JUDGMENT
V.S. Aggarwal, J.
1. This is a petition filed by the applicant (M/s. Om and Company) under Section 14 read with Section 17 of the Arbitration Act, 1940 for making the award a rule of the Court and for a decree to be passed in terms of the award.
2. The relevant facts are that the engineer member Delhi Development Authority had appointed Shri R.C. Malhotra as the sole arbitrator. Vide award dated 23rd September, 1994 the learned Arbitrator allowed certain claims of the petitioner and in pursuance of the notices having been issued the Delhi Development Authority had filed the objections. The same have to be considered here-in-after. Needless to state that in the reply filed all the assertions or objections of the objector (Delhi Development Authority) have been controverter.
3. Learned counsel for the objector had assailed the award primarily on the ground that it is not supported by the reasons as required by Clause 25 of the Arbitration Agreement between the parties and, therefore, the award as such is liable to be set aside.
4. The said argument of the learned counsel has simply to be stated to be rejected. The reason being that perusal of the award reveals that the learned arbitrator has recovered reasons for arriving at a particular conclusion. It is a settled principle of law that the arbitrator is not required to record the reasons in the form of a judgment. The reasons recorded can be brief or could be intelligible. Once it is so the requirement, if any, for recording the reasons would be satisfied. In that view of the matter as is apparent from the record the said argument as referred to above necessarily has to fail.
5. During the course of submissions learned counsel for the objector Delhi Development Authority argued that the findings of the arbitrator with respect to claim No. 1 (v) are totally erroneous because there could be no extra cost for cutting and straightening of reinforcement in connection with agreement item No. 3.8. The learned counsel referred the item No. 3.8 and the words “complete so as to indicate that no such item could be permitted.”
6. The arbitrator in this regard had noted:-
“v) Extra for cutting and straightening of re-inforcement in connection with agreement Item No. 3.8
The claimants pleaded that agreement item No. 3.8 does not include the cost involved in cutting and straightening of reinforcement bars and as such they are entitled for payment for this extra work done. The Respondents on the other hand argued that as per para 5.3.1 of CPWD specifications 1977 the element of cutting and straightening is included in the cost.
The quantity of reinforcement steel is not in dispute, the only dispute between the parties is whether the operations of cutting and straightening of reinforcement bars are covered in the rate or whether these are to be paid extra. On going through the agreement carefully I find that these operations are neither mentioned in the nomenclature nor it is specified in the specifications. Under the circumstances the Claimants are entitled to be paid extra for cutting and straightening the steel reinforcement. The rate of Rs. 0.47 per Kg. claimed by the Claimants is found to be reasonable. The quantity being 21806 Kg the Claimants are entitled for payment of Rs. 10,249/-.
7. It becomes unnecessary to ponder further in this aspect of the matter. The same had been considered by this Court in the case of Wee Aar Constructive Builders v. Delhi Development Authority and Anr. 2001 IV Apex Decisions (Delhi) 65. A similar argument had been advanced that straightening and cutting of steel bar is implicit in item 3.7 and it was held that the said amount as such could not be allowed, this Court had concluded:-
“14. there is no doubt that when a clause in a contract is capable of two interpretations, the Court should respect the interpretation given by the learned Arbitrator. The Court should not substitute its interpretation for that of the learned Arbitrator.
15. In the present case, however, it seems to me that item No. 3.7 read with Clause 42(iii) and Clause 42(ix) of the contract admits of only one interpretation. If the learned Arbitrator chooses to ignore the only possible interpretation and comes up with an interpretation which does not appear to be plausible, the Court is not obliged to accept the latter interpretation. In this regard, I would definitely go along with the view expressed by a learned Single Judge of this court in S.K. Mangla that this would amount to a legal misconduct.
16. Quite apart from this, item No. 3.7 describes the work in an inclusive manner. The work to be done is reinforcement of RCC work and this is said to include bending, binding and placing in position. The work of bending, binding and placing in position is not exhaustive of the reinforcement of RCC work-it is only illustrative. Therefore, the description of the work being inclusive and illustrative will encompass other ancillary works and, definitely, intrinsically connected works such as straightening and cutting the steel bars.
17. The use of the word “complete” in item No. 3.7 also lends support to the view that I have taken. The item requires the Petitioner to do the complete job of reinforcement of RCC work. This means just about everything that is necessary, including bending, binding and placing in position. If the work involves straightening and cutting the steel bars for its completion, well, so be it.
18. I, am, therefore, of the view that straightening and cutting the steel bars is postulated in item No. 3.7 of the Agreement.”
8. One finds in respectful agreement with the said view, and, therefore, it must be held that so far as the claim contained in claim No. 1 (v) is concerned it could not have been so allowed.
9. Reliance by the petitioner is placed on the decision of this Court in the case of Wee Aar Constructive Builder v. Delhi Development Authority . On the first blush it appears that a contrary view was taken, but in fact the facts of the said case show that this court found the DDA had not raised any objection that similar amount cannot be awarded. Thus the said decision is distinguishable.
10. As regard the other claims indeed there was precious little for the objector to argue and urge. This is for the reason that ordinarily arbitrator is a final Court with respect to the facts. The court will not reappraise the evidence even if it comes to the conclusion to the contrary unless the finding is erroneous. It would not interfere if a reasonable view has been taken on an appreciation of the facts, it would not permit the Court to interfere.
11. In claim No. 1 the arbitrator had allowed Rs. 9,611.83 on the ground that the excavated rock was disposed off at a distance of 3 KM but no payment has been made. It was found to be justified. This indeed is a finding of fact which requires no interference. Similarly for claim No. 1 (iii) Rs. 2,696.49, which was allowed for less paid in case of agreement item No. 6.4. i.e. the payment had to be made for the total weight involved in the item. This amount is a finding of fact without any interference.
12. So far as item No. 1 (viii) Rs. 1200/- only is allowed for the non-payment of agreement item No. 11.6. The claimants/petitioners stated that they have directed 5 RCC storage tanks as per provisions of agreement and payment for the same had been made in the running bill, but subsequently in the final bill the payment was deleted. The arbitrator noted that there is no evidence to show that RCC tanks had been taken back by the claimants. The compensation in this regard was rightly allowed.
13. Objections had been taken with respect to claim No. 2 stating that the arbitrator had failed to appreciate the evidence. The reasoning of the arbitrator shows that objector had admitted that Rs. 35,000/- had been withheld. It also recorded that the work had been completed and bill finalised. Therefore, there was no justification in withholding any amount at this stage. The findings of the arbitrator are based on the material on the record and there is no scope thus for interference.
14. It was further argued so far as claim No. 5 is concerned it also to be set aside. But the findings of the arbitrator reads:-
“In view of the matter available on record the respondents failed to perform their contractual obligation in sanctioning the extra/substituted items within specified time to become entitled for availing the rebate. Hence their action in availing the rebate on this account is unjustified. Thus I award a sum of Rs. 1701/- in favor of the Claimants.”
15. It is abandoned clear from the perusal of the same that this is a finding of fact permitted deduction of the rebate extra or substituted items.
16. In that event the fault was admitted to be found in claim Nos. 7 and 8. So far as claim No. 7 is concerned Rs. 1701/- was allowed on account amount deducted as rebate for payment of final bill. Once again it is finding based on the material on record leaving no scope for interference. As regards claim No. 8 the finding of the arbitrator reads:-
“8. Claim No. 8:- Claimants claim Rs. 1,50,000/- on a/c of market rates for the quantity executed after stipulated date of contract.
The date of the start of the work was 28-3-88 and the time allowed for completion being 7 months, the work was to be completed by 27.10.88. The work however could not be completed by the claimants within stipulated period of the contract for reasons beyond their control and the reasons substantially attributable to the Respondents, such as delay is giving decisions, and drawings. At the end of the stipulated period of the contract the claimants gave notice to the Respondents to the effect that they would charge 25% extra over and above their quoted rates for the work to be done after the stipulated date. This demand was never refuted by the Respondents.
Considering the material on record and argument advanced by the parties I hold that the claimants are entitled for higher rates. I further find that the cost index relied upon by the Claimants was reasonable.
The cost of work done during the
extended period works out to Rs. 8,48,740.00
Less cost of stipulate material
issued at fixed price Rs. 2,99,552.00
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Rs. 5,49,188.00
25% of this amount comes to Rs. 1,37,297.00
Less amount paid under clause Rs. 45,665.00
10 cc
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Balance Rs. 91,632.00
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In view of the above I hold that the claim of the Claimant is justifies to an extent of Rs. 91,632/- only and I award this amount in favor of the Claimant."
17. In this regard as already has been stated when reasonable view has been stated on evidence and it cannot be termed that no other view was possible no it is totally erroneous it must follow that the finding so arrived at cannot be disturbed being based on the material on the record. This Court not to sit as a Court of appeal and reappraise the material on the record. Even if it comes to the conclusion to the contrary the interference is not called for nor justified.
18. No other argument was raised.
19. In these reasons the award is made a rule of the Court and decree in terms of the award is passed except item No. 1 (v) of the award which is disallowed. Petitioner would be entitled to interest at the rate of 12% per annum on the principal amount from the date of the award till final payment is made.