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TMI Blog2013 (4) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... error within his jurisdiction - There is no merit in the petition filed by the petitioner under Section 34 of the Act - The objections are dismissed - OMP. No. 34/2013 - - - Dated:- 2-4-2013 - Manmohan Singh,J. For the Petitioner : Mr. R.Rajappan, Adv. For the Respondent : None JUDGMENT 1. The petitioner has filed objections under Section 34 of the Arbitration Conciliation Act, 1996 (hereinafter referred to as the Act‟)by challenging the Award dated 21st September, 2012 passed by the sole Arbitrator. 2. The learned Arbitrator has passed the Award against the respondent to the following effect: i) A sum of Rs.360659/- (claim No.1: Rs.120318 + claim No.4: Rs.25000 + claim No.5: Rs.215341) to the Claimant. And ii) Simple interest @9% per annum on amount of Rs.360659/- with effect from 16.10.2008 till actual date of payment as awarded under against claim No.7. However, no future interest shall be paid if the entire awarded amount is paid to the Claimant within 60 days from date of receipt of award by the Respondent. This is full and final settlement of all the claims of Claimant. Respondent had no claim. 3. Brief facts are that the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted and the rates/amount claimed but the quality of the work was disputed. The work as executed has not been tested for the quality nor rejected by the respondent but are being used bonafidely without making any payment. 8. It is also alleged that the learned Arbitrator has erroneously held that he agreed that the measurements recorded by the Local Commission are for record purposes. The learned Arbitrator made the award in casual and mechanical way without considering the fact that the respondents cannot enjoy the benefit of the work executed under the contract without making the payment due in terms of the contract. The learned Arbitrator has also gone beyond the provisions of substantive law of contract by ignoring the provisions of Section 64, 70 of the Contract Act, 1872 which provides the restitution of the benefit derived by the beneficiary without making any payment. Therefore, the part of the award under claim No.1 Mark A B need to be set aside and remitted back to the learned Arbitrator to decide in terms of the contract and substantive law of the land. The petitioner is entitled to claim No.7 if the matter is remitted back to the Arbitrator. 9. The claim No.1 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has desired approval to use cement of 53 grade in place of cement of 33 grade. Through Exhibits C-25, claimant has given a sweeping reply that whatever quantity brought Exhibit C-27, claimant has demanded permission to use cement of 53 grade whereas claimant was already informed by Assistant Engineer through Exhibit R-11 that cement of 53 grade is not to be used. It appears that claimant had no intention to deposit the material with the Department, get it properly accounted for in cement register and consume the material after receipt of test reports in case, lower site staff such as JE and AE were not taking the cement on record then claimant would have raised this issue before Engineer-in Charge informing him the quantity brought at site but not recorded by the Department officials. Claimant would have further raised his level of complaint before Superintending Engineer if no one up to level of Executive Engineer was listening to his complaints. The Exhibits submitted by the respondent establishes beyond doubt that claimant had executed work by ignoring the instructions of Engineer-in-Charge and not following the provisions of agreement. The cash vouchers submitted by clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (R029: 4/6). Respondent cited provisions of clause-6 of the agreement that measurements recorded in the MB shall not be considered as conclusive evidence about actual execution of the work and claimant is not entitled for the claim. My findings and AWARD: At this stage of time it cannot be ascertained whether malba was disposed by contractor away from work site or it was spread in nearby dug up areas as claimed by respondent. Claimant has not cited any exhibit in support of claim written to respondent protesting non-payment of malba stacks recorded in mB. Claimant submission c-48 and respondent submission R-29: 4?6 are copy of same page 76 of mB No. 2132 but the exhibit filed by claimant has no mention of details recorded by respondent about non-payment of item on 01.1.2007, which implies to misrepresenting fact. Claimant could not substantiate the claim. I award Nil‟ amount to claimant against the agreement item No.42 as claimed by claimant. (iv) Agmt. Item No.43 (Rs.27338 + 15%) Credit for old G.I. Pipe Claimant submitted that they have received only 570 kg quantity of G.I pipe dismantled but respondent had affected recovery of 2672.89 kg quantity of G.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as per measurements recorded in the MB No. 21 page-56 (c-44) and MB No. 2132 page-60 (c-45) quantity of 554.58 m and 280.920 m was executed in foul positions and further quantity of 162.58 m was executed in gully traps. Thus against total quantity of 998.08 m executed at site respondent had paid only 486.45 m quantity. Amount of claim for balance quantity of 511.63 cum @ Rs. 34.21 works out to Rs.17503/-. Respondent submitted that quantities referred by claimant are not correct and are misleading. Claimant has not worked out quantities as per CPWD Specification next date of hearing actually paid. Respondent filed same page of MB i.e. page 56 and page 60 of MB No. 2132 9R-29: 1/6 and 2/6) and submitted that quantity works out to 210.17 ma and 281.92 ma respectively. This variation is due to wrong interpretation of Specifications by the claimant. As per CPWD specifications 1996 Volume I page 24 (R-31) unit of measurement namely metre depth shall be the depth measured from the level of foul position and up to the centre of the gravity of the cross sectional area of excavation actually done in the foul positions. As per provisions of CPWD Specification clause 2.20.2 (b), decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, award Rs.19113/- to claimant against the extra item No.4.2 as claimed. (viii) Extra Item No.4.6 (Rs.109772) P/F polyethylene-aluminum pipe Claimant referred that for 20 mm (OD) polyethylene-aluminum-polyethylene (Petitioner-AL-Petitioner) pipe they have been paid for the substituted item @ Rs. 105.11 against heir demand of Rs. 224.65 per metre made to respondent through their letter dated 26.5.2008 (C-29). Claimant further submitted that their Exhibit C-15 dated 16.10.2007 and C-16 dated 29.10.2007 be referred where they have objected the rate of the pipe worked out by the respondent on the basis of difference in cost of GI pipe and PE-AL-Petitioner pipe and demanded to treat this as extra item and pay the rate on the basis of market rate. Claimant argued that GI pipe and PE-AL-Petitioner pipe are two different items and have different specifications altogether. Through C-16, claimant cited the provision of CPWD work manual Clause 23.4.2 where it is provided that Substituted items are items which are taken up in lieu of those already provided in the contract. These are with partial modification in items of work in the contract. If an agreement item is completely ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of polyethylene-aluminum-polyethylene (PE-AL-PE) pipe. In DSR 2007, the item is available as item No. 18.3.2 (page 290)@Rs.171.10 per meter. I, therefore, consider it reasonable to decide the rate of the item in subject as Rs.171.10 per metre against which rate of Rs.105.11 has already been paid. I, therefore, award Rs.61356/- [(171.1 105.11) * 929.78] to claimant against the claim. (ix) Extra item No.3.1 (Rs.13538) P/L C.C. 1:5:10 .. Claimant argued that they have claimed market rate of Rs.224.65 per cum through Exhibit C-29 dated 26.5.2008 whereas respondent had paid the rate of extra item pertaining to providing and laying cement concrete 1:5:10 at Rs.2255.85 per cum. Therefore, they are entitled for payment of Rs.13538/- worked out on the basis of difference of rate of Rs.50/- as claimed and as paid for quantity of 270.76 cum. My findings and award: Respondent had paid quantity of 5.02 cum only against the quantity of 270.76 cum as claimed and this issue has already been decided under Mark B. 1.b.1. (v) Above. For the quantity of 5.02 cum, the claim is rejected as the rate of Rs.2305.85 was demanded after determination of contract and provisions under Clause 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Arbitrator is always statutory. Section 34 is of mandatory nature, and an Award can be set aside only on the Court finding the existence of the grounds enumerated therein and in no other way. The words in Section 34(2) that An Arbitral Award may be set aside by the Court only if are imperative and take away the jurisdiction of the Court to set aside an Award on any ground other than those specified in the Section. The Court is not expected to sit in appeal over the findings of the Arbitral Tribunal or to re-appreciate evidence as an appellate court. A recent observation of the Supreme Court in the case of P.R.Shah, Shares and Stock Brokers Private Limited Vs B.H.H. Securities Private Limited And Others, (2012) 1 SCC 594 is apposite in this regard and the relevant portion, contained in paragraph 21 of the said judgment is, reproduced as under: 21. A Court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in Section 34 (2) of the Act. Therefore, in the absence of any ground under section 34 (2) of the Act, it is not possible to re-examine the facts to find ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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