ORDER
J.D. Kapoor, J.
1. On the filling of the award by the arbitrator parties were noticed. Respondent-DDA filed objections. The only objection of substance that needs consideration is with `regard to claim no.1. All other objections are in the nature of challenging the findings on fact based upon material and evidence. Admittedly, the Arbitrator has not travelled beyond terms of the contract in respect of these claims.
2. The main objection is that this claim comes within `Excepted Category’ and as such beyond the jurisdiction of the Arbitrator. According to Mr. V.K. Sharma, learned counsel for the respondent, arbitrator on the one hand has rejected claim no. 5 of the petitioner which comes under clause 25(b) of the agreement whereas has contradicted himself by allowing claim no. 1.
3. Clause 25B is relevant. It reads as under:–
“The decision of superintending Engineer regarding of reduction as well as well as justification there of in respect of rates for sub standard which may be decided to be accepted will be final and would not be open to arbitration.”
4. Apparently this claim arises on account of refund of withheld amount in the form of reduced rates which were to be determined by Superintending Engineer.
5. Perusal of the award shows that claim no. 1 was towards the amount claimed by the claimant and withheld by the respondent. It further shows that arbitrator found that respondents have made payment at reduced rates and hence withholding of any amount was not justified. Arbitrator also observed that on the date of finalisation of the bill, no action was taken to levy compensation for liquidated damages.
6. Regarding the observations of the Arbitrator that on the date of finalization of the bill no action was taken to levy compensation for liquidated damages learned counsel for the respondent has referred to clause 2 of the agreement which provides that in the event of delay of the execution of the work the Superintending Engineer is the competent authority to determine the issue and to levy compensation for said delay and the decision of the Superintending Engineer in this behalf is final and not questionable.
7. In support of the above proposition the learned counsel has placed reliance upon Delhi Development Authority Vs. Sudhir Brothers wherein it was held that the validity of the levy of compensation is within the competence of Superintending Engineer only and the Arbitrator cannot to into this aspect of the claim.
8. It is further contended by Mr. Sharma that with regard to the extension of time case the Superintending Engineer under clause 2 of the agreement has imposed a levy of Rs.8514/- and so far as the sum of Rs.1000/- is concerned under clause 25(b) of the agreement the Superintending Engineer is again the competent authority and the Superintending Engineer has actually determined a sum of Rs. 15202.54 as recoverable from the petitioner /claimant under reduction and deduction termed by him. In view of these facts the whole of the claim was an excepted matter and could not have been dealt with and decided by the Arbitrator. However in the alternative the learned counsel has also contended that even if it be assumed that in view of the award in relation to claim no.5 having been rejected, no further recovery is permissible under the RI & DI statement and the question regarding the extension of time case under clause 2 of the agreement still remains and comes within the ambit of excepted matter.
9. While refuting the aforesaid contention of the learned counsel for the respondent regarding clause 2 & 25(b), Mr. Harish Malhotra, learned counsel for the petitioner has relied upon the findings of the Arbitrator in respect of claim no. 5 which was on account of recovery from the bill on the ground of RI & DI and since that claim has been rejected the recovery of Rs.15202.54 as assessed by the Superintending Engineer was held to be justified and, therefore, the same recovery cannot be made twice by way of rejecting the claim no.1 of the petitioner.
10. It is further contended by Mr.Malhotra that since the amount of Rs. 15,275/- was already recovered from the bills on account of RI & DI by the Executive Engineer and when the matter went to the Superintending Engineer the latter settled the matter and determined the amount as Rs.15,202.54. As a consequence claim no 5 of the petitioner was rejected. It was in this context that the learned Arbitrator made the observation that on the date of finalization of the bill no action was taken to levy compensation for liquidated damages and held the claim of the petitioner fully justified.
11. Thus it was after satisfying that no recovery was pending on any account from the petitioner the Arbitrator held the claim of the petitioner fully justified. However before the Arbitrator the respondent made the statement that the amount of Rs. 5,000/- has been withheld for want of sanction of the EOT case by the competent authority and the competent authority has not grated the extension of time as provided under clause 2 of the agreement without levy of compensation.
12. The very fact that no decision was taken by the Superintending Engineer with regard to clause 2 of the agreement till the award was made the Arbitrator was well within its power to observe and allow the claim of the petitioner on the premise that on the date of the finalization of the bill no action was taken to levy the compensation for liquidated damages.
13. The conspectus of above facts shows that the claim no.1 did not come within the category of excepted matter and, therefore, the finding of the Arbitrator cannot be interfered with. There is no other objection that merits consideration as observed above. The objections are dismissed. The award is made as rule of the court and the suit is decreed in favor of the petitioner with pendente lite and future interest @ 12% per annum till realization.