JUDGMENT
Dalveer Bhandari, J.
1. This appeal is directed against the judgment of
the learned Single Judge dated 11th March, 1981 whereby
the learned Single Judge had dismissed the Objections to
the award filed by the DDA and made the award dated 3rd
May, 1991 a rule of the Court and directed that the
decree in terms of the award be passed.
2. Aggrieved by the judgment, the Delhi
Development Authority has filed this appeal.
3. The learned counsel for the appellant
restricted his challenge to the findings on
counter-claims 5, 6 and 7 of the arbitrator which were
upheld by the Single Judge. According to the learned
counsel for the appellant the arbitrator was in error in
rejecting the counter-claims of the DDA and learned
Single Judge was in error in upholding the Award.
4. Counter-claim No. 5 is for Rs. 1.50 lakhs for the
quantity of the material found short during the
technical examination of the work. The learned
arbitrator, in a detailed speaking Award, has mentioned
that work was rescinded in December 1981 and
subsequently the balance work got executed by some other
agency. Thereafter, as per report and evidence placed
before him the work was inspected by a technical
examiner in 1982 and the report of the defects were sent
by the Chief Technical Examiner in 1982. In the same
Award the leaned arbitrator has mentioned that the
respondent completed the work in December, 1981 and the
inspection had taken place admittedly in August, 1982
then the respondents cannot be accused of carrying out
the work below specification. The arbitrator has
observed that the case of the claimant is that the work
was illegally and arbitrarily rescinded by the
respondents in December, 1981 and subsequently the
balance – work got executed through another agency namely
Shri R.S. Rana. Thereafter, reportedly, the work was
inspected by the Technical Examiner in August, 1982 and
the report of the findings was sent by CTE to the Chief
Project Engineer on 4.12.1982. In this report the name
of contractor is indicated as Shri R.S. Rana, i.e. the
agency who executed the balance work after his contract
had been rescinded. He was neither asked to be present
at the time of inspection nor had any intimation of
examination having been conducted. In fact, the report
of the finding of the Technical Examiner was never
received by him. It is only on 16.5.1985 that he was
told that the work was found to be below specification
and was asked to accept the payment at reduced rates.
The findings of the learned arbitrator regarding claim
No. 5 has been upheld by the learned Single Judge. We
see no reason to interfere with the findings arrived at
by the arbitrator and upheld by the learned Single
Judge.
5. Counter-claim No. 6 is for Rs. 1,32,939/- towards
balance work which was executed at the risk and costs of
the claimant through contractor by another agency. The
learned Arbitrator has given detailed reasons regarding
Counter-claim No. 6. He has mentioned that the
Counter-claim is inter-linked with additional claim No. 2
of the claimant which has been discussed along with
claim No. 2. According to the findings of the arbitrator
the action of the department in rescinding the contract
is wrong and unjustified. The plea of the respondents
that the work was rescinded as the progress was slow and
the quality of work was poor, as emerged from the check
made by the Technical Examiner, has to legs to stand as
the Technical Examiner checked the work in August, 1982
when the work had already been rescinded several months
ago i.e. in December, 1981. This finding of the
learned arbitrator has been upheld by the learned Single
Judge. We see no justification in interfering with the
finding of the learned arbitrator as approved by the
learned Single Judge.
6. Counter Claim No. 7 pertains to the amount of
Rs. 20,628/- towards deduction in rates on account of
oversize stone aggregate. The learned arbitrator gave
the same reasons that the work was rescinded in December,
1981 and inspection was carried out in August, 1982.
During this period another agency was directed to
completed the work. Therefore, for any sub-standard work
the respondents cannot be held responsible. The
arbitrator has taken into account the entire evidence
and held that claim of the DDA was not justified and
rejected the same. The learned Single Judge upheld the
findings of the arbitrator. We see no reason to
interfere.
7. Learned counsel for the appellant has drawn our
attention to the judgment of the Supreme Court in
Rajasthan State Mines & Minerals Ltd. v. Eastern
Engineering Enterprises and Anr., . The learned counsel has particularly drawn
our attention to paragraph 44 in which the Hon’ble
Judges held that to find out whether the arbitrator has
travelled beyond his jurisdiction, it would be necessary
to consider the agreement between the parties containing
the arbitration clause. Arbitrator acting beyond his
jurisdiction – is different from the error apparent on
the face of the award. In order to determine whether
the arbitrator has acted in excess of his jurisdiction
what really has to be seen is whether the claimant could
raise a particular claim before the Arbitrator. if
there is a specific term in the contract or the law
which does not permit or give the arbitrator the power
to decide the dispute raised by the claimant or there is
a specific bar in the contract to raise the particular
claim then the award passed by the arbitrator in respect
thereof would be in excess of jurisdiction. There is no
quarrel with this proposition but this judgment has no
application as far as the facts of this case are
concerned.
8. The learned counsel appearing for the
respondent has placed reliance on State of Rajasthan v.
Puri Construction Co. Ltd. and Anr., . He has particularly drawn our attention to
paragraph 25 of the judgment in which their Lordships
have observed that the Arbitrator is the final arbiter
for the dispute between the parties and it is not open
to challenge the award on the ground that he arbitrator
has drawn his own conclusion or has failed to appreciate
the facts.
9. In another leading case Sudarsan Trading
Co. v. Government of Kerala and Anr., , the Court held that there is a distinction between
disputes as to the jurisdiction of the arbitrator and
the disputes as to in what way that jurisdiction should
be exercised. There may be a conflict as to the power of
the arbitrator to grant a particular remedy. One has to
determine the distinction between an error within the
jurisdiction and an error in excess of the jurisdiction.
Court cannot substitute its own evaluation of the
conclusion of law or fact to come to the conclusion that
the arbitrator had acted contrary to the bargain between
the parties. The Court further observed that if on a
view taken of a contract, the decision of the arbitrator
on certain amounts awarded is a possible view though
perhaps not the only correct view, the award cannot be
examined by the Court. The Court cannot examine the
reasonableness of the reasons where the reasons have
been given by eh arbitrator in making the award. If
the parties have selected their own forum, the deciding
forum must be conceded the power of appraisement of
evidence. The arbitrator is the sole judge of the
quality as well as the quantity of evidence and it will
not be for the court to take upon itself the task of
being a judge on the evidence before the arbitrator.
10. In this case their Lordships have also examined
the earlier case of the Supreme Court in Municipal
Corporation of Delhi v. Jagan Nath Ashok Kumar
and Anr., 1987 SCC (4) 497. In this case, their
Lordships observed that appraisement of evidence by the
arbitrator is ordinarily never a matter which the Court
questions and considers. It may be possible that on the
same evidence the Court may arrive at a different
conclusion than the one arrived at by the arbitrator but
that by itself is no ground for setting aside the
award. It has been held in the said decision that it is
difficult to give an exact definition of the work
‘reasonable reason’. It varies in its conclusions
according to the idiosyncrasies of the individual and
the time and circumstances in which he thinks. IN cases
not covered by authority, the verdict of a jury or the
decision of a judge sitting as a jury usually determines
what is ‘reasonable’ in each particular case. The word
reasonable has in law prima facie meaning of reasonable
in regard to those circumstances of which the actor,
called on to act reasonably knows or ought to know. An
arbitrator acting as a judge has to exercise a
discretion informed by tradition, methodized by analogy,
disciplined by system and subordinated to the primordial
necessity of order in the social life. Therefore, where
reasons germane and relevant of the arbitrator to hold in the manner he did, have been indicated, it cannot be
said that the reasons are unreasonable.
11. By the order dated 17th March, 1999 the
appellants were directed to deposit the decretal amount
which has been deposited in the Court. The respondent
wold be at liberty to withdraw the same.
12. A well reasoned award has been upheld by the
Single Judge. In our considered opinion no interference
is called for. The appeal being devoid of any merit is
dismissed. The parties are left to bear their own
costs.