Chairman Cum Managing Director, Bharat Sanchar Nigam Limited v. Mamta Singh
2017-10-26
INDERJEET SINGH
body2017
DigiLaw.ai
JUDGMENT : Inderjeet Singh, J. The instant appeal has been filed by the appellant against the order dated 16.08.2010 passed by the Additional District and Sessions Judge No. 5, Jaipur City, Jaipur whereby the objections filed by the appellant under section 34 of the Arbitration and Conciliation Act, 1996 against the award dated 16.05.2005 were dismissed. 2. Brief facts of the case are that the appellants invited tenders on 12.12.1997 for carrying out lining and wiring and other employees for the year 1997-98. In pursuance to the above, the respondent submits her quotation which was accepted being the lowest. On acceptance of the tenders for the work in favour of the respondent an agreement for work was executed between the appellants and the respondent on 28.01.98, both the parties were abide by the terms and conditions of the agreement. The work assigned to the respondent was carried out and completed on 17.02.1998, the respondent then submitted the final bill of the work Rs. 2,50,000/- to the appellants. When the department has not made the payment to the respondent-contractor then he filed and application before the Learned District Judge for appointment of Arbitrator and the Learned District Judge Jaipur City, Jaipur vide order dated 05.06.2004 appointed Justice (Retd.) G.L. Gupta as Sole Arbitrator. Where the respondent-contractor has filed a statement of claim and prayed that appellant-department may be directed to make payment of Rs. 2,50,000/- to the claimant-applicant and further to refund the money deposited by her with them Rs. 40,000/- and further prayed for award the interest @ 24% per annum. The appellant-respondents have filed reply to the claim petition and stated that the claim of the applicant is barred by limitation. It was also stated that the claimant has filed wrong affidavit at the time of agreement. It was further stated that father of the applicant was employee of the Telecom Department and enquiry was also initiated as the father of the applicant. It is thus stated that the payment could not be made because the claim of the applicant was not verified by the Divisional Engineer. 3. Counsel for the appellant has argued that the Learned Arbitrator as well as the learned District Judge has wrongly interpreted Clause 10 of the agreement executed between the parties according to which the claimant was not entitled to get the contract.
3. Counsel for the appellant has argued that the Learned Arbitrator as well as the learned District Judge has wrongly interpreted Clause 10 of the agreement executed between the parties according to which the claimant was not entitled to get the contract. Learned Counsel for the appellant further argued that Learned District Judge has wrongly awarded the interest as the claimant was not entitled to receive any claim. Counsel further argued that in view of the various judgments pronounced by Hon'ble Supreme Court of this Court to challenge the arbitration award is very limited and the learned court below has rightly rejected the objections submitted by the appellants. 4. On the other hand, Counsel for the respondent argued that support of award passed by the Learned Arbitrator and the order passed by the learned Additional District Judge whereby the objections submitted by the appellants against the award were dismissed. 5. I have relied upon the judgment passed by Hon'ble Supreme Court in the matter of Associate Builders v. Delhi Development Authority reported in 2015 Volume-III SCC 49 wherein the Hon'ble Supreme Court has held as under:- "42.3 (c) Equally, the third subhead of patent illegality is really a contravention of section 28(3) of the Arbitration Act, which reads as under: "28. Rules applicable to substance of dispute.-(1)- (2) (3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction." This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do." 6. I have gone through the judgment and peruse the record.
Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do." 6. I have gone through the judgment and peruse the record. It is admitted between the parties that the respondent-claimant has completed the work and within time and submitted the bills which were duly verified by the J.T.O. & S.D.E. Despite that the Department has not made the payment only on the ground that father of the claimant was an employee of the department. Thus, he has violated the terms and conditions of the agreement. 7. The Learned Arbitrator has framed Issue No. 3-A in this regard. The Learned Arbitrator considered para No. 10 of the contract agreement has given a finding in favour of the claimant and found that the Clause-10 of the contract agreement says that nobody connected or employed in the department of Telecommunication shall ever be admitted as partner in the contract. The Learned Arbitrator further given a finding that it is nowhere the case of the respondents that Shri Narayan Singh father of the applicant was partner of the establishment of the applicant. Thus, in my view, the Learned Arbitrator has given a correct interpretation on Clause-10 of the agreement. Since, the bills submitted by the claimant of the department were not in dispute. Therefore, issue No. 7 was rightly decided by the Learned Arbitrator and the claimant was held entitled to get the amount of Rs. 2,50,000/- for the work done and also Rs. 40,000/- security amount and she was also held entitled to get the interest of Rs. 2,50,000/- @ 9% per annum. 8. I have also perused the judgment passed by the Learned Court below by which the objections submitted by the appellant under section 34 of the Arbitration and Conciliation Act, 1996 were partly allowed. The Learned Trial Court after considering the objections submitted by the appellant rightly rejected the objection submitted by the appellant regarding non-entitlement of claim amount, the said agreement was duly interpreted by Learned Arbitrator and in my opinion, construction of terms of a contract is primarily within the domain of the Arbitrator to decide. 9.
The Learned Trial Court after considering the objections submitted by the appellant rightly rejected the objection submitted by the appellant regarding non-entitlement of claim amount, the said agreement was duly interpreted by Learned Arbitrator and in my opinion, construction of terms of a contract is primarily within the domain of the Arbitrator to decide. 9. However, the interest award by the Arbitrator was reduced by the Court below from 9% to 6% which in my considered opinion requires no interference by this Court. 10. In that view of the matter, the appeal filed by the appellant is, hereby, dismissed.