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Himachal Pradesh High Court · body

2024 DIGILAW 336 (HP)

State of H. P. v. Ashok Kumar Thakur

2024-05-10

RAKESH KAINTHLA

body2024
JUDGMENT : RAKESH KAINTHLA, J. 1. The present petition is directed against the award dated 11.9.2012 vide which the claim petition filed by the respondent (claimant before the learned Arbitrator) was partly allowed. (Parties shall hereinafter referred to in the same manner as they were arrayed before the learned Arbitrator for convenience). 2. Briefly stated, the facts giving rise to the present petition are that the work for improvement/up-gradation of NH-88 i.e. Shimla - Bilaspur - Hamirpur - Nadaun - Ranital - Kangra and termination near Bhawan National Highway-20, Km. 95/0 to 105/0 was awarded by the respondents to the claimant on 7.12.2001. The work was to be completed within six months from the 15th day of the issue of the work order. The parties entered into a standard form of contract. The total amount of the award was Rs. 1,27,75,363/- . The claimant found that bitumen at 2.50 kg for applying a thick coat of 50 mm was not given in the schedule of quantity. He requested the respondents to approve it and consider it an extra item in view of road width and the frequency of the usage of the road, which would not allow semi-dense bituminous concrete (SDBC) to settle down. He told the Executive Engineer that the slushy portion of the road required treatment before execution of the work and asked the respondents to lay Kharanja Soling before laying bitumen and SDBC and include it as an item. The respondents failed to pay for the work resulting in the loss to the claimant. The road was full of undulation and the claimant asked for its rectification. He sent the final bill but the payment was not made. This led to the dispute between the parties and the matter was referred to the learned Arbitrator. 3. The claimant filed a statement of claim seeking payment of the final bill, payment towards correction of undulation in the road, correction of slushy portion by laying tack coat and application of another layer of bitumen, application of one layer between bitumen and SDBC, loss for late payment resulting into idle machinery, payment for prolongation of the work, interest and the cost. 4. The respondents filed a reply admitting that the work was awarded to the claimant. The claimant asked for the release of his final payment after seven years of the completion of the work. 4. The respondents filed a reply admitting that the work was awarded to the claimant. The claimant asked for the release of his final payment after seven years of the completion of the work. The matter was processed and it was found that the payment of the final bill was not made and the amount of Rs. 1,05,440/- was yet to be paid. National Highway Division was created in the year 2004 and no record was transferred to the division. The respondents came to know of the liability after receiving a letter from the claimant. A meeting was held with the claimant to settle the dispute; however, the claimant approached this Court for the appointment of an Arbitrator. The cost of the work inflated from Rs. 1,27,75,363/- to Rs. 1,43,18,996/- which is required to be approved. The payment would be made after the approval of the competent authority. The statement of claim was denied. It was asserted that work was executed as per the terms and conditions of the agreement. The work was entered in the Measurement Book and the payment of Rs. 1,42,13,556/- was made. No entry was recorded regarding the rectification of undulation and the claimant was not entitled to the payment of this amount. As per the record, 28 to 30 Bitumen Macadam (BM) was laid on 24.10.2002 and SDBC was laid on 25.10.2002. The claimant has caused the delay. The payment was made immediately after the receipt of the bills. The claimant failed to start the work in time despite repeated requests. There was no provision for providing 24% interest or the cost of arbitration. A counterclaim for Rs. 2,000/- for non-requirement of technical staff, cost of arbitration and interest was made. 5. The parties filed various documents in support of their claim and defence. Learned Arbitrator held that the final payment of Rs. 95,845/- was to be made to the claimant which was accepted by him. The security deposit of Rs. 4,00,167/- was also paid to the claimant. The claimant had written letters to the respondents pointing out the expenses of undulation and correction of slushy portions. He asked the respondents to correct them. The respondents carried out the corrections which are visible in the photographs; however, the correction was not complete and the claimant had to lay extra bitumen. He had mentioned 20% in his letter and claimed 30% in the statement of claim. He asked the respondents to correct them. The respondents carried out the corrections which are visible in the photographs; however, the correction was not complete and the claimant had to lay extra bitumen. He had mentioned 20% in his letter and claimed 30% in the statement of claim. No response was given to the letter written by the claimant; hence, the extra material was assessed as 20% and an amount of Rs. 15,80,093/- was ordered to be paid to the claimant. The road had heavy traffic and it was not possible to wait for the settlement of the bitumen coat before applying SDBC; hence an extra coat had to be applied. An amount of Rs. 2,53,228/- was awarded towards the tack coat on BM 50 mm. The claimant had submitted the bills and no payment was made to him. The claimant could not procure bitumen LDO, grit and fuel. His men and machinery remained idle. He had written various letters. The respondents did not dispute the details of the men and machinery deployed at the site. The labour and machinery remained idle for 14 days and an amount of Rs. 3,45,440/- was awarded. The claimant had failed to carry out the work within time and he was not entitled to compensation for the prolongation of the work. An amount of Rs. 18,76,550/- was awarded along with interest @ 9% per annum. The counterclaims preferred by the respondents were rejected. 6. Being aggrieved from the award pronounced by the learned Arbitrator, the present petition was filed under Section 34 of the Arbitration and Conciliation Act, asserting that the award passed by the learned Arbitrator is against the Public Policy of India and is not sustainable. The claimant was required to carry out the corrective measures such as patching potholes, sealing cracks and laying of profile corrective holes. However, the department carried out the correction and the claimant was not entitled to payment towards the correction. Further, no reference was made in the measurement book maintained by the Junior Engineer. The learned Arbitrator erred in drawing adverse inferences for not replying to the letter written by the claimant. The learned Arbitrator awarded 20% amount without any proof and entries in the measurement books. The work of laying BM and SDBC was required to simultaneously conform to the specifications of the Ministry of State and Transport. The learned Arbitrator erred in drawing adverse inferences for not replying to the letter written by the claimant. The learned Arbitrator awarded 20% amount without any proof and entries in the measurement books. The work of laying BM and SDBC was required to simultaneously conform to the specifications of the Ministry of State and Transport. This condition was accepted by the claimant and no amount is payable for the same. The work was awarded to the claimant on 7.12.2001 and the stipulated date of completion was 15.3.2002; however, the claimant started the work on 14.3.2002. The erection of the plant by the contractor was incomplete till 17.3.2002 as per the letter written by the Executive Engineer. The claimant was requested to start and complete the work at the earliest but in vain. The contractor did not provide the bills for the payment towards idle machinery and labour. No interest could have been awarded; therefore, it was prayed that the present petition be allowed and the award passed by the learned Arbitrator be set aside. 7. I have heard Ms. Seema Sharma, learned Deputy Advocate General for the respondents/objectors and Mr. Sumeet Raj Sharma, learned counsel for the claimant and have gone through the record carefully. 8. Ms Seema Sharma, learned Deputy Advocate General for the respondents/objectors submitted that the learned Arbitrator erred in awarding the amount contrary to the conditions of the contract and without any evidence. No entry was recorded in the measurement book regarding the works stated to have been done by the claimant and no protest was made by him regarding non-recording of the entry. Learned Arbitrator had no evidence to conclude a 20% variation. The payment was made in time and no amount could have been awarded towards the delayed payment. Therefore, she prayed that the present petition be allowed and the award passed by the learned Arbitrator be set aside. 9. Mr. Sumeet Raj Sharma, learned counsel for the claimant supported the award passed by the learned Arbitrator and submitted that this Court does not sit in appeal over the award passed by the learned Arbitrator. There is no violation of the Public Policy of India and no interference is required with the award. Hence, he prayed that the present petition be dismissed. 10. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 11. There is no violation of the Public Policy of India and no interference is required with the award. Hence, he prayed that the present petition be dismissed. 10. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 11. This Court has dealt with the parameters for adjudicating a petition under Section 34 of the Arbitration and Conciliation Act in H.P. Power Corporation vs. M/s Hindustan Construction Company Limited, Arbitration Case No. 1171 of 2018, decided on 19.10.2023 and State of H.P. and Another vs. Gorsi Construction, Arbitration Case No. 66 of 2014, decided on 22.9.2023, wherein after review of the judgments of various Courts, it was held that the Court will not sit in appeal over the decision of the Arbitrator and even if there is slight evidence to support the findings recorded by learned Arbitrator, the Court will not interfere with the same unless the learned Arbitrator had reached the conclusion which no reasonable person would have reached or the award shocks the conscience of the Court. It is not permissible to interfere with the award simply because an alternative view is possible. Hence, the present petition has to be adjudicated based on these parameters. 12. In the present case, the learned Arbitrator had decided various claims in favour of the claimant on the ground that the claimant had written the letters to the respondents, however, no response was made by the respondents, which shows the genuineness of the claim of the claimant. It was also held that the photographs show Kharanja soling where the potholes undulation and slushy portion existed. As per the specification, tack coat filling of the blacktop was required to be laid and no evidence was led by the respondents to show that the department had applied tack coat and black top. Hence it was acceptable that an extra quantity of tack coat and bituminous macadam was consumed in filling the portion where the Kharanja soling was executed. Since the claimant had demanded 20% of the amount which was not controverted by filing a reply; therefore, the claimant was entitled to the claim amount. 13. Learned Arbitrator proceeded to award the amount to the claimant simply because no response was made to the claimant’s letters by the respondents. Since the claimant had demanded 20% of the amount which was not controverted by filing a reply; therefore, the claimant was entitled to the claim amount. 13. Learned Arbitrator proceeded to award the amount to the claimant simply because no response was made to the claimant’s letters by the respondents. Learned Arbitrator failed to notice that the burden to prove the claim was upon the claimant and not the respondents. Hence, the claimant was required to bring on record some material to justify the claim made by him. 14. The learned Arbitrator had accepted the amount mentioned in the letter even without any affidavit of the claimant to this effect. The claimant had not placed any material on record to show how this 20% figure was arrived at. Learned Arbitrator accepted the ipse dixit of the claimant after looking at the photographs. Even if his findings that extra material was laid is accepted as correct, it does not lead to an inference that the extra material was consumed to the extent of 20%. The Department had written a letter dated 7.12.2001 (Annexure P-2) in which the rate of various items was reduced from those specified in the tender. The second item mentions providing applying and priming tack coat with bitumen emulsion @2.5 kg on the blacktop surface to the extent of 10 SQM @ Rs. 40/- per SQM which shows that the tack coat was to be applied on the black surface and in the absence of any evidence that kharanja soling escalated the amount of black coat by 20% the figure of 20% arrived by learned Arbitrator appears to be without any basis. 15. It was asserted in the claim that bitumen was supplied by the respondents against the payment made by the claimant. The claimant could have very easily produced the bills to show the amount of bitumen purchased by him. He could have shown the amount of bitumen required on the surface with the black coat and the extra consumption to demonstrate the excess amount consumed by him, however, no such evidence was led before the learned Arbitrator. 16. It was submitted that the amount of the bitumen supplied by the respondents is available to them and they should have supplied the same. This submission cannot be accepted. 16. It was submitted that the amount of the bitumen supplied by the respondents is available to them and they should have supplied the same. This submission cannot be accepted. It was for the claimant to establish his claim that he had used extra material due to undulation and slushy portions and it was for him to lead the satisfactory evidence regarding the same. The burden will shift to the respondents only after some evidence is led by the claimant. Hence, the submission that the department should have produced the record of the bitumen supplied by it will not assist the claimant. In the absence of the material produced by the claimant, the learned Arbitrator could not have relied upon the letter written by the claimant to the respondents to determine the excess. 17. Clause 8A of the conditions provides that before taking any measurement, the Engineer-in-Charge or subordinate deputed by him shall give reasonable notice to the contractor. If the contractor fails to attend to the measurement after such notice or fails to countersign or record the defence within a week from the date of the measurement, the measurements taken by the Engineer-in-Charge shall be binding and final on the contractor and the contractor shall have no right to dispute the same. Thus, it is apparent that the Engineer-in-Charge or his subordinate was to measure the work in the presence of the contractor and the contractor was to raise the dispute if any within one week. It is not shown in the present case that any dispute was raised regarding the measurements carried out by the department and produced before the learned Arbitrator. The Department specifically stated that there is no mention of the applying black tack coat or use of the extra material and the claim was not payable to the claimant/contractor. It was further mentioned that the entries were made immediately after the execution of the work. Learned Arbitrator did not refer to the measurement books to determine whether any such reference was made or not. Thus, the learned Arbitrator proceeded to award the amount without any evidence. 18. It was further mentioned that the entries were made immediately after the execution of the work. Learned Arbitrator did not refer to the measurement books to determine whether any such reference was made or not. Thus, the learned Arbitrator proceeded to award the amount without any evidence. 18. It was laid down by the Hon’ble Supreme Court in PSA SICAL Terminals (P) Ltd. vs. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin, 2021 SCC Online SC 508 that the finding recorded without any evidence or ignoring vital documents is a patent illegality and the Courts are entitled to interfere with the same. It was observed: “41. What is important to note is that a decision which is perverse, as understood in Paras 31 and 32 of Associate Builders vs. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204, while no longer being a ground for challenge under “public policy of India” would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such a decision is not based on evidence led by the parties, and therefore, would also have to be characterised as perverse. 42. Given the fact that the amended Act will now apply and that the “patent illegality” ground for setting aside arbitral awards in international commercial arbitrations will not apply, it is necessary to advert to the grounds contained in Sections 34(2)(a)(iii) and (iv) as applicable to the facts of the present case. 43. It will thus appear to be a more than settled legal position, that in an application under Section 34, the court is not expected to act as an appellate court and re-appreciate the evidence. The scope of interference would be limited to grounds provided under Section 34 of the Arbitration Act. 43. It will thus appear to be a more than settled legal position, that in an application under Section 34, the court is not expected to act as an appellate court and re-appreciate the evidence. The scope of interference would be limited to grounds provided under Section 34 of the Arbitration Act. The interference would be so warranted when the award is in violation of the “public policy of India” which has been held to mean “the fundamental policy of Indian law.” A judicial intervention on account of interfering on the merits of the award would not be permissible. However, the principles of natural justice as contained in Sections 18 and 34(2)(a) (iii) of the Arbitration Act would continue to be the grounds for challenge of an award. The ground for interference on the basis that the award is in conflict with justice or morality is now to be understood as a conflict with the “most basic notions of morality or justice.” It is only such arbitral awards that shock the conscience of the court, that can be set aside on the said ground. An award would be set aside on the ground of patent illegality appearing on the face of the award and as such, which goes to the roots of the matter. However, an illegality with regard to a mere erroneous application of law would not be a ground for interference. Equally, re-appreciation of evidence would not be permissible on the ground of patent illegality appearing on the face of the award. 44. A decision which is perverse, though would not be a ground for challenge under “public policy of India” would certainly amount to a patent illegality appearing on the face of the award. However, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. 45. To understand the test of perversity, it will also be appropriate to refer to paragraphs 31 and 32 from the judgment of this Court in Associate Builders (supra), which read thus: “31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where: (i) a finding is based on no evidence. (ii) an Arbitral Tribunal takes into account something irrelevant to the decision which it arrives at. (iii) ignores vital evidence in arriving at its decision, such a decision would necessarily be perverse. 32. A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority vs. Gopi Nath and Sons, 1992 Supp. (2) SCC 312, it was held: (SCC p. 317, Para 7) “7.........It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.” In Kuldeep Singh vs. Commissioner of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429, it was held: (SCC p. 14, Para 10) “10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.” 19. This position was reiterated in Unibros vs. All India Radio, 2023 SCC Online SC 1366 wherein it was observed: “20. The First Award was interfered with by the High Court for the reasons noted above. The Arbitrator, in view of such a previous determination made by the High Court, could have granted damages to the appellant based on the evidence on record. There was, so to say, none which on proof could have translated into an award for damages towards loss of profit. A claim for damages, whether general or special, cannot as a matter of course result in an award without proof of the claimant having suffered injury. There was, so to say, none which on proof could have translated into an award for damages towards loss of profit. A claim for damages, whether general or special, cannot as a matter of course result in an award without proof of the claimant having suffered injury. The arbitral award in question, in our opinion, is patently illegal in that it is based on no evidence and is, thus, outrightly perverse; therefore, again, it is in conflict with the “public policy of India” as contemplated by section 34(2)(b) of the Act.” (Emphasis supplied) 20. In the present case, there is no evidence except the letter written by the claimant to show that the claimant had used 20% extra material which is not sufficient in the absence of any further evidence. There is not even the affidavit of the claimant to this effect; therefore, the learned Arbitrator erred in awarding the amount without any evidence and by ignoring the entries in the measurement books. 21. The learned Arbitrator also held that the claimant had written the letters (Annexure P-3 and Annexure P-8) for which no response was sent by the Department. Hence, the contents of Annexure P-3 and Annexure P-8 are to be taken as correct. Annexure P-3 is a letter written by the claimant on 23.1.2002, stating that one item of providing and applying tack coat on the bitumen at 2.5 kg on 50 mm thick has not been given in the schedule which is essential for laying SDBC because the road was not sufficiently wide because of the heavy traffic and laying of SDBC would take a long time. Annexure P-8 is another letter written by the claimant on 4.12.2002 referring to this letter and stating that tack coat had been applied at 50 mm which was not paid by the respondent. These letters only show that there was no provision for applying the tack coat because of the road condition. Admittedly, the road condition was seen by the contractor before accepting the contract and he cannot claim subsequently that he is entitled to extra payment due to the road condition. Further in the absence of any affidavit of the claimant, it is difficult to see how reliance could have been placed upon the letter written by the claimant accepting it to be correct. 22. Further in the absence of any affidavit of the claimant, it is difficult to see how reliance could have been placed upon the letter written by the claimant accepting it to be correct. 22. The learned Arbitrator also awarded an amount for the loss on account of idling of manpower and machinery. It was laid down by the Hon’ble Supreme Court in M/s Unibros vs. All India Radio, 2023 INSC 931 that before the loss of profits can be awarded, it must be proved that the contractor had other works where he could have deployed the manpower and machinery. It was observed: “15. Considering the aforesaid reasons, even though little else remains to be decided, we would like to briefly address the appellant’s claim of loss of profit. In Bharat Cooking Coal (supra), this Court reaffirmed the principle that a claim for such loss of profit will only be considered when supported by adequate evidence. It was observed: “24. ... It is not unusual for the contractors to claim loss of profit arising out of diminution in turnover on account of delay in the matter of completion of the work. What he should establish in such a situation is that had he received the amount due under the contract, he could have utilised the same for some other business in which he could have earned profit. Unless such a plea is raised and established, a claim for loss of profits could not have been granted. In this case, no such material is available on record. In the absence of any evidence, the arbitrator could not have awarded the same.” 16. To support a claim for loss of profit arising from a delayed contract or missed opportunities from other available contracts that the appellant could have earned elsewhere by taking up any, it becomes imperative for the claimant to substantiate the presence of a viable opportunity through compelling evidence. This evidence should convincingly demonstrate that had the contract has been executed promptly, the contractor could have secured supplementary profits utilizing its existing resources elsewhere. 17. One might ask, what would be the nature and quality of such evidence? In our opinion, it will be contingent upon the facts and circumstances of each case. This evidence should convincingly demonstrate that had the contract has been executed promptly, the contractor could have secured supplementary profits utilizing its existing resources elsewhere. 17. One might ask, what would be the nature and quality of such evidence? In our opinion, it will be contingent upon the facts and circumstances of each case. However, it may generally include independent contemporaneous evidence such as other potential projects that the contractor had in the pipeline that could have been undertaken if not for the delays, the total number of tendering opportunities that the contractor received and declined owing to the prolongation of the contract, financial statements, or any clauses in the contract related to delays, extensions of Page 15 of 17 times, and compensation for loss of profit. While this list is not exhaustive and may include any other piece of evidence that the court may find relevant, what is cut and dried is that in adjudging a claim towards loss of profits, the court may not make a guess in the dark; the credibility of the evidence, therefore, is the evidence of the credibility of such claim. 18. Hudson’s formula, while attained acceptability and is well understood in trade, does not, however, apply in a vacuum. Hudson’s formula, as well as other methods used to calculate claims for loss of off-site overheads and profit, do not directly measure the contractor's exact costs. Instead, they provide an estimate of the losses the contractor may have suffered. While these formulae are helpful when needed, they alone cannot prove the contractor's loss of profit. They are useful in assessing losses, but only if the contractor has shown with evidence the loss of profits and opportunities it suffered owing to the prolongation. 19. The law, as it should stand thus, is that for claims related to loss of profit, profitability or opportunities to succeed, one would be required to establish the following conditions: first, there was a delay in the completion of the contract; second, such delay is not attributable to the claimant; third, the claimant’s status as an established contractor, handling substantial projects; and fourth, credible evidence to substantiate the claim of loss of profitability. On perusal of the records, we are satisfied that the fourth condition, namely, the evidence to substantiate the claim of loss of profitability remains unfulfilled in the present case. On perusal of the records, we are satisfied that the fourth condition, namely, the evidence to substantiate the claim of loss of profitability remains unfulfilled in the present case. The First Award was interfered with by the High Court for the reasons noted above. The Arbitrator, in view of such a previous determination made by the High Court, could have granted damages to the appellant based on the evidence on record. There was, so to say, none which on proof could have translated into an award for damages towards loss of profit. A claim for damages, whether general or special, cannot as a matter of course result in an award without proof of the claimant having suffered injury. The arbitral award in question, in our opinion, is patently illegal in that it is based on no evidence and is, thus, outrightly perverse; therefore, again, it is in conflict with the “public policy of India” as contemplated by section 34(2)(b) of the Act.” 23. In the present case, there is no evidence that the contractor had other works where he would have deployed the manpower and machinery. No affidavit of the contractor to this effect or no letter awarding the contract was filed. Hence, the amount could not have been awarded. 24. The respondents have given the different dates of the entry and the payment and the same does not show any delay. The claimant has also not filed the bills and their details to show that he had submitted the bills in time but the payment was not made. Letter (Ex.P6/1) reads that the contractor had received an amount of Rs. 12,80,000/- in March but had carried out the work of Rs. 52.00 lacs. The letter does not mention whether the bills of Rs. 52.00 lacs were submitted or not. Letter (Ex.P5/2) mentions that the work was held up due to failure to provide LOC for Rs. 50.00 lacs. The learned Arbitrator has not recorded any finding on whether the respondents were under an obligation to provide LOC to the contractor in terms of the contract or not. Letter (Ex.P6/3) mentions various tests and further that the machinery and labour were lying idle due to the unavailability of finance. 50.00 lacs. The learned Arbitrator has not recorded any finding on whether the respondents were under an obligation to provide LOC to the contractor in terms of the contract or not. Letter (Ex.P6/3) mentions various tests and further that the machinery and labour were lying idle due to the unavailability of finance. It further mentions that the aggregate was being purchased from six crushers and the bills would be supplied at the time of the final payment which shows that the bills were not submitted. Annexure P6/4 mentions that the tests were to be conducted, royalty receipts of aggregate and a copy of GR would be supplied at the time of final payment. This also shows that the bills were not supplied and they were to be supplied at the time of final payment. It is difficult to see how the respondents can be faulted for the delayed payment when the bills were not being supplied. The details of the bills were also filed by the Executive Engineer which show the amount of the bill, MB numbers, total value of the work done, total recovery and the amount paid by the cheques. Only the 11th and final bill was shown to be payable and other bills were shown to have been paid. This document was not considered by the learned Arbitrator and he proceeded after ignoring the relevant documents. 25. Thus, the learned Arbitrator had passed the award without any evidence and without considering the evidence of the respondent; hence, the award suffers from perversity as laid down by the Hon’ble Supreme Court in M/s Unibros case (supra) and cannot be sustained. 26. No other point was urged. 27. In view of the above, the present petition is allowed and the award dated 11.9.2012, passed by the learned Arbitrator is ordered to be set aside. 28. In the above terms, the petition stands disposed of, so also, the pending miscellaneous applications, if any.