JUDGMENT
Sanjay Kishan Kaul, J.
IA 96/1996(under Sections 30 and 33 of the Arbitration Act, 1940)
1. The petitioner-contractor was awarded work by the respondent for construction of accommodation for the Delhi Administration at Sadhora Kalan, Phase I and II, Delhi in pursuance to agreement No. 11/EE/PWDXV/80-81. Dispute arose between the parties and in view of Arbitration Clause 25 of the terms and conditions of the contract, the Chief Engineer, PWD in terms of the letter dated 16.08.1990 appointed Mr. V. Nainani of the Ministry of Urban Development as the sole arbitrator. The arbitrator made and published his award on 31.10.1994. The petitioner-contractor aggrieved by the same, has filed the objections.
2. Learned counsel for the petitioner contends that there is no finding recorded in respect of claim No. 1. Claim No. 1 pertains to what the petitioner states is the amount due from the respondent amounting to Rs. six lakh. The arbitrator has dealt with claims No. 1, 2 and 4 along with certain counter claims. The arbitrator found that insofar as the execution of the contract is concerned, there have been delays on behalf of both the parties. Respondent failed to clear sites etc. within time while on the other hand the petitioner took inordinate long time to carry out the work even after sites were made available. The arbitrator thus found that there was failure on the part of the petitioner to proceed with the work diligently through the period of execution of work. The arbitrator thus came to the conclusion that both the parties should bear their own losses and damages arising out of the same and thus no risk or cost action subsists against the petitioner.
3. Insofar as the quantum of work is concerned, the arbitrator found that the same was correctly recorded in the books of the respondent and thus nothing was found payable to the petitioner. In view of this finding, I am unable to accept the plea of the learned counsel for the petitioner that the arbitrator has failed to give any finding in respect of claim No. 1.
4. Learned counsel for the petitioner also sought to contend that no reasons have been given for making the award. This is only stated to be rejected since a perusal of the award shows that reasons have in fact been recorded. An arbitrator is not required to write an award in the form of a judgment and thus so long as the mental process of the arbitrator is available, no fault can be found with the same. 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.
5. Learned counsel for the petitioner drew the attention of this court to the discussion on claim No. 3. The said claim pertains to compensation for increases in labour and wages under Clause 10C. The arbitrator found that some amount had already been paid to the petitioner in this behalf. Considering the delays attributable to the petitioner, no further amounts were found payable. In my considered view, the question of paying increases of wages of labour and material under clause 10C arises if the petitioner is not at fault. The finding is to the contrary. Thus the award in this behalf cannot be faulted.
6. Claim No. 5 relates to the refund of rebate not being given despite the fact that payment was made belatedly or not within time. There have been some delays in payment, but the arbitrator found that wherever rebate was entitled, the same has been claimed and that the respondent has generally complied with the provision of rebate. Thus no fault can be found even on this account.
7. A serious contention advanced by learned counsel for the petitioner arose from the grant of counter claim for Rs. 4.07 lakh on account of items/fittings provided and paid, but not existing at site. Learned counsel submitted that this claim was in fact given up by the respondent and yet the same has been awarded. In this behalf learned counsel invited the attention of this court to ground E of the objections which records that the counter claim was withdrawn on 29.03.1994. In response to the same, in reply, this fact is not disputed. On the grant of Rs. 4,09,031/- (which is more than what is even claimed) is stated to be on account of the work got done at the risk and cost of the petitioner. The aforesaid plea of the respondent cannot be accepted for two reasons. The award clearly states the amount is being given against a particular claim which is obvious from what is set out in sub para (ii) on page 6 of the award wherein it is stated that Rs 4,09,031/- for the restoration of fittings and fixtures The amount has been given for a specific purpose and thus cannot be claimed under a different head, which is counter claim No. 4 which was for Rs. 6,68,645/- for balance work. The second reason is that the arbitrator has given a finding that no amount is being awarded for risk and cost action in view of delays attributable to both the parties. In this behalf, finding on page 5 of the award is Thus no risk and cost action subsists against the claimant In view of this finding, the plea can hardly be sustained. In view of the aforesaid, the award of the amount of Rs. 4,09,031/- against the counter claim cannot be sustained and is set aside.
8. It has also to be kept in mind that this court does not sit in appeal over an award is not to re-appreciate the evidence. Merely because this court may come to a different conclusion on given facts would be no reason to interfere with the award as reasonableness is not a matter to be considered in the absence of the award being absurd. Reference in this behalf may be made to the Judgment of Supreme Court in Food Corporation of India v. Joginderpal Mohinderpal and Anr. . On the basis of the claims awarded in favor of the respondent, the following amounts have been awarded as per learned counsel for the petitioner:
Claim No.1 Rs. 4,09,031/-
Claim No.2 Rs. 39,679/-
Claim No.3 Rs. 23,603/-
Claim No.4 Rs. 167/-
Claim No.5 Rs. 314/-
Claim No.6 Rs. 24,404/-
Claim No.7 Rs. 20,000/-
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Total Rs. 5,16,198/-
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9. The petitioner has been permitted adjustment of security of Rs. 99,209.55/-. Thus the balance amount payable by the petitioner to the respondent ought to have been Rs. 4,16,988.45/- and not Rs. 4,84,194.45/-.
10. The plea of learned counsel for the petitioner of there being such a calculation mistake cannot be accepted. This is so as the learned counsel is ignoring amount of Rs. 67,206/- which has been over paid by the respondent on payment of the 26th running bill. The amount was reduced from the final bill prepared. The amount is on account of fittings brought to the site but not fixed and which were not handed over by the petitioner. The arbitrator has found that the responsibility lay with the petitioner to hand over the work/fixtures and fittings to the respondent before withdrawing from the site. The petitioner also failed to attend the proceedings for joint measurement and the arbitrator has thus held in favor of the respondent in this behalf. If this amount is added to the amount calculated aforesaid at Rs. 5,16,198/-, it would amount to Rs. 5,83,404/- and after permitting the adjustment of security of Rs. 99,209.55/-, the net amount would come to Rs. 4,84,194.45/-, which is what the arbitrator has awarded. In view of the award of Rs. 4,09,031/- being set aside, the balance amount payable by the petitioner to the respondent amounts to Rs. 75,163.45/-.
11. The arbitrator has granted instead interest at the rate of 12 per cent per annum from date of award till date of realisation or date of decree whichever is earlier which does not call for any interference.
12. The application is thus stands disposed of.
CS (OS) No. 511/2005
1. The award dated 31.10.1994 of the sole arbitrator Mr. V. Nainani stands modified as aforesaid and is made rule of the court to the extent that the respondent is held entitled to the sum of Rs. 75,163.45/- along with interest at the rate of 12 per cent per annum from the date of award till date of decree. The respondent shall also be entitled to future interest at the rate of 9 per cent from date of decree till date of realisation. Parties are left to bear their own costs. Decree sheet be drawn up accordingly.