R K SHARMA AND CO Vs. NDMC

JUDGEMENT

(1.) This is a petition under Section 14 of the Arbitration Act, 1940 (hereinafter referred to as 'the Act') for a direction to file the original Award dated 1.12.1995 passed by the sole Arbitrator-respondent No. 2 and objections under Sections 30 and 33 of the Act against the Award. Respondent No. 1 entrusted the work titled'Improvement of Piazza of Connaught Place from A to F' Blocks' to the petitioner vide a letter dated 28/7/1989 and Agreement No. 8/PM (Cont. Place)/89-90. On account of the disputes arising in respect of the contract at work, the petitioner asked the Administrator of respondent No. 1 to appoint an Arbitrator and respondent No. 1 having failed to do so, the petitioner filed an application under Section 20 of the Act, beingSuitNo. 2555 A/1991, which was allowed vide an order dated 6/1/1995 and respondent No. 1 appointed respondent No. 2 as the sole Arbitrator to adjudicate the claim of the petitioner. The Arbitrator thereafter announced the Award on 1/12/1995 for a sum of Rs. 5,000.00 against the claim of Rs. 5,15,560.00. Since the Arbitrator was appointed pursuant to an order of this Court, an application under Section 14 is presented to this Court for a direction to the Arbitrator to file the Award.

(2.) The Award deals with eight claims of the petitioner. Claim No. 1 was for a sum of Rs.12,700.00 for putting up infrastructure by way of a site godown and barricading, apart from deploying site Engineer, Chowkidars, etc. NDMC admitted that only a symbolic sort of a godown had been set up without any barricades. The Arbitrator awarded a sum of Rs. 1,000.00 to the claimant towards the cost of the symbolic godown. Claim No. 2 was towards the cost of barricading, which was declined by the Arbitrator as no sufficient proof of the expense allegedly incurred towards the barricading was adduced before the Arbitrator. Claim No. 3 was for Rs.13,095/- towards the cost of samples of Dholpur and Red Sand Stone which were to be laid. On account of termination of the work, the petitioner claimed, the samples went waste causing this damage. The Arbitrator found that no proof of the cost incurred forthose stones had been furnished. Since theNDMC, i.e. respondent No. 1, did not deny having received some samples, a sum of Rs.4,000.00 was allowed on this account. Claim Nos. 4, 5 and 6 were on account of loss of profit, non- utilisation of tools and plants and ungainful engagement of staff amounting to Rs.3,08,913.00, Rs.81,640.00 and Rs.73,612.00 respectively. The Arbitrator observed that the total value of the work was Rs.7.87 lacs and, therefore, a profit of over Rs.3.00 lacs could not have been expected. Further, there was no evidence to show mobilisation of tools and plants, etc. Further, the Arbitrator found that since no work was done, there was no ground for claiming salary of an engineer. The claimant/petitioner himself was found to be in breach and, therefore, not entitled to any of the three claims. Thus, claim Nos. 4, 5 and 6 were totally declined. Claim No. 7 was for a sum of Rs. 10,000.00 towards the cost of the arbitration proceedings, which the Arbitrator declined on the ground that the claimant himself was in breach and, hence, not entitled to the cost of the arbitration. Claim No. 8 was for pre-suit, pendente lite and future interest @ 21% per annum compounded annually. The Arbitrator held that there was no provision in the agreement for payment of interest and no interest was payable. The Arbitrator, therefore, awarded a total sum of Rs.5,000.00 only.

(3.) On the Arbitrator's Award on claim No. 1, the petitioner submits in his objection that since it was admitted by respondent No. 1 that the petitioner had set up a godown, the entire claim on this account should have been allowed. On the Arbitrator's Award on claim No. 2, the petitioner reiterates that the petitioner had submitted a document which was Annexure 2 which the Arbitrator misread. On the Arbitrator's Award on claim No. 3, it is contended that the Arbitrator failed to give any reasons for disallowing the claim despite the fact that respondent No. 1 had admitted the supply of samples. Further, it is contended that the petitioner had placed on record the analysis of rates in Annexure 3 which was overlooked by the Arbitrator. On the Arbitrator's Award on claimNos. 4,5 and 6, the objection is that the three claims could not have been dealt with together and that it was a mistake on the part of the Arbitrator in holding that it was the petitioner who was in breach. Further, the petitioner claims that Annexures C-5 to C- 11 proved mobilisation of tools and plant. Further objection in this regard is that an engineer had to be engaged for a period of 15 months in anticipation of the work to commence and further Clause 36 of the Agreement required employment of an engineer at site. Similarly, employment of a Chowkidar at site was imperative for the security of the godown, tools and plant and, therefore, the Arbitrator misconducted himself by failing to award the amount claimed. Similarly, on the Arbitrator's Award on claim No. 8 it is contended that the Arbitrator misconducted himself by declining to grant interest which is available to the claimant under the Interest Act as well as under various judgments.