AYUB ALI Vs. UNION OF INDIA

JUDGEMENT

(1.) Mukul Mudgal, J.-These are the objections to the award dated 28th August, 1995 delivered by the Arbitrator, Mr. I.V. Nainani, who had been appointed as Sole Arbitrator by the Chief Engineer, PWD Zone-1, New Delhi on 27th January, 1994. Sixteen claims, 2 additional claims and one counter claim were referred to the Arbitrator for adjudication. The petitioner's claim is that every claim was set out by the Arbitrator but he completely omitted to even refer to or adjudicate Claim No. 10. It is also stated by the petitioner/objector that in contrast there are several claims such as Claim No. 5, Claim No. 6, Claim No. 8 and Claim No. 12 which have been discussed and rejected by the Arbitrator by giving a nil award qua these claims. He submits that thus the award has failed to even notice Claim No. 10 entitling him to seek the setting aside of the award at least qua Claim No. 10 and thereof for redetermination.

(2.) The learned Counsel for the respondent has submitted that in view of the law laid down by this Court in M/s. Prag Distilled Water & Ice Factory v. Municipal Corporation of Delhi and Another, reported as AIR 1988 Delhi 37, the omission to mention a claim amounts to its rejection. This judgment has been sought to be distinguished by the learned Counsel for the petitioner by submitting that this view of the law laid down would not apply in case where other claims which have been rejected have been mentioned and in such facts the omission would obviously amount to a failure to take note and/or cognizance of Claim No. 10. The law laid down by this Court in paragraph 4 of the aforesaid judgment in Prag Distilled Water case reads as follows: "It is dear from a reading of the disputes formulated in para 6 that in sum and substance, they related to fixation of fuel adjustment charges and their demand from time-to-time in accordance with the Tariff for the year in question. This dispute has been squarely determined by the Arbitrator in his award. Some additional differences are mentioned in para 6. They are not referred or included as contentions in the written arguments before the Arbitrator. The Arbitrator has not dealt with them in his award. We, therefore, agree with the learned Single Judge that the other points of disputes were either given up or not pressed before the Arbitrator during the proceedings. If an award is silent on a particular item of dispute then the law is that the claim in respect of such item should be taken as rejected by the Arbitrator."

(3.) The aforesaid judgment is mainly based on the premise that the additional differences as mentioned in para 6 were not referred to or included in the written arguments before the Arbitrator. In these circumstances the Division Bench of this Court held that since the award is silent on the particular item of dispute then it is deeined to have been rejected by the Arbitrator. In my view the submission of the petitioner has force. In the aforesaid judgment of the Division Bench of this Court relied upon by the learned Counsel for the petitioner, insofar as non-consideration of a claim was concerned the facts were different as reflected in the preceding paragraph. In the aforesaid judgment the non-considered disputes were neither referred to nor included as contentions in the written arguments. However in the present case before me several other claims such as Claim Nos. 5,6,8 & 12 each of which led to a nil award were specifically mentioned and rejected. In these circumstances, in my view, the aforesaid judgment of this Court in Prag Distilled Water's case would not apply and consequently the petitioner is entitled to seek the remission of the award for re-consideration insofar as Claim No. 10 raised by the petitioner is concerned.