ORDER
Vijender Jain, J.
1. Disputes arose between the parties and the matter was referred by the respondent/DDA to Sh. V.R. Vaish, retired Director General of the CPWD. The Arbitrator gave his Award on 28.11.1991. Mr. Somasekharan, learned counsel for the petitioner at the outset states that he does not press his objections except the objection with regard to the grant of pendente lite interest not granted by the Arbitrator., he has contended that after Secretary, Irrigation Department, Government of Orissa and others vs. G.S. Roy, is case decided by Supreme Curt the Arbitrator ought to have given pendente lite interest to the claimant.
2. On the other hand, Ms. Salwan learned counsel appearing for the respondent has also field objections. She has assailed the Award under various Claims. She has contended that a sum of Rs. 13,232/- under claim no.4 be set aside as there is an error apparent on the face of the Award. She has contended that it was incumbent on behalf of the Claimant to prove that the Claimant had incurred extra expenditure for the labour etc. during the course of work and that too only if such expenditure was more than 10 per cent he contractor could claim the same. The Contractor failed to prove before the Arbitrator that said amount was more than 10 percent therefore, awarding of Rs. 13,232/- on this score was not proper for the Arbitrator.
3. Ms. Salwan has also contended that Award under claim 8 and 11 whereby Arbitrator has awarded a sum of Rs. 3,42,999/- be set aside as the awarding of sum of Rs. 3,42,999/- is based on surmises and conjectures and same amounts to misconduct on the part of the Arbitrator.
4. Similarly, the learned counsel for the respondent has contended that the award of Rs. 22,306.3 paisa under claim No.9 for extra substitute items was contrary to the agreement between the parties and the Arbitrator has misconducted the proceedings by awarding the said amount. She has also challenged award of amount of RS. 25,000/- under claim No.10. Learned counsel for the respondent has also assailed the Award under claim nos.12,13 and 15 wherein the Arbitrator has awarded a sum of Rs. 7,766/- only.
5. Ms. Salwan has contended that the award of Rs. 1,76,000/- on account of Claim no.16 for substituting raft foundation instead of brick foundation was against the terms as well as Clauses of agreement. She has further contended that award of Rs. 40,230/- under claim no.18 is against the terms and conditions of the agreement and inconsistent with the rates which are provided by the CPWD. On the basis of the aforesaid, it is contended that Award bet set aside.
6. Another contention has been raised by Ms. Salwan that the respondent has filed counter claim of Rs. 3,33,766/- on account of levy of compensation under Clause 2 of the Agreement which was adjudicated by the Arbitrator. She has contended that in view of law laid down in Vishwanath Sood vs. Union of India and another , the Arbitrator cannot go into the levy of penalty as the said decision rests with the Superintending Engineer and therefore the Arbitrator had no jurisdiction to adjudicate the same and Award to that extent be set aside.
7. On the other hand, Mr. Somasekharan learned counsel for the petitioner has contended that no ground exits for setting aside the Award as a matter of fact Arbitrator was appointed by the respondent and he was a former Director General of CPWD who was well conversant with the contract between the parties. He further contended that this Court will not sit in an appeal against the Award of the Arbitrator and the Court will not substitute its own opinion for that of the Arbitrator. I have given my careful consideration to arguments advanced by learned counsel for both the parties.
8. Let me first deal with claim no.4 which was a claim by the petitioner for a sum of Rs. 4 lakhs under clause 10(c) of the Agreement. The claim was for payment on account of increase in wages of labour from 1st March, 1982 and then again from 1st June, 1984 said clauses were based in terms of Clause 10(c) of the Agreement between the parties. The Arbitrator has scrutinised the payment which was payable under Clause 10(c) for increase in wages as well as the amount which has already been paid by the respondent. Once the respondent has paid the amount in view of the increase in the wages under Clause 10(c), they cannot agitate that they were not to pay balance amount of Rs. 13,233/- As a matter of fact, the Arbitrator has recorded that it was the respondent who was responsible for the delay in execution of the work and there was no justification as to why the payment for the escalation till the date of termination of the contract was not to be made to the Claimant. I do not seen any merit in the objection of the Objector/respondent on this score as payment of increased wages were mae in terms of Clause 10(c) of the Agreement.
9. Claim no.8 was for Rs. 2,50,000/- towards amount withheld and claim no.11 was for Rs. 8 lakhs towards work done but not paid. The Arbitrator discussed both these claims together as they were co-related and the Arbitrator has observed that the final bill for the work was submitted on 17.3.90 and after discussing the agreement as well as the item which in all were nine, the Arbitrator came to the conclusion that the amount to be paid by the respondent to the claimant was short by Rs. 3,42,999/- The Arbitrator has given complete details, the method and manner in which the same were calculated and this Court cannot go into the mental process of the Arbitrator for awarding the same. From the reasoned Award Even otherwise, I do not see any infirmity with the award of a sum of Rs. 3,42,999/- by the respondent to the Claimant.
10. I don’t see any merit in the objection of the respondent vis-a-vis amount awarded for Rs. 22,306.32 paisa on the claim of the claimant under Claim no.9, said clause was for Rs. 1,50,000/- towards amount not paid for extra and substituted item of work ordered and done. The Arbitrator has discussed that the Claimant has claimed ten items of work which were executed but were not paid or paid on lower rates. The Arbitrator has only allowed Rs. 22,306/- which according to him were the items which were executed and rates which were paid correctly. These objections are merely for the sake of objection and has no basis. Same merit dismissal.
11. Coming to award of sum of Rs. 7,776/- under claim no.12, the Arbitrator has awarded said amount towards rebate arbitrarily charged by the Department though running bills were not paid on due dates. The Arbitrator has given a finding that from 5th, 6th and 10th running bills were not paid monthly and same were not paid in time in terms of the Agreement. Therefore, the recovery of rebate from these running bills was unjustified and awarded a sum of Rs. 7,776/- This objection is also without any substance and simply has been taken to delay the execution of the Award.
12. Coming to claim no.16, learned counsel for the respondent says that this was a claim for Rs. 15 lakhs towards variation/substituted by ordering raft foundation in place of originally prescribed brick foundation. The Arbitrator has given a finding that this was not a case variation in the quantities of the items provided fro foundation, therefore there is no applicability of clause 12A of the Contract. The Arbitrator held that it was a complete change in the design for laying of foundation and therefore Clause 12A which deals with the increase of rates and variation s in quantities was not to be applied as the instant case was to the case of variation but a case of complete change. The Arbitrator has discussed in detail as to how award of Rs. 1,76,000/- under this head was justified. In view of the reasoning given by the Arbitrator that it was on account of change in the design whereby the claimant had to put raft foundation instead of brick foundation and the difference in the price of the steel has to be paid to the Claimant, I do not see any infirmity with the Award under claim no.16.
13. Lastly, let me deal with award of Rs. 41,230/- under claim no.18. The said claim was for S. 1,15,000/- towards variation/deviation is providing and fixing titles. The Arbitrator held that quantity of white glazed tiles have increased beyond the deviation limit. A letter in this regard was given by the Claimant to the respondent on 28.7.83 for revision of rates under clause 12 of the Agreement. No extra payment for the quantity of work beyond the deviation limit has been made to the Claimant and therefore the claimant was entitled for the quantity beyond the deviation limit which worked out to be 1089 meters and the Arbitrator on that score award a sum of Rs. 41,230/-. I do not see any infirmity with the Award of the Arbitrator.
14. Now, coming to the submission of counter claim no.1 which was on account of levy of compensation under Clause 2 of agreement. The Arbitrator has adjudicated on clause 2 of the agreement which he ought not to have done as that was within the domain of the Superintending Engineer as per the Agreement between the parties. That part of the Award is severable from rest of the Award. I do not find force in the arguments of respondent that Arbitrator ought not to have adjudicated on Clause 2 of the agreement. But the said finding is severable from the rest of the Award. I set aside the same. It is open for the respondent to take whatever action is available to it in appropriate proceedings in accordance with law.
15. I find force in arguments of the Claimant that non-award of pendente lite interest in view of settled law pursuant to decisions of this Court as well as of Supreme Court in catena of cases. When the Arbitrator has found that the respondent has wrongly with held the payment due to the claimant, then the Arbitrator was competent to award pendente lite interest. I modify the Award to the extent that the Claimant shall be entitled to interest from 21.1.1986 when the Arbitrator was appointed till the date of the Award @ Rs. 15% per annum. As discussed above, apart from my observation with regard to the counter claim no.1 and modification made with regard to pendente lite interest, Objections filed by the respondent are dismissed. Award is made Rule of the Court. Decree in terms thereof is passed. The Claimant shall be entitled to interest @ Rs. 15% from the date of Decree till realisation. Petition stands disposed of.