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2004 DIGILAW 964 (DEL)

GROUND ENGINEERING CO. P. LTD. v. D. D. A.

2004-10-25

MUKUL MUDGAL

body2004
MUKUL MUDGAL, J. ( 1 ) THE principal question arising and urged in these objections under Sections 30 and 33 of the arbitration Act, 1940 (in short the `old Act ) against the Award dated 29th September, 1995 are the damages awarded on account of the breach of contract committed on the part of the respondent department. ( 2 ) MR. Khadaria, the learned counsel for the objector/dda has submitted that there was no provision in the contract between the parties for awarding of damages for prolongation of a contract even though the default may have been found to have been committed by the respondent-DDA. ( 3 ) IN respect of the similar claims raised by the petitioner, an award was affirmed by the learned Single judge of this Court by the judgment dated 29th October, 2001, passed in Suit No. 67-A of 1996 entitled as M/s ground Engineering Co. (Pvt.) Limited Vs Delhi development Authority. A similar issue was dealt with by the learned Single Judge and damages for default/breaches on the part of the respondent/department were awarded. The learned Single Judge upheld the award on the ground that it was not open to this court to substitute its own view even if the other view canvassed by the DDA was possible. ( 4 ) IN any case there is no specific bar in the contract between the parties from awarding damages. Furthermore the position of law in so far as the challenge to an arbitration award is concerned: (A) In Union of India Vs Rallia Ram reported as AIR 1963 SC 1685 (3j), it was held as under:- "the award is the decision of a domestic tribunal chosen by the parties, and the Civil Courts, which are entrusted with the power to facilitate arbitration and to effectuate the awards, cannot exercise appellate powers over the decision. Wrong or right the decision is binding if it be reached fairly after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement. " (B) In M/s Sundarshan Trading Co. Wrong or right the decision is binding if it be reached fairly after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement. " (B) In M/s Sundarshan Trading Co. vs Government of kerala reported as 1989 (2) SCC @ Pages 38,56 and 58, it has been observed that: "this is our opinion, the Court had no jurisdiction to do, namely, substitution of its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. It may be stated that if on a view taken of a contract, the decision of the arbitrator on certain amounts awarded, is a possible view though perhaps not the only correct view, the award cannot be examined by the court in the manner done by the High Court in the instant case. " (C) It has further been held in Hind Builders Vs union of India reported as 1990 (3) SCC 338 that: "in a matter on which the contract is open to two equally plausible interpretations, it is legitimate for the arbitrators to accept one or the other of the available interpretations and, if the Court may think that the other view is preferable, the Court will not and should not interfere. " (D) In Jawahar Lal Wadhwa Vs Haripada Chakrobety reported as 1991 (1) SCC 76 , it has been observed: "the Court reiterated that it was now firmly established that an award was bad on the ground of error of law on the face of it only when it the award itself or in a document actually incorporated in it, there was found some legal proposition which was the basis of the award and which was erroneous. " (E) In a recent judgment of the Hon ble Supreme court reported as B. V. Radhakrishna Vs Sponge Iron India ltd. reported as 1997 (4) SCC 693 , it has been held that the Court cannot sit in appeal and cannot re-appraise or re-assess the evidence in respect of an award. " (E) In a recent judgment of the Hon ble Supreme court reported as B. V. Radhakrishna Vs Sponge Iron India ltd. reported as 1997 (4) SCC 693 , it has been held that the Court cannot sit in appeal and cannot re-appraise or re-assess the evidence in respect of an award. (F) The same view is taken in State of Orissa vs kalinga Construction reported as 1970 (2) SCC 861 (3j); municipal Corporation of Delhi Vs Jagannath Ashok Kumar reported as 1987 (4) SCC 497 (23); Indian Oil Corporation vs Indian Carbon Ltd. reported as 1988 (3) SCC 36 ; Puri construction Pvt. Ltd. Vs Union of India reported as 1989 (1) SCC 411 ; Food Corporation of India Vs Joginderpaln mohinderpall reported as 1989 (2) SCC 347 . (G) The Hon ble Supreme Court in Army Welfare housing Organisation Vs M/s Gautam Construction and fisheries Ltd. reported as 1998 (7) AD SC 184 = 1998 (5) scale 296 has held that:- ". . . . . . it is not possible for the Court to reappreciate the evidence produced before the Arbitrator and thus come to a conclusion whether a certain amount claimed was towards one head or the other. " (H) In Trustees of the Port of Madras Vs Engineering construction Corporation Ltd. reported as 1995 (5) SCC 531 , it has been held as follows:- "the above decisions make it clear that the error apparent on the face of the award contemplated by Section 16 (1) (c) as well as Section 30 (c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. " ( 5 ) CONSIDERING the facts and circumstances and the similarity between the two awards, there is no reason to take a different view even though the learned counsel for the respondent/objector has submitted that this matter was determined ex-party in the judgment of the learned single Judge in Ground Engineering s case (supra ). The judgment may have been ex-party but it is a reasoned judgment and the learned Single counsel for the respondent- DDA has not been able to show why this Court should take any different view from the view taken by the learned Single of this Court in M/s Ground Engineering s case (supra ). The judgment may have been ex-party but it is a reasoned judgment and the learned Single counsel for the respondent- DDA has not been able to show why this Court should take any different view from the view taken by the learned Single of this Court in M/s Ground Engineering s case (supra ). Accordingly there is no merit in these objections to the award dated 29th September, 1995 which are dismissed. However, the learned counsel for the respondent has strenuously prayed for reduction of interest awarded at 18% per annum. Even though Justice sikri had affirmed the award of interest at 18% per annum in the judgment referred to above, in my view the interest of justice will be fully met if the interest is reduced to 14% per annum provided it is paid within four weeks from today, failing which it will be paid at 18% per annum as awarded. Mr. Sharma has objected to the reduction of interest initially on the ground that the division Bench of this Court has taken a contrary view qua reduction of interest, to be payable on the awarded amount though he is not possessed of this decision of law at present but he submits that if the objector/dda does not take the matter further in appeal then he will not object to the reduction of interest. ( 6 ) IN this view of the matter, the objections to the award dated 29th September, 1995 are dismissed. CS (OS) No. 75-A/96 The award dated 29th September, 1995 is made a rule of the Court. The petitioner/claimant shall also be entitled to interest from the date of the award till the date of payment at the rate of 14% per annum if paid within four weeks from today as already directed herein above. Decree sheet be drawn up accordingly. The objections/suit stand disposed of accordingly. All the pending application (s) stands disposed of.