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2014 DIGILAW 1299 (DEL)

M/S. Brij Lal & Sons v. Union of India

2014-04-22

VALMIKI J.MEHTA

body2014
JUDGMENT : VALMIKI J. MEHTA, J (ORAL) 1. This first appeal is filed under Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) impugning the judgment of the court below dated 21.5.2011 by which the objections filed by the appellant under Section 34 of the Act against the Award of the arbitrator dated 23.10.2006 were dismissed. The appellant/contractor was given the contract of repairing of approach road around Fish Market Complex Phase-I in Trans-Yamuna Area in Delhi and with respect to which disputes arose resulting in arbitration proceedings. 2. The arbitrator by the Award dated 23.10.2006 dismissed the claim Nos.1, 2 and partly allowed claim No.3. Appellant filed objections against the rejection of the claim Nos.1, 2 and 3. These objections have been dismissed by the court below by making the following relevant observations:- “7. The petitioner pleaded that while deciding the claim no. 1, the respondent no.2 had not rightly interpreted the two statements furnished by the parties to ascertain the rate for the work. Perusal of the record reveals that while deciding the said claim, the respondent no. 2 duly considered the submissions and the documents including Ex.C-1, Ex.C-2 and Ex.C-3 furnished by both the parties in support of their case. The respondent no.2 clearly held that one had to go by the record of pre measurement, since measurements were not feasible after pot holes had been filled up; it was for the petitioner to satisfy himself the all per-measurements of pot holes were recorded in MB before he filled them up; his statement in Ex.C-2 dated 17.07.1997 and Ex.C-3 dated 24.07.1997 had been made after the work of filling pot holes was carried out. While deciding the said claim the arbitrator has also duly considered the letter dated 06.09.1997 Ex.C-8. It is also revealed that on 27.6.2006, the petitioner was asked to file additional proof, if any, in support of his claim, which he failed to furnish. In the present petition, the petitioner has not challenged any of the said findings given by the respondent no.2 for dismissal of the said claim. As such, the said findings have attained finality. 8. Regarding the claim no.2, the petitioner pleaded that the respondent no.1 back dated the date of completion of the work and the respondent no.2 had not rightly considered his plea. As such, the said findings have attained finality. 8. Regarding the claim no.2, the petitioner pleaded that the respondent no.1 back dated the date of completion of the work and the respondent no.2 had not rightly considered his plea. Perusal of the award reveals that the arbitration recorded and considered the submissions of the respective parties. The respondent no.2 also given the opportunity to the petitioner to produce any document to substantiate that he carried our additional work and the measurements were recorded to that effect. However, no such record was produced by him. The respondent no.2 also observed that if the petitioner had actually done so much additional work as claimed by him, it was not clear why he signed even under protest and then claimed the final bill. The petitioner has not challenged the findings of the respondent no.2 while dismissing his said claim and the same has attained finality. 9. Regarding the claim np.3, the petitioner pleaded that the respondent failed to produce the receipt of bitumen or issue the bitumen in MAS account duly signed by the petitioner. Hence, his whole claim should have been allowed. To dispose of hte said claim, the respondent no. 2 placed reliance on Ex.C-8 and drawn an inference that the bitumen was supplied at least partly. The claimant has not pleaded that the reliance of the respondent no. 2 on the said document and the inference drawn by him was not correct. As such, the same has attained finality. 10. In fact, the petitioner has completely filed to mention and explain under which provision of section 34 of the Act, his objection lie. The main grievance of the petitioner is that while passing the award, the respondent no.2 has not interpreted the documents and material available on record according to his version. Perusal of the arbitration record reveals that while deciding the claims filed by the petitioner the respondent no.2 dealt with each and every plea raised by the petitioner in the present petition. While discussing the said pleas and the documents available on record, the respondent no. 2 passed a reasoned and speaking award. As discussed above, the petitioner has not challenged the findings of the respondent no.2 and the same have attained finality. While discussing the said pleas and the documents available on record, the respondent no. 2 passed a reasoned and speaking award. As discussed above, the petitioner has not challenged the findings of the respondent no.2 and the same have attained finality. In the present case, it can be said that the grievance of the petitioner is that the respondent np.2 should have adopted the other interpretation of the documents than the interpretation which he adopted while passing the award. It is a settled law that while deciding the petition u/s 34 of the Act, the court should not sit as an appellate court and thereby its own interpretation to judge the sustainability of the award. In my view, merely because the another interpretation could be possible, is not a ground under section 34 of the Act to interfere and set aside the award.” (underlining added) 3. The court below has rightly considered the facts of the case and scope of Section 34 of the Act and rightly held that arbitrator has taken one possible view from the appreciation of evidence and it cannot be interfered by a court hearing objections under Section 34 of the Act. If the scope of hearing objections under Section 34 of the Act is limited, then, surely scope of an appeal against an order dismissing objections will have to be further limited. 4. The Award of the arbitrator in this case shows that so far as claim No.1 is concerned, it was a claim for the area filled up in pot holes but the issue of measurement was raised after the pot holes were filled up and therefore there was no evidence available after the pot holes were filled up and more so when the appellant had accepted the first bill in which the quantities filled up were stated and which were not disputed. Claim No.1 was therefore rightly rejected and objections against which were rightly dismissed by the court below. 5. So far as the second claim with respect to additional work done is concerned, the arbitrator notes that the claimant did not submit any proof in support of the claim that he had executed work of 3335 sq mtrs. The appellant/claimant was asked to produce documents regarding order to carry out additional work and measurements recorded if any, but the same was not produced. The appellant/claimant was asked to produce documents regarding order to carry out additional work and measurements recorded if any, but the same was not produced. Appellant also had signed the bill issued and in which there was no signature of signing under protest. Accordingly, arbitrator dismissed the claim no.2 and which cannot therefore be disputed within the scope of hearing objections under Section 34 of the Act. 6. So far as claim No.3 of claim of additional bitumen is concerned, the arbitrator notes that records were lost and consequently by the best assessment taken, part of the claim was allowed, and to which neither the court hearing objections under Section 34 and nor this Court could do any better. 7. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.