B.K. ROY CHOUDHARY Vs. DDA

JUDGEMENT

(1.) BY this order I shall dispose of the objections raised by<RP> Dda</RP> under Section 30 and 33 of Indian Arbitration Act, 1940 against an award dated 30th April, 1992 passed, made and published by the learned Sole Arbitrator.

(2.) IT is the contention of the objector<RP> Dda</RP> that the learned Arbitrator not only mis-conducted himself but the award also contained errors apparent on the fact of it. The learned arbitrator ignored the material evidence and awarded claims for higher quantities than what was claimed by the claimant (petitioner herein). The learned arbitrator also gave the award contrary to the terms of the agreement and thus acted beyond his jurisdiction. It is submitted that the learned arbitrator against several claims awarded payments of various amounts to the contractor (petitioner herein) without considering the fact that no evidence was produced and without taking into account the evidence of the department (DDA). It is, therefore, prayed that the award qua claims nos. 1,2,3, 5,7,9,15,16 and 17 be set aside and the counterclaim of the objector, rejected by the arbitrator, be allowed.

(3.) BRIEF facts relevant for deciding these objections are that the petitioner (claimant) was awarded a contract for construction of 1440 houses of LIG Category at Rajouri Garden, New Delhi including internal development vide agreement number 18//EE/ HDVII-75-76. As it usually happens, the work was not completed within the stipulated period and the contract was terminated by<RP> Dda</RP> on 31st December 1980 after a long correspondence exchanged between the parties and after serving a show cause notice.<RP> Dda</RP> while terminating the contract issued a notice to the contractor for a joint measurement of the work and asked the contractors representative to be present for joint measurement on 9th January 1981. It was informed by<RP> Dda</RP> that after joint measurement, the final bill will be prepared. It appears that the joint measurement did not take place in terms of notice of<RP> Dda</RP> and the contractor approached the Court. This Court directed for a joint measurement and asked the parties to take joint measurement. Vide its letter dated 7th May, 1981, DDA informed the contractor that its representative did not turn up at site on 9th April, 1981 for joint measurement in terms of the High Courts order and rather one officials of contractor came to the site on 9th April, 1981 to deliver a letter.<RP> Dda</RP> informed the contractor that the measurement had already been recorded and the same had been checked by the contractor from time to time. The matter again came up before the High Court on 11th May, 1981 and the High Court again directed the parties to go for joint measurement. Thus joint measurement of work done took place on 12th May, 1981 and the document to this effect was duly signed by both the parties on 12th May, 1981. The document records that almost all measurement of the work had been finalized by the parties to the satisfaction of each other except some which were being re-measured and in case any dispute arose in respect of measurement the same shall be referred to the learned arbitrator. It is recorded that in this joint statement that at that time there was no such dispute over the measurement which need to be referred to the Court. It is also recorded that the contractor had deputed their engineer and other staff for revising such measurements and for this purpose prepared necessary documents and recorded in the chart of Department (DDA) and the same would be allowed to be inspected by the Department. The contractor could also inspect any document. It is also recorded that the contractor had removed all the materials lying at the site and some residual material was being removed by the contractor and this removal shall be completed as early as possible. A subsequent letter of Executive Engineer dated 3rd June, 1981 shows that the entire material was removed by the contractor from the site.