JUDGMENT
Sanjay Kishan Kaul, J.
Page 1923
1. These are objections filed by the respondent under Sections 30 and 33 of the Arbitration Act, 1940 to the award of the sole arbitrator Shri K.D. Bali dated 25.09.1993.
2. The respondent DDA awarded a contract to the petitioner for construction of lower MIG flats at Kondli Gharoli Complex in pursuance to agreement No. 24/EE/HD-XXIII/85-86. The work commenced on 20.09.1985 and was to be completed on 19.09.1986. The work was however Page 1924 completed on 08.01.1990. The contractor was not satisfied with the payment as certain claims were not paid and thus invoked the arbitration clause. The Engineer Member of the DDA under the cover of the letter dated 11.06.1992 appointed Shri K.D.Bali as the sole arbitrator in terms of Clause 25 of General Conditions of Contract.
3. Learned counsel for the DDA was heard at length but really speaking could advance arguments only in respect of Claim Nos.2, 5, 9, 11, 15 and 16.
4. Claim No.2
Claim No.2 is on account of wrongful deduction in respect of certain items allegedly for substandard work. The submissions of the learned counsel for the respondent is that under Clause 25-B of the Contract/Agreement the decision of the Superintendent Engineer is final and binding on the claim. On the other hand the learned counsel for the petitioner contends that the question of the Superintendent Engineer using the jurisdiction under Clause 25-B would arise only if there was a cause for invoking the provisions. In my considered view, there is no doubt and dispute about the scope and ambit of clause 25-B. However, what is to be considered is that the respondent has failed to produce any material or evidence to show that the petitioner was put to notice of any such sub-standard work or any deficiency to the petitioner within the stipulated time. Unless, this is done the occasion for the Superintendent Engineer to exercise the jurisdiction would not arise. Clause 25-B reads as under:
“Clause 25-B. The decision of superintending Engineer regarding the quantum of reduction as well as justification there of in respect of rates for sub standard work which may be decided to be accepted will be final and would not be open to arbitration.”
In view of the aforesaid I find no reason to interfere with the award on this account.
5. Claim No.5
Claim No.5 is on account of the payments made under Clause 10 (cc). It was found that the delay in completion of the work was not attributable to the petitioner and extension of time was granted by the competent authority without levy of compensation.
It was thus held that the petitioner was entitled to the amount quantified at Rs.45,000/- against the claim of Rs.60,000/-. Learned counsel for the respondent seeks to contend that no calculations have been given for this amount. It has to be appreciated that the amounts have to be quantified in terms of the provisions of the clause and it is not required that detailed mathematical calculations have to be given in this behalf. I find no infirmity with the said award.
6. Claim No.9
Claim No.9 was for an amount of Rs.45,000/- on account of disposal on earth obtained from escalation. The learned arbitrator has considered the quantum of earth excavated and to what extent the same was utilized. There was balance earth excavated which has to be disposed of. The arbitrator has only allowed part of the claim by assessing the Page 1925 rate at Rs.10 per cubic meter for the quantity of earth which had to be removed.
7. Learned counsel for the respondent submitted that the basis for the same is not given. However, it has to be kept in mind that no exact mathematical calculations have to be given and in this behalf reference may be made to the Division Bench judgment of this Court in DDA v. Bhagat Construction Co.(P)Ltd. and Anr., 2004 (3) Arb.LR 548, where it was held that where an arbitrator is a technical man like a Chief Engineer, due weightage should be given to the view arrived at by the arbitrator and this Court is not to substitute its own views with that of the arbitrator. Further the arbitrator need not disclose the mathematical calculations in the award as long as the award shows application of mind and a view which is possible is taken by the arbitrator.
If this principle is applied to the present case, no interference would be called for in respect of the objection of the respondent. It may be noted that Mr.K.D. Bali is a retired Engineer Member of the DDA.
7. Claim No.11
Claim No.11 relates to amounts spent on plastering RCC shelves arising from Item No.3.2. The petitioner had given the exact area of shelves work which did not include rendering or plastering. The only plea taken by the respondent was that no direction had been issued to the petitioner for plastering, but this contention was rejected on account of lack of any material by the respondent specially keeping in mind the fact that the cement required for the due performance of the contract was issued by the respondent itself. Thus if the respondent had issued cement for plastering to be carried out by the petitioner, it cannot be said that there were no instructions by the respondent to the petitioner to carry out the plastering.
8. Claim No.15
The petitioner claims a sum of Rs.20 lakh on account of damages and infructuous expenditure sustained due to various breaches committed by the respondent. The arbitrator found that the work was abnormally delayed and the delay was due to the lapses of the respondent. No doubt amounts have been awarded under clause 10 (cc) but the subject matter of this claim is not the same. Clause 10(cc) deals only with the increase in the cost of material and labour beyond the period of the contract but for damages on other accounts, there is no such provision in the contract. It is for such damages that the arbitrator has awarded Rs.12,000/- per month for forty months, which does not call for any interference.
9. Claim No.16
Claim No. 16 is on account of interest awarded. Interest @ 15% has been granted from 14.01.1992 which is the date of invocation by the petitioner. Thus the basis for grant of interest is available.
10. The second limb of the award of the interest is on the total amount of award from the date of award till the date of realisation. The amount of interest Page 1926 has been awarded at 18% per annum and that too including on the interest amount.
11. In my considered view, there is no rationale given for increasing the interest rate from 15% to 18% per cent. Not only this there have been lowering in the rate of interest subsequently and in my considered view the petitioner is entitled to interest @ of 12% per annum on the total awarded amount. This interest would run from the date of the award till the date of payment.
CS (OS) 2590/1994
12. In view of the objections being dismissed, the award dated 25th September 1994 is made a Rule of the Court with the modifications that on the total awarded amount interest @ 12% per annum would be payable from the date of the award till the date of payment. Petitioner shall also be entitled to costs of the proceedings.
13. On the request of learned counsel for the respondent, which is not opposed by learned counsel for the petitioner, it is agreed that if the payment of the total amount inclusive of interest and costs, is paid by the respondent to the petitioner within 60 days from today, no interest would be chargeable from the date of judgment/decree till the date of payment. Decree sheet shall be drawn up accordingly.