UNION OF INDIA Vs. N.K. GARG

JUDGEMENT

(1.) ADMIT . With the consent of the parties, since only a short question is involved, appeal is taken up for disposal.

(2.) THE appellant -Union of India by this appeal assails the order passed by the learned Single Judge in OMP No. 327/2002 dated 19th March, 2008 by which the learned Single Judge dismissed the objections filed under Section 34 of the Arbitration and Conciliation Act, 1996 holding that objections do not fall within the ambit of Section 34 of the Act.

(3.) MR . Sanjay K. Pathak, learned Counsel appearing on behalf of appellant -UOI, urged before us that the award in respect of Claim No. 1 was contrary to the provisions of Clauses 45 and 63 of the General Conditions of the Contract according to which the measurements taken by the Railways with regard to the work done by the respondent were to be treated as final and binding. Counsel submits that Claim No. 1 should have remained an excepted matter and the award, if any, given was a nullity and void ab initio. The learned Single Judge has duly noted these contentions of the counsel for the appellant. In the instant case, a Court Commissioner was appointed vide orders dated 29th May, 1998 in OMP No. 127/1998. This order was not assailed by either the appellant or respondent and attained finality. Pursuant thereto joint measurements of the work were taken by the Court Commissioner after giving notice to the parties and submitted his report. It is significant that the appellant duly participated in the joint measurements and the proceedings have been duly signed by representatives of both the parties. No specific objections were filed to the joint measurements. The arbitrators, in these circumstances, duly took note of the joint measurements as taken by the Court Commissioner and did not accept the measurements of the appellant as final. In our view, it was rightly so done. The order appointing Court Commissioner for joint measurements was an order which was not questioned and had been implemented by both the parties by participating in it. This having been done and joint measurements having been taken, it does not lie in the mouth of the appellant now to question the said joint measurements.