ORDER
K.S. Gupta, J.
1. Delhi Development Authority, respondent has filed objections under Section 30 & 33 of the Arbitration Act inter-alia alleging that M/s. I.A.E.C. India Ltd., petitioner was awarded the work of “providing sub station equipment” under an agreement No.EE/ED7/88-89/3. Clause 14 (2) of the agreement under the head “Additional Conditions and Specifications” provides as under:-
“The equipment supplied shall be covered by a warranty for a period of 18 months from the date of commissioning against unsatisfactory performance of breakdown due to defective design, materials, and/or manufacture. If the equipment/component thereof is found to be defective, it shall be repaired/replaced at site, free of charges by the successful tenderer. Carriage of such defective equipment/component from the site to the manufacturer’s work/repair shop, and bringing back to the replacement/repaired items for refixing shall be at the cost of the successful tenderer.
The warranty shall cover the following:-
(a) Quality, strength and performance of materials used.
(b) Safe mechanical and electrical stresses on all parts under conditions of operation.
(c) Performance figures other particulars specified by the Tenderer the schedule of guaranteed Tech. particulars.
(d) Consequential damage to the equipment supplied.
The repairs shall be carried out promptly within a reasonable period to the satisfaction of the Engineer in charge.
The installation shall be guaranteed against any defective work, workmanship.
The successful tenderer shall be liable to pay consequential damages arising out of bad installation. The guarantee shall include free replacement/repairs including transportation, dismantling and reinstallation.
2. It is alleged that date of commissioning of the transformer by the petitioner was 16.4.86 and the transformer was well within the warranty period of 18 months when it had a breakdown on 8.5.87. S.K.Sinha, arbitrator in his award dated 31.5.91 committed error in taking the date of commissioning of the transformer as 14.5.85 instead of 16.4.86. It is further alleged that the Assistant Engineer of the Respondent-Authority personally visited the petitioner’s office time and again to get the transformer repaired but the petitioner expressed their inability to attend the break down site as they had closed the electrical wing. Respondent-Authority was thus left with no alternative but to get the transformer repaired at the risk and cost of the petitioner under the aforesaid Clause 14 (2) of the agreement. Arbitrator also committed error in not considering the said facts while awarding a sum of Rs.26,700/- to the petitioner under claim No.1 . It was prayed that award with respect to claim No.1 be set aside and with respect to the remaining claims, be made the rule of the Court.
3. Notices of the filing of the award and also the objections (IA No.10976/91) were duly served on the petitioner but none put in appearance on their behalf.
On 6.5.93, following issues were framed:-
1. If the award dated 31.5.91 liable to be set aside on the grounds taken in objection petition being IA No. 10976/91?
2. Relief.
4. Evidence was allowed to be lead by way of affidavit(s). Affidavit of B.L.Khurana, Chief Engineer (Elect.) dated 17.9.93 was filed by respondent-Authority on 20.9.93.
5. Contention advanced by Ms. Anusuya Salwan appearing for respondent-Authority was that the date of commissioning of the transformer was 16.4.86 instead of 14.5.85. In support of this contention my attention was drawn to the photostat copy of the completion certificate placed on the file of the arbitration proceedings bearing No. F-1(1)/SE(E)-3/DDA/90-91 which reads as under:-
“Certified that the work has physically been completed on 16.4.86 and the contractor has removed from the premises on which the work was being carried out all surplus material or rubbish and cleared the walls & floors in the building in upon or about which the purpose of executing the work. The work is, however, subject to measurement being recorded and quality being checked by the competent authority.
Sd/- Sd/-
Executive Engineer(E) Assistant Engineer
Electrical Division No-4 Electrical Division No-4
D.D.A. D.D.A."
6. As a part of the said contention, it was further argued by her that by ignoring aforesaid completion certificate, arbitrator had misconducted within the meaning of Section 30(a) of the Act.
Strong reliance was placed on K.P.Poulose vs. State of Kerala and Another, .
7. Under claim No.1, the petitioner claimed a sum of Rs. 26,700/- deducted by the respondent-Authority vide final bill dated 28.11.86. This claim was dealt with by the arbitrator thus:-
"I find that the respondent had not given any intimation to the claimant/contractor about the breakdown of the transformer which as stated by the respondent occurred on 8.5.87. The respondent had not served any notice upon the claimant/contractor before getting the repair work done at their risk and cost. The transformer was energised on 14.5.85 as such, it was not within the warranty period of 18 months from the date of commissioning. The deduction of Rs. 26,700/- from the final bill of the claimant/contractor is, therefore, unjustified. A sum of Rs. 26, 700/- is, therefore, awarded against the claim."
8. It may be noticed that deduction for the said amount from the final bill of the petitioner was held to be unjustified by the arbitrator on two counts alleged breakdown of the transformer having not occurred within the warranty period of 18 months from the date of commissioning which was taken as 14.5.85 and the respondent-Authority having not served any notice or given intimation to the petitioner about the breakdown before getting the repair work done. Indisputably, no notice in writing was served on the petitioner by the respondent-Authority before getting the repairs done at their risk and cost. As is evident from the counter-statement filed on behalf of the respondent-Authority before the arbitrator, the stand taken by it was that after the transformer went out of order, the Assistant Engineer contacted the petitioner-firm personally to get the repairs done but the petitioner refused to get the transformer repaired and the respondent-Authority, therefore, got the repairs done from the open market by making payments of Rs.17,200/- and 9,500/-, totalling Rs.26,700/-. In reply to counter-statement, the petitioner denied that in May 87 Assistant Engineer of the respondent-Authority contacted them personally, as alleged. It is further stated that the petitioner are maintaining a visiting register in the office and during the month of May 87, no entry was found to have been made therein relating to the visit of any Assistant Engineer of the respondent. Transformer was repaired without the knowledge of the petitioner-firm and, therefore, the deduction of Rs.26,700/- from the final bill towards repairs was improper.
9. For the reasons best known to the respondent-Authority it did not disclose either in the objection petition or the affidavit of B.L. Khurana, Chief Engineer (Elect). dated 17.9.93, the name of the Assistant Engineer who is stated to have personally visited the petitioner-firm for carrying out repairs of the transformer nor the affidavit of concerned Engineer was filed. Date of the alleged visit too was not divulged. It is settled law that the Court should approach the award with a desire to support it if that is reasonably possible rather than to destroy it by calling it illegal. The arbitrator is the sole Judge of the quality as well as the quantity of evidence and it is not open for the Court to take upon itself the task of being a Judge of the evidence before the arbitrator. Assuming that the arbitrator erroneously took the date of commissioning of the transformer as 14.5.85 instead of 16.4.86 which would have brought the claim of Rs. 26,700/- within the warranty period of 18 months, taking note of the non-disclosure of the name of the concerned Assistant Engineer and the alleged date of visit, there seems to be no scope for interference as regards the other part of the finding referred to above recorded by the arbitrator which alone is sufficient to uphold the award of Rs. 26,700/- in favour of petitioner. Issue No.1 is answered accordingly.
ISSUE NO.2
10. In view of finding of Issue No.1, objection petition (IA No. 10976/91) deserves to be dismissed.
11. Consequently, IA No. 10976/91 is dismissed and the award dated 31.5.91 is made the rule of the Court. Respondent-Authority is allowed two months’ time to pay Rs. 26,700/- to the petitioner failing which it will be entitled to interest @ 18% per annum. No order as to costs.