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"The non-payment amount is challenged on the following amongst other grounds, which may be taken without prejudice to each other: -

A) The impugned award is bad in law.

B) The impugned award is bad on the facts of the case. C) The impugned results in remanding wrong doing and the slow progress of work from the beginning of the contract, as is the admitted position. The learned Arbitrator was failed to appreciate that the progress of work was slow from the very start of the project and that this has been pointed out to the contractor on various occasions. D) The learned Arbitrator has failed to appreciate that the lack of seriousness of the contractor was demonstrated in letter dated 31.5.95. E) The learned Arbitrator has failed to appreciate that apart from the slow progress of work, the financial condition of the respondent was also precarious and that they were given two special advances of Rs. 100/-

15. Even if I take a benevolent and benign view by reading paras 1 to 23 of the petition which precede the grounds of objections to the Award, it is seen that in these paragraphs 1 to 23, the petitioner/NDMC basically talks of slow progress of the work, NBCC Ltd/respondent not being competent to execute the work and that there were defective works. May be what the petitioner possibly seem to be generally pleading is that petitioner is entitled to the total amount of this counter claim of Rs.3,16,49,892.99/- instead of Rs.81,66,819/- which was awarded. I have dealt with counter claim no.2 in detail while dismissing yesterday the objections in O.M.P. No.235/2007 which were filed by NBCC Ltd, and on the same reasoning the present objections in OMP No.373/2007 also will have to be dismissed because this Court does not sit as an appellate court under Section 34 of the Act to re- apprise the findings of facts and conclusions arrived at by the arbitrator. The Arbitrator after considering the evidence which was available before him did not allow the entire counter claim with respect to alleged defective works, and this conclusion of the Arbitrator is neither illegal nor perverse for this Court to interfere under Section 34 of the Act. Also, it bears note that the Arbitrator for not granting the complete counter claim no.2 for Rs.3,16,49,892.99/- has observed inter alia that NDMC/petitioner claimed value of the defective works by showing a tender for rectification of defective works in 2006 whereas the work done by NBCC Ltd/respondent was stopped three years earlier as on 31.07.2003, and therefore, in law NDMC/petitioner cannot claim rates of 2006 for the defective works which had to be rectified in 2003. The Arbitrator has also noted while deciding counter claim no.2 that the NDMC did not file details and documents during the entire case but filed the same only after arguments were completed. Hence, the counter claim no.2 after considering all aspects was disposed of by the Arbitrator by awarding a lesser amount of Rs.81,66,819/- instead of Rs.3,16,49,892.99/- as was claimed. The relevant discussion by the Arbitrator in the impugned Award with respect to counter claim no.2 reads as under:-