Nonit Ram Rajput and Sons vs Delhi Development Authority

Anil Dev Singh, J.

(1) This is an application for setting aside the order dated April 17, 1996 whereby the objections of the respondent (I.A. No. 689/92) were dismissed in default and the award was made a Rule of the Court and a decree in terms of the award was passed. Learned Counsel for the petitioner has no objection for restoration of the objections of the respondent and setting aside of the order dated April 17, 1996. Accordingly, the order dated April 17, 1996 is set aside and the objections (I.A. No. 689/92) are restored to their original number. I.A. No. 6217196 is disposed of Suit No. 2900/91 & I.A. 689/92

(2) The petitioner was awarded the work of Redevelopment Scheme of Kingsway Camp Sh C/o 30 feet and 60 feet wide roads in Part Iii of Outram Line Phase I by the respondent the petitioner raised certain disputes which were referred to the arbitration of Shri O.P. Mittal, Retired Director General, C.P.W.D. The Arbitrator made and published his award on March 22,1990. Learned Counsel appearing for the respondent submitted that the Arbitrator while making the award in respect of claim Nos. I and 2 and Counter-claim Nos. I and 2 did not take into consideration the facts appearing on record and the various clauses of the agreement.

(3) Insofar as award of the Arbitrator in respect of Claim No. 1 is concerned, learned Counsel for the respondent submitted that the claim of the petitioner was for a sum of Rs. 10,000.00 , but the Arbitrator awarded a sum of Rs. ll,893.00 , thus traveling beyond the terms of the reference. I have considered the submissions of the learned Counsel for the respondent. It is correct that the petitioner claimed a sum of Rs. 10,000.00 towards refund of earnest money/security deposit, but the Arbitrator found that the petitioner was in fact entitled to Rs. ll,893.00 . It may be that the Arbitrator on going through the record found that the petitioner was entitled to the above said sum of Rs. ll,893.00 but he over looked the fact that he was bound by the terms of the reference. Taking into consideration the decision of the Supreme Court in Orissa Mining Corporation Ltd. Vs. Prannath Vishwanath Rawlley, , on this aspect of the matter, I am of the considered view that the Arbitrator was not right in awarding a sum of Rs. ll,893.00 when the petitioner had claimed merely Rs. 10,000.00 . Accordingly, the award of the Arbitrator is modified and the petitioner is held entailed to a sum of Rs. 10,000.00 towards refund of earnest money.

(4) As regards the award of the Arbitrator in respect of Claim No. 2 is concerned, learned Counsel submitted that the Arbitrator was not right in coming to the conclusion that the petitioner was entitled to receive a sum of Rs. 38,048.60 from the respondent. It seems to me that the view taken by the Arbitrator cannot be challenged as the reasonableness and sufficiency of the reasons are not for this Court to consider. However, it may be noticed that the Arbitrator has given adequate reasons for coming to the conclusion that the petitioner is entitled to a sum of Rs. 38,048.60. The Arbitrator noticed that Item I provided carriage by mechanical transportation for all leads. He also noticed that a separate extra item has been sanctioned for 1790.2 cum of earth work with I km. lead at Rs. 1142.00 per cum. The Arbitrator was of the opinion that since the earth work for I km. lead was covered by the agreement item, the agreement rate should have been paid. On that basis the Arbitrator came to the conclusion that the petitioner was entitled to above said sum. In this view of the matter I find no mistake or error apparent on the face of the award. Accordingly, the award in respect of Claim No. 2 is upheld.

(5) Under Counter-claim No. 1 respondents claimed Rs. 1,68,081.00 towards additional amount involved to get the balance work executed at the risk and cost of the plaintiff. The Arbitrator negatived the claim of the respondent by giving elaborate reasons. The Arbitrator while deciding the claim observed as follows:

"The claimant informed the respondents vide Exhibit C-4 that the work was commenced on 13/10/84. Thereafter there was considerable progress up to 30/10/84, after which the labour fled away due to disturbance in the Capital in the wake of assassination of then Prime Minister Shrimati Indira Gandhi. The respondents vide Exhibit R-22 have accepted the hindrance .He has accepted only one week''s delay. Once the labour flees away, it takes quite some time to rearrange new labour and reorganise the work. The delay of one week is grossly under estimation.

The aliment has also pointed out that the road work was hindered since some old barracks came in the alignment of the roads. The respondents have accepted that "there were small obstructions in some of the roads". It has not been clarified that how soon these obstructions were removed. The claimant also complained of non-payment of the last Running Account Bill. I consider the hindrances were genuine and the claimant was actually hindered in the work and the consideration should have been made in deciding the final date of completion of the work".

(6) As is evident from the above, the Arbitrator took into consideration the hindrances and obstructions encountered by the petitioner in execution to the work for rejecting the counter-claim of the respondent. Besides, while coming to the conclusion that the time was not the essence of the contract, the Arbitrator relied upon the decision of the Supreme Court in Mis. Hind Constructions Contractors by its sole proprietor Hind Construction Contractors by its Sole Proprietor Bhikamchand Mulchand Jain (Dead) by Lrs Vs. State of Maharashtra, . The Arbitrator also noticed that the respondent was not able to produce the record which could have shown as to what work was not executed by the claimant. In the circumstances, Therefore, the Arbitrator was fully justified in rejecting the above said counter-claim of the respondent.

(7) Under Counter-claim No. 2, respondent claimed a sum of Rs. 48,472.00 towards compensation under Clause 2 of the agreement on account of failure on the part of the claimants to complete the work within the stipulated period. The Arbitrator examined the claim and rejected the same on merits. However, it appears that the Arbitrator overlooked the fact that the claim of the respondent was an excepted matter. The Arbitrator had no jurisdiction to deal with the claim under Clause 2 of the agreement. In this view I am supported by a decision of the Division Bench of this Court in Delhi Development Authority Vs. M/s. Sudhir Brothers, . For the above said reasons I hold that the Arbitrator was not right in dealing with Counter-claim No. 2. Accordingly, the award of the Arbitrator in respect of Counter-claim No. 2 set aside. Except to the extent indicated above, the award of the Arbitrator dated March 22,1990, is made a Rule of the Court and decree in terms thereof is hereby passed. The award, except in respect of Claim No. 2 will form part of the decree. In case the respondent does not make the payment of the decretal amount within eight weeks, the petitioner will be entitled to interest at the rate of 12% per annum from the date of the decree till realisation.