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2004 DIGILAW 195 (DEL)

HINDUSTAN PREFAB LTD. v. DOSAJH & CO.

2004-03-12

MADAN B.LOKUR

body2004
JUDGMENT MADAN B. LOKUR, J. The appellant is aggrieved by judgment and order dated 3rd September, 1983 passed by the learned Additional District Judge in Suit No. 215/1982. Certain disputes arose between the appellant and respondent No. 1. These disputes pertained to two separate contracts relating to foundation work of foot over bridge at Patel Marg and Nazafgarh Road. The disputes between the parties were referred for Arbitration on 6th February, 1980 to respondent No. 2 as the sole Arbitrator. The learned Arbitrator entered upon reference on 5th September, 1980 and gave his Award on 29th March, 1982. The Award was a non-speaking Award. Respondent No. 1 filed a petition under Sections 14 and 17 of the Arbitration Act, 1940 (the Act) for making the Award a rule of the Court. The appellant filed objections under Sections 30 and 33 of the Act but the learned Additional District Judge dismissed them by his order dated 3rd September, 1983, which is impugned in the present appeal. When the appeal came up for hearing before a learned Single Judge on 29th October, 1984, it was observed that no oral evidence was led before the learned Arbitrator, but a few documents had been filed along with the pleadings. These documents, however, were neither proved nor tendered nor admitted by the parties. I may add that the parties did not deny these documents. The learned Single Judge had some reservations whether it was possible to uphold an Award, which was not based on any evidence, oral or documentary. Accordingly, the learned Single Judge referred the matter to a Larger Bench for a decision on this question. A Division Bench thereafter heard the appeal on 22nd April, 1991 and was of the view that the only question for consideration was whether a non-speaking Award can be set aside because it is not based on any evidence, oral or documentary. By an order of the same date, the Division Bench held that the legality of a non-speaking Award could be challenged though not merely on the ground that reasons are not given. The matter was then directed to be placed before the learned Single Judge for a decision on merits and that is how the case was listed before me. Admittedly, there is some evidence on record, though not oral evidence in the sense of statements of witnesses. The matter was then directed to be placed before the learned Single Judge for a decision on merits and that is how the case was listed before me. Admittedly, there is some evidence on record, though not oral evidence in the sense of statements of witnesses. The documentary evidence on record is in the nature of documents filed along with the pleadings. The documents have not been denied by any of the parties. Therefore, it is not as if there is absolutely no evidence on record. There is evidence on record, but it is not strictly in terms of the Evidence Act. I think that hardly matters because the correctness of the documents has not been disputed by either of the parties. Under the circumstances, it has to be held that there is some evidence on record on the basis of which the learned Arbitrator has given his conclusion, though not supported by any reasons. A similar situation had arisen in Ganges Waterproof Works (P) Ltd. vs. Union of India, AIR 1999 SC 1102 = 1999 (1) Arb. LR 363 (SC), in which the contention for the objector was that : "Though no oral evidence was adduced by any of the parties, yet the Arbitrator has in his Award expressed having heard the evidence which shows in application of mind to the record of the proceedings and material available before the Arbitrator." Repelling this contention, it was held by the Supreme Court, in paragraph 5 of the Report as follows : "As to the second contention, we have perused the contents of the Award dated 23.08.1982. It is a non-speaking Award. Just before recording the finding, the learned Arbitrator has stated : "And whereas I heard and examined and considered the statements of the parties and their evidence." It is the use of the word "evidence" wherefrom the learned counsel for the petitioner has sought to build up a plea that the Arbitrator had in his mind the oral testimony of the witnesses while there is none adduced by the parties and hence none available on the record of the Arbitrator and this shows the non-application of the mind on the part of the Arbitrator to the record of the proceedings. We find the plea so raised entirely misconceived. We find the plea so raised entirely misconceived. The learned Single Judge, as also the Division Bench have rightly explained that the word "evidence" as used by the Arbitrator does not necessarily mean oral evidence adduced. There were documents available on the record of the Arbitrator which also amount to evidence and that is what the Arbitrator had in his mind. An inference as to non-application of the mind or misstatement on the part of the Arbitrator while pronouncing the Award cannot be drawn by assigning the term "evidence" such a meaning as is sought to be assigned by the learned counsel for the petitioner. The second contention is also rejected." In view of the clear expression of opinion of the Supreme Court on almost identical facts, in Ganges Waterproof Works wherein it has been held that evidence before the learned Arbitrator need not be as per the Evidence Act so long as there is some material before him which can constitute evidence that can be taken into account by the learned Arbitrator, it must be held that there is no merit in the appeal. Consequently, I find no error in the view taken by the learned Additional District Judge to the same effect. No other point was urged before me. The appeal is dismissed, but there will be no order as to costs.