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2007 DIGILAW 1427 (DEL)

ANANT RAJ AGENCIES v. DDA

2007-07-20

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) THE respondent/dda has filed objections under Sections 30 and 33 of the arbitration Act, 1940 in respect of the award dated 28. 11. 1995 of Shri K. D. Bali, sole arbitrator. The respondent awarded a contract to the petitioner for construction of MIG category houses at Lon. The agreement between the parties contained the standard clause of arbitration. The contract was delayed and it is the case of the petitioner that the petitioner was entitled to escalation on account of delay apart from other claims. ( 2 ) IT must be noted at the inception itself that this Court does not sit as a court of appeal to reappraise evidence and the material on record. It is, in fact, no ground to set aside an award, even if this Court would have taken a different view from that of an arbitrator or would have come to a different conclusion on the material available before the arbitrator. It is only in the eventuality of an award being totally perverse that an interference would be called for as has been held by the Division Bench of this Court in DDA Vs. Bhagat Construct Co. (P) Ltd. and Anr. 2004 (3) Arb. LR 481. The Apex Court has, in fact, observed that in the absence of an award being absurd, reasonableness is not the matter to be considered by the court as appraisement of evidence by an arbitrator is not ordinarily a matter for the court. In this behalf reference be also made to the judgements of the Apex Court in Food corporation of India Vs. Joginderpal Mohinderpal and Anr. (1989) 2 SCC 347 and gujarat Water Supply and Sewerage Board Vs. Unique Erectors (Gujarat) (P) Ltd. and Anr. AIR 1989 SC 973 . ( 3 ) THE Supreme Court has also observed in M/s. Sudarsan Trading Co. Vs. Govt. of kerala AIR 1989 SC 890 that insofar as the interpretation of a contract is concerned, same is a matter for the arbitrator and on which the court cannot substitute its own decision. Thus, so long as the view taken by the arbitrator is plausible, though perhaps not the only correct view, the award cannot be examined by the court. of kerala AIR 1989 SC 890 that insofar as the interpretation of a contract is concerned, same is a matter for the arbitrator and on which the court cannot substitute its own decision. Thus, so long as the view taken by the arbitrator is plausible, though perhaps not the only correct view, the award cannot be examined by the court. ( 4 ) IF the matter is considered in the aforesaid parameters, learned senior counsel for the respondent fairly states that there are only three aspects, which are required to be examined by this Court. ( 5 ) THE first aspect is of compensation awarded under Section 10cc of the general conditions of the contract as simultaneously escalation has been awarded for the said period as per Claim No. 2. It cannot be disputed that this aspect stands covered against the petitioner in view of the judgement of the Division Bench of this Court in DDA Vs. U. Kashyap 1999 (1) Arb. LR 99 (Del.) (DB ). ( 6 ) IN view of the aforesaid settled legal position Claim No. 2 awarded by the arbitrator amounting to Rs. 14,24,256. 00 is liable to be set aside. ( 7 ) THE second aspect relates to straightening of steel which has been dealt with in claim No. 12 where an award of Rs. 2,29,117. 78 has been made in favour of the petitioner. Learned counsel for the petitioner does not dispute that this aspect is also covered against the petitioner in view of the judgement of a learned single judge of this Court in Wee Aar Constructive Builder Vs. DDA 2001 (2) Arb. LR 71 (Del.) followed by a learned single judge of this Court in Anant raj Agencies Vs. DDA and Anr. 2005 (1) Arb. LR 590 (Delhi) and judgment of this court in Narain Das R. Israni v. Delhi Development Authority; 2005 VIII AD (Delhi) 556. Thus this claim is also liable to be set aside. ( 8 ) THE last aspect is the question of grant of interest which has been awarded @ 18 per cent per annum with quarterly rest. Learned counsel for the petitioner agrees to reduce the rate of interest to 12 per cent per annum (simple interest) provided payment is made promptly. Thus, to this extent the award is modified. ( 8 ) THE last aspect is the question of grant of interest which has been awarded @ 18 per cent per annum with quarterly rest. Learned counsel for the petitioner agrees to reduce the rate of interest to 12 per cent per annum (simple interest) provided payment is made promptly. Thus, to this extent the award is modified. ( 9 ) APART from the merits of the controversy, the respondent has sought to raise the issue of the possibility of the arbitrator being biased, vide IA no. 1480/1997. The claim of the respondent is that the arbitrator is related to the petitioner inasmuch as the mother-in-law of the daughter of the arbitrator is the sister of Shri Anant Raj, the claimant. The position has been explained in the reply filed by the petitioner. There is no Mr. Anant Ra. There was, in fact, Mr. Anant Ram, who passed away in 1966. His wife was Shrimati Raj Kumari, who also passed away long time back. ( 10 ) ANANT Raj Agencies is the name derived from the first names of the father and the mother. The petitioner partnership firm consist of partners who are the sons of Shri Anant Ram. Anant Ram had a sister who has also passed away. The arbitrator's daughter was married to the son of the sister of late Shri Anant ram. In the reply, it has been stated that there are no relationship with the arbitrator and in fact the relationship between the father and the father's sister was strained and they had never met their father's sister. An important aspect emphasised is that the arbitrator was, in fact, appointed by the designated authority of the respondent itself. ( 11 ) IN my considered view, there is no such direct relationship which could result in a conclusion that the arbitrator was liable to be biased in favour of the petitioner. This supplementary objection is seemed to be an afterthought and in fact, a different colour was sought to be given to this relationship when the matter was listed on 27. 4. 2006, which was sought to be changed vide IA no. 6278/2006, which was dismissed with costs on 25. 5. 2006. I thus find no merit in this plea. ( 12 ) THE award dated 28. 11. 4. 2006, which was sought to be changed vide IA no. 6278/2006, which was dismissed with costs on 25. 5. 2006. I thus find no merit in this plea. ( 12 ) THE award dated 28. 11. 1995 of Shri K. D. Bali, sole arbitrator, is made rule of the court except to the extent that claim No. 2 and claim No. 12 are set aside and the interest awarded under claim No. 17 to 19 is reduced from 18 per cent quarterly rest to 12 per cent simple interest on the principal amount till the date of decree. The respondent will not be liable to pay future interest if the payment is made within 60 days failing which the respondent will liable to pay interest from the date of the decree till the date of recovery @ 15 per cent per annum on principal amount of award excluding interest element. ( 13 ) THE suit stands decreed in the aforesaid terms leaving the parties to bear their own costs. Applications stand disposed of. Decree sheet be drawn up accordingly.