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2007 DIGILAW 1552 (DEL)

MUNICIPAL CORPORATION OF DELHI v. OM AND COMPANY

2007-08-03

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) THE petitioner Corporation has filed the petition under Section 34, Section 28 (3) and Section 16 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) aggrieved by the award of the sole arbitrator, Shri M. L. Jain, dated 08. 9. 2004 ( 2 ) THE respondent is a contractor who was assigned the job of construction of a primary school building at Lawrence Road, Delhi in pursuance to an agreement dated 22. 7. 1987 and the work order was issued on the same date. In view of the disputes having arisen in respect of the contract and the disputes being governed by an arbitration clause, Shri M. L. Jain was appointed as the sole arbitrator by an order of a learned single Judge of this Court dated 29. 11. 2001 on the petition filed under Section 11 (5) of the said Act. ( 3 ) ON pleadings being completed, the following issues were framed: ". Whether the claims filed by the claimant are barred by limitation". Whether the claimant has waived its right to raise the claims". Whether the claims have been filed by an authorized person" iv. To what amount, if any, is the claimant entitled and how" v. To what counter claims, if any, is the respondent entitled to and how"" ( 4 ) IN terms of the award made and published on 08. 9. 2004, the respondent was entitled to a sum of Rs. 5,27,996/- along with pendente lite and future interest. ( 5 ) LEARNED counsel for the petitioner contends that the claim was clearly barred by time. In this behalf, the findings on Issue No. 1 are perused. It will be seen that the case of the respondent was that on completion of the work, the final bill was submitted to the petitioner only on 20. 12. 1998 and the final bill was prepared on 15. 6. 2001. In this behalf, a reference was made to MB 5563 recording the final bill and the approval of the same was given on 15. 6. 2001 by. E. , Mr. P. S. Dahiya. In order to verify this aspect, since the crucial aspect was preparation of the final bill, the MB Register and the final bill were summoned to the Court from the petitioner, but the same were not produced. 6. 2001 by. E. , Mr. P. S. Dahiya. In order to verify this aspect, since the crucial aspect was preparation of the final bill, the MB Register and the final bill were summoned to the Court from the petitioner, but the same were not produced. All that was stated by the petitioner's witness, who appeared, was that the final bill was not recorded. ( 6 ) LEARNED counsel for the petitioner forcefully contended by inviting the attention of the Court to para-31 of the award that though belatedly the petitioner did seek to produce the material at the fag end, such material ought to have been taken into account. A perusal of para-31 of the award shows that after the closure of the case and submissions, an application was filed on behalf of the petitioner seeking to contend that Shri P. S. Dahiya was not at the appropriate time posted in the relevant division and, therefore, the claimant's case about recording of measurement and the final bill in MB 5563 was rejected. The application was supported by an affidavit of a Junior Engineer to say that he was posted in the relevant division as also of other officers. ( 7 ) IN my considered view, the arbitrator rightly rejected such a belated attempt to set-up a new case since the earlier stand of the petitioner was that there were no such measurement books signed. It appears from the sequence of events that deliberately the measurement book was not produced since it possibly was signed by Shri P. S. Dahiya and subsequently an attempt was made to contend that shri P. S. Dahiya was not the authorised person. The aforesaid finding is based on the appraisal of evidence and calls for no interference. ( 8 ) LEARNED counsel for the respondent, in support of the aforesaid proposition, has also sought to contend that this Court does not sit as a court of appeal, but the scope of interference is limited within the parameters of Section 34 of the said Act as enunciated in the judgment of Oil and Natural Gas Corporation ltd. Vs. Saw Pipes Limited, (2003) 5 SCC 705 . Vs. Saw Pipes Limited, (2003) 5 SCC 705 . I am in full agreement with the contention of learned counsel for the respondent that it is not the function of this Court to re-appraise the evidence on record or seek to derive conclusions from the material different from that of the arbitrator. The arbitrator is a chosen judge by the parties and unless the scope of objection falls strictly within the parameters of Section 34 (2) of the said Act, no interference is called for. In fact, even if on the same set of facts this Court was to come to a different conclusion, that would be no ground to interfere with the award. In support of the aforesaid plea, learned counsel for the respondent also referred to the judgment of the Apex Court in Mcdermott International Inc. Vs. Burn standar Co. Ltd. and Ors. , 2006 (2) Arb. LR 498 where it was observed in para-55 as under: "55. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the court's jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. " ( 9 ) THE next contention of learned counsel for the petitioner is that the claim has not been filed by an authorised person. The findings on this Issue No. 3 are available on record which show that the claim was signed and filed by Mr. Madhu kishan Gupta. Mr. Gupta also filed an affidavit by way of evidence on behalf of the respondent claiming to be a partner of the respondent. He affirmed to the fact that he was the person attending to the work. Madhu kishan Gupta. Mr. Gupta also filed an affidavit by way of evidence on behalf of the respondent claiming to be a partner of the respondent. He affirmed to the fact that he was the person attending to the work. The partnership deed in this behalf was also filed on record and though the petitioner sought to initially dispute the authenticity of the same and sought time to move an appropriate application for reference of the signatures for forensic test, no such application was filed with the result that the said chapter was closed. ( 10 ) THE submission of the learned counsel for the petitioner is that in the absence of a registered partnership, no claim in the name of the partnership could have been filed. Learned counsel referred to the judgment of the learned single Judge of this Court in Ess Vee Traders and Ors. Vs. Ambuja Cement rajasthan Limited, 131 (2006) DLT 341. The said case was one of filing a petition under Section 11 of the said Act and it was held that the registration of the firm was mandatory for institution of any suit or proceedings, failing which, the case was liable to be dismissed. ( 11 ) ON the other hand, learned counsel for the respondent referred to the judgment of the Apex Court in Kamal Pusp Enterprises Vs. D. R. Construction Co. , (2006) 6 SCC 659. It was held by the Supreme Court while considering the same aspect that Section 69 of the Partnership Act, 1932 does not prohibit an unregistered firm from defending arbitration proceedings initiated by an opposite party and that arbitration proceedings cannot be treated as a suit or other proceedings to enforce any rights arising under a contract. This judgment was referred to and followed by a learned single Judge of this Court in Noida toll Bridge Company Ltd. Vs. Mitsui Marubeni Corporation, 2005 (3) Arb. LR 234 where once again it was held that Section 69 of the Partnership Act, 1932 had no application to proceedings before the arbitral tribunal. ( 12 ) LEARNED counsel for the petitioner sought to distinguish the judgment in kamal Pusp Enterprises's case (supra) on the ground that the same related to defending the arbitration proceedings, but could not dispute that in Noida Toll bridge Company Ltd. 's case (supra), the same related to filing of a proceeding before the arbitrator. ( 12 ) LEARNED counsel for the petitioner sought to distinguish the judgment in kamal Pusp Enterprises's case (supra) on the ground that the same related to defending the arbitration proceedings, but could not dispute that in Noida Toll bridge Company Ltd. 's case (supra), the same related to filing of a proceeding before the arbitrator. In my considered view, the principle of law laid down is that the requirement of Section 69 of the Partnership Act, 1932 are not mandatory for filing arbitration proceedings since such arbitration proceedings cannot be treated as suit or other proceedings to enforce rights under a contract. Thus, there is no merit even in this objection. ( 13 ) LEARNED counsel for the petitioner also sought to contend that the arbitrator had failed to appreciate the evidence in a proper perspective and has, thus, come to a wrong conclusion and awarded wrong amount to the respondent, but as observed above, that is not a matter for this Court to examine since re- appraisal of evidence is not permissible. ( 14 ) IN view of the aforesaid, I find no merit in the objections, which are dismissed, leaving the parties to bear their own costs.