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2008 DIGILAW 88 (DEL)

K. C. CHHIBER v. DELHI DEVELOPMENT AUTHORITY

2008-01-28

BADAR DURREZ AHMED

body2008
JUDGMENT Badar Durrez Ahmed, J. (Oral) – This is a petition under Section 34 of the Arbitration and Conciliation Act, 1996 challenging various portions of the award dated 30.12.2005. By an order dated 10.5.2006, the scope of this petition has been narrowed down to claim No.3 and the question whether the final bill submitted by the respondent ought to have been given precedence as against the final bill submitted by the petitioner. As noted in the order dated 10.5.2006, the learned Counsel for the petitioner had contended that the hearings in the arbitration proceedings were concluded on 1.7.2004 and the written synopses were filed on 31.7.2004 Subsequently, the learned arbitrator issued a letter on 5.5.2005 requiring the respondent to furnish the final bill and final measurement. According to the learned Counsel for the petitioner, the final bill which was submitted by the respondent on 24.5.2005 to the learned arbitrator was nothing but the 9th running bill which had already been supplied earlier. It was contended that the arbitrator ought not to have taken into account such a document without affording an opportunity to the petitioner on making submissions with regard to such a bill submitted after hearings were concluded and even after the written synopses had been filed. My learned predecessor, who had passed the order dated 10.5.2006, had, prima facie, found merit in the contention of the learned Counsel for the petitioner that the said document had been considered at the back of the petitioner. 2. Nobody appears on behalf of the respondent and, therefore, this Court is left with no alternative but to hear this petition on the basis of the submissions made by the learned Counsel for the petitioner. Apart from the aforesaid contentions, as noted in the order dated 10.5.2006, the learned Counsel for the petitioner also contended that de hors the issue of violation of principles of natural justice, the arbitrator has also not given any reason whatsoever as to why he discarded the final bill submitted by the petitioner and accepted the one that was submitted on behalf of the respondent. For this purpose, the learned Counsel for the petitioner drew my attention to paragraph 44 of the award which reads as under: "44. Considering the whole position, I accept the measurements recorded by the respondents in the final bill. For this purpose, the learned Counsel for the petitioner drew my attention to paragraph 44 of the award which reads as under: "44. Considering the whole position, I accept the measurements recorded by the respondents in the final bill. The final bill as prepared by the respondents is accepted by me to be the basis of award against this claim. I, therefore, go by the entries in the measurements made by the respondents which were open to the claimants for inspection, objection and reconciliation. Going through the bill prepared by the respondents, it is seen that they had withheld certain quantities on ad hoc basis without giving reasons thereof. They have also not paid full rates for the various items without giving any reasons for the same." 3. Considering the submissions made by the learned Counsel for the petitioner, two issues need to be decided for disposal of this petition. The first issue is whether the petitioner was denied any opportunity of hearing with regard to the final bill submitted by the respondent subsequent to the closure of hearing before the Arbitral Tribunal. The facts on record reveal that the hearing was concluded on 1.7.2004 and that the parties were directed to file their respective written synopsis by 31.7.2004 That was also done. It is also on record that on 5.5.2005, the arbitrator sent a letter to the respondents requesting them to furnish an authenticated copy of the final measurement prepared by them as recorded in the measurement book. The respondents were also required to furnish a copy of the final bill, if any, prepared or passed by them. Similarly, a statement of material lying at the site of the work as prepared by the respondents at the time of taking over of the site was required to be furnished. In the words of the learned arbitrator, the above information was very vital and it is for this purpose that the same was called for. It is important to note that the letter dated 5.5.2005 was issued to the respondents and a copy of the same was marked to the petitioner. It is also pertinent to note that the letter specifically carried the following sentence: "On receipt of these details, in case the parties shall desire or arbitrator shall feel necessary, comments of the parties shall be entertained. " 4. It is also pertinent to note that the letter specifically carried the following sentence: "On receipt of these details, in case the parties shall desire or arbitrator shall feel necessary, comments of the parties shall be entertained. " 4. It is subsequent to this letter that the respondent submitted the statement of material lying at the site of work, the 9th and final bill prepared by AE incharge of the work and details of measurement recorded in the 9th bill on 24.5.2005. Thus, insofar as the first issue is concerned, I find that ample opportunity had been provided by the learned arbitrator to the petitioner to respond to the materials submitted by the respondent and/ or sought from the respondents. It would, therefore, be contrary to the factual position to suggest that the petitioner was not afforded any opportunity in respect of the final bill that was submitted by the respondent on 24.5.2005. This ground raised by the learned Counsel for the petitioner is, therefore, not tenable. 5. The other issue that has been raised by the learned Counsel for the petitioner is that, as noted above, the learned arbitrator accepted the final bill submitted by the respondent and rejected the one that had been submitted on behalf of the petitioner/claimant. He submits that the acceptance of the respondents final bill is not based on any evidence or material. The learned arbitrator had two bills before him one that was submitted by the claimant and the other that was submitted by the respondent. The . learned arbitrator had to choose between the two bills. But he could only do so after examining the evidence on record and after giving reasons for the same. In paragraph 44 of the award, which has been referred to above, the measurement recorded by the respondent in the final bill, was simply accepted and the award in respect of claim No.3 was made on the basis of the said final bill of the respondent. No reason has been given by the learned arbitrator as to why the bill submitted by the respondent was accepted over the bill submitted by the claimant. Perhaps the only reasoning is that the same was open to the claimant for inspection, objection and reconciliation. No reason has been given by the learned arbitrator as to why the bill submitted by the respondent was accepted over the bill submitted by the claimant. Perhaps the only reasoning is that the same was open to the claimant for inspection, objection and reconciliation. The learned arbitrator was apparently under the impression that because the petitioner had not objected to the final bill submitted on 24.5.2005, the same was accepted by the petitioner. However, I disagree with this view point inasmuch as the entire dispute revolved around the final bill submitted by the claimant along with the detailed measurement. It is true that in paragraph 43 of the award, it is mentioned that the claimants have not supported their bill with evidence and it could not be taken at face value without corroboration. But, the same logic would apply to the bill submitted by the respondent. Unfortunately, the learned arbitrator has accepted the reqsurements recorded by the respondent in the final bill and rejected those of the claimant/petitioner without any further evidence. It is rightly contended by the learned Counsel for the petitioner that the final bill that was submitted by the respondent cannot be taken as having been accepted by the petitioner, particularly, because the claimant was pressing for the acceptance of its own bill which it had submitted. 6. Considering the aforesaid circumstances, I am of the view that the award is liable to be set aside to the limited extent of the acceptance of the respondents final bill without there being any reason or evidence to back the same. Consequently, the finding in respect of the claim No.3 to the extent of liability of the respondent is set aside. Thus, to this limited extent, the matter is remitted to the arbitrator for fresh hearing on this aspect and for a decision thereon based on reasons. This petition stands disposed of. Petition disposed of.