UNION OF INDIA Vs. SIKKA ENGINEERING COMPANY

JUDGEMENT

(1.) Present appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ,,the Act) arises out of two orders passed by the learned Single Judge of this Court while deciding the objections to the Award filed by the appellant herein dated 6 th December, 2018 and 19th December, 2018. While the first order decides the objections pertaining to Claim No.1 and the matter was adjourned to enable the appellant to seek instructions in the matter with respect to lifting of surplus material from the Udhampur Depot in according with Clause 1.2.53 of the Contract read with Clause 32 of the General Conditions of Contract, the second order, which is in continuation of the first order, decides Claims No.8, 10 and 21.

(2.) Mr. Ashok Singh, learned counsel appearing for the appellant, very fairly submits that he has instructions not to press the Claims No.8, 10 and 21. The Claim No.1 in this case comprises of six bills submitted by the respondent and a final bill in the total sum of Rs.1,54,25,671/-. Mr. Singh submits that the learned Arbitrator as also the learned Single Judge has failed to take into account the sample check report in respect to the measurement of actual weight of steel; the joint checks of steel structure dated 29th September, 2016 and the joint inspection report dated 6th April, 2017 as also the communication addressed by the respondent to the appellant dated 25th November, 2016. It is the case of the appellant here that payment of six bills could not have been allowed by the Arbitrator for the reason that the steel supplied by the vendor was underweight and accordingly, the respondent could not have been given benefit for the material which was substandard and not in accordance with the specifications.

(3.) Mr. Singh has placed strong reliance on a communication dated 25th November, 2016 to buttress his submission that the respondent had unconditionally admitted the fact that the material was underweight and had also agreed to replace the same with fresh material. However, we find that the appellant has not argued and pressed this point before the learned Single Judge. Hence, it is not open for the appellant to press this issue before us at this stage.