Research › Search › Judgment

Delhi High Court · body

2003 DIGILAW 933 (DEL)

SANYUKIT NIRMATA v. UNION OF INDIA

2003-09-18

M.A.KHAN

body2003
MAHMOOD ALI KHAN, J. ( 1 ) M/s. Sanyukt Nirmata, hereinafter to be called "claimant" entered into a contract with union of India, hereinafter to be called the "objector", for construction of CPWD Training institution Residential Accommodation at ghaziabad. The stipulated date for commencement of the work was 11,03. 1990 and the date of its completion was 10. 12. 1990. The work was actually completed on 25. 5. 1992. In the proceedings under section 20 of the Arbitration Act, 1940, this court by order dated 20. 10. 1997 made a reference of the dispute, which had arisen out of and in relation to the aforesaid work contract, for adjudication by arbitration to the sole Arbitrator, respondent No. 2. The arbitrator on 22. 7. 2000 filed the Award in this Court in view of Section 14 of the arbitration Act, 1940. However, on getting advance of filing of the said Award, the objector on 29. 9. 2000 filed the objections, purported to be under Sections 30 and 33 of the Arbitration Act, 1940 and deposited the entire awarded amount in the Court. The counsel for the objector on 30. 10. 2000 also gave no objection to the release of the amount deposited, except the amount involved in claim Nos. 1 and 3, to the claimant. The amount has since been released. The balance amount, however, has been kept in a fixed deposit in the Registry of the Court. The claimant filed LA 1562/02 for treating the award as having been made and published in accordance with the provisions of Arbitration and Conciliation Act, 1996 (for short, "the act") and for dismissing the objections filed by the objector under Sections 30 and 33 of the Arbitration Act, 1940. This Court on j 28. 8. 2002 held that the objections filed by the Union of India are to be decided in accordance with the provisions of the Act, the objections filed by the objector under sections 30 and 33 of the Arbitration Act, 1940 were accordingly treated to be an application filed under sub-section (2) of section 34 of the Act for setting aside the award dated 12. 4. 2000. ( 2 ) AT the outset, learned counsel for the objector submitted that the objections are filed to challenge the Award in respect of claims Nos. 1 and 3 only. The finding of the arbitrator rendered in respect of claims Nos. 4. 2000. ( 2 ) AT the outset, learned counsel for the objector submitted that the objections are filed to challenge the Award in respect of claims Nos. 1 and 3 only. The finding of the arbitrator rendered in respect of claims Nos. 1 and 3 in the Award dated 17. 4. 2000 being relevant, is reproduced as below:- claim No. 1: Claimants claim on account of Items not paid or paid at lower than due rates : Rs. 8,56,106 the handrail has been provided on the parapet as an extra item and the claimants had claimed a rate of Rs. 776. 90 per meter for the same. The respondents have however sanctioned a rate of Rs. 124. 96 only. The claimants claim is for the payment of the rate claimed by them viz. Rs. 776. 90. Both claimants and respondents have submitted their analyses of rates for the item. A perusal of the analysis of rate based on which the respondents have released payment shows that the rate has been derived based on D. S. R. 1985 a per clause 12 (iv) of the contract. The claimants have based their analysis of rate on their quoted rate of item no. 10. 4 of the agreement for the staircase railing; the rae derivation is thus on the basis of clause 12 (ii) of the contract. I find that clause 12 (ii) has a priority over clause 12 (iv) of the contract and hence the analysis filed by the claimants is the one, which should form the basis for making payment of this item. The rate is to be derived on the basis of the quoted rate for the item of staircase railing. On scrutiny of the analysis submitted by the claimants, I assess that the claimants are entitled to receive a rate of Rs. 700 per m. for this item. The claimants have already been paid @ Rs. 124. 96 per meter. The claimants are entitled to receive an extra payment of Rs. 682. 96 x (700-124. 96)=rs. 3,92,729. 31. Claimants are awarded an amount of Rs. 3,92,729. 00. Claim No. 3 : Claimants claim for Rs. 33,36,806 on account of interest, compensation and damages i have carefully gone through the pleadings and arguments both written and oral made by the parties regarding delay in the execution of the work. 682. 96 x (700-124. 96)=rs. 3,92,729. 31. Claimants are awarded an amount of Rs. 3,92,729. 00. Claim No. 3 : Claimants claim for Rs. 33,36,806 on account of interest, compensation and damages i have carefully gone through the pleadings and arguments both written and oral made by the parties regarding delay in the execution of the work. It is clear that the work extended beyond the stipulated date of completion due to late issue of drawings. Certain changes were made at the site in the layout of the buildings even after the layout plan was issued. There was delay in giving the decision about the number of type I quarters to be constructed under the contract. Some other decisions concerning manufacture of shutters, W. C. and kitchen details, colour scheme etc. were also issued late. There was delay in getting the electrical conduits laid and this also resulted in dislocating claimants work. All these delays are attributable to respondents only. It is also a fact that the respondents have sanctioned extension of time upto the recorded date of completion without levy of compensation which also goes to establish that the claimants were not responsible for the delays in the execution of the work. The claimants are therefore found to be entitled to receive damages on account of losses that they suffered due to prolongation of the contract. I have examined the respondents pleading about the voluntary undertaking given by the claimants concerning not to claim damages for delays in the execution of the work. Claimants during oral hearings had pleaded that the undertaking as occuring in Exhibit R-22 was given by them under duress. The respondents had been threatening to levy liquidated damages under clause 2 of the contract even though there had been no delay on their part and the entire delay was attributable to the respondents if an undertaking as in. Exhibit R-22 was not given. I find that the claimants had submitted the extension of time application to the respondents on 12. 2. 1992 and that at the time of submission of this application no undertaking was there on the application. The claimant gave the undertaking at a much later date viz on 20. 8. 1992, i. e. nearly six months after the application was submitted. The extension of time was thereafter sanctioned by the superintending engineer on 16. 10. 1992. 2. 1992 and that at the time of submission of this application no undertaking was there on the application. The claimant gave the undertaking at a much later date viz on 20. 8. 1992, i. e. nearly six months after the application was submitted. The extension of time was thereafter sanctioned by the superintending engineer on 16. 10. 1992. It is evidently clear from the dates mentioned above that no action was taken by the engineer in charge to process the application for a period of approximately six months after its submission in february, 1992 till the claimants gave them the undertaking as in Exhibit R-22 in August, 1992. There was no need for the engineer to charge to hold the application for granting extension of time if they required no undertaking from the claimants. The delay in processing of the application till the claimants gave an undertaking clearly establishes that the undertaking was given by the claimants at respondents instance only. It is also seen from Exhibits r-4 to R-15 that the payment of a sum of nearly Rs. 6. 81 lacs towards escalation charges was pending for want of sanction of extension of time and the claimants would have lost this money if the extension had been sanctioned by the respondents with levy of liquidated damages. Sufficient ground ofeconomic duress thus existed on 20. 8. 1992 when the claimants gave the undertakings. The undertaking given by the claimants on 20. 8. 1992 is reproduced below: - "we shall not claim anything extra on account of delayed completion of work if the extension of time is granted without levy of compensation. "it is seen from the documents filed by the respondents that none of them puts the blame on the claimants for delay. There exist a couple of letters where the respondents had asked the claimants to expedite the progress of works but these are of routine nature and do not lead to inferring that there was any breach of contract by the claimants. There did not appear any reason for which the respondents could levy any compensation and consequently there was no need for the claimants to give an undertaking as above and that is why the application on the first submission did not contain any undertaking. It cannot therefore be accepted that the claimants gave the undertaking as above of their own free will. It cannot therefore be accepted that the claimants gave the undertaking as above of their own free will. The undertaking was being sought for by the respondents just to bar the claimants future claims of damages that might arise. I, therefore, conclude that the undertaking dated 20. 8. 1992 was given by the claimants under economic duress and coercion and not of free will and hence cannot be given cognizance. The claimants are considered entitled to raise claims that are governed by the laws of the land and as per clause 25 of the contract. All the sub-claims of the claimants are, therefore, adjudicated as below. ( 3 ) THE ground of challenge to the Award in respect of claims Nos. 1 and 3 as mentioned in the objections in paras-7, 8 and 9 are as follows:- "7. That the Award in respect of claim no. 1 is liable to be set aside in as much as the learned Arbitrator misconducted the proceedings and has given the award for a sum of Rs. 3,92,729/- on account of the extra claim for the substituted items. It is submitted that the petitioner claimed Rs. 4,99,602. 00 on account of the extra claim for providing 40 MM dia GI Pipe hand rail with 20 mm square bar placed at 40 mm C/c each long etc. complete. The petitioner claims a sum of Rs. 776. 90 per meter as against Rs. 124. 96 sanctioned by the respondent in terms of clause 12 (iv) of the agreement. It is submitted that the agreement provides for staircase railing 90 cm high with square bars diameter and with teakwood hand rail at the rate of Rs. 870/- per meter. It is also submitted that both the items are different and distinct with each other. There is no similarity between the said items. Thus the rate of such substituted items was to be determined in terms of clause 12 (iv) and not clause 12 (ii), which is meant for determining the rate of the similar item. It is also submitted that the agreement item requires the petitioner to provide the teakwood hand rail which is costlier than the GI pipe. Thus the rate of the agreement item cannot be compared with the substituted items. It is also submitted that the agreement item requires the petitioner to provide the teakwood hand rail which is costlier than the GI pipe. Thus the rate of the agreement item cannot be compared with the substituted items. It is submitted that the learned arbitrator has failed to consider this basic difference and wrongly applied the provision of clause 12 (ii) of the agreement. The Award on its face is contrary to the agreement between the parties and as such, liable to be set aside. 8. That the Award of the learned arbitrator in respect of the claim No. 1 is also contrary to law and as such liable to be set aside. It is submitted that the claimant/petitioner claimed a sum of rs. 776. 90 per meter and filed some analysis of rate in support of the same. The learned Arbitrator has not accepted the same and has awarded the amount at the rate of Rs. 700. 00 per meter, ft is not clear as to how the learned arbitrator arrived at the said figure particularly when the analysis of rate furnished by the petitioner was not accepted by the learned Arbitrator. It is submitted that the Award thus suffers from error and inconsistency, which are apparent on its face. The learned Arbitrator has thus misconducted the proceedings. It is submitted that the Award in question in respect of claim No. l is liable to be set aside being perverse to the record. 9. That the Award in respect of claim no. 3 is also liable to be set aside inasmuch as the learned Arbitrator made this Award for a sum of Rs. 4,27,900/- on account of interest, compensation and damages allegedly suffered by the petitioner due to prolongation of work. As submitted above, the learned arbitrator gave the Award in favour of the petitioner contrary to the admission and undertaking of the petitioner. It is submitted that the learned Arbitrator gave the Award in favour of the petitioner on an extraneous consideration even not pleaded by the petitioner in the statement of claim. It is submitted that the learned Arbitrator acted beyond his jurisdiction and rejected the contention of the respondent in this behalf. It is submitted that the learned Arbitrator gave the Award in favour of the petitioner on an extraneous consideration even not pleaded by the petitioner in the statement of claim. It is submitted that the learned Arbitrator acted beyond his jurisdiction and rejected the contention of the respondent in this behalf. It is submitted that the petitioner had given the undertaking not to claim any compensation on account of delay in completion of work and the same has been placed on record as Annexure R- 22. It is submitted that the respondent acting on such undertaking and believing the same to be true granted extension of time and did not levy the compensation under clause 2 of the agreement. It is also submitted that once the petitioner took advantage of some documents and the respondent having acted upon the same changed its position, then in that case the petitioner cannot be permitted to allege to the contrary. It is submitted that the petitioner is estopped from raising the plea of duress at a later stage that too at the time of final hearing. There is no evidence on record in support of this contention of the petitioner and the learned Arbitrator has given the award without any basis. Thus the award is liable to be set aside being perverse to the record. ( 4 ) BEFORE dealing with the grounds of challenge, it will be appropriate to deal with a preliminary objection raised on behalf of the claimant. It was contended that the application (objections) filed by the objector for setting aside the Award is filed beyond time prescribed by sub-section (3) of Section 34 of the Act, therefore, it is liable to be rejected summarily.- It is argued that the objector had received the copy of the Award on 17. 4. 2000 and the present objections under Section 34 were filed on 29. 9. 2000, i:e. after five months and twelve days of the receipt of the Award by the objector. Learned counsel argued that under sub-section (3) of section 34 of the Act, the time stipulated for filing objections to the Award is three months from the date of the receipt of the Award by the party applying for setting aside the Award and the time for filing the objections was extendable by another 30 days on sufficient cause being shown by the party. It is submitted that in terms of sub-section (3) of section 34, the Court had no jurisdiction to extend the time any further. Even otherwise, it was argued, that the objector had not filed any application for extending the time for even 30 days, after the elapse of three months period from the date of receipt of the objections. Referring to the judgment of the Supreme Court in Union of India v. Popular Construction Co. , (2001) 8 SCC 470 , it was argued that the Court had no jurisdiction to extend the time beyond the period, which has been prescribed in Rule 1 of Order 8 CPC. ( 5 ) LEARNED counsel for the objector, conversely, has argued that on receiving copy of the Award on 17. 4. 2000, the objector filed objections under Sections 30 and 33 of the Arbitration Act, 1940 in the court of Civil Judge, Ghaziabad on 29. 9. 2000 well within the period of three months provided under sub-section (3) of Section 34 of the Act. Those objections are still pending and have not been returned back for lack of pecuniary or territorial jurisdiction by the said court. In the meantime, on receiving an advance notice of the filing of the Award by the Arbitrator under Section 14 of the arbitration Act, 1940 in this Court, the objector appeared of its own on the first date of hearing, filed objections under Sections 30 and 33 of the Arbitration Act, 1940 and also deposited the entire amount of the Award. Thereafter a question was raised before this court as to whether the objections filed by the objector were to be treated under the old Arbitration Act, 1940 or under the new act of 1996 and it was decided that the objections will be dealt with under the Act of 1996. He further submitted that a certified copy of the objections which the objector had filed in Ghaziabad Court has also been filed by the objector. According to him, the objections against the Award dated 12. 4. 2000 were filed by the objector within three months of the receipt of the Award in Ghaziabad court and they were also filed before this court after the Award was filed by the arbitrator under Section 14 of the Arbitration act, 1940 in this Court. According to him, the objections against the Award dated 12. 4. 2000 were filed by the objector within three months of the receipt of the Award in Ghaziabad court and they were also filed before this court after the Award was filed by the arbitrator under Section 14 of the Arbitration act, 1940 in this Court. He, therefore, argued that the objection raised by the counsel for the claimant that the objections were barred by limitation provided by sub-section (3) of section 34 is untenable. It was further argued that even otherwise objector having filed the objections against the Award in the Court of the Civil Judge, Ghaziabad, in good faith and with due diligence, was entitled to the extension of the period of limitation by virtue of Section 14 of the Limitation Act since the objections are still pending in that Court and have not been returned yet for want of jurisdiction or otherwise. He referred to the judgment of the Supreme Court in Rampal and Others v. Diwan Devi and Others. AIR 1985 SC 1669 . ( 6 ) THE learned counsel for the claimant argued that the claimant had filed an application before the Court for dismissing the objections filed against the Award since the Award shall be deemed to have been made and published under the provisions of the Act in view of the judgement of the supreme Court in Thyssen Stahlunion gmbh v. Steel Authority of India limited, (1999) 9 SCC 334 and the judgement of this Court in Bhai Sardar singh and Sons v. Delhi Development authority, 2001 VII Apex Decisions (Delhi) 546. It was contended that the provisions of the new Act were applied to the proceedings with the agreement and the consent of the parties. Learned counsel also referred to the judgement of the Supreme Court in Union of India v. Popular Construction Co. (supra) in support of his arguments that the provisions of Sections 14 and 29 of the limitation Act could not be invoked for extending the time for filing an application against the Award, as stipulated in sub-section (3) of Section 34 of the Act. ( 7 ) SECTION 34 (3), which is relevant for deciding the controversy has provided as under:- "34. ( 7 ) SECTION 34 (3), which is relevant for deciding the controversy has provided as under:- "34. Application for setting aside arbitral award: (3)An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal: provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. " ( 8 ) THE language of this provision is plain and simple. An application for setting aside the award may be filed within "three months" of (i) the receiving of the arbitral Award by the applicant or (ii) the date on which an application under Section 33 (for review of the Award) has been disposed of by the arbitrator. Proviso to this sub-section gives discretion to the Court to entertain the application, on sufficient cause being shown within "further period of thirty days". The words "but not thereafter" used in the proviso clearly spelt out that the application for setting aside an Award could not be received by the court after thirty days extended period is over. ( 9 ) THE question whether the time for making an application for setting aside the Award under sub-section (3) of Section 34 could further be extended after three months plus the extended period of thirty days by invoking the provisions of Section 14 and/or section 29 of the Act is no more res Integra in view of the judgement of the Supreme Court in Union of India v. Popular Construction co. (supra ). The Supreme Court examined the provisions of Section 29 (2) of Limitation act vis-a-vis the provision of sub-section (3) of Section 34 of the Act. Section 29 has provided as under:- "29. Savings - (1) Nothing in this Act shall affect Section 25 of the Indian contract Act, 1872. (supra ). The Supreme Court examined the provisions of Section 29 (2) of Limitation act vis-a-vis the provision of sub-section (3) of Section 34 of the Act. Section 29 has provided as under:- "29. Savings - (1) Nothing in this Act shall affect Section 25 of the Indian contract Act, 1872. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. (3)Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4)Sections 25 and 26 and the definition of easement in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882, may for the time being extend. ( 10 ) THE Supreme Court ruled that the above provision could not be invoked for extension of time for filing an objection against the award in view of the proviso which disempowered the Court from entertaining objections against the Award after further period of thirty days plus initial period of three months elapsed. The imperative language of the proviso "but not thereafter" is sufficient to displace the applicability of Section 29 of the Limitation Act. The Supreme Court held that the phrase "but not thereafter" would amount to an express exclusion within the meaning of Section 29 (2) of the Limitation act and would, therefore, bar application of section 5 of the Limitation Act. Section 5 of the Limitation Act allowed a Court to. condone delay in filing an application if sufficient cause was shown by the applicant. Section 5 of the Limitation Act allowed a Court to. condone delay in filing an application if sufficient cause was shown by the applicant. In para 8 of the judgment, the Apex Court laid down:- "had the proviso to Section 34 merely provided for a period within which the court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. " ( 11 ) LEARNED counsel for the objector strongly argued that the objector bonafidely filed objections against the Award in Ghaziabad civil Court, which are still pending and the time during which those proceedings were prosecuted with due diligence has to be excluded by virtue of Section 14 of the limitation Act. Section 14 of the Limitation act reads as under: - " 14. Exclusion of time of proceeding bona fide in Court without jurisdiction- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first, instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2)In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether, in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 of order XXIII of the Code of civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. Explanation-For the purposes of this section- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. ( 12 ) LEARNED counsel for the objector has himself admitted that the objections filed before the Civil Judge, Ghaziabad are still pending and have not been disposed of. This court need not go into the question whether the second objections against the same Award in another Court so long as the earlier objections have not been returned for want of territorial jurisdiction are maintainable before this Court or not. In view of sub-section (1) of Section 31 of the Arbitration Act 1940, the award rendered by the Arbitrator in the reference which was made to him by this court under Section 20 of the Arbitration act, 1940 had to be filed before this Court and by virtue of sub-section (2) of Section 31 all questions regarding validity, effect or existence of an Award or an arbitration agreement are to be decided by the Court in which the Award is filed or may be filed and no other Court and further by virtue of sub- section (4) only this court has jurisdiction to deal with objections filed against the award s dated 12. 4. 2000 and no other court. It means since the Award was filed in this Court, objection envisaged under sub-section (2) of section 31 could be filed against the Award only before this Court even under the arbitration Act of 1940. Anyhow, no argument has in fact, been addressed by learned counsel for the parties on this question. 4. 2000 and no other court. It means since the Award was filed in this Court, objection envisaged under sub-section (2) of section 31 could be filed against the Award only before this Court even under the arbitration Act of 1940. Anyhow, no argument has in fact, been addressed by learned counsel for the parties on this question. The Award, which was rendered after the enactment of arbitration and Conciliation Act, 1996, was an award made and published under the provisions of the new Act in view of the language of the Arbitration agreement entered into between the parties as per the judgement of the Supreme Court in Thyssen stahlunion Gmbh v. Steel Authority of india Limited (supra ). The application under sub-section (2) of Section 34 of the Act was the only remedy available to the objector for setting aside the Award. Sub-section (3), as observed above, was to govern the period during which such an application could be filed. With the aid of the proviso to sub- section (3), the maximum period during which application for setting aside the Award could be entertained is three months and thirty days and not thereafter. Supreme Court in union of India v. Popular Construction co. (supra) excluded the application of Section 29 (2) and Sections 4 to 24 of the Limitation act in view of the express provision on the construction of the language of the proviso to sub-section (3 ). Application of Section 29 (2), Section 14 and Section 5 of the limitation Act has been expressly excluded by the phrase "but not thereafter" in the proviso to sub-section (3 ). Consequently, provisions of the Limitation Act cannot come to the rescue of the applicant/objector in this case. The objections which have been admittedly filed beyond the period of limitation prescribed by sub-section (3) of the Act are liable to be rejected summarily. ( 13 ) ADVERTING to the challenge to the Award in respect of items Nos. 1 and 3, it will be necessary first to know the parameters of law within which the objection could be considered. The Award dated 17. 4. 2000 is challenged by the objector on the ground that it was in conflict with the public policy of india. 1 and 3, it will be necessary first to know the parameters of law within which the objection could be considered. The Award dated 17. 4. 2000 is challenged by the objector on the ground that it was in conflict with the public policy of india. The Supreme Court in Oil and Natural gas Corporation Limited v. Saw Pipes limited; 2003 (5) SCC 705 has elucidated the true import of the phrase "public policy of india" used in clause-b (ii) of sub-section (2) of Section 34 of the Act, which covers the challenge. It was held in para-31 as under:- "therefore, in our view, the phrase "public policy of India" used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to be public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term "public policy" in Renusagar case, it is required to be held that the award could be set aside if it is patently illegal. The result would be-award could be set aside if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality, or (d) in addition, if it is patently illegal. Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfari and unreasonable that it shocks the conscience of the Court. Such award is opposed to public policy and is required to be adjudged void. " ( 14 ) IN the backdrop of the above case law, it may now be considered whether the Award is liable to be set aside in respect of claims nos. 1 and 3. Such award is opposed to public policy and is required to be adjudged void. " ( 14 ) IN the backdrop of the above case law, it may now be considered whether the Award is liable to be set aside in respect of claims nos. 1 and 3. At the outset, it may be stated that learned counsel for the objector has not been able to show that the Award so far as it related to claim No. 1, is contrary to the fundamental policy of Indian law, the interests of India, justice and morality or is otherwise patently illegal. Claim NO. 1 related to the items, which were not paid or were paid at the rate lower than the due rate. The Arbitrator has taken into consideration the evidence and the material which the parties have produced before him for deciding the claim. After scrutinizing the evidence including the analysis of the rate for various items, the arbitrator has given a reasoned Award, which to my view is not liable to be questioned on the ground as pleaded in para-7 of the objection petition. The objection against the award made in respect of claim No. 1, therefore, is untenable and is rejected. ( 15 ) LEARNED counsel for the objector has drawn my attention to para-5. 03 of the Award where the Arbitrator has observed that an oral argument was advanced at the time of final hearing on behalf of the claimant that the undertaking, Exhibit R-22 was given by it under duress. It was argued that this plea did not find mention in the statement of claim submitted before the Arbitrator and no evidence on this question was produced by the claimant to substantiate this oral plea. The undertaking, Exhibit R-22 reads as follows:- "we shall not claim anything extra on account of delayed completion of work if the extension of time is granted without levy of compensation. " ( 16 ) ACCORDING to learned counsel for the objector, the delay in execution of the work was squarely attributable to the claimant and the objector was within its right under the contract to impose penalty for the damages suffered by it on account of inordinate delay in execution of the work. But for this undertaking, Exhibit R-22, the objector did not impose leviable penalty on the claimant and extended the time. But for this undertaking, Exhibit R-22, the objector did not impose leviable penalty on the claimant and extended the time. After taking advantage of extension of time, the claimant could not turn coat and claim damages from the objector on account of delay in execution of work. Conversely, learned counsel for the claimant has argued that the claimant was under a tremendous pressure from the objector when it applied for extension of time for execution of the contract. The delay in completion of the work by the stipulated date in terms of the contract was solely attributable to theobjector. In February, 2000, the claimant applied for extension of time. Till August, 2000, the objector was delaying the extension by insisting upon the claimant first to give an undertaking that damages would not be claimed by it. The claimant was incurring huge losses each day because of the delay. The objector had also discretion to impose penalty and claim damages in terms of the contract and refuse to dear the final bill of the claimant. The claimant, as such, had no option, but to succumb to the pressure of the objector and give an undertaking in terms of Exhibit R-22 in order to secure extension of time for execution of the contract. This undertaking, as contained in Exhibit R-22, was under sheer pressure, duress and undue influence. So it is not binding upon the claimant, he argued. ( 17 ) THE claimant had claimed damages on account of delay, which was attributable on the part of the objectiors. No doubt in the statement of claim submitted before the arbitrator, the claimant had not specifically challenged the undertaking, Exhibit R-22. But in the rejoinder to the reply of the objector, it was categorically stated that it was given under duress. The parties have led evidence on claim No. 3, which related to the claim of rs. 33,36,806/- on account of interest, compensation and damages. It was pleaded by the claimant that they had suffered huge losses on account of delay im completion of work. The work was to be completed by 10. 12. 1990, but could be completed only on 25. 5. 1992 because the objectors had failed to provide in time the drawings, details etc. and also did not release the payments in time. The work was to be completed by 10. 12. 1990, but could be completed only on 25. 5. 1992 because the objectors had failed to provide in time the drawings, details etc. and also did not release the payments in time. It was further stated that the objector s electrical contractor also did not supply the conduits in time and that the delay was attributable only to the objectors since it failed to discharge their contractual obligations in time and that it was not entitled to any compensation for losses suffered by it. The statement of claim would show that the question involved was whether the claimant was entitled to claim any compensation or damages for the delay, which had occurred in execution of the work. Therefore, binding nature of the undertaking, Exhibit R-22 given by the claimant to the objector for taking extension of time for execution of the contract was one of the questions which was necessary to be decided for giving Award on claim No. 3. Both the parties knew about the disputes raised by the claimant against the binding nature of the undertaking, Exhibit R-22. Had the objector not granted extension, the claimant could have suffered huge losses. This fact has not been denied by the objector. But it has been contended that the objector had also given up its rights to claim damages from the respondent for the delay which has been caused in execution of the work, therefore, the claimant could not wriggle out of this undertaking and agreement between the parties by simply imputing duress and coercion, allegedly exercised by the objectors on them. The parties have led evidence on the quantum of damages and compensation claimed by the claimant on account of delay in execution of the work. The undertaking, exhibit R-22 was one of the documents which had a bearing on this question. The parties were conscious of it. In the rejoinder to the reply of the objector, there was specific plea that the undertaking was given under duress. The argument of learned counsel for the objector that it was only during oral hearing before the Arbitrator that an objection to the undertaking, Exhibit R-22 was raised, is evidently not correct. The Arbitrator had decided about the undertaking having regard to the evidence and material produced before him by the parties in respect of claim No. 3. The argument of learned counsel for the objector that it was only during oral hearing before the Arbitrator that an objection to the undertaking, Exhibit R-22 was raised, is evidently not correct. The Arbitrator had decided about the undertaking having regard to the evidence and material produced before him by the parties in respect of claim No. 3. The Arbitrator has given a reasoned Award. This Court does not find that the reasons given by him were in any way contrary to the fundamental policy of Indian law, the interests of India, justice and morality or otherwise patently illegal, in terms of principles of law laid down by the Supreme Court in Oil and Natural Gas Corporation Limited v. Saw Pipes Limited (supra ). ( 18 ) IN Unikol Bottlers Ltd. v. M/s. Dhillon kool Drinks, 53 (1994) DLT 501, relied upon by the objector, in a civil suit, one of the defence raised was whether the contract was rescinded under duress. This Court held that the contracts are meant to be performed and not to be avoided and justice required that the men, who have negotiated, be held to their bargains unless it can be shown that their consent was vitiated by fraud, mistakes or duress. The law cited was on its own peculiar facts and does not advance the arguments of the objector. This Court does not find that the objections to claim No. 3 may be sustained under the parameters of rule 2 b (ii) of Section 32 of the Act. ( 19 ) AS a consequence, the objections are not only liable to be dismissed as barred by limitation prescribed in sub-section (3) of section 34, but are also not tenable on merits within Section 34 (3) of the Act. The objection petition is accoridingly dismissed.