9911796707
TMI Blog2021 (5) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the respondent beyond the scheduled period of the contract - HELD THAT:- The Arbitrator took a view on the construction of the clauses of the contract that the firm price clause operated only with respect to the period for which the contract subsisted, and would not subsist beyond the scheduled period of the contract. The Arbitrator also noted that the appellant accepted the work undertaken by the respondent beyond the period of the contract without objections. The Arbitrator also carefully assessed the period of delay attributable to the appellant and awarded escalation to the respondent only for the same. The contractual clause stipulates only that the price would be firm during the period of execution of the contract , which the Arbitrator took to refer only to the 12 month period originally stipulated for the execution of the contract. This may appear to be a technical distinction, but it must be remembered that construction of a contract is in the domain of the Arbitrator, and as long as the interpretation given is a possible view, the Court may not interfere with the same - the view taken by the Arbitrator was a possible one, and cannot therefore be interfered with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractor, the respondent sought arbitration under the dispute resolution clause, and an Arbitrator was appointed. 3. The learned Arbitrator, vide awards dated 07.07.2000, granted relief to the respondent under different heads of the contract. With respect to the first contract pertaining to the construction of 100 units of A and B type quarters, the Arbitrator awarded a sum of ₹ 23,89,424/with interest at 18% per annum pendente lite and 21% future interest to the respondent. With respect to the second contract pertaining to the construction of 68 units of B, C and D type quarters, the Arbitrator awarded ₹ 24,36,532/at 18% per annum pendente lite and 21% future interest to the respondent. 4. Aggrieved by the above awards, the appellant filed objections against both the awards before the Delhi High Court under Sections 30 and 33 of the Arbitration Act, 1940. Vide separate orders dated 16.12.2009, the learned Single Judge of the Delhi High Court dismissed the objections of the appellant (except to the extent of modifying the interest rate granted by the Arbitrator) with cost of ₹ 50,000/and made the award an order of the Court. 5. The appellant challenged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. At the outset, it should be noted that the scope of interference by courts in regard to arbitral awards is limited. A court considering an application under Section 30 or 33 of the Act, does not sit in appeal over the findings and decision of the arbitrator. Nor can it reassess or reappreciate evidence or examine the sufficiency or otherwise of the evidence. The award of the arbitrator is final and the only grounds on which it can be challenged are those mentioned in Sections 30 and 33 of the Act. Therefore, on the contentions urged, the only question that arose for consideration before the High Court was, whether there was any error apparent on the face of the award and whether the arbitrator misconducted himself or the proceedings. (emphasis supplied) 12. Further, it is also a settled proposition that where the arbitrator has taken a possible view, although a different view may be possible on the same evidence, the Court would not interfere with the award. This Court in Arosan Enterprises Ltd. v. Union of India, (1999) 9 SCC 449 held as follows: 36. Be it noted that by reason of a long catena of cases, it is now a wellsettled principle of law that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in handing over the sites for the 68 B, C and D quarters to the respondent. The appellant has not contested this finding before us. 16. With respect to the first issue, viz., on the issue of refund of rebate, the Arbitrator held that the rebate of 16% on the price of construction of 100 units of A and B quarters was given by the respondent on the condition that he would be able to execute both the works simultaneously. The Arbitrator interpreted the rebate as a conditional one on analysis of the documents on record, particularly the letter dated 14.06.1988 sent by the respondent to the appellant subsequent to the negotiations held between them, the award of both contracts to the respondent on the same date and the works programme (L2) for both the works. The Arbitrator specifically highlighted that the appellant had not denied the L2 programme, which indicated that both the works were to be carried out together. From a reading of the above material, the Arbitrator held that the intention of the parties was to complete the work together, which would have enabled the respondent to reduce its costs and optimizing its charges, thereby allowing it to grant the 16% rebate to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eJudge Bench of this Court in Assam State Electricity Board v. Buildworth Private Limited, (2017) 8 SCC 146, was faced with almost identical circumstances. In that case, the Arbitrator granted escalation charges beyond what was permissible under the contract between the parties, which prescribed a cap on the same. Upholding such an award, the Court in that case held as follows: 13. The arbitrator has taken the view that the provision for price escalation would not bind the claimant beyond the scheduled date of completion. This view of the arbitrator is based on a construction of the provisions of the contract, the correspondence between the parties and the conduct of the Board in allowing the completion of the contract even beyond the formal extended date of 6-9-1983 up to 31-1-1986. Matters relating to the construction of a contract lie within the province of the Arbitral Tribunal. Moreover, in the present case, the view which has been adopted by the arbitrator is based on evidentiary material which was relevant to the decision. There is no error apparent on the face of the record which could have warranted the interference of the court within the parameters available under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the present case. 24. In General Manager, Northern Railway v. Sarvesh Chopra, (2002) 4 SCC 45, the Court was seized of a matter pertaining to a reference to arbitration. The considerations of a Court in such a matter are distinct from those of a Court in appeal over the final award of an Arbitrator. Be that as it may, in that case, a contractual clause between the parties specifically excluded any claims of the contractor arising out of delays attributable to the opposite party, which is not the case in the present matter. 25. It is clear from the above analysis that any decision regarding the issue of whether an arbitrator can award a particular claim or not, will revolve on the construction of the contract in that case, the evidence placed before the arbitrator and other facts and circumstances of the case. No general principle can be evolved as to whether some claim can be granted or not. The judgments placed on record by the appellant, wherein claim for escalation was denied, have to therefore be read in the context of their facts, and cannot be read in isolation. It is clear that all the judgments cited by the appellant can be distinguished on facts. 26. In these ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
