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Delhi High Court
R.K. Aneja vs Delhi Development Authority on 1 January, 1800
Author: J K Mehra
Bench: J Mehra


JUDGMENT

Mr. J. K. Mehra, J.

1. In this case disputes had arisen under the contract for construction of 208 S.F.S. Houses at Block-B Kilokari vide Agreement No. 15/EE/ED5/A/84-85 between the claimant and the DDA (hereinafter referred to as “the Objector”). The said disputes between the parties were referred to the sole arbitration of Shri S. S. Kaimal. The Arbitrator after hearing the parties published his award on 14th May, 1992 allowing certain claims of the claimants. The Objector felt aggrieved with the said award and filed its objections against Claim No. 1, Items 1.1, 1.2 and 1.2.13 and Claims Nos. 2, 3, 4, 5 and 8. At the time of hearing, it was agreed between the parties that no oral evidence need be led and the record of the arbitrator be read in evidence. The claimants have pointed out that in the award itself there is a totalling error inasmuch as the total of the amount awarded under various claims Nos. 1, 2, 3, 4, 6 and 8 comes to Rs. 4,70,946.01 and not Rs. 3,87,911.81. This fact of totalling error has been acknowledged by the Counsel for the Objector also. It is a matter of arithmatical error which can be corrected. Accordingly it is directed that the Award be read as one for Rs. 4,70,946.01 P.

2. The Objector has alleged that the arbitrator has misconducted himself and the proceedings. Primarily the attack is on the arbitrator either having not supplied reasons or the reasons where recorded did not disclose the application of mind on the part of the arbitrator or indicated that he had considered the material placed on record.

3. The Objectors contended that the arbitrator was required to discuss all the evidence placed on record in this speaking award and that the reasons given by the arbitrator are against the law and facts. Another contention raised by the objector is that the award of the Arbitrator is contrary to the conditions of the contract between the parties and that in his award, he has introduced a new contract.

4. The claimants filed their reply in opposition to the said objections and have contended that the detailed submissions of the parties were heard and considered by the arbitrator. The arbitrator also went into the evidence before him before publishing his award. They have also contended that this court cannot look into the sufficiency or insufficiency of the evidence as it is not the court of appeal and that it is only when there is an error apparent on the face of the award or it is not based on any material whatsoever or there is a misconduct that under Section 30 and Section 33 the Arbitration Act can the award be interfered with or set aside.

5. I will now take up and deal with the objections in seriatum.

Claim No. 1

Item No. 1.1

6. A perusal of the award shows that the arbitrator has duly considered the material placed before him and has based his findings on the basis of the work done and proved before him. He has looked into the final bill and data which was submitted by the claimants. He has also gone into the question of installation of 160 long points of call bells and 160 medium points while the payment was made only for medium points. He has also considered documents R-28 wherein details of the measurements are mentioned and which clearly proved that there were 160 long points installed. In the circumstances, I am satisfied that the arbitrator has considered the material before him and has given adequate reasons for arriving at his conclusions. The reasons are not required to be supported by detailed discussions of each and every document considered by the arbitrator but should sufficiently indicate the trend of thought process which has been gone into in the mind of the arbitrator for reaching a particular inference. In this connection, a reference may be made to the case of College of Vocational Studies v. S. S. Jaitley (AIR 1987 Delhi 134). The question that it is not for the court to examine the reasonableness of the reasons given by the Arbitrator was settled in the case of Sudarsan Trading Company v. Government of Kerala & Another . In that every case, it was further laid down by the Hon’ble Supreme Court that appraisement of evidence by the Arbitrator is never a matter which the court questions and considers. 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 on the evidence before the arbitrator. Another principle, which was settled in the said authority is that if on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. The jurisdiction of court when it is called upon to decide objections raised by a party against an arbitration award, is limited, as expressly indicated in the Act, and it has not jurisdiction to sit in appeal and examine the correctness of the award on merits a reference be made to the case of Puri Construction Private Limited v. U.O.I. . To the same effect is the case of Municipal Corporation of Delhi v. Jagannath Ashok Kumar . The Counsel for the objectors has placed reliance on the case of K. P. Poulose v. State of Kerala & Another . In that In that case also, the court had clearly laid down that it is the legal misconduct which can be interfered with as an Arbitrator on the face of the award arriving at an inconsistent conclusion even on his own finding or by ignoring very material documents which throw abundant light on the controversy. That is not the case here and no inconsistency has been pointed out. In the case of Coimbatore District Podu Thozillar Sangam v. Bala Subramania Foundary and others , it has been laid down that it is only the errors of law on the face of the award and not the factual errors that are open to correction and interference by the court. In the light of the above legal position, the objection in respect of this claim is rejected and the award on this claim is upheld.

Item No. 1.2.1.

7. Under this claim, the Arbitrator has awarded a sum of Rs. 15,324.88 for extra items. On this I find that the arbitrator has critically recorded that these are the payments for extra items without spelling out as to what are the extra items. R-27 and R-28 do not present a clear picture and justification of the demands made by him. This part of the awards, to my mind, cannot be sustained and is set aside.

Item No. 1.2.13

8. This relates to unjustified recoveries of the amount made from the final bill amounting to Rs. 36,060/-. The material that was considered by the arbitrator is duly disclosed in this claim and there is adequate disclosure of the reasons for allowing this claim to the extent of Rs. 16,506/- against the claim of Rs. 36,060/-. As such the objection in this behalf is rejected.

9. Similar is may finding on Claim No. 2 and accordingly the objection to the award on Claim No. 2 is rejected.

10. Under Claim No. 3 also the reasons for awarding an amount of Rs. 1,32,283/- due to increase in the cost of material in respect of work carried out after 12th October, 1985 are duly given and it has been held by the arbitrator that such delay/prolongation was on account of additional purchases by the respondent and even the basis for calculating the amount has been duly set out. For that reason, I am not in agreement with the Counsel for the objector of this claim. The objection is therefore, rejected.

11. As already observed above, the arbitrator need not discuss the evidence in detail. It is sufficient if adequate indication his having considered to material before him is given on the basis whereof the arbitrator reached the inference, is available from the award and the proceedings.

Claim No. 4

12. The court can go only into the question of misconduct of the arbitrator himself or of the proceedings by him. The Arbitrator has duly disclosed the documents, on the basis whereof he has reached the conclusions. Likewise this claim No. 4 is based on additional cost incurred by the contractor/claimant on account of prolongation of the work. Although the contractor has claimed Rs. 2,69,218/-, the Arbitrator after going into the details accepted this claim only to the extent of Rs. 1,10,783.65. In the award, it is clearly shown that from 1.7.87 to 6.12.88 it was only the cost of one Chowkidar and Supervisor while for the earlier period after looking into the documents produced before him he has awarded @ Rs. 5,500/- for 14 months and 20 days and @ Rs. 4,000/- for 16 months. After examining documents C-25, C-23-A and C-130. It was only after considering various documents referred to above that he reached this conclusion about the additional costs. Nothing has been pointed out as to why such a conclusion could not be reached or as to how the award in this behalf suffers from the error apparent on the face of it. Accordingly, objections to the Award regarding claim No. 4 are also rejected.

Claim No. 6

13. Similarly nothing has been pointed out on the award of Rs. 30,200/- under Claim No. 6. As such objections to the Award on Claim No. 6 are rejected.

Claim No. 8

14. This claim relates to loss on account of difference in the price paid and that fetched on re-sale of the stored material in the market due to alleged illegal prevention to complete the work. Here also the arbitrator after due consideration of the documentary evidence before him and looking into the submissions of the parties had partially allowed the claim. I am not satisfied with merit of the objection that this is not a reasoned award in respect of this claim also.

15. The net result is that the award of the arbitrator in respect of Claim No. 1.2.1 is set aside and with regard to other claims the award for Rs. 47,09,46.01 minus the amount of Rs. 15,324.88 awarded under Claim No. 1.2.1, is upheld and objections are rejected and the award as upheld herein is made a rule of the court. The claimant shall also be entitled to interest @ 12% p.a. on the said amount from the date of the decree till the date of payment. However, in case the amount awarded is paid within three weeks from the date of decree, the said interest will not be payable. Let a decree be drawn up. The award as above shall form part of the decree. No order as to costs.

16. Order accordingly.


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