Delhi High Court
Delhi Development Authority vs Sahdev Brothers And Anr. on 26 February, 2002
Equivalent citations: 2002IVAD(DELHI)311, 2002(2)ARBLR176(DELHI), 97(2002)DLT902
Author: Dalveer Bhandari
Bench: Dalveer Bhandari, Vikramajit Sen
JUDGMENT Dalveer Bhandari, J.
1. This appeal is directed against the judgment of the learned Single Judge dated 11th March, 1981 whereby the learned Single Judge had dismissed the Objections to the award filed by the DDA and made the award dated 3rd May, 1991 a rule of the Court and directed that the decree in terms of the award be passed.
2. Aggrieved by the judgment, the Delhi Development Authority has filed this appeal.
3. The learned counsel for the appellant restricted his challenge to the findings on counter-claims 5, 6 and 7 of the arbitrator which were upheld by the Single Judge. According to the learned counsel for the appellant the arbitrator was in error in rejecting the counter-claims of the DDA and learned Single Judge was in error in upholding the Award.
4. Counter-claim No. 5 is for Rs. 1.50 lakhs for the quantity of the material found short during the technical examination of the work. The learned arbitrator, in a detailed speaking Award, has mentioned that work was rescinded in December 1981 and subsequently the balance work got executed by some other agency. Thereafter, as per report and evidence placed before him the work was inspected by a technical examiner in 1982 and the report of the defects were sent by the Chief Technical Examiner in 1982. In the same Award the leaned arbitrator has mentioned that the respondent completed the work in December, 1981 and the inspection had taken place admittedly in August, 1982 then the respondents cannot be accused of carrying out the work below specification. The arbitrator has observed that the case of the claimant is that the work was illegally and arbitrarily rescinded by the respondents in December, 1981 and subsequently the balance - work got executed through another agency namely Shri R.S. Rana. Thereafter, reportedly, the work was inspected by the Technical Examiner in August, 1982 and the report of the findings was sent by CTE to the Chief Project Engineer on 4.12.1982. In this report the name of contractor is indicated as Shri R.S. Rana, i.e. the agency who executed the balance work after his contract had been rescinded. He was neither asked to be present at the time of inspection nor had any intimation of examination having been conducted. In fact, the report of the finding of the Technical Examiner was never received by him. It is only on 16.5.1985 that he was told that the work was found to be below specification and was asked to accept the payment at reduced rates. The findings of the learned arbitrator regarding claim No. 5 has been upheld by the learned Single Judge. We see no reason to interfere with the findings arrived at by the arbitrator and upheld by the learned Single Judge.
5. Counter-claim No. 6 is for Rs. 1,32,939/- towards balance work which was executed at the risk and costs of the claimant through contractor by another agency. The learned Arbitrator has given detailed reasons regarding Counter-claim No. 6. He has mentioned that the Counter-claim is inter-linked with additional claim No. 2 of the claimant which has been discussed along with claim No. 2. According to the findings of the arbitrator the action of the department in rescinding the contract is wrong and unjustified. The plea of the respondents that the work was rescinded as the progress was slow and the quality of work was poor, as emerged from the check made by the Technical Examiner, has to legs to stand as the Technical Examiner checked the work in August, 1982 when the work had already been rescinded several months ago i.e. in December, 1981. This finding of the learned arbitrator has been upheld by the learned Single Judge. We see no justification in interfering with the finding of the learned arbitrator as approved by the learned Single Judge.
6. Counter Claim No. 7 pertains to the amount of Rs. 20,628/- towards deduction in rates on account of oversize stone aggregate. The learned arbitrator gave the same reasons that the work was rescinded in December, 1981 and inspection was carried out in August, 1982. During this period another agency was directed to completed the work. Therefore, for any sub-standard work the respondents cannot be held responsible. The arbitrator has taken into account the entire evidence and held that claim of the DDA was not justified and rejected the same. The learned Single Judge upheld the findings of the arbitrator. We see no reason to interfere.
7. Learned counsel for the appellant has drawn our attention to the judgment of the Supreme Court in Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering Enterprises and Anr., . The learned counsel has particularly drawn our attention to paragraph 44 in which the Hon'ble Judges held that to find out whether the arbitrator has travelled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. Arbitrator acting beyond his jurisdiction - is different from the error apparent on the face of the award. In order to determine whether the arbitrator has acted in excess of his jurisdiction what really has to be seen is whether the claimant could raise a particular claim before the Arbitrator. if there is a specific term in the contract or the law which does not permit or give the arbitrator the power to decide the dispute raised by the claimant or there is a specific bar in the contract to raise the particular claim then the award passed by the arbitrator in respect thereof would be in excess of jurisdiction. There is no quarrel with this proposition but this judgment has no application as far as the facts of this case are concerned.
8. The learned counsel appearing for the respondent has placed reliance on State of Rajasthan v. Puri Construction Co. Ltd. and Anr., . He has particularly drawn our attention to paragraph 25 of the judgment in which their Lordships have observed that the Arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that he arbitrator has drawn his own conclusion or has failed to appreciate the facts.
9. In another leading case Sudarsan Trading Co. v. Government of Kerala and Anr., , the Court held 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. The Court further observed that 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. The Court cannot examine the reasonableness of the reasons where the reasons have been given by eh arbitrator in making the award. If the parties have selected 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 task of being a judge on the evidence before the arbitrator.
10. In this case their Lordships have also examined the earlier case of the Supreme Court in Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Anr., 1987 SCC (4) 497. In this case, their Lordships observed that appraisement of evidence by the arbitrator is ordinarily never a matter which the Court questions and considers. It may be possible that on the same 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 been held in the said decision that it is difficult to give an exact definition of the work 'reasonable reason'. It 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 a jury or the decision of a judge sitting as a jury usually determines what is 'reasonable' in 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 of the arbitrator to hold in the manner he did, have been indicated, it cannot be said that the reasons are unreasonable.
11. By the order dated 17th March, 1999 the appellants were directed to deposit the decretal amount which has been deposited in the Court. The respondent wold be at liberty to withdraw the same.
12. A well reasoned award has been upheld by the Single Judge. In our considered opinion no interference is called for. The appeal being devoid of any merit is dismissed. The parties are left to bear their own costs.