JUDGMENT
Sanjay Kishan Kaul, J.
1. The petitioner has filed the objections to the award of the sole arbitrator Mr. J.K. Mehra (Retd.) dated 16.06.2007 under Section 34(2) of the Arbitration and Conciliation Act, 1996 (‘the said Act’ for short).
2. The dispute arose out of the award of a contract by the petitioner to the respondent of the work of construction of 12 MGD sewage pumping station at Uttam Nagar in pursuance to a letter dated 09.01.1992 for a sum of Rs 1,11,51,213.92/-. The stipulated date for completion was 17.07.1993 i.e. a period of eighteen months. The scope of the work was revised upwards and increased to Rs. 1,39,39,016/- and the stipulated date was thus extended to 17.04.1994.
3. The respondent made various claims on account of the fact that the work had to be carried on much beyond the stipulated date due to the factors attributable to the petitioner. The arbitrator has also come to the conclusion that the delays were attributable to the petitioner. This finding is based on appreciation of evidence in terms whereof it has been observed that the hindrances in the work were brought to the notice of the petitioner and in view thereof extension of time was sought which was so granted. 98 per cent of the work was completed as informed by the respondent vide letter dated 18.08.1994 but the respondent had to remain at site for execution of the balance 2 per cent work up to 27.01.1997. The petitioner extended the time up to 15.02.1995 in terms of letter dated 21.11.94 with due escalation. The time was again extended up to 31.12.1995 vide letter dated 14.09.1995 with reservation of rights. The petitioner thereafter issued a letter dated 14.08.1996 extending the time with full benefits up to 30.09.1996 accepting that the prolongation of the contractual period was on account of the factors attributable to the petitioner.
4. The finding of prolongation of contract for factors attributable to the petitioner is a pure finding of fact on the basis of appreciation of evidence and it can hardly be said that any interference is called for on this aspect.
5. The present petition has been filed with grounds raised claim-wise as if this Court was sitting as a Court of first appeal. This is undisputedly not the jurisdiction of this Court and the objections have to be examined within the parameters of Section 34(2) of the said Act as enunciated by the Apex Court in Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. .
6. Learned Counsel for the petitioner, conscious of the aforesaid, thereafter has filed a brief synopsis raising the issues which according to the learned Counsel fall within the parameters of the said Act.
7. The first contention advanced by learned Counsel for the petitioner is that the arbitrator had awarded the amount on account of work carried out by the respondent of removal of sub-soil water. In this behalf, learned Counsel has referred to the provisions of Clause 10 which requires the respondent to attain safe stage of work so as to avoid flotation of structure. The payment for pumping of sub soil water had to be as per the actual execution only for excavation, concreting, RCC and brick masonry as per Clause 10.2 and it was subsequently stipulated that no extra amount was to be paid on account of de-watering of sub-soil. The relevant portion of the said Clause is re-produced as under:
10.2 Payment of the items of the work carried out under subsoil water shall be made as per the actual execution only for excavation, concreting, RCC and brick masonry as per the items in the schedule of quantities. Tenderer shall note that nothing extra on account of execution of any other item under subsoil water conditions or for de-watering required for safety of structure against flotation shall be payable. The contractor shall carry out the works under dry conditions at all times.
8. On examining the aforesaid submission of the learned Counsel for the petitioner and perusing the reasoning of the award, there is no doubt that the arbitrator has held that till the stipulated date such amounts on account of de-watering of sub-soil was not payable. However, what has been held to be payable are the charges for such de-watering after the stipulated date of completion. It is trite to say that once the delay is attributable to the petitioner, it is the petitioner who must bear all the consequences and expenses incurred by the respondent on account of the delay. This would equally apply to the de-watering of the sub-soil and thus the exclusion clause would not apply where there is extension of time period. In any way, this can also be construed as an award of damages to the respondent which the respondent has suffered on account of delay in completion of the project for reasons attributable to the petitioner. I thus find no merit in this petition.
9. Learned Counsel for the petitioner seeks to contend that the amounts have been awarded for additional quantities of work executed by the respondent which had been taken care of in the contract and there were no acceptable measurements of the same. This can hardly call for any interference by this Court as once again it is a matter of appreciation of evidence. It may be noted that even in respect of the matter of construction of clauses of contract, the arbitrator is the final authority unless such construction is patently illegal or absurd. The present case certainly does not fall within this exception.
10. A further plea also sought to be raised for which the aforesaid reasoning would equally apply is in respect of payment for quantities as per BOQ and certain additional work for which hiring charges have been held to be payable.
11. The aforesaid are the only aspect pressed by learned Counsel for the petitioner.
12. In view of the aforesaid, I find no merit in the objections and the same are dismissed leaving the parties to bear their own costs.