FLEX ENGINEERING LTD Vs. ANTARTICA CONSTRUCTION CO

JUDGEMENT

(1.) The petitioner has filed this application under Section 34 of Arbitration and Conciliation Act. 1986 for setting aside the arbitral award dated 24th November, 2003 alleging that the petitioner received the award on 5th December, 2003. In the application, the petitioner has submitted that the award of the arbitrator was tainted with fraud, misrepresentation, cheating and purgery committed by the respondent and the learned Arbitrator despite having knowledge about the acts of omission and commission committed by the respondent while presenting the statement of claims along with forged documents, did not consider the submissions made by the applicant pointing out glaring discrepancies on the record and allowed the false and frivolous claim of the respondent. The award was in conflict with public policy of India.

(2.) The respondent was awarded contract for road work by the petitioner in respect of site A-1, Sector 60 NOIDA vide work order dated 6th April, 1995. The respondent claimed that they had completed the road work to the entire satisfaction of the petitioner and submitted their final bills in respect of this work for a sum of Rs. 11,57,212/-. The petitioner corrected the final bill for an amount of Rs. 11,21,953.50 and gave an endorsement on the bill "Rate checked and found correct". The said bill was duly signed by claimant/respondent as well, however, the petitioner later on reduced the bill to Rs. 9,91,545/-. The petitioner did not even pay the amount of Rs. 9,91,545/- to the claimant/respondent. The respondent, therefore, raised a dispute and the matter was referred to the Arbitrator. The other disputes raised by the respondent were in respect of rates applicable for the items of earth work, for providing kerbstone and in respect of road work at site A-1, Sector 60, NOIDA. The respondent also raised a dispute in respect of another contract regarding construction of concrete road at site A-2, Sector 60 NOIDA for which a separate work order and a separate schedule of rates was allegedly issued by the petitioner. The work order for site A-2 was dated 2nd December, 1995 and schedule of rates was dated 15th September, 1995. The petitioner disputed that there was a separate work order for site A-2 and took the plea that the claimant was awarded road work contract in respect of site A-2 in lieu of the site A-l in terms of contract documents dated 6th April, 1995 and contended that the contract document filed by the respondent in respect of site A-2 was forged. It was a document for some other contractor and did not apply to the respondent. The said contract was for contractor Mr. Bhupender, whose signatures appeared on the contract. The respondent/claimant forged the last page of the contract agreement by writing words accepted by contractor' in his own hands.

(3.) The claimant/respondent claim before the Arbitrator was in respect of several items. The Arbitrator party allowed the claim of the respondent and passed item-wise award allowing following claims. Claim No. 1: Construction of Road work at A-l Sector 60, NOIDA: the claimant was awarded admitted amount of Rs. 9,91544.47/- plus an amount of Rs. 1,69,457.28 on account of surface excavation of earth work. Another amount of Rs. 46,000/- was awarded for admittedly providing 1000 kerbstones. Thus, a total amount awarded is Rs. 12,07,001/- Claim No. 2: Claimant claimed an amount of Rs. 55,762/- against construction of CC platform. This amount was allowed on the basis of admission of the petitioner that amount was payable. Claim No. 3: Claimants had claimed an amount of Rs. 42,69,965/- for construction of concrete road at A-2, Sector 60 NOIDA. The arbitrator discussed the plea of petitioner applicant about the rate schedule/contract being forged and found the plea to be false. The Arbitrator then analyzed the sub-heads under the claim and gave award sub-head/item wise and awarded a total sum of Rs. 42,12,668/- under this claim, Claim No. 4: A sum of Rs. 1,08,000/- for dismantling and construction of heavy foundations for large machines at site A-2, Sector 60 NOIDA was allowed and awarded the full claim. Claim No. 5: Claimants had claimed an amount of Rs. 5,05,658/- for providing and fixing RCC pipes. This amount was allowed by the Arbitrator in full. Claim No. 6: Claimants had claimed an amount of Rs. 1,99,519/- on account of construction of civil yard at A-2 Sector 60, NOIDA. The claim was allowed by the Arbitrator. Claim No. 7: Claimants had claimed an amount of Rs. 2,81,639/- on account of construction of underground water tank at Sector 57, NOIDA. There was no dispute that work was executed by contractor. However, petitioner made certain deductions from final bill. The Arbitrator found that the petitioner could not justify some deductions but had been able to justify part of deductions. Thus, the Arbitrator awarded an amount of Rs. 2,19,132/- in favour of the claimants/respondents.