-2002 that the construction or the building was completed on 8-6-2001 itself and even the building was complete of his allocated area to hand over possession to the owner, but the owner did nor pay the cost of alteration and deviation which were carried out by the builder on the request of the owner and therefore, the builder demanded the amount of the said cost for handing over the possession of the building.
3. Thus, since dispute and differences arose between the builder and the owner, an application under Section 11(6) of the Act, was filed by the owner before the High Court for appointment of an Arbitrator in A.A. No. 19/ 2002 as per the terms of the agreement. By the order dated 16-12-2002, Hon'ble Mr. Justice P.K. Sarkar, Retd., was appointed by the High Court as the sole Arbitrator. Before the Arbitrator, claims and counterclaims were made by the owner as well as by the builder. The sole Arbitrator, after perusing the records and the documents produced by both the parties and hearing the parties, passed an award on 31-10-2004. Aggrieved by that, the builder filed an application under Section 34 of the Act before the learned Sub-Judge, Ranchi, for setting aside the said award passed by the sole Arbitrator. Learned Sub-Judge, after considering the arguments advanced by the counsel for the parties and also after going through the award, confirmed the same and dismissed the application. Hence this appeal by the builder.
4. According to the counsel for the appellants, the learned Arbitrator dealt with the issues which are beyond the agreement and thus, the learned Arbitrator has misconducted himself by travelling beyond the terms of the agreement; especially the finding with regard to the 7th floor is totally misconceived for the reason that the learned Arbitrator has himself held that 7th floor was not the subject-matter of the agreement. In short, counsel for the appellants, while pointing out the various findings of the learned Arbitrator, would submit that the findings under the award were perverse as they are beyond the scope of the agreement and as such, it should be suitably modified by giving proper protection to the builder in consonance with the agreement.
5. In reply to the above submission, counsel for the respondent, the owner would cite number of authorities of the Supreme Court wherein it is held that jurisdiction of this Court to interfere with the factual findings is limited. He would strenuously submit that when findings given by both the learned sole Arbitrator, who is a retired Judge of High Court, as well as the reasonings given by the Sub-Judge, while confirming the award, are perfectly justified, no interference is called for.
6. The learned Counsel for the appellants has also cited several authorities to substantiate their respective cases.
Counsel for the appellants would refer to-
(Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd.) (Steel Authority of India Ltd. v. J.C. Budharaja, Government & Mining Contractor.
(Rajinder Krishna Khanna and Ors. v. Union of India and Ors.) From the side of respondent, the following authorities were cited:
(2001) 3 SCC 397 : 2001 All LJ 696 U.P. State Electricity Board v. Searsole Chemicals Ltd.
Ram Prasad Sharma v. Jharkhand State Housing Board and Ors.
Indu Engineering & Textiles Ltd. v. Delhi Development Authority 2002 (1) JCR 138 (Jhr.) : 2002 AIR Jhar HCR 391 Sunit Kumar Ojha v. Damodar Valley Corporation and Ors.
7. Before dealing with the merits of the matter, let us now refer to the respective stand taken by the parties before the sole Arbitrator.
The case of the appellant-builder is as follows:
The appellant, the builder, and the respondent, the owner, entered into an agreement for construction of G + 6 floor on 33 Khatas of land by the agreement dated 1-10-1998 Construction (sic) started. While the construction was going on, a notice was issued by the Circle Officer on 3-5-1999 to stop the construction as the land in question belongs to Khasmahal. Then both the parties filed writ petition before the High Court. By the order dated 3-2-2000 interim order was passed and in pursuance of the same construction work was resumed. Thus, in between 3-5-1999 and 3-2-2000, construction of the building was stopped. On 8-6-2001 the building was completed. As per the agreement dated 1-10-1998, the building ought to be completed within 18 months or at any rate before 24 months. Though the appellant had to complete the construction work before 31st September, 2000, since the work was stopped due to the issuance of notice, the work was completed only on 8-6-2001. On 2-2-2002 the land owner sent a letter to the builder informing that the power of attorney had lapsed on 31-12-2001. A letter was sent on 12-3-2001 to the respondent owner regarding the occupancy certificate approved by R.R.D.A for the project. Thereafter on 15-3-2002, a notice( was published in Hindi Newspaper by the respondent owner cautioning the public not to negotiate or purchase flats of the said Apartment. Again on 21-3-2002, respondent owner sent a legal notice to the builder alleging that the terms of the agreement has not been complied with by the builder. In response to that, the builder sent reply letter asking the land owner to clear the dues of the builder before taking possession of the allocated portion. On 26-3-2002, the builder sent a legal notice informing the owner that the share of the owner was completed and that he could execute the power of attorney which was not done earlier and take possession of allocated area after making payment of cost of Rs. 8,42,292/-, being the cost of alteration. On 26-5-2000, the owner executed special power of attorney but it was valid upto 31-12-2001. In the meantime, the owner filed Misc. Petition before the Sub-Judge, Ranchi, against the builder. Then the builder filed a petition before the Court referring to the provisions of arbitration. During the pendency of the said matter, parties approached the Hon'ble High Court, who, in turn, appointed the sole Arbitrator. Before the Arbitrator, both claims and counter-claims were filed. As agreed by the parties, a Pleader Commissioner was appointed to inspect the property in question and to file a report. The Pleader Commissioner, after inspection, submitted a report before the sole Arbitrator.
8. The case of the respondent owner is as follows:
The owner is legally entitled as per the terms of the agreement to get his allocated share of 27% of the total built-up area, i.e. 14 flats, 27% of the parking space and 50% of the roof right. He was entitled to a sum of Rs. 12,80,000/- till 31-3-2003 towards penalty as per the terms of the development agreement, as the building was not completed by the builder within the stipulated period and the possession of the building was not handed over to the owner. The builder has actually committed breach of agreement as he had not constructed boundary wall and had not made specific provision for drainage which has been stipulated in the development agreement. Since there is a breach of agreement on the part of the builder, he is not liable to give back the statutory deposit of Rs.6 lacs.
9. On considering the claims and counter-claims, the Arbitrator gave the following findings:
(i) There is no satisfactory evidence produced on behalf of the owner that the construction of the owner's share was not completed. Unless the same is established, it is difficult to award penalty to the owner. However, as per the Pleader Commissioner, who was appointed by the Arbitrator with the consent of both the parties, boundary wall to the extent of 31.512 metres was not constructed by the builder and clearance of drainage had also not been made by the builder. Therefore, the builder was directed to complete the incomplete portion of the boundary wall and also make a provision of the clearance of drain water towards the main Municipal drain within 15 days, failing which the builder was held-liable to pay Rs. 30,000/- per month for the first 6 months with effect from the date of award and a further sum of Rs. 50,000/- per month thereafter till the above construction is complete.
(ii) The owner was entitled to possession of 14 flats along with 27% parking space and 50% of the total roof area. It is not justifiable on the part of the builder by not handing over the share of the owner on the erroneous pretext that the owner has not paid the cost of deviation and/or the owner has not returned the security deposit. At the same time, the owner is liable to pay a sum of Rs. 3,00,000/- towards cost of modification carried out by the builder at the instance of the owner along with 12% interest.
(iii) The owner is liable to refund the security deposit of Rs.6 lacs along with interest @ 12% per annum from the date of award.
(iv) With regard to other issues like breach of agreement and failure to discharge of the respective obligation, it is held that both owner and the builder have not discharged their part of obligation. The action and behaviour of both the parties show that they did not care to fulfil their respective obligations and mainly engaged in personal confrontation resulting in loss to both of them.
(v) The claim of the builder demanding Rs. 10,40,983/- towards legal expenses incurred in High Court was rejected as the expenses to be incurred by both the parties.
Thus, the Arbitrator, after taking into consideration all the relevant materials and evidence adduced, passed the above award in favour of both the owner as well as the builder.
10. Though some of the claims made by me owner have been rejected by the sole Arbitrator, the owner has not chosen to file an appeal. As such, the findings against the owner, respondent herein, have attained finality. However, the builder, appellant herein, filed an application under Section 34 of the Act before the Sub-Judge, who, in turn affirmed the findings. Aggrieved by the same he filed this appeal before this Court.
11. The main contention urged by the counsel for the appellant is that while pronouncing the award, the sole Arbitrator has gone beyond and contrary to the terms of the agreement and therefore, the award ought to have been set side by the Sub-Judge under Section 34 of the Act. On the other hand, learned Counsel for the respondent would submit that the findings given by. the sole Arbitrator with reference to the various aspects of the agreement and other materials placed by both the parties are justified and as such, the confirmation of the same by the Sub-Judge cannot be said to be invalid.
12. Before going to the question involved in this case, it would be better to refer to various principles laid down by the Supreme Court cited both by the counsel for the appellant and respondent. Let us first refer to the decisions cited by the appellant:
In (Oil & Natural Gas Corporation Ltd. v. Saw Pipes Ltd.), the Supreme Court held as follows:
The award could be set aside if it is patently illegal. The result would be that an award could be set aside if it is contrary to:
(a) fundamental policy of Indian law; or
(b) the interest of India; or
(c) justice or morality; or
(d) in addition, if it is patently illegal.
Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held' that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court.
In (Steel Authority of India Ltd v. J.C. Budharaja, Government & Mining Contractor, the Supreme Court observed as follows:
In this case, the award passed by the arbitrator is against the conditions agreed by the contracting parties and is in conscious disregard of the stipulations of the contract from which the arbitrator derives his authority. His appointment as a sole arbitrator itself was a conditional one. Despite this, he has ignored the stipulations and conditions between the parties. Hence, the said award is, on the face of it, illegal.
13. In (Rajinder Krishna Khanna and Ors. v. Union of India and Ors.), the Supreme Court would observe as follows:
There was no discussion or ruling in the award relating to the scope of the reference; this despite the fact that the second respondent had contended in its reply to the appellants' statement of claim that the claim for loss of potential of the lands fell outside the scope of the reference. In the circumstances, the second respondent could not be said to have acquiesced in the determination of damages for the alleged loss of potential of the appellants' land. All that was referred to by the appellants in that behalf was the statement in the award of the points for determination. That the first of the points related to compensation for damage suffered by the appellants did not by itself support the submission that that compensation for damage to the appellants' residential houses, crops and mango garden was within the scope of the reference.
14. Let us now refer to the decisions cited by the counsel for the respondent:
In U.P. State Electricity Board v. Searsole Chemicals Ltd., the Supreme Court would hold as follows:
When the arbitrators have applied their mind to the pleadings, the evidence adduced before them and the terms of the contract, we do not think, it is within our scope to reappraise the matter as if this was an appeal, and it is clear that where two views are possible - in this case there is no such scope that the view taken by the arbitrators would prevail.
In Indu Engineering & Textiles Ltd. v. Delhi Development Authority, the Apex Court held as under: Para 6 of AIR This Court, while dealing with the power of Courts to interfere with an award passed by an arbitrator, had insistently laid stress on the position that an arbitrator is a Judge appointed by the parties and as such, the award passed by him is not to be lightly interfered with.
15. The complete reading of the above judgments cited by both would indicate that the following guidelines have to be borne in mind while dealing with the appeal against the order of Sub-Judge under Section 34 of the Act affirming the award passed by the Arbitrator and considering the legality of the award passed by the Arbitrator:
(a) This Court, while considering the legality and validity of the award cannot substitute its own findings as if sitting in appeal over the award. Even assuming that the Arbitral Tribunal has committed some error of facts in arriving at its conclusion that the disputed question referred to it for adjudication, this Court has no jurisdiction to interfere with the award.
(b) The scope of interference by the Court with the award passed by the Arbitrator is limited. Section 30 provides in somewhat mandatory terms that an award shall not be set aside except on one or more of the grounds enumerated in the provision. Interpreting this statutory provision, Courts have laid stress on the limitations on exercise of jurisdiction by the Court for setting aside the award. Some of the well- recognized grounds on which interference is permissible are:
(i) violation of the principle of natural justice in passing the award;
(ii) error apparent on the face of the award;
(iii) the arbitrator has ignored or deliberately violated a clause in the agreement prohibiting dispute of the nature entertained;
(iv) the award on the face of it is based on a proposition of law which is erroneous etc.
(c) Even assuming that there was an error of construction of the agreement or even that there was an error of law in arriving at a conclusion, such an error is not an error which is amenable to correction even in a reasoned award under the law. An award can only be set aside if there is an error on the face of it. It is an error of law and not mistake of fact committed by the arbitrator which is justiciable in the application before the Court.
(d) Where alleged mistakes or errors, if any, of which grievances were made were mistakes of facts if at all and did not amount to error of law apparent on the face of the record, the objections were not sustainable and the award could not be set aside.
(e) The reasonableness of the reasons given by an arbitrator in making his award cannot be challenged.
(f) When there is no evidence of violation of any principle of natural justice, no question of interference would arise. It may be possible that on the same evidence some court might have arrived at some different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award of an arbitrator.
(g) If a specific question of law is submitted to the arbitrator for his decision and he decides it, the fact that the decision is erroneous does not make the award bad on its face.
(h) Where the question referred for arbitration is a question of construction, which is, generally speaking, a question of law, the arbitrator's decision (sic) be set aside only because the Court would itself have come to a different conclusion. But if it appears on the face of the award that the arbitrator has proceeded illegally, as for instance by deciding on evidence which was not admissible or on principles of construction which the law does not countenance, there is error in law which may be a ground for setting aside an award.
(i) The arbitrator is the sole judge of the quality and quantity of the evdience and it will not be for the Court to take upon itself the task of being a judge on the evidence before the arbitrator. Appraisement of evidence by the arbitrator is never a matter which the court questions or considers. In absence of any reason for making the award it is not open to the court to interfere with the award. Furthermore, in any event, reasonableness of the reasons given by the arbitrator cannot be challenged.
16. Thus, the above principles and guidelines referred to in various decisions would clearly indicate that the award passed by the arbitrator cannot be lightly interfered with as the arbitrator is a Judge appointed by the parties and the award can be set aside only on the grounds set forth under Section 34 of the Act, when the Arbitrator had applied his mind to the pleadings and evidence adduced before him and the terms of the agreement, there is no scope for the Court to reappraise the matter as if it is an appeal. When two views are possible, then the view taken by the Arbitrator would prevail.
17. Let us now discuss the issues raised in this case, keeping in mind the above principles.
It is mainly contended by the counsel for the appellant that the Arbitrator having held that construction of 7th floor is not the subject-matter of the agreement has wrongly entered to the issue of 7th floor and given a direction for the same which is against the agreement and beyond the scope. It is further contended that the Arbitrator having held that the action and behaviour of both the parties show that both of them did not take care to fulfill their obligation and are mainly engaged in personal confrontation resulting in loss to both of them wrongly held that the expenses incurred in contesting litigations should be borne by the respective parties. In short, contention of the learned Counsel for the appellant is that the award of the Arbitrator in entirety is beyond the agreement. On the other hand, the contention of the counsel for the respondent is that there is no error in the award.
I have heard the counsel for the parties and I have given my thoughtful consideration to the rival contentions.
18. There is no dispute in the fact that an agreement was entered into on 1-10-1998 between the owner, respondent herein, and the builder; appellant herein, for construction of a multi-storeyed building. For the said purpose, owner gave possession of 33 Khatas of land described in the schedule of the agreement. The agreement specifically envisages that the owner will get 27% of the total sellable space including super built area in the multi-storeyed apartment. Moreover, the owner will also entitle to 27% of the car parking area and 50% (sic) space after providing space for lift, staircase etc. It was also agreed that the builder will keep deposit with the owner interest free security deposit of Rs. 6 lacs and the owner will refund the amount within 15 days from the date of completion of the building. If the owner fails to make payment, he will be liable to refund the deposit with 24% per annum as interest. It was also agreed through agreement that the builder will undertake to provide owner's allocation within 18 working months from the date of beginning of the construction work. A further 6 working months time was also allowed. In the event the builder fails to complete the building within 24 working months of the owner's allocation, the builder will pay to the owner as penalty Rs. 30,000/- per month for the first 6 months and after expiry of 6 months, Rs. 50,000/- per month for the subsequent Period.
19. According to the respondent-owner, the owner's allocation is still not complete in spite of the expiry of the period but the builder is evading to give his share and therefore, he is not only entitled to 27% of his share in the built up area and 27% of the car parking space and 50% of the roof space, but also he is entitled for damages as agreed by the parties through the agreement.
According to the appellant-builder the building including the owner's allocation has already been completed within due date. Even though the progress of the construction of the building was stopped by the notice dated 3-5-1999, at the instance of the builder and owner, High Court passed an order dated 3-2-2000 permitting the builder to continue with the work and thereafter work started again on 4-2-2000 and ultimately, the building was completed on 8-6-2001. Even if the period of stoppage of work is taken into consideration, the construction of the building as well as the owner's allocation has been completed well within 24 months as per the terms of the agreement.
20. It is now claimed by the builder that the owner requested the builder to make certain changes and modification in the specification of his share and accordingly these changes in specification were carried out by him which cost to Rs. 8,82,292/-. Thus, the builder is entitled to the aforesaid amount before handing over the owner's allocation. Besides that, the builder claims that he is entitled for the refund of the deposit of Rs.6 lacs along with interest @ 24%. He has also claimed a sum of Rs. 7,98,316/- as cost of litigation before the High Court incurred by him. So both the claims were considered by the Arbitrator and while deciding the issue, the Arbitrator felt that it would be proper to appoint Engineer-Commissioner to visit and inspect the land in question and file the report. For this, both the parties gave consent. Accordingly, one Debabrata Bhadra, Civil Engineer, was appointed as Commissioner. He was asked to measure the apartment including owner's share and builder's share along with the measurement of the parking space and also to specify the different works done by the builder in the owner's share beyond the specification. Accordingly he went to the spot and took measurements and gave a report.
21. As per the agreement, owner is entitled to 13 flats measuring 1470.57 sq.m. The Commissioner found that there is one more flat constructed measuring 433.60 sq.m. In the light of the above, the Arbitrator held, as both the parties have admitted that the owner's share is 14 flats, there cannot be any dispute on this point. Further, the Commissioner was again directed by the Arbitrator as the parties raised some additional questions. Thereafter the Commissioner again visited and filed supplementary report. It is not disputed that both the reports would reveal that there is some deviation in the owner's share. The Arbitrator accepted those reports as none of the parties raised any objection against the said reports. On the basis of those reports, the Arbitrator gave a finding for delivery of 27% in ground floor plus six floors along with 27% car parking space to the owner. With reference to the 7th floor, it is specifically stated that even though there is no mention regarding construction of 7th floor, which is not the subject-matter of the agreement, it was directed to deliver 27% in the 7th floor also as admitted by the builder that the owner is entitled for 27% in the 7th floor also. In such a situation, it cannot be, said that the Arbitrator passed an award beyond the scope of the agreement.
22. As a matter bf fact, the Arbitrator in his award has referred to various letters and documents produced by both the parties and considered the two reports of the Commissioner and the statements of parties along with the agreement. It is specifically referred in the award that while dealing with Annexure-20, which is a letter dated 23-2-2002 written by the builder to the owner, in which the builder has himself stated that owner is entitled to 27% of the total built up area, i.e. 16,038 sq.ft, which comprises of 14 flats. This thing has also been accepted by the owner in his reply, Annexure-21. It is also found by the Arbitrator that as per the Commissioner's report, owner is entitled to 27% in the built up area, i.e 1904.26 sq.m. in ground + 6 and 1549.47 sq.m. in the 7th floor. From the report it appeared that only 1470.57 sq.m. area in 13 flats are reserved as owner's share. So, it appears that 433.69 sq.m. is short than the actual area allotted to the owner. On this basis, the Arbitrator found that the owner is entitled to 13 flats measuring 1470.57 sq.m. plus one more flat measuring 433.69 sq.m. It is specially found by the Arbitrator that since both the parties have admitted that owner's share is 14 flats, there cannot be any dispute on this point.
23. As indicated above, the Commissioner visited the Apartment twice on the direction of the Arbitrator. The Commissioner in both the reports mentioned that there are different deviations from the specification in the owner's share and also measured the said deviations and their nature. As stated earlier, none of the parties raised any dispute on the said reports filed by the Commissioner. According to the owner, the Apartment is still not complete, nor the boundary wall, drainage and electrical arrangements are complete. The builder had sent a letter on 26-3-2002 itself that owner's allocation is complete and possession of the same can be handed over to the owner only when he settles the amount with reference to the cost incurred by him. Thus, the main reason for not delivering the possession of the owner's allocation is not due to the non-completion of the construction but due to non-payment of the additional work done by the builder due to deviation in specification. But on the other hand, the owner has not admittedly refunded the security amount with interest as soon as he received information that the construction has been completed.
24. In connection with the above question, the Arbitrator has discussed the issue threadbare by referring to various documents and found that the contention of the owner that the builder has not completed cannot be accepted. Even as per the Commissioner's reports, there is clear statement that the construction work is complete except some minor things like a portion of the boundary wall or the clearance of the drain. With regard to deviation, it is found by the Arbitrator on the basis of the Commissioner's reports that the builder made deviations in the specification and for this the builder incurred additional expenditures. Though the builder claimed an amount of Rs. 8 82,292/-, the builder has not produced any receipts for purchase of materials and also for showing actual cost incurred. Therefore, the Arbitrator in the light of the Commissioner's reports found that the price of the additional cost incurred by the builder have to be calculated on lump sum basis or on estimation of the work done arid thus, an amount was fixed as Rs.3 lacs.
25. Denial of the owner that he did not ask for any changes in the specification of his share has not been established. On the other hand, it appears that deviations in the owner's allocation was made by the builder only On the instruction and with the consent of the owner. As such, the builder's claim for payment of additional work in the owner's allocation as calculated as lump' sum of Rs.3 lacs is decided on the basis off the original report and the supplementary report filed by the Commissioner.
26. The Arbitrator also found by discussing the various documents in various paragraphs that both the parties have failed to discharge their obligations, though the parties engaged to justify their conduct. On this subject, the Arbitrator held that the owner is entitled to possession of 13 flats and 27% of car parking space as mentioned in the reports of the Commissioner and the same has to be handed over to the owner within 15 days from the date of the award and possession of the remaining one flat containing the remaining portion of 27% of the owner's share will be given to the owner within 15 days of payment of Rs. 6 lacs, the securitv amount, and Rs. 3 lacs as additional amount for the deviation in specification of the construction work along with inte est @ 12% on the aforesaid Rs.9 lacs from the date of the award. Accordingly, the award was made in favour of both the owner and the builder rejecting the various other claims made by both the parties as the same have not been established.
27. This award was challenged before the Sub-Judge on the main ground that is beyond the scope of agreement. The Sub-Judge correctly concluded that it cannot be said that it violates any of the provisions as referred to Section 34 of the Act and the entire award was not only with basis of the agreement, but also on the basis of the Engineer-Commissioner's reports, which were admitted to be accepted documents by both the parties.
28. The factual findings on the basis of the materials placed before the Arbitrator have been discussed in detail and the reasonableness of the reasons given both by the Arbitrator and the Sub-Judge in this case, in my view, would not suffer from any infirmity. As indicated above, the Supreme Court has clearly held that when the Arbitrator has applied his mind to the pleadings, agreement, evidence adduced before him, there is no scope for the Court to reappraise the matter as if it was an appeal. As indicated above, both the Arbitrator and the Sub-Judge had dealt with the issue in a proper perspective and come to a valid conclusion. As per the Supreme Court, even when two views are possible, the view taken by the Arbitrator would prevail.
29. Further, in this case, I do not find arty material to conclude that there is any violation of principles of natural justice. When there is no violation of any principles of natural justice, the question of interference in the award would not arise. As held by the Supreme Court, the Arbitrator is the sole Judge of the quality and quantity of the evidence. The appraisal and appreciation of the evidence on record is entirely with the wisdom of the Arbitrator, which can never be questioned by this Court.
30. In the light of the above dictum, I am to conclude that I do not find any reason to hold that the award passed by the Arbitrator, confirmed by the Sub-Judge, would suffer from any infirmity. Hence, the appeal is liable to be dismissed as devoid of merits. Accordingly, the appeal is dismissed. No costs.