ORDER
J.D. Kapoor, J.
1. The award dated 20th November, 1997 which is sought to be made Rule of the Court, has been challenged by the respondent-DDA mainly on the ground that it is a non-speaking award and contrary to the terms of the agreement and secondly that the findings are contradictory and not based upon evidence.
2. The first challenge is to the item 6.1 of the agreement. According to the learned counsel the award in this regard is contrary to the terms of the agreement particularly condition No.2, which reads as under:-
“The rate for all items of work shall unless clearly specified otherwise, include cost of all labour, materials and other inputs involved in the execution of the item and shall apply to all heights and depths of the building and nothing extra shall be payable on this account.”
3. This item pertains to doors and windows. According to the petitioner the respondent did not measure the weight of MS Lugs, MS flats welded at the back of the frames for fixing hinges and the base tie welded to the door frames at bottom and such less payment has been made to the petitioner. As against this the respondent’s contention is that the rates were inclusive of all the items viz. labour, material and other inputs as per condition of the contract.
4. As per the item, the entire weight of the MS lugs, MS flats and base tie was to be measured for payment. Since the respondent did not deny the fixing of MS flats at the back of the frames for fixing butt hinges, MS base tie welded at the bottom of the door frames and the specification did not provide that the Ms lugs, MS flats and base tie will not be measured for the purpose of calculating the total weight of the frame of payment, there is no error or contradiction in the finding of the Arbitrator and the award is not against the agreed term or condition.
5. Reliance by the counsel for the respondent upon The New India Civil Erectors(P) Limited Vs. Oil & Natural Gas Commission JT 1997 (2) SC 633 is misplaced as in the said case the Arbitrator was found to have acted contrary to the stipulation about balconies and awarded the amount and it was held that the Arbitrator could not have awarded any amount about extra expenses incurred in the construction after the expiry of contract when tender agreement stated that there would be no escalation on any ground. It is not the case here. Rather the observations of the Supreme Court in the above referred case were other way round. It was held that the attempt of the Court should always be to support the award within the letter of law and no interference is permissible on the ground that the Arbitrator has misconstrued the terms of the agreement. The contention of the counsel for the respondent is wholly unacceptable and devoid of merit.
6. The next challenge is to item No.22. The award was made under this item on account of steel bars which the respondent issued in a bent-up bundles and in coils without any specific size. The award was made in respect of charges for straightening and cutting of the steel bars which was necessary. What was not included in the agreement was charges of labour for straightening, cutting and hoisting of the steel bars to various levels. The Arbitrator did not allow the claim of the petitioner with regard to the labour element. It awarded the payment only for extra work done.
7. The contention that in item No.3.11 it was mentioned that the item included bending, binding and placing in position steel bars including straightening and cutting of the bars did not find favor of the Arbitrator and rightly so.
8. Again Clause 12 of the additional condition is that the Ms and cold twisted bars, flats, T’S, angles etc. Where stipulated were required to be issued in available lengths, shapes and sizes in the stores and no claim on this account was to be entertained.
9. However the amount awarded is only for the extra work done though the petitioner claimed extra payment for 409500 kg of steel but could not give any evidence for the quantity claimed and the quantity of steel issued to the claimant was made the basis for the award under this item.
10. In State of Uttar Pradesh Vs. M/s Ram Nath International construction Pvt. Ltd. it was observed that the jurisdiction of the Court to interfere with the award of an arbitrator is undoubtedly a limited one and it is not open to the Court to re-assess the evidence to find whether the Arbitrator has committed any error or to decide the question of adequacy of evidence the Court cannot sit on the conclusion of the arbitrator by re-examining and re-appreciating the evidence considered by the Arbitrator. However the indulgence of the Arbitrator in entertaining such claims which are completely and absolutely barred by the agreement if the same expenses are incurred on the desired job that such a finding or award suffers from vice of misconduct and non-jurisdiction.
11. Thus by ignoring the claim for labour and allowing only the compensation for the extra work done neither did the Arbitrator travel beyond the jurisdiction nor did acted against the terms of the agreement. Award in this respect was justified and is hereby confirmed.
12. Similar objection has been raised with regard to item No.2 under the head of other payments due. The objection is that the Arbitrator has based its findings on the secondary evidence ignoring the primary evidence and has also not taken into consideration the undertaking given by the claimant while seeking extension of time that they will not seek or claim damages if the extension of time was granted. It is contended that the undertaking was not a voluntary act on the part of the claimant.
13. In Government of Andhra Pradesh represented by its Secretary, Irrigation Department & Ors. Vs. G.Kondala Rai(died) by LRs 1(1996) CLT it was held that the question whether there was coercion or undue influence is essentially question of fact. The award based on findings or observations not backed up by any evidence but by a mere surmise or presumption is vitiated by a legal error apparent on the face of it. However the contention of the respondent in this regard has been soundly dealt with at great length by the Arbitrator. The observations of the Arbitrator in this regard are note worthy and are as under:-
“The contention of the respondent is that the undertaking given by the plaintiff for extension of time by the contractor, the claimant is not entitled to claim any compensation is also devoid of any merit. The said undertaking is not a voluntary act on the part of the claimant. From the documents produced on the record I have no hesitation to hold that it has not been given out of free consent. The payment of the claimant was withheld by the respondent as has been determined by me in various other items in this regard. There is no requirement for giving such an undertaking while applying for extension of time and thirdly the undertaking is directly against the other documents on the record which clearly shows that the claimant right from the beginning has been insisting for compensation on account of delays in the completion of the work. The dely in the present case is entirely attributable to the department alone and there is a substantial delay for five years.”
14. Learned counsel for the respondent has also relied upon Bindra Builders vs. IBPL Group of Companies 2001 RLR 12 where a plea was taken that there was no free consent and it was obtained by coercion or fraud. In the said case the contractor has issued a letter to the respondent stating the receipt of cheque for Rs.1,41,696/- would be towards full and final payment of dues in respect of the said construction and even thereafter the petition under Section 20 of the Arbitration Act was filed. The contractor failed to deal with the circumstances in which the said letter was issued. The instant case is distinguishable as the petitioner specifically raised the plea that the said undertaking was obtained under coercion and was given due to financial duress as he had already suffered losses on account of escalation caused by the delay. It was specifically observed in the above said case that when there is no such allegation made when invoking the arbitration clause, and it is invoked simpliciter, it will have to be held that the contract itself had come to end and with it arbitration clause which is part and parcel of it. The above observation is out of context as regards the instant case and is therefore not applicable.
15. Here the Arbitrator has considered and dealt with in extenso all the pleas and objections raised by the respondents and, therefore, the reliance on the above case is misplaced.
16. Reliance has also been placed upon State of Kerala Vs. K.Bhaskaran wherein the objection of the respondent that the best evidence should be produced by the claimant was considered and it was observed that the best estimate of the amount should be allowed by the arbitrator by the circumstances and fairly persuasive evidence, the most convincing and best available under the particular circumstances of the case will suffice. The respondent has not disclosed as to what was the best evidence available with the petitioner. The evidence relied upon by the arbitrator was fairly persuasive and the only evidence available with the claimant. It there was some other evidence available countering the claim of the claimant in this regard the respondent was free to produce the same.
17. It is settled law that the nature and quality of evidence required in the Court of law is not to be sought by the arbitrator. The Arbitrator himself is the arbiter as to the quality of evidence. The evidence should be convincing, persuasive and best available. The concept that the secondary evidence cannot be looked into in the absence of the primary evidence is not applicable in the arbitration proceedings.
18. In case Municipal Corporation of Delhi Vs. M/s Jagan Nath Ashok Kumar & Anr. the Hon’ble Supreme Court was held that the arbitrator is the sole judge of the quality as well as quantity of evidence and it will not be for the Court to take upon itself the task of being a judge of the evidence before the arbitrator. It may be possible that on the same evidence the Court might have arrived at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award of an arbitrator.
19. The delay causing escalation is bound to act adversely and the contractor is bound to suffer losses and to extract such an undertaking is undertaking obtained under duress as the extension of time sought by the contractor would neither make up his losses due to escalation nor can such an undertaking operate favorably to the authority who has caused the delay and allowed the escalation. The arbitrator rightly allowed the claim on account of the escalation by ignoring the undertaking. The undertaking given by the claimant by no stretch of imagination was a voluntary act and was probably given under financial duress. The respondent cannot be allowed to take advantage of its own wrong or lapse and thus the claim of the petitioner in this regard was justifiably allowed.
20. Same is the position and the stand taken by the counsel for the respondent with regard to item No.3. Some minor defects were removed at the time of completion and the claim related to reimbursement of expenses incurred on account of infructuous expenditure in maintaining contingents of artisans, labour and watch and ward staff after the date of completion. The evidence and the material alone is to be considered by the Arbitrator to arrive at the conclusion and to pick holes that too of highly insignificant and minor nature in such conclusions and to scan the award in such manner is not permissible. Award should not be scrutinized on the anvil of mathematical precision nor should minor and negligible faults be found with the award.
21. For instance the learned counsel has referred to the observations that the contention of the claimant that all the minor defects were removed at the time of completion appears to be correct is contrary to the observations that the said staff as employed by the contractor was on the higher side and still the claim was awarded. Same is the nature of objections as to claim No.1, item No.1.
22. As is apparent the reasons provided by the Arbitrator for each claim project the application of mind by the Arbitrator and not the other way round. The award is a speaking award and well-reasoned, well-considered and well-deliberated award. I deem it needless to tarry further on this aspect as the remaining objections under this head raised by the respondent are of highly trivial nature and are beyond the purview of the Court.
23. Last but not the least the objection of the respondent as to the award of interest is groundless and without any substance as the arbitrator again is the best person to award the reasonable rate of interest even if there is no agreement as to the rate of interest as Arbitrator has power to award the interest. In Secretary, Irrigation Department, Govt. of Orissa Vs. G.C.Roy the Supreme Court has upheld the powers of arbitrator to award interest even if there is no such contract between the parties.
24. Next question is the rate of interest.
25. While relying upon the decision of this Court in case Yogesh kant Bhageria Vs. Deepak Jain 1999 V AD(Delhi)860 wherein in was held that in the absence of a contract the respondent would be entitled to interest at the current rate which is defined in Section 2 of the Interest Act contended that highest rate is at which the interest is paid on different classes of deposits by the schedule Banks in accordance with the directions of Reserve Bank of India under Banking Regulation Act, 1949. I am afraid the facts of the above case are quite distinguishable as in the said case the respondent was doing the business of money lending without any license and the loan acknowledgement receipts were unstamped. On the basis of the pleadings of the parties as issue was struck as to what rate of interest the plaintiff is entitled to recover. It was in view of these facts the provisions of Interest Act were taken resort to and the expression ‘current rate of interest’ as contained in clause(b) Section 2 of the Interest Act the rate of interest was awarded at 12% per annum. That was the current rate of interest at the relevant time. However in the instant case interest has been awarded at the current rate of interest. Though the Arbitrator has powers to award reasonable rate of interest as prevalent in the transactions of the Bank and the Bank Certificate shows that the current rate of interest was 24.4% whereas the interest awarded by the arbitrator is 18%. Even in the Government of India Gazette Notification C-82 the prevailing rate of interest is 18%.
26. The objections are wholly devoid of merit and hereby dismissed. As a result the award is made a rule of the Court and the decree in respect of the awarded amount is hereby passed with pendente lite interest @ 18% as well future interest till the realisation.
The Decree sheet be prepared accordingly.