MCD vs M/S. Harcharan Dass Gupta Construction Pvt. Ltd

Sl.No.,Description of Claim

Claim -1,"Non-payment of the 17th running account bill for Rs.22

lacs

Claim -2,"Claim of Rs.5 lacs approximately towards final bill after

drawing of the 17th running account bill.

Claim -3,Refund of Rs.1 lac as security deposit.

Claim -4,"Non-release of escalation on material and labour under

clause 10 CC of the agreement.

Claim -5,"Interest on delay in release of payment of various

passed bills as per table signed by the respondent Ex.C-

21

Claim -6,"Non-payment for bailing out accumulated water from

the site of execution.

Claim -7,"Non-release of withheld amounts from running bill and in

part rates totaling Rs.2.43 lacs.

Claim -8,"Loss sustained due to loss of profit on work not

executed as envisaged in agreement.

Claim -9,"Loss/damages sustained due to delay in execution of

work during extended period for staff and machinery.

Claim -10,"Interest @ 24% on all the due payments (Pre, pendent

lite and future interest.

Claim -11,Cost of arbitration

B) That, the learned arbitrator erred in not appreciating that the arbitration as the whole is liable to be adjourned sine-die till the outcome of the",

decision of this Hon'ble court, subject to liberty to revive the same by the parties under arbitration before the learned arbitrator.",

C) That, the learned arbitrator erred in not appreciating that the status of the jurisdiction of Hon'ble High Court of Delhi is above then the learned",

arbitrator's jurisdiction.,

D) That, the learned arbitrator erred in not appreciating that he acted upon by pronouncing the award and giving his findings not being a fair arbitrator",

and on the basis of Principles of personal views/finding on the subject matters i.e. of conjuntures and surmises as and may affect adversely the final,

decision of Hon'ble High Court of Delhi in the above mentioned Suit no. 607 of 2003 titled as M/s Harcharan Dass Gupta Construction Pvt. Ltd.,

Versus M.C.D & Anr.,

E) That, the learned arbitrator erred in not appreciating that the nature of award is null, void and ab-initio in the eyes of law as the same is not",

enforceable as per the verdict of the learned arbitrator himself.,

F) That, the learned arbitrator erred in not appreciating that the award as the whole is against the public policy and a admittedly a patent mistake,",

committed on the part of learned arbitrator, in compliance of the provisions of section 34, of the arbitration Act, 1996.",

G) That, the learned arbitrator erred in acting far beyond the terms and condition of the notification number MWB/Accts/003/490,dated 16.12.2003 by",

pronouncing the findings of the additional claim of the contractor/ respondent.,

H) That, the learned arbitrator erred in not appreciating at the time of pronouncing of award against the contents of the terms and conditions, terms of",

the agreement and against the prevailing trade practices, as such, the award as a whole is against the provisions of sections 28 (3) of the Arbitration",

and Conciliation Act, 1996.",

I) That, the learned arbitrator erred in not appreciating at the time of pronouncing of the award, under challenge, which is against the basic principles",

of law of evidence prevailed and appreciable to all of the matters under disputes inclusive the disputes before the arbitrators.,

J) That, the learned arbitrator erred in not appreciating in course of the proceedings by not prescribing any procedure in compliance of the provisions",

of section 18 and 19 of the Act, so as to enable the parties, observe despite oral submission, by the petitioner in course of proceeding of the arbitration.",

K) That, the learned arbitrator erred in granting any amount being interest against the petitioner.",

L) That, the award of the learned arbitrator as such is based on the erroneous approach taken and therefore leads to miscarriage of Justice and is also",

against the public policy as such.,

M) That, the present petitioner has not filed any similar petition before Supreme Court or any other court.",

N) That, the impugned award 9.3.2007 but received by the petitioner MCD on 16.3.2007 and as such there is no delay in filing of the present OMP.",

In my opinion, none of the grounds stated in the present petition to challenge the award raise any issue which shows that the award is contrary to",

the Fundamental Policy of Indian Law or that it was in conflict to the basic notions of morality or justice. The entire award is based on findings of fact,

recorded by the learned arbitrator. This Court does not sit as a court of appeal over the findings of the fact recorded by the learned Arbitrator. Such,

findings cannot normally be subject to challenge under Sec.34 of the Arbitration Act. Reference may be had to the judgment of the Supreme Court in,

Associated Builders v. DDA, (2015) 3 SCC 49. The Supreme Court held as follows:-",

“12 ……………….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-,

a finding is based on no evidence, or",

an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or,

ignores vital evidence in arriving at its decision, such decision would necessarily be perverse. A good working test of perversity is contained in two",

judgments. In H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons,1992 Supp (2) SCC 312 at p.317, it was held:",

.....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 v. Commr. of Police, (1999) 2 SCC 10 at para 10, it was held:",

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.â€​,

It must clearly be understood that when a court is applying the “public policy†test to an arbitration award, it does not act as a court of appeal and",

consequently errors of fact cannot be corrected. A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the,

ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus an award based on little evidence or,

on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the,

arbitrators approach is not arbitrary or capricious, then he is the last word on facts. In P.R.Shah, Shares & Stock Brokers (P) Ltd. v. B.H.H.",

Securities (P) Ltd.(2012) 1 SCC 594, this Court held:",

A court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or re-appreciating the evidence. An award can be challenged,

only under the grounds mentioned in Section 34(2) of the Act. The Arbitral Tribunal has examined the facts and held that both the second respondent,

and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second,

respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock",

Exchange under Bye-law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the",

majority is that the appellant did the transaction in the name of the second respondent and is therefore, liable along with the second respondent.",

Therefore, in the absence of any ground under Section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different",

decision can be arrived at.,

…………….â€​,

There are no valid grounds raised to challenge the findings of facts recorded by the learned Arbitrator. There is no merit in the present petition and,

the same is dismissed.,