Punjab-Haryana High Court
State Of Haryana Through Executive ... vs Sushil Kumar Contractor And Another ... on 13 January, 2010
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
FAO No. 5486 of 2009 1
In the High Court for the States of Punjab and Haryana at Chandigarh.
Decided on 13.1.2010.
State of Haryana through Executive Engineer, Provincial Division,PWD,
B& R, Faridabad --Appellant
vs.
Sushil Kumar Contractor and another --Respondent.
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Anjum Ahmed,Addl.A.G,Haryana, for the appellant Rakesh Kumar Jain, J: (Oral) State of Haryana is in appeal challenging the award of the Arbitrator and order of learned Addl. District Judge, Faridabad, dated 28.7.2009 vide which objection under Section 34 of the Arbitration and Conciliation Act, 1996 (for short,'the Act') filed against the award of Arbitrator dated 31.8.2004, has been dismissed.
Briefly stated, the State of Haryana, through Executive Engineer, Provisional Division, PWD , B& R, Faridabad, allotted a contract to the respondents which was to be completed within nine months, but the said limit was extended from time to time and last extension was granted up to 31.7.1992, but the Contractor could not complete the work within the stipulated time, therefore, 10% compensation was levied vide order dated 21.12.1992, which led to a dispute between the parties.
The contractor filed a suit challenging imposition of penalty. A retired Chief Engineer was appointed as an Arbitrator by the Court of Civil Judge (Senior Division), Faridabad vide order dated 06.3.2000 and FAO No. 5486 of 2009 2 was directed to decide the dispute within a period of three months.
Before the Arbitrator, the respondent/contractor had put up his claim of Rs. 4,68,077/- whereas the appellant filed a counter claim of an amount of Rs. 28,498/-. The Arbitrator gave his award of Rs. 1,34,711/- including litigation charges of Rs.40,000/- out of the total amount of Rs.4,68,077/- in favour of the contractor and the claim set up by the appellant of Rs.28,498/- was rejected. The appellant preferred objection under Section 34 of the Act to contend that (i) Rs.26,877/- by way of release of earnest money and security deducted by the department as 10% penalty from his running bills (ii) a sum of Rs. 39,996.27 paise for items of work executed on site and payment of which was not made in the final bill; (iii) a sum of Rs.15,400/- on account of alleged wages which the contractor had to pay to the labour, staff and watchmen who were kept sitting idle at the site due to fault of the department; (iv) a sum of Rs.21,000/- on account of machinery and the operating labour attached to such machinery which were alleged to have remained idle due to non- supply of cement, steel etc. by the department at the proper time and (v) Rs.11,438,67 paise which the contractor claimed on account of non- calculation of the rates of work in terms of the agreement. Learned Addl. District Judge, observed that the department has no where alleged that the Arbitrator had mis-conducted himself in the manner rendering himself unfit for adjudicating the rival claim of the parties. It was found that the only grievance that was raised about the evidence being insufficient to award the compensation to the respondents cannot be gone into by the Civil Court. It was also observed that the Court had gone through the award minutely and found that the Arbitrator has not blindly allowed the compensation in FAO No. 5486 of 2009 3 favour of the contractor. It was also observed that the appellant could not point out from agreement Ex.P-5 that the Arbitrator had awarded any amount for which he was expressly or impliedly precluded. Insofar as the inclusion of litigation charges of Rs. 40,000/- is concerned, it was observed that in the suit filed by the respondent, the Arbitrator was appointed which was challenged by the appellant up to the Apex Court. Thereafter, the litigation charges of Rs.40,000/- was not found to be in any manner excessive. It was also found that the Arbitrator had competence to award interest.
Still aggrieved, the State has come up in this appeal before this Court in which the arguments raised before the learned Addl.District Judge, were repeated.
I have heard learned counsel for the State and after going through the record of the Arbitrator, I am of the view that there is no arguments raised worth the name which could compel this Court to tinker with the findings recorded by learned Addl.District Judge, awarding the amount of Rs.1,34,711/- and Rs.40,000/-as litigation charges as the respondent had to face litigation of the State up to the Apex Court, even at the stage of appointment of Arbitration.
In view of the above, I do not find any merit in this appeal and the same is hereby dismissed in limine with no order as to costs.
13.1.2010 (Rakesh Kumar Jain) RR Judge