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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 545 OF 2009
Union of India and anr. ... PETITIONERS
Vs.
Sagar Construction Company and anr. ... RESPONDENTS
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Mr. K.R. Chaudhari with N.D. Sharma for the Petitioner.
Ms. Shilpa Kapil for the Respondents.
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CORAM : ANOOP V. MOHTA, J.
th
DATE : 20 November, 2009.
ORAL JUDGMENT
1 Heard finally.
2 The petitioners have invoked Section 34 of the Arbitration
and Conciliation Act, 1996 (for short, the Arbitration Act) thereby,
challenged the award whereby, the learned Arbitral Tribunal has granted
partially three claims i.e. claim Nos. 1, 2 and 8 out of 10 claims and
thereby rejected all other claims.
3 So far as, the submissions with regard to no claim certificate
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based upon clause 65 of the contract condition, the learned Arbitrator
after going through the material, as well as, the documents on record,
has dealt with in detail and rejected the case of the Petitioners for want of
substantial material to support their case. The reasoning so given just
cannot be said to be perverse and especially as it is based upon
condition of the Contract and the facts and specially when it is based
upon the judgment of the Apex Court reported in 2008(3) Arbitration LR
633 (SC) National Insurance Co. V/s Boghara Polyfab Pvt. Ltd.,
whereby it has been held that the the claim can be raised even after
signing the “No claim certificate” and/or “No further claim”. The claim so
raised after signing of the final bills is distinguished as per the conditions
in question and hence, is arbitrable as per the principle of equity and fair
justice. The submission that, no such claim was raised / agitated, on or
before the Officer, in the present facts and circumstances, is
unacceptable.
4 With regard to claim Nos. 1, 2 and 8, the submission is that
the figures, so refers, have no details about the calculations. The party,
when moved a claim petition before the Arbitrator, has material to support
the claim with figures. The Arbitrator finds that the party has a case
based upon the material and calculations available on record and
accordingly, accepted the same partially, and awarded the amount.
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There is no case of want of supporting document of bills. Even
otherwise, it is difficult to accept that the claim of the Petitioners is
contrary to law and the record for want of contra material on record,
specially when the submission is only with regard to details of amount so
awarded. The Court need to see the award in totality. Some lacuna or
lack of details that itself, in the present case, can not be reason to
interfere with the award. It can not be treated as unreasoned award.
5 With regard to interest, the Arbitrator has awarded the
st
interest from 01 August, 2001 @ 11% per annum. The learned counsel
appearing for the Petitioners conceded to the date of completion of the
work. The final bill needs to be submitted within three months and for
passing after due verification requires six months more. Therefore, I am
st
inclined to restrict the interest, on the amount so awarded, from 01 May,
st
2002 instead of 01 August, 2001. Considering the fact that it is a work
contract / construction contract, the rate of interest restricted @ 9% per
st
annum instead of @11% per annum from 01 May, 2002.
6 The learned counsel appearing for the Petitioners has relied
th
on the order dated 04 September, 2006, passed in Arbitration Petition
No. 200 of 2006 between the same parties. It was admittedly, of some
different contract. The Court cannot overlook the factual reasoning given
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by the learned Arbitrator considering the material and documents on
record. Therefore, also this order is of no assistance to the Petitioners.
7 Resultantly, the petition is partly allowed and the impugned
award is modified to the above extent, as recorded. The rest of the award
is maintained. There was no other challenge raised.
8
The Petition is accordingly partly allowed, with no order as to
costs.
9 Learned counsel appearing for the Petitioners is seeking stay
of this order. It is rejected.
[ ANOOP V. MOHTA, J ]
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