Punjab Urban Planning and Development Authority, Patiala v. Pritpal Singh Bhinder
2002-01-04
BAKHSHISH KAUR
body2002
DigiLaw.ai
JUDGMENT Bakhshish Kaur, J. - The Civil Revision No. 3885 of 2001 arising out of the impugned order will also be disposed of by this order. 2. This revision is directed against the judgment dated February 01, 2001 whereby the learned Additional District Judge, Patiala has dismissed the appeal under Section 39 of the Arbitration and Reconciliation Act, 1996 (hereinafter referred to as "the Act), filed by Punjab Urban Development Authority (hereinafter referred to as "the PUDA) and affirmed the judgment and decree passed by the trial Court. 3. The factual matrix of the case is that dispute between the parties with regard to construction of school building in Navodaya Complex at village Longowal, District Sangrur-Group II was adjudicated upon by the Arbitrator. Out of 10 separate claims made by the contractor (hereinafter referred to "the respondent), five claims were accepted with future interest at the rate of 12 per cent. Thus, the respondent filed an application for making the award rule of the Court and also for making modification in the rate of interest i.e. from 12 per cent to 18 per cent. 4. Two arbitration cases Nos. 23 of 22.10.1998 and 25 of 23.10.1998 filed by Pritpal Singh Bhinder and PUDA respectively were consolidated and these were disposed of vide single judgment passed by the trial Court. 5. The petitioner had filed objection petition under Section 30 of the Indian Arbitration Act, 1940, 13 of the Act for setting aside the award on the ground that the arbitrator has wrongly allowed the claims in favour of the contractor. The Arbitrator has misconducted himself. According to condition No. 14 of the agreement, amount of work may be increased or decreased and any item omitted and substituted in accordance with the requirement of department and no claim on this account shall be entertained. Award of Rs. 1, 47, 700/- is absolutely wrong and procured one. The Arbitrator has wrongly allowed interest at the rate of 12% from the date of award till the decree or the payment of amount, whichever is earlier. The Arbitrator has no right or authority to direct any party to make the payment from the date of award. 6. The grievance of the respondent-Pritpal-Singh Bhinder in his Arbitration case No. 23 of 1998 was limited one to the extent of interest awarded by the Arbitrator.
The Arbitrator has no right or authority to direct any party to make the payment from the date of award. 6. The grievance of the respondent-Pritpal-Singh Bhinder in his Arbitration case No. 23 of 1998 was limited one to the extent of interest awarded by the Arbitrator. He is claiming 18 per cent interest per annum whereas the Arbitrator has awarded interest at the rate of 12 per cent. 7. The pleadings of the parties gave rise to the following issues framed by the trial Court :- "1. Whether the award dated 21.9.1998 is liable to be set aside ? OP PUDA 2. Whether the contractor is entitled to get interest @ 18% P.A. as claimed from the date of amount date ? OP Contractor 3. Relief." Issue No. 1 was answered in favour of the respondent and against the objector. Issue No. 2 was answered against the respondent, holding thereby that the interest awarded by the Arbitrator cannot be termed as wrong and that it has been rightly awarded at the rate of 12 per cent per annum. The aforesaid findings of the trial Court have been affirmed by the learned Additional District Judge, Patiala. 8. I have heard Shri Arun Palli, Advocate for the petitioner and Shri Rajnish Garg, Advocate for the respondent. 9. The grievance of the petitioner is that no reasons have been given by the Arbitrator while making the award. In fact, no material or evidence has been referred so as to justify the claims of the respondent in item Nos. 1, 2, 3, 5, 6 and 10. The award has been made in a mechanical manner and is a procured one. 10. By making reference to the additional condition No. 12 of the printed tender form, it is urged by Shri Arun Palli that the contractor alone will be fully responsible for any loss or damage due to flood or any act of God. It reads as under :- "12. The contractor will be responsible for any and all losses of material damages done to unfinished work as a result of floods and acts of God.
It reads as under :- "12. The contractor will be responsible for any and all losses of material damages done to unfinished work as a result of floods and acts of God. Board will not be responsible for any compensation as a result of such damages or loss to the contractor and the contractor shall be liable to set right such damages at his own cost to the satisfaction of the Engineer-in- Charge." It is, therefore, urged that once there is a specific condition in the agreement, then the Arbitrator could not award any amount to the contractor with regard to the loss or damage, if any, which was result of natural calamity such as flood or act of God. In this way, the claim No. 10 of the contractor is required to be rejected. 11. Advertising to claim No. 10 of the respondent-contractor, it reads as under :- "Claim No. 10 - Setting of cement due to flash flood of 1988 - Rs. 20, 000/- As reported by me, flood water entered the site due to breach in the drain because of flash flood thereby damaging the cement lying at site. I have been penalised for no fault of mine because of the recovery of the cement which got set because of flood water, I did not have any control over the flood. So, I claim Rs. 20, 000/-." Though, the contractor had claimed of Rs. 20, 000/-, yet the arbitrator after considering the facts and circumstances and the documents brought on the record, had awarded Rs. 9, 233.95 only in his favour. 12. The other submission on the basis of which the award has been challenged before the courts below is that it is a case of no evidence at all, therefore, the Arbitrator could not give any award in respect of the claims. 13.
9, 233.95 only in his favour. 12. The other submission on the basis of which the award has been challenged before the courts below is that it is a case of no evidence at all, therefore, the Arbitrator could not give any award in respect of the claims. 13. Shri Palli, learned counsel for the petitioner, further contended that the award is vitiated as it has been given contrary to the basic features of the contract and to support his argument, he has placed reliance on State of Kerala v. Poulose, 1987(1) K.L.T. 781 wherein it is held as under :- "We are of the opinion that the arbitrator ignored the express provisions of the covenant relating to rates and awarded compensation at enhanced rates, not only opposed to the contract but opposed to the law of contract, and flying in the face of fundamental principles of the law of contract. He did not stop there; but proceeded to find a jurisdiction that did not enure to him by treating an act of God as a dispute, and compensating respondent for floods. There is an error apparent on the face of the award, and the arbitrator wandered away from his jurisdiction on an unchartered course, finding pastures alien and off bounds to him. No different was the exercise in which the court below engaged itself. It though that its functional responsibilities were on lines similar to that of an arbitrator and not systematised by substantive law. He has not investigated the issues that arose for consideration." The facts of the case in hand are, however, different. The petitioner, in my opinion, cannot derive any benefit from the above authority as it is well settled that the Court cannot sit in appeal on the decision of the Arbitrator nor can it reassess or further evaluate the evidence adduced before the Arbitrator. In this regard, reference can be easily made to National Project Construction Corporation Ltd. v. Aroma Universal, 2001(2) ICC 723 wherein under para 10, it has been observed as under :- "It is well-settled that the Court cannot sit on appeal on the decision of the Arbitrator nor can it reassess and/or further evaluate the evidences adduced before the Arbitrator.
In this regard, reference can be easily made to National Project Construction Corporation Ltd. v. Aroma Universal, 2001(2) ICC 723 wherein under para 10, it has been observed as under :- "It is well-settled that the Court cannot sit on appeal on the decision of the Arbitrator nor can it reassess and/or further evaluate the evidences adduced before the Arbitrator. The award can be challenged primarily on two grounds, namely, in case of an error apparent on the face of the record and the other is where the Arbitrator has exceeded his jurisdiction. But, in any case, the Court is a not entitled to scrutinize and/or re-examine the documents relied by the respective parties in the arbitration proceedings nor it can look into the evidences for the purpose of deciding the correctness of the award passed by the Arbitrator, unless the error alleged to have been committed by the Arbitrator is apparent on the face of the record or it appears from the award itself that the Arbitrator had exceeded his jurisdiction while making the said award, the Court cannot set aside the same." 14. In the given case in hand, there is no error apparent on the face of the record. Moreover, if the Arbitrator has awarded amount to the contractor under claim No. 10, even then it will not be open to the petitioner to challenge the award on the ground that the Arbitrator has drawn his ow conclusions. In the matter of B.V. Radhakrishnan, AIR 1997 1324, also relied in the National Project Construction Corporation Ltd. (supra), the Apex Court has observed that "the Arbitrator is the final arbiter for the disputes between the parties and it is not open to challenge the award on the ground that the Arbitrator has drawn his own conclusions or failed to appreciate the facts." 15. The latest authority on the point is that "Indu Engineering and Textiles Ltd. v. Delhi Development Authority, 2001 AIR SCW 2524", wherein it has been observed that "This Court, while dealing with the power of Courts to interfere with an award passed by arbitrator, had consistently 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." 16.
The award given by the Arbitrator in the case in hand, therefore does not suffer from any error apparent on the record. The courts below have come to a concurrent finding of fact in favour of respondent-contractor and there is hardly any ground to interfere with the same. It is well-settled that where there is concurrent finding arrived at by the courts below, the High Court should not interfere unless the jurisdiction vested in the Court has been exercised illegally or with material irregularity. In this regard reliance is placed on The Managing Director Hindustan (MIG) Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76 and The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and anther, AIR 1976 SC 2621. 17. On the point of awarding interest at the rate of 12 per cent, learned counsel for the petitioner contended that the interest could not be awarded from the date of award. this argument is also without any substance in view of T.P. George v. State of Kerala, 2001(2) ICC 38 wherein the interest allowed from the date of award was under challenge and it was held that Arbitrator can award interest on all four stages i.e. pre reference stage, present and future interest from the date of award and from the date of decree will its realisation. In view of the aforesaid, no case is made out for interference with the impugned judgment. Order accordingly.