SUBHASH CHAND VERMA v. NEW DELHI MUNICIPAL COUNCIL
2008-10-15
RIMA KOHLI
body2008
DigiLaw.ai
JUDGMENT Hima Kohli, J. (Oral)-By this order the Court proposes to dispose of the objections filed by the objector contractor to the award dated 15.5.1996, passed by Dr. S.R. Nigam, Sole Arbitrator. 2. Briefly stated, the facts of the case are that the respondent NDMC invited tenders for the work of construction of 32 shops near Palika Kendra, New Delhi. Pursuant to negotiations, the offer of the objector contractor was found to be lowest and he was awarded the contract in terms of the Agreement No. EE(n)/ AB/39 of 1988-89. The work was to commence from 29.5.1988 but it actually started on 8.6.1988 and the stipulated date of completion of work was 28.9.1988. 3. It is the case of the respondent NDMC that the objector contractor abandoned the work midways. However, as per the objector contractor, the work was restarted on 28.2.1989, on a verbal assurance that he would be paid 40°/" extra over and above the agreed work. However, the work was left incomplete according to the objector contractor on the ground that clear site was not made available to him. 4. Disputes and differences arose between the parties, particularly, in respect of the measurement of the work done. The objector contractor raised six claims against the respondent NDMC excluding the payment of interest. The respondent NDMC denied its liability to pay the amount to the objector contractor, who in turn filed a petition dated 25.5.1989 under Section 20 of the Arbitration Act, 1940 (in short the Act), registered as Suit No. 1423/1989, seeking appointment of an Arbitrator. In the said proceedings, vide order dated 17.1.1990, Sh. B.S. Singla, Executive Engineer (WSS), Palika Kendra, New Delhi was appointed as a Local Commissioner to carry out measurements at the site and file his report. The Local Commissioner executed the commission and vide order dated 19.4.1993, the petition filed by the objector contractor was disposed of by directing the Administrator, NDMC to appoint an Arbitrator within one week from the date of the order. Liberty was also given to the NDMC to file its counter claim before the Arbitrator. 5. The NOMC appointed an Arbitrator on 5.5.1994, but as the said Arbitrator was not available, another Arbitrator wa5 appointed by him, who tendered her resignation. She was substituted by Dr. S.R. Nigam, who rendered the impugned award dated 15.5.1996.
Liberty was also given to the NDMC to file its counter claim before the Arbitrator. 5. The NOMC appointed an Arbitrator on 5.5.1994, but as the said Arbitrator was not available, another Arbitrator wa5 appointed by him, who tendered her resignation. She was substituted by Dr. S.R. Nigam, who rendered the impugned award dated 15.5.1996. Out of seven claims raised by the objector contractor, only claim No.1 was granted in his favour while the others were rejected. Aggrieved by the aforesaid award, the objector contractor has filed the present objections. 6. The objector contractor submits that the award is liable to be set aside for the reason that Clause 25 of the Agreement governing the parties mandated that the Arbitrator will give reasons for the award. He submits that despite the aforesaid clause, the Arbitrator has not given any reasons for the award and the award being completely silent and without reasons, is liable to be quashed. In support of his submissions, the objector contractor has relied upon the judgments in the case of Gokul Chandra Kanungo v. State of Orissa, 1983 ALR 78 and M/s. Polo Singh and Co. v. Union of India and Anr., 1985 AIALR 93. 7. A perusal of the impugned award shows that by no stretch of imagination can the award be termed as a non-speaking award. The Arbitrator has not only culled out the brief background and factual matrix of the case, but has proceeded to deal with each and every claim raised by the objector contractor and decided the same by giving reasons. The award is running in five pages. The claims have been dealt with individually. It is settled law that the Arbitrator is not expected to give an award like a judgment rendered by the Court. It is the bent of mind and trend of thought that is material in an award (Refer: Kochhar Construction Works v. DDA & Anr., 74 (1998) OLT 118]. The same is reflected from a perusal of the impugned award. It is also settled law that reasonableness of reasons ought not to be examined by the Court while exercising its powers under Section 30 and 33 of the Act [Refer: State of Rajasthan v. Puri Construction Co. Ltd & Anr., JT 1994 (6) SC 412].
The same is reflected from a perusal of the impugned award. It is also settled law that reasonableness of reasons ought not to be examined by the Court while exercising its powers under Section 30 and 33 of the Act [Refer: State of Rajasthan v. Puri Construction Co. Ltd & Anr., JT 1994 (6) SC 412]. Sufficiency of reasons is also not to be examined by the Court but left to be measured on the yardstick set by the Arbitrator. As long as the Arbitrator has articulated his thought process in the award, it is sufficient for the purposes of examining the reasoning in the award. Therefore, the objections raised by the objector contractor in this regard are found to be devoid of merits and rejected. 8. The next objection raised by the objector contractor is that claim Nos. 1 and 3 raised by him for Rs.11akh (approximate) on account of balance payment due to short measurements, under measurements and non-measurements ought not be rejected by the learned Arbitrator. He submits that the Arbitrator mis-conducted himself in not taking into account the measurements of the work carried out by him and that he was entitled to the balance amount and interest from the NOMC till the said amount was finally paid. A perusal of the findings of the learned Arbitrator in respect of claim Nos. 1 and 3 shows that the Arbitrator relied on the report of the Local Commissioner, appointed by this Court to take the measurements of the work done at site. It has been observed by the Arbitrator that the objector contractor did not give any reasons for rejecting the report of the Local Commissioner and sought to substitute the said report by giving his own measurement of work which was found unacceptable. Having held so, the Arbitrator proceeded to rely on the report of the Local Commissioner with regard to the measurement of the work carried out and rejected the claim raised by the objector contractor in this regard. There appears no illegality, perversity or arbitrariness in this part of the award which warrants interference and the objections raised by the objector contractor with regard to the findings returned in respect of claim Nos. 1 and 3 are liable to be rejected. 9.
There appears no illegality, perversity or arbitrariness in this part of the award which warrants interference and the objections raised by the objector contractor with regard to the findings returned in respect of claim Nos. 1 and 3 are liable to be rejected. 9. The next objection raised by the objector contractor is in respect of a finding returned in the award with regard to claim No.4, where under a sum of Rs. 1,16,000/- was claimed on account of rise in prices. The learned Arbitrator rejected the aforesaid claim by observing that payments have been made by the respondent as per the Agreement and that if the price rise during the progress of the work took place, the NOMC was not responsible for it. Hence, no amount was found to be admissible under the said head. The objector contractor submits that the aforesaid finding of the learned Arbitrator is misconceived as no reasons have been assigned by the learned Arbitrator. 10. As far as assigning of reasons is concerned, as already observed above, reasonableness of reasons is not required to be examined by this Court while exercising its power under Sections 30 and 33 of the Act. The Arbitrator has indicated the trend of his thought while recording the findings in respect of claim No.4 which are found to be sufficient for the purposes of deciding the claim in question and hence the same do not deserve to be interfered with. 11. The last objection raised is with regard to rejection of claim No.5 which was raised by the objector contractor for Rs. 50,000/- on account of infructuous expenditure. The aforesaid amount was claimed as reimbursement towards the amount spent for payment of rolling shutters. The Arbitrator observed that as the NOMC found the shutters of substandard quality, the same were rejected and the respondent NOMC was not responsible for the money spent by the objector claimant on the shutters which were not according to the specifications. By holding so, the said claim was rejected as untenable. The aforesaid findings are questioned by the objector contractor on the ground that the NOMC failed to show how the shutters were of sub-standard quality. Sufficiency of evidence ought not to be examined by this Court as it is purely a question of fact.
By holding so, the said claim was rejected as untenable. The aforesaid findings are questioned by the objector contractor on the ground that the NOMC failed to show how the shutters were of sub-standard quality. Sufficiency of evidence ought not to be examined by this Court as it is purely a question of fact. If the learned Arbitrator has returned the finding on the basis of the material placed before him and the evidence adduced by the parties and arrived at the conclusion that the shutters were not according to the specifications, this Court is bound to accept the said findings and does not deem it appropriate to go behind the said findings of the learned Arbitrator. For the foregoing reasons, the objections raised by the objector contractor are found to be devoid of merits and are rejected. 12. It is pertinent to note that as far as the claim No.2 is concerned, the same was allowed in favour of the objector contractor. Counsel for the respondent NOMC states that a sum of Rs. 17.332/- were released in favour of the objector contractor, in August-September, 1997. The aforesaid fact is, however, denied by the objector contractor, who states that till date he has not received a cheque for the said amount. Counsel for the respondent NOMC is, however, unable to indicate from the records as to whether the cheque in question was realised or not. In these circumstances, the impugned award dated 15.5.1996, passed by Dr. S.R. Nigam, Sole Arbitrator is made rule of the Court. It is directed that the same shall carry simple interest@ 10% p.a. till payment. In case the respondent NDMC has already paid the amount as contended on its behalf, the proof thereof may be furnished by it before the appropriate forur.1. Decree be drawn accordingly. There shall be no orders as to costs. The suit is disposed of along with the application. Suit disposed of.