{"id":35185,"date":"1998-05-25T00:00:00","date_gmt":"1998-05-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gautam-enterprises-vs-indian-tourism-development-on-25-may-1998"},"modified":"2016-05-26T14:51:22","modified_gmt":"2016-05-26T09:21:22","slug":"gautam-enterprises-vs-indian-tourism-development-on-25-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gautam-enterprises-vs-indian-tourism-development-on-25-may-1998","title":{"rendered":"Gautam Enterprises vs Indian Tourism Development … on 25 May, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Gautam Enterprises vs Indian Tourism Development … on 25 May, 1998<\/div>\n
Equivalent citations: 74 (1998) DLT 1, 1998 (46) DRJ 280<\/div>\n
Author: S Kapoor<\/div>\n
Bench: S Kapoor<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.N. Kapoor, J.<\/p>\n
1.      The  present petition has been filed under Sections 14 and 17  of  the Arbitration Act, 1940 for filing and making the award rule of the Court.\n<\/p>\n
2.   Objections  (IA No.11041\/96) under Sections 30 and 33 of the  Arbitration Act have been filed by the respondent.\n<\/p>\n
3.   In  this case, the claimant, M\/s. Gautam Enterprises, entered with  an agreement  with  the  respondent, Indian  Tourism  Development  Corporation Limited  (hereinafter  called the “ITDC Ltd.” for short) for  carrying  out water proofing job at the terrace of Hotel Laxmi Villas Palace, Udaipur  on 17th  August, 1993. Some dispute arose and the matter was referred  to  the Sole  Arbitrator Shri T.C. Garg to adjudicate upon the dispute vide  letter No. LA\/ARB\/PROJ\/LVPH\/95\/179 dated 21.4.1995.\n<\/p>\n
4.   The  Arbitrator gave the award on 25th March, 1996. The  claimant  was awarded  a sum of Rs. 6,50,886.43p. as against Rs.  6,91,329.13p.  claimed. The  counter  claim was rejected. The claimant was also  held  entitled  to interest at the rate of 12% per annum in case the payment was not  released within two months from the date of the award i.e. 25th March, 996.\n<\/p>\n
5.   According to the respondent, notice of filing of the award was  served on 25th September, 1996. The Court was closed on account of Dussehra  vacations  from 21st October, 1996 to 27th October, 1996. The  objections  were filed  on 28th October, 1996 and thus, they are within time. It is  claimed by the respondent that the learned Arbitrator has miss-conducted himself and the proceedings; it is based on no evidence; there is an error apparent  on the face of the award; the award suffers from non-application of mind;  and the Arbitrator has awarded those amounts which were not even claimed by the claimants.  Apart  from these general objection, some  specific  objections have been made with reference to particular claims. The learned  Arbitrator has  miss-conducted  himself and the proceedings. The over payment  had  not been  taken into consideration and thus, there is duplication  in  awarding the  amount.  Those objections, including the general objections  shall  be dealt  with  at appropriate place while considering  specific  claims.  The Arbitrator  has miss-conducted himself and proceedings in rejecting  counter claim  in respect of Rs. 30,000\/- on account of polishing and  painting  of conference  hall  and other halls. The claim for a damage  to  the  carpets though  it  was  direct result of seepage due to poor  workmanship  of  the claimant was rejected by just saying it was an afterthought. The Arbitrator also  disallowed the claim of Rs. 5,50,000\/- on account of direct  loss  of revenue to the respondent\/objector caused due to failure of the claimant to
\nexecute the work within time by mis-reading the provisions of the  contract and   for   the  same  reason  loss  caused  to  the  reputation   of   the respondent\/objector concern has also been ignored.\n<\/p>\n
6.   On  the other hand, the claimant asserts that notice in fact had  been duly served on the respondent\/objector on 12th June, 1996 while the  objections  have been filed on 28th October, 1996. As such, the  objections  are barred  by time. Besides, the objections do not specifically  disclose  the manner  in which Arbitrator has miss-conducted himself and proceedings.  All the averments in regard to the specific claims have been denied.\n<\/p>\n
7.   Rejoinder was also filed reaffirming the claims and the objections.\n<\/p>\n
8.   Having  heard learned Counsel for the parties and after going  through the record, the following points arise for consideration:\n<\/p>\n
     1.  Whether the objection petition has not been filed  within time and is liable to be rejected summarily?\n<\/p><\/blockquote>\n
     2.  Whether the objections of the respondent can be  accepted  in respect  of  any claim for any of the reasons  mentioned  in  the objection petition?\n<\/p><\/blockquote>\n
     3. Relief <\/p>\n
     Point 1: Question of limitation in filing objection.\n<\/p><\/blockquote>\n
9.   In so far as the question of limitation is concerned, learned  Counsel for  the claimant pointed out that notice of filing of the award  was  duly served  on  the  respondent\/objector on 12th June, 1996. It  is  very  much apparent from the perusal of the notice and service report and affidavit of the Process Server that the respondent was served through General  Manager, Laxmi  Villas Palace Hotel, Udaipur on 12th June, 1996. But  probably  this service  report  was  not placed before the learned Joint  Registrar  as  a result  of which he passed an order that notice of filing of the  award  be issued to the respondent without process fee, returnable on 26th  November, 1996. The respondent do not disclose nor even deny that they were served on 12th  June, 1996, except a bland denial that the objections are  barred  by time.  However,  it  is  not  disputed  that  on  17th  October,  1996  the respondent’s  Counsel  Mr. Y.K. Kapur inspected the record. The  fact  that
\nlearned  Counsel for the respondent inspected the record on  17th  October, 1996  is not very material, for the respondent themselves claim  that  they had  been  served  subsequently on 25th September, 1996 and  that  is  also supported  by the report of the Process Server dated 30th  September,  1996 and  a  receipt  thereon with the seal of the Laxmi  Villas  Palace  Hotel, Udaipur  dated 25th September, 1996, It may further be mentioned  that  the respondent relies on affidavit of Sh.C. Stephan, Company Secretary of  ITDC Ltd., New Delhi. Obviously, he would not have any personal knowledge  about service of notice at Udaipur and there is no affidavit of any other officer posted  at  the Laxmi Villas Palace Hotel, Udaipur, specially that  of  Sh. K.K. Chhabra and Mallika the receipt clerk to indicate that notice was  not received. In such circumstances, I accept the report of the Process  Server dated 13.6.1996. Seeing the report of the Process Server and the fact  that it bears a seal of the Laxmi Villas Palace Hotel, notice had been  received by the receipt clerk of respondent on 12.6.1996 and thereafter seal of  the respondent  was put below endorsement of receipt. I feel that  the  service was sufficient and the objections are patently barred by time in absence of any application for condensation of delay.\n<\/p>\n
     Point 2: Objections relating to specific claim:\n<\/p>\n
10.  Now,  objections relating to specified claims are proposed to be  considered:\n<\/p>\n
     Claim  No. 1 : In regard to awarding a sum of Rs.  3,27,422.70p., the  main  objection is that out of total original claim  of  Rs. 3,65,981\/-, 2,55,602\/- had already been admittedly paid. As such, awarding a sum of Rs. 2,24,422\/- was unjustified. It appears from the  award that claimant confined it to Rs. 3,29,637\/-.  It  also appears that while taking this objection respondent has not taken into  consideration  the note (1) appended to award which  is  as
\n     follows:\n<\/p><\/blockquote>\n
     “The amount included shall be payable within two months from  the date of this award or decree whichever is earlier after deducting payments already made. In case the money is released, the  claimant shall be paid simple interest at the rate of 12% per  annum.\n<\/p><\/blockquote>\n
     As such there is no duplication in awarding any payment. In so far  as the question of rate of awarding Rs. 330\/ – per sq. metre for waterproofing is  concerned, that rate has not been challenged. Payment has been  ordered in respect of an area of 1,495.96 sq. metres as against 1,507.53 sq. metres claimed,  on  the basis of agreed measurements. There does not  appear  any reason,  therefore, to say that the award is unreasonable in any manner  so far  as the Claim No l. is concerned. However, it is clarified that out  of Rs.  3,27,422\/-  a sum of Rs. 2,55,602\/- had already been received  by  the titioner\/claimant  from the respondent\/objector. Thus, only Rs.  71,820\/- is payable under this head.\n<\/p><\/blockquote>\n
11.  As  regards claim relating to extra items of expansion of  joints  and the  bills relating thereto amounting to Rs. 36,344\/- it is submitted  that this  had already been paid in the first running bill since extra items  of expansion  of  joints were included in Rs.2,55,602\/-  and  accordingly,  no amount  could  have been awarded on this head. According to  claimant  this extra  item  was not included in Rs. 2,55,602\/- paid  under  first  running bill. Further this amount was awarded subject to deductions of the  amounts already  paid, including Rs. 2,55,602\/- already paid. After  adjustment  of
\nthis amount, the claimant cannot claim duplication in award of the  payment of Rs. 34,507.64p. as against Rs. 36,344\/- claimed.\n<\/p>\n
12.  In  so  far  as the objection relating to awarding of  a  sum  of  Rs. 28,169\/-  relating  to newly built kitchen, it is claimed by  the  objector that it was done without there being any evidence. All rates of extra items were  to be agreed or derived from the work of same nature in the  contract and if this is not possible then from the rates fixed by CPWD for an  identical type of work. There was no agreement of rates nor CPWD rates applied. This extra work was undisputedly done. So far as rate is concerned,  seeing the  rate  of  waterproofing of other portions of the  building,  the  rate awarded  in  this  regard cannot be said to be unjust nor it  is  open  for scrutiny.  Nothing has been pointed out to indicate any  prohibition  about non-applicability  of CPWD rates on the one hand and on the other  hand  to show  that  CPWD rates have been accepted. Therefore,  no  interference  is called for in this respect.\n<\/p>\n
13.  In  so  far as the question of awarding a sum of Rs.  3,150\/-  towards cost of transportation is concerned, according to the objector, this amount was  supposed  to  be spent by the contractor himself. In  reply  to  this, nothing  was pointed out to show that it was contractual obligation of  the contractor  to  spend  any money on this account. Seeing the  award  it  is apparent  that this Court cannot take any other view for it cannot be  said to be a case of no evidence.\n<\/p>\n
14.  Award  of a sum of Rs. 34,630.54 relating to plastering of  conference hall,  it is claimed by the objector that no work order was  placed.  There was no evidence of work done. Moreover, basis of claim for Rs. 95\/- per sq. metre  had  not been disclosed. So far as the factum of doing the  work  of plastering  is concerned, it is not disputed. It is further submitted  that the rate of plastering of thickness from 12 mm to 15 mm was at the rate  of Rs. 45 \/- per mm. considering the submissions and factual position, this is such a matter where this Court is not supposed to interfere, for one cannot say  there is no reason and reasonableness of the reason cannot  be  looked into  by  this Court. As such, I would accept the finding  of  the  learned Arbitrator in this regard.\n<\/p>\n
15.  In  so far as the Arbitrator allowed a sum of Rs. 56,761.65p.  on  account  of re-doing of waterproofing at the conference hall, _ this  is  objected to by the respondent on the ground that the claimant had done waterproofing  but  there was seepage in the same on inspection  by  the  senior officer. The claimant was asked to remove the defect and in the process had to make some additional effort being part of the contract, the claimant was not  entitled to receive anything extra since seepage was there and it  was the claimant’s job to remove the same. Thus the learned Arbitrator  wrongly awarded  a sum of Rs. 56,761.65p. In the absence of an evidence on  record. The respondent support the following finding given by the Arbitrator  “Roof structure  of conference hall is a Hyperbolic Paraboloid like  an  inverted umbrella.  As a result of unusual overloading of the structure  with  water for  a number of days and also blockage of low in the drainage pipe,  there
\nwas  heaving effect and see page of water in the surface of  concrete  with lime  mortar. This kind of testing in such inaccessible structure was  perhaps  not  necessary  and has overstressed the  structure  and,  therefore, DGM(EHQ)ITDC and to direct for rehabilitation of damaged structure and  the waterproofing  work, which resulted in extra work for no fault on the  part of  the claimants who have to be paid for this extra work done at  the  instance of respondents. Total treated area claimed = 3638.40 sq.m. but  base area  i.e. 229.34 sq.m. only could be paid as removal of foam concrete  was not required for parapet walls and central beams. Amount allowed is  229.34 X 0.75 X 330 = Rs. 56761.65p.”\n<\/p>\n
16.  It is evident that it was the job of the claimant to remove the  seepage  but  it is also clear that he was asked to do additional work.  It  is evident  from the reasons given that the roof structure of conference  hall was  a hyperbolic like an inverted umbrella. As a result of  unusual  overloading of the structure with water for a number of days and also blockage of flow in the drainage pipe, there was heaving effect and seepage of water in  the surface of concrete with lime mortar. This kind of testing in  such structure  was  perhaps  not necessary and over struck  the  structure  and therefore  ITDC had to direct for rehabilitation of damaged  structure  and waterproofing work which resulted in extra work for no fault f the  claimants.  The Arbitrator has mentioned that “having considered the  matter  in dispute,  having perused all the documents filed before me by  the  parties including all counterclaims having inspected the site and having heard  the
\nparties award and direct as follows.” Since it is admitted that some  additional work was done at the instance of the respondent including the unnecessary  experiment was ensuring passage of water, it may be mentioned  that the inspection of the site was requested by the Manager of ITDC. The letter at p.80 dated 16th April, 1994 supports the finding of the learned Arbitrator.  There  is a lot of correspondence in this  regard.  Consequently,  it cannot  be said that the award was without any basis and there was no  evidence at all apart from the admission of the respondent about giving  additional  work. As such, I find it difficult to accept the contention of  the objector in regard to redoing waterproofing work at the terrace of conference hall at the rate of 75% of Rs. 330\/- per sq. mtr. So objection in this regard is, therefore, rejected.\n<\/p>\n
17.  In  so  far  as the rejection of counter claim  of  the  objector  for Rs,30,000\/-  on account of polishing and painting of conference hall  claim for damages to the carpets, direct revenue loss by blocking renting out  of the rooms and loss of reputation is concerned, the Arbitrator rejected  all these  claims by mentioning that no provision existed in agreement of  work order and the objections relating to direct loss of revenue and the cost of polishing  and painting of the conference hall. In far as loss  of  carpets and  claim of Rs. 7,000\/- is concerned, that was rejected as this  counterclaim of the respondent was not found justified for repair work relating to seepage, the claim was an after thought. In so far as counter claim of  Rs. 25,000\/- due to loss of reputation is concerned, it was held to be  against the  provision in the work order agreement and as such the loss was  disallowed. In so far as loss of reputation is concerned, it is far-fetched  and
\nappears  to be on the face of it an afterthought and taken by way of  counterblast  to the claim of the respondent. The reasons are  appropriate  and Arbitrator has rejected it for appropriate reasons.\n<\/p>\n
18.  I do not find any force in the objections and reject the same  accordingly.  The award given by Mr. T.C. Garg dated 25th March, 1998  is  hereby made rule of the Court. The claimant\/decree holder shall be entitled to get a  simple  interest  at the rate of 12% per annum  on  the  unpaid  awarded amount. Parties are left to bear their own cost.\n<\/p>\n
19.  Decree sheet be prepared accordingly.\n<\/p>\n
     Award made Rule of the Court.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Gautam Enterprises vs Indian Tourism Development … on 25 May, 1998 Equivalent citations: 74 (1998) DLT 1, 1998 (46) DRJ 280 Author: S Kapoor Bench: S Kapoor JUDGMENT S.N. Kapoor, J. 1. The present petition has been filed under Sections 14 and 17 of the Arbitration Act, 1940 for filing and making […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-35185","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nGautam Enterprises vs Indian Tourism Development ... on 25 May, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gautam-enterprises-vs-indian-tourism-development-on-25-may-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gautam Enterprises vs Indian Tourism Development ... on 25 May, 1998 - 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