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2000 DIGILAW 169 (JK)

TEKNO TRADING CO v. UNION OF INDIA

2000-08-24

ARUN KUMAR GOEL

body2000
JUDGMENT ARUN KUMAR GOEL, J. - Heard learned counsel for the parties. 2. Parties had entered into agreement No. CESZ-21/85-86 for provision of external electrification, and water supply at Khandru. What seems is that disputes arose between them, as such the matter was referred for adjudication through arbitration of Shri. J. D. Rawtani, CSW, sole Arbitrator. He entered upon reference on 13-6-1990. Proceedings were undertaken by him and finally award has been made and published on 5-8-1991, when the parties by mutual consent had extended the time before the Arbitrator to make and publish the award, which was lastly extended upto 12-12-1991. 3. After receipt of the award, respondent preferred objections on 1-10-1991 against the said award of the Arbitrator, prayer was made for setting aside the above referred award of the Arbitrator. 4. These objections were replied to on behalf of the non-objector/petitioner. On the basis of the pleadings of the parties following issues were framed on 6-7-1995 : (1) Whether the Arbitrator has mis-conducted himself or the proceedings ? O.P. Union (2) Relief ? Both parties have produced evidence by way of affidavits. 5. At the time of hearing of this case Shri Parag Sharma, learned Addl. CGSC appearing for the respondents/objectors raised three pleas, namely, that the Arbitrator had no jurisdiction to have allowed interest, defects were appointed to non-objector which he did not remove, therefore, grant of amount under Claim No. 1 is not justified on the part of the Arbitrator; and by referring to the provisions of para 50 of the Contract Agreement which dealt with compensation for delay; he further pointed out that compensation was rightly deducted on account of the work not having been done well in time. 6. All these pleas have been controverted by Shri V. K. Chopra, learned counsel appearing for the petitioner/non-objector. According to him, Arbitrator had the jurisdiction to have allowed interest and this controversy is now settled both by this Court as well as by the Supreme Court of India. In this behalf he pointed out that there is no prohibition in the agreement whereunder Arbitrator could not award interest. Secondly, the amount having been wrongfully withheld by the objector-Union of India, as such the grant of interest is legal and valid, no fault can be found with it. He further pointed out that whatever defects were pointed out those were duly carried out. Secondly, the amount having been wrongfully withheld by the objector-Union of India, as such the grant of interest is legal and valid, no fault can be found with it. He further pointed out that whatever defects were pointed out those were duly carried out. In this behalf reliance was placed on the counter-affidavit filed by his client. Levy of compensation was not justified according to him, therefore, there is nothing illegal or wrong in the matter having been dealt with by the Arbitrator. 7. Before proceeding further in the matter it may be observed that award when taken out of the sealed cover shows that this is a case of non-speaking award having been passed by the Arbitrator. In this view of the matter mis-conduct, if any, either on the part of the Arbitrator or in the proceedings has to be spelt out either from the award itself or from the record of the proceedings undertaken by the Arbitrator. None could be pointed out by Shri Sharma. 8. So far the matter relating to grant of interest is concerned, this matter had been attending attention of the Supreme Court of India as also of this Court. No doubt, Interest Act is not applicable to the State. However, still the Arbitrator is not powerless to grant interest on the anology of Section 34 of the Code of Civil Procedure. Besides this, Arbitrator has the power to grant pre-reference, pendente lite and upto the date of decree interest unless some prohibition was shown for such grant in the agreement entered into between the parties. None has been pointed out to my notice on behalf of the objectors. Reliance in this behalf is being placed on Secretary, Irrigation Department, Government of Orissa and others v. G. C. Roy (AIR 1992 SC 732 = 1992(1) Arb. LR 145 (SC)), State of Orissa v. B. N. Agarwalla etc. (AIR 1997 SC 925 = 1997(1) Arb. LR 612 (SC)), Smt. Manjit Johl v. Dewan Modern Breweries Ltd. (AIR 1994 J&K 56 = 1994(2) Arb. LR 166 (J&K)), Ram Nath International Construction Pvt. Ltd. v. State of U.P. (JT 1997(8) SC 522 = 1997(2) Arb. LR 589 (SC)), and State of Orissa v. Sudhakar Das (dead) by LRs. (JT 2000(2) SC 465 = 2000(1) Arb. LR 444 (SC)). 9. LR 166 (J&K)), Ram Nath International Construction Pvt. Ltd. v. State of U.P. (JT 1997(8) SC 522 = 1997(2) Arb. LR 589 (SC)), and State of Orissa v. Sudhakar Das (dead) by LRs. (JT 2000(2) SC 465 = 2000(1) Arb. LR 444 (SC)). 9. In this context it may further be observed that the Arbitrator is the sole Judge both of quantity as well as quality of evidence and this Court does not sit as a Court of appeal over the findings of the Arbitrator and thus cannot reappraise and or re-appreciate the evidence. No doubt the Arbitrator at the same time is bound to adjudicate the disputes before him as per law and cannot act arbitrarily. Merely a decision is erroneous by itself does not constitute mis-conduct within the meaning of Section 30 of the Arbitration Act. In addition to this, generally an award is examined by the Court with a view to find whether any misconduct is spelt out therefrom or the record of the proceedings and the Court cannot go beyond it or speculate where no reasons are given to determine the process of reasoning. 10. Similarly, because this Court would take another view on examination of the whole matter is no ground to hold that the Arbitrator has either mis-conducted himself or the proceedings which may call for interference. 11. In the face of the aforesaid discussion no error apparent on the face of the record has been pointed out so as to warrant interference with the award of the Arbitrator. As such findings on both the issues recorded against the objector. 12. No other point is urged. 13. Accordingly, objections filed by the respondent/objector (CMP No. 390-A of 1991) are hereby dismissed and as a consequence of it award of the Arbitrator is made rule of the Court. Registry is directed to draw decree in terms of the award. No costs. Award made rule of the court.