A-One Alums Pvt. Ltd. vs Chemcon Fabricators (Delhi) Pvt. Ltd.

Sanjay Kishan Kaul, J.

IA No. 11754/1997 (under Section 5 of the Limitation Act, 1963)

This is an application seeking condensation of delay in filing the objections. It is stated in the application that the respondent was served with the

notice on 16.08.1997 and handed over the same to their counsel on 19.08.1997. The counsel was not keeping well for about two months and thus

the objections could not be filed within time. There was a delay of about 30 days in filing the objections. For the reasons set out in the application,

the application is allowed.

IA 11753/1992 (under Sections 30 and 33 of the Arbitration Act, 1940)

The respondent seeks to challenge the award dated 12.03.1997 of Justice J.D. Jain (Retd.) who was appointed as the sole arbitrator by an

order dated 20.04.1992 in suit No. 2723/1991. the petitioner was the claimant before the arbitrator. The petitioner had taken factory sheds in

New Industrial Estate, Jhansi Road, Lalitpur, UP on hire purchase basis and availed of loans to finance their project after approval from UPFC.

The petitioner entered into a contract with respondent for completion of project on a turnkey basis for a total contract value of Rs 8,98,500/-. The

respondent had to complete the work within three months and the contract contained an arbitration clause.

The grievance of the petitioner before the arbitrator was that the respondent failed to install the plant and machinery despite the payments having

been made by the petitioner. The petitioner even agreed to increase the cost though unjustifiably asked for by the respondent. After installation, the

machinery did not perform satisfactorily. The respondent also filed its counter claims.

Learned arbitrator by a detailed award has awarded a lumpsum amount of Rs 17 lakh to the petitioner for the various claims and has also held

that the petitioner is entitled to interest at the rate of 16 per cent from 01.09.1992 (date of filing of the claim) till the award is made rule of the

court. The petitioner has also been held entitled to costs of Rs 20,000/- and the counter claims of the respondent have been rejected.

A perusal of the grounds shows that the petitioner is seeking to raise issues which are not within the jurisdiction of this court. This court cannot

re- appreciate evidence as it is not an appellate authority. It is not the function of this court to differ with the award even if this court was to come

to a different conclusion on the same set of facts. The parties have chosen the forum of arbitration and the arbitrator is the designated person to

decide the disputes. It is only in case the award is absurd, that the award would be likely to be interfered as reasonableness is not a matter to be

considered by this court. A reference in this behalf may be made to the to the judgment of the Apex Court in Food Corporation of India Vs.

Joginderpal Mohinderpal, . The Supreme Court in State of U.P. Vs. Allied Constructions, , held that Section 30 of the Act is restrictive in its

operation and unless one of the conditions specified therein is satisfied, an award cannot be set aside.

It is not possible to accept the plea of the respondent that once the petitioner invoked the performance guarantee, all claims of the petitioner

stood satisfied or that the respondent was discharged from the liabilities as a result of the performance guarantee being encashed. The award is a

well reasoned award calling for no interference on merits.

The only other question is of interest which has been awarded at 15 per cent per annum. In various matters, this court has been granting interest

at the rate of 12 per cent per annum for the relevant period taking into consideration the prevailing rates of interest. I thus consider it appropriate to

modify the rate of interest from 15 per cent to 12 per cent till date of decree.

The objections stand disposed of.

CS (OS) 930A/1997

The objections having been disposed of, award dated 12.03.1997, Justice J.D.Jain (Retd.), sole arbitrator is made rule of the Court with the

modification that the petitioner is held entitled to interest at the rate of 12 per cent per annum instead of 16 per cent per annum from 01.09.1992 till

date of decree. The petitioner will also be entitled to interest at the rate of 9 per cent per annum from date of decree till date of realisation. Parties

are left to bear their own costs. Decree sheet be drawn up accordingly.

IA No. 6730/2001

10.Dismissed.