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2005 DIGILAW 3294 (RAJ)

Prabhu Dayal v. Jaipur Development Authority

2005-12-14

GYAN SUDHA MISRA

body2005
Judgment Gyan Sudha Misra, J.-This appeal has been preferred against the order of the District and Sessions Judge, Jaipur City, Jaipur dated 02.06.1992 by which the learned Judge while passing the decree in terms of the award dated 05.02.1991 passed by the sole arbitrator in favour of the claimant-appellant has partly modified it only to extent as a result of which a sum of Rs. 20,484.38 was ordered to be deducted from the award but has awarded interest on the amount of the award. This order was passed as the respondent-Jaipur Development Authority (for short “the JDA”) had filed an application for modification and correction of the award in view of Section 39 (iii) of the Arbitration Act of 1940 raising objections against the award. 2. It may be related and specified that the appellant also had filed an application before the same Court for making the award, passed by the sole arbitrator, as a rule of the Court and hence that application alongwith the application filed by the respondents for modifying that award was heard and disposed of together vide the impugned common Judgment and order referred to hereinbefore whereby the learned District and Sessions Judge passed an order holding therein that the arbitrator had passed an award for an excess amount of Rs. 20,484.38 and, therefore, ordered that this amount be reduced from the award passed by the arbitrator, but was pleased to award interest on the amount awarded which had not been granted by the arbitrator. As already stated, this appeal has been filed by the appellant challenging the aforesaid order of the learned District and Sessions Judge. 3. For the sake of clarity and to appreciate the merit of this appeal, the circumstances leading upto the filing of this appeal, may be summarised and it may be succinctly stated that the appellant had been awarded a contract by the respondent JDA-for construction of a link road between Amer Road starting from Jaipur to Sikar which is another District. An agreement for this purpose was duly executed between the parties and a work order dated 19.02.1983 was signed between the parties enumerating the terms and conditions on the basis of which the work had to be executed. It is an admitted position that the appellant completed the work and thereafter raised his claim for payment. An agreement for this purpose was duly executed between the parties and a work order dated 19.02.1983 was signed between the parties enumerating the terms and conditions on the basis of which the work had to be executed. It is an admitted position that the appellant completed the work and thereafter raised his claim for payment. The claimant-appellant feeling dissatisfied with the payment filed a claim for a sum of Rs. 98,568.88 which was disputed by the respondent JDA as a result of which the matter was referred to the arbitrator for adjudication. The arbitrator after adjudication of the dispute and after taking into account the documentry as well as oral evidence, passed an award on 05.02.1991 by which he awarded a sum of Rs. 68,452.36 accepting a valid claim of the appellant and also awarded a sum of Rs. 33,364/-by way of interest. Thus, in all a total sum of Rs. 1,01,816.36 (Rupees one lac one thousand eight hundred sixteen and paisa thirty six only) was awarded to the claimant-appellant. 4. The appellant thereafter, filed an application under Section 14/17 of the Arbitration Act of 1940 for making the said award a rule of the Court and for preparation of the decree and its execution in accordance with law. He had also prayed for awarding 18% interest on the amount to be decreed till the date of payment of the decretal amount. The respondent JDA filed objections to the same under Sections 30 and 33 of the Act of 1940 and prayed for modification or in the alternative for cancellation of the award. 5. The learned District and Sessions Judge, Jaipur City, Jaipur after hearing the parties modified the award vide order dated 02.06.1992 and reduced the amount of the award by Rs. 20,484.38 as a result of which a decree for the remaining amount of Rs. 47,967.99 was passed in favour of the appellant and interest @ 12% also was awarded to the appellant liviable from 010.1987 to 010.1991. Thus, the amount of Rs. 20,484.38 was reduced from the amount which had been awarded by the arbitrator. 6. Hence, this appeal had been preferred by the appellant assailing the order of the District and Sessions Judge. 7. Counsel for the claimant-appellant Mr. Thus, the amount of Rs. 20,484.38 was reduced from the amount which had been awarded by the arbitrator. 6. Hence, this appeal had been preferred by the appellant assailing the order of the District and Sessions Judge. 7. Counsel for the claimant-appellant Mr. Ajay Agarwal assailing the order of the Court below has submitted that the arbitrator was quite justified in passing the award in his favour which should not have been reduced by the District and Sessions Judge to the extent of Rs. 20,484.38 as this amount had been charged towards extra work executed by the appellant for removing sand dunes before the actual construction was done by the appellant. He has tried to establish that this was an additional work which the appellant had executed in addition to the actual construction of the road. 8. When the aforesaid arguments were examined in the light of the terms and conditions of the contract, it could be noticed that the agreement which has been executed between the parties does not find mention for awarding any amount on this count but taking assistance from some other clause, the Counsel for the appellant has sought to justify his claim on this count which is difficult to sustain for it has to be taken note that when there are express terms and conditions specifying the mode and manner of execution of work and the amount to be charged from the same is also specifically laid down in the agreement, then charging extra amount for the said work was clearly not justified and once modification of the award under the old Act of 1940 was permissible then it would be difficult to hold that the Court below was not justified in interfering with the award of the arbitrator. Infact the learned Judge of the Court below has accepted the claim of the appellant by awarding interest @ 12% which had not been awarded by the arbitrator. Thus, if some amount had been deducted from the total amount, the same gets adequately compensated by order of the Court below as it has awarded 12% interest on the amount. Infact the learned Judge of the Court below has accepted the claim of the appellant by awarding interest @ 12% which had not been awarded by the arbitrator. Thus, if some amount had been deducted from the total amount, the same gets adequately compensated by order of the Court below as it has awarded 12% interest on the amount. If the argument of the Counsel for the appellant were to be accepted, then he would not have been entitled for 12% interest which had been awarded by the Court below and, therefore, the argument raised on behalf of the claimant-appellant that the reduction is unjustified or illegal because the Court below has exceeded its jurisdiction in modifying the award, cannot be sustained. for the reasons stated hereinbefore. 9. The appeal under the circumstance has no merit and hence it stands dismissed.