JUDGMENT
V.S. Aggarwal, J.
1. The petitioner/claimant has been assigned to task of construction of SFS houses at Sarita Vihar, Sector I. The petitioner has agreed to execute the work as per terms and conditions contained in the agreement of 15th October, 1984. Various disputes arose with respect to the construction of the said work between the parties. Thereupon as per Clause 25 of the agreement it was decided to refer the disputes for arbitration before the sole arbitrator Shri M.S. Telang. Shri M.S. Telang has made his award on 18th May, 1993. The same has been filed in Court. In pursuance of it a notice had been issued to the parties.
2. The Delhi Development Authority has filed objections which are being contested. The objections were mainly confined to claim No. 1, 3, 5 (2) 7, 9 and 28. The same, therefore, can conveniently be taken up separately.
3. So far as claim No. 1 is concerned the petitioner had claimed Rs. 1,44,389/- towards the refund of the deduction of the rebate made on account of payment of regular monthly bill without fulfillling the contingent conditions. The arbitrator in this regard has awarded Rs. 39,973.12. As per the objector in terms of the agreement the petitioner had offered a rebate of .50% for making monthly payment. As per Clause 8 of the agreement the contractor was required to submit bills against the work executed by him, but no bill was submitted by the petitioner during the execution of the work. On the other hand respondent prepared the bills and made payments from time to time. On few occasions payments could not be made on month to month basis by the objector keeping in view the slow progress of the work. Thus it is claimed that the arbitrator was wrong in allowing the claim in this regard.
4. The findings of arbitrator on the said question are:-
“However, the Respondents have filed certain letters from the Claimants, wherein they have voluntarily offered that the time for the payment of the particular R.A. Bill, be deferred, without affecting the Respondents’ right to avail of the rebate for that Bill. Yet, there are many other occasions, where the Claimants’ request does not exist. Agreement provides that in such situations, the Respondents’ right to avail the rebate gets forfeited for the specific Bill when the contingent conditions is not fulfillled, provided the gross work done for the month is not less than Rs. 1.0 lakh. Respondents have not been able to show that in the affected months, the value of work was less than Rs. 1.0 lakh. Considering all these facts, I hold that the Claim of the claimants, is partly justified. I award Rs. 39,973.12p to be paid by the Respondent to the claimants, against this Claim.”
5. At this sage one can conveniently note the settle position in law. Once the award has been made the Court will not sit as a Court of appeal. This is for the reason that the arbitrator has been appointed with the consent of the parties of adjudicate their disputes. Unless on a finding of a fact no other view is possible, the Court would be refusing to interfere. If the findings are totally erroneous only in that even interference would be called for. Even if two views are possible would not take the liberty to interfere in the findings of the Tribunal appointed by the parties.
6. With respect to claim No. 1 the arbitrator noted that though the petitioner had been offering that the time for payment of a particular RA Bill be deferred but there were many occasions where the petitioner request did not exist. Therefore, the petitioner had right to claim the amount because further the gross work done was not less than Rs. 1.0 lakh. This indeed is a pure finding of fact based on the appreciation of the evidence before the arbitrator and thus there is no ground to interfere.
7. So far as claim No. 3 is concerned the petitioner had claimed Rs. 87,335.25 towards payment of the final bill. Objections has been raised that Rs. 54,999.72 has been awarded and the aid finding is liable to be set aside because arbitrator has allowed the payment relating to three extra items as per the final bill on the ground that during the payment of the running accounts bill these three extra items were being paid at part rates.
8. Even on that account the said finding of the arbitrator indeed cannot be held to be totally erroneous to permit the Court to interfere. It had been noted that during the payment of R.A. bills the three extra items were being paid at part rate. Two of the items were totally deleted in the final bill. The arbitrator noted that there is no satisfactory explanation for this from the objectors. The quantities claimed are the same as were reflected in the said R.a. bill as paid and keeping in view these factors the amount referred to above of Rs. 54,999.72 was allowed. It cannot be termed that the said finding is contrary to the record. In fact it is totally based on the evidence.
9. Further dispute which has been raised with respect to claim No. 5(2) because it is asserted that the objector had made a deduction of Rs. 2,11,809.25 in the item of steel windows, door, ventilators etc. It is alleged that though the arbitrator found that the material used was sub-standard still the claim was held to be justified to the extent of Rs. 1,56,565.10.
10. In the normal circumstances what is being alleged could have been considered but the reasons of the arbitrator cannot be ignored. The arbitrator found that the objectors have not furnished the rate analyses to justified the reduction rate adopted. No notice for use of sub-standard section was given to the petitioner by the objectors. These items admitted for the first time in the final bill. Up to the stage of final bill part rates were paid and, therefore, the arbitrator held that deduction would be justified to the extent of part rate withheld during the running account stage. The plea in this regard is again meritorious and is totally based on the appreciation of the facts. It is not erroneous. Objections in this regard must be disallowed.
11. Further dispute has been raised with respect to claim No. 7. The petitioner claim Rs. 50,000/- towards the cost of Jamuna sand supplied for execution of item No. 1.3. The claim has been allowed to the tune of Rs. 31,337.91. The objections raised is that it is contravening the terms of the agreement because according to the objector as per terms of the agreement there are certain materials which are to be supplied by the objectors and others have to be arranged by the petitioner. The schedule of the material t be issued by the objector does not include jamuna sand or in other words the contractor himself have to arrange and pay for the cost of the jamuna sand. However, there is nothing in the contract that has been pointed that so far as jamuna sand is concerned, it was to be supplied by the petitioner. In the absence of any specific agreement when admittedly the jamuna sand has been sent the arbitrator rightly allowed the claim.
12. Further dispute has been raised with respect to claim No. 9. It was for Rs. 83,571/- on account of bitumen. The arbitrator noted that this is an analogous to the claim relating to the supply of jamuna sand. It was held that bitumen has to be provided by the petitioner in connection with the execution of the work. Accordingly, the same had been allowed. For the reasons already recorded there is no ground to interfere.
13. The last dispute which raised with respect to claim No. 28. It was on account of reimbursement for the salary of the staff and other incidental charges incurred by the contractor because of non-utilisation of machinery due to prolongation of contract on account of breaches committed. The arbitrator noted that at the end of stipulated period of contract new date for completion of balance work as shown to be fixed. It was held, therefore, that time element for completion of the work was set at large. The claimants were required to compete the work within a reasonable time, therefore, the claimants were justified in seeking damages towards the other head staff, salaries etc on their use of machinery during the extended period of 3 years and 7 months. Once again this finding of fact cannot be taken to be erroneous and the reasons necessarily must be held to be reasonable and, therefore, there is little ground for interference.
14. For these reasons the objections as such must fail. The award, accordingly, is made a rule of the Court and decree in terms of the award is passed. The petitioner would be entitled to future interest at the rate of 12% per annum from the date of the present judgment on the principle amount till final payment is made.