SRJ arbp-80-09.sxw 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO.80 OF 2009
Union of India ]
Acting through The Divisional ]
Railway Manager (WA), Western ]
Railway, Mumbai Central, ]
MUMBAI. ].. Petitioners
V/s.
M/s. Jeevat Construction ]
4, Manik Smuruti, 16th Road, ]
Khar (W), Mumbai 400 052. ].. Respondents.
Mr.Suresh Kumar for Petitioners.
Mr. U.S.Samudrala for Respondents.
CORAM : ANOOP V. MOHTA,J.
DATE : 26th NOVEMBER,2009.
JUDGMENT:
1. Heard Finally.
2. The learned counsel appearing for the
Respondents on instructions, submits that the
Respondents are not pressing claim no.2 of security
deposit and claim no.10 about interest on the work
done payment. The Petitioner has challenged the same
only. In view of this, I am inclined to modify the
award to the above reasons. In view of the judgments
of Hon’ble Supreme Court, whereby the Hon’ble Supreme
Court has observed and in fact modified the awards
under section 34 of the Arbitration and Conciliation
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Act,1996 (for short “Act”). The Hon’ble Supreme Court
in the matter of Delhi Development Authority v/s.
R.S.Sharma and Company, New Delhi (2008) 13 Supreme
Court Cases 80 has maintained the modified award. Even
otherwise, there is no bar under section 34 of the Act
to modify the award in situation like where the
parties themselves not pressing the claim. Now at this
particular point, it is difficult for Court to deny
the modification and delay the proceedings further by
quashing the award solely on this ground. The early
disposal is main object of the said Act.
3. In view of this, I am inclined to modify the
award as observed above. The claim no.2 and claim no.
10 are disposed off as not pressed.
4. With regard to the Counter Claim, there is a
clear finding on the Counter Claim of the Petitioner
as given in paragraph 6.2 which is reproduced
hereunder:-
The Claimants stated that
Respondent did not submit any
documentary proof & the details of
break up of said claims. The Claimant
requested payment of second running
bill but the Respondents did not pay
and therefore they could not be
carrying out the work. As such the
Respondent committed the breach by
termination of the contract.
Respondent s right to claim risk and
cost stands forfeited as per 64 of
Indian Contract Act.
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5. Considering the rival contentions as well as
the reasonings so given, I see that there is nothing
to interference in the proceedings. It is well
established within the frame work of law. The award
now modified as agreed to the extent of clause item
nos. 2 and 10 as referred above and the rest of the
award as well as reasonings are maintained.
6. The Petition is accordingly disposed of.
7. No costs.
(ANOOP V. MOHTA, J. )
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