Sajjan Kumar Bansal v. India Tourism Development Corp Ltd

q a-, tl , ;i _t

35.. J, t-(% $--Ii{ 'T'IIE }IIGTI COURT OF' o.M.P. 426/2011 S AJJ:\N KIJMAIT I]ANSAI., 'Ihrough: DEI.,Ftr l AT NI,IW X)tr{l'LtII fudgment diled 2 5.01.20 I 2 ..... Pctitioner Mr'. Ilarish Malhotra, Sr. Aclv. with Mr.I{.K. Modi, z\dv. + VCTSTIS INDIA 'foIlI{ISM DI:iVIil,OPMllNT COITP J..'I'I) ..... Ilcspondcnt 'l'hrcugh : Mr. Amitabh Marwah, Adv. COITAM: I.[ON' B!,X' MII. JTISTICE G.S.SISTANI i. Pctitioncr l-ras filcd thc prcsont petitiorr ltndcr Scction 34 of 'j'he A;bitralion ancl Conciliation Act, 1996 (26 oi 199(r), assailing thc award 6atccl 08.02.201I rcndcrcd by Learncd Solc Arbitrator. Prol. I{-i(. Agarwal. 'l'hc lacts itocessary lbr disposal of thc present objection pctiticln, itt a nutshcll, are as follorvs -that tlre respclndcnt issucd a notice invitir:g tepder on 3l .05.2004 for <levclopnlcnt of Quila Rai Pithora liorlif,rczrtion Wall, (Sanjay Van) carthwork phasc II, in response to which thc pctitioner submittccl his tcnder on 15.06.2004. Aftcr various ncgotiations bctwci:ri thc parties thc worl< was awardecl to thc pctitioner by the rcsponclcnl. vitle letlcr olaward datecl 23.09.2004. lt is spcci{ically statcd b;'tlrc petitiorier in thc prcs;cnt objcction pctition that at thc tinic of aglcctnent tirc iatcs per cubio tnctor wg'L-fixct'I. l,carrgpcl Scrriol Counsi:l fcrr thc pctiLioncr submits that aftcr thc ar'vard of n'oLk, ttre pctitioncr startecl cxccuting thc saicl u'otk ancl i'aiscd tris first r) -f-

¶2o.M.P..l26U0n I'ugc I of17 i-a'r', i -;. running bill on 22.11.2004 for an initial claim of 30,000 cubic mcters of cartlt work in cxcavation of Rs. 12,30,000/-. Aflcr rctaining the security dcposit of l0o/o of thc said amount and dcducting ther''efi'orn thc sales tax and othcr statutory dcductions, the balancc paymcnt of Rs' 10, 40,000/- was relcascd to thc petitioncr. Learned Scnior Counscl for thc petitioner - subnits that the entire work was done under thc supervision of the cmployccs of thc rcspondcnt, uamcly, Mr. vinod Madan, v.l'. (llngg.) and Mr. V.I(. Nehru, Managcr (Civil). It is next submitted by thc Learned Senior Counscl for the petitioner that afler the subrnission of fir'st running bill liulhcr work was canied out and completed by the petitioner by l)eccrnber,2004, and thc sccond and frnal bill for thc said work for Rs. 55, 4g,g40l-was raised and aftcr giving duc crcclit of thc paymcnt rclcascd against thc first bili, which also includcd in it thc rctained security arnount the balance arnount recoverable of lts. 43. 35,499.501-was claimecl. Lcarned Senior Counsel for the petitionor also submits that acftnittcdly thc fi1al bill was reccivcd by thc respondcnt. Learned Senior Coynscl for the petitioner next subrnits that thc cntirc work executeci by thc pctitioncr was duly cntcrcd in the mcasurcmcnt books maintained at site, which are in the custody and control of thc rcspondctt. It is contclded by thc Learncd Senior Counscl for thc pctitioncr that there is an cffot on thc paft of thc Learned Arbitrator in rejecting the clairns of thc pctitioncr dcspitc thc fact that rcspondcnt hacl entercd thc entire work donc by the pctitioncr in thc measurcrnent books fol which no paytneuts were releasecl by the respondenl. It is next contended that while entering the work in the measurcment books only thc work of schcdule items was entcrccl but thc work whictr was donc for cxtra items at scrial nos. 1 ,2 and 3 was not cntcrccl in thc mcasLlremcnt books clespitc protcst raiscd by the pctitioncr. Pctitioner scnt various letters to thc respondcnt for release of .J

¶4o.M.l'.426/201I I'rqie2oJ'17 h 4' tlic payrncnt and evcn submitted thc initial and final bills to the rcspclnclcpt which arc wiilr the rcspondent, however, the rcspondcnt did not considcr the same. It is next contended that since Mr. V.K. Nchru, Managcr (Civil) employee of the respondent, was arrcsted by CBI on

28.12.2004 for involvcment in soure criminal casc'Mr. Sanjeev Gupta, Scniol Manager (Civil), was appointcd in placc of Mr. V.K. Nehru. Subsecluently, Mr. Sanjecv Gupta, Senior Managcr (Civil) and Mr. Madan, rccordcd thc mcasurcrncnts and scrutinizcd the second bill of the petitioncr and forwarded thc case of the petitioner to the respondent for approval to thc tune of lts. 23.0ti lakhs. Since these artounts were not rcicasccl by thc rcsponclcnt to thc pctitioncr, thc arbitration clause was invokcd. Mr. Ilarish Malhotra, Lcarned Senior Counsel for the petitioner, submits that the sgle Arbitrator has failed to Appreciatc thc fact that thc final bill datcd 15.12,2004 was girzen to the respondent in Decetnber, 2004, itself, aucl thc rcceipt of the same was acknowledged by the respondcnt and despite scveral communications no objection to thc samc was cvcr raiscd by thc rcspondent till the arbitration proceedings were invoked in the year 2006. Learnecl Scnior Counscl for thc pctitioner further submits that the Lcarncd Arbitrator has also failecl to apprcciatc thc fact that it was catogorically rnentioned in thc first bill datcd 22.1I.2004 that it was the first running bill and thc sitc was still with thc petitioncr under the supcrvision of the ernployees of the respondeut. l,earned Senior Counsel for thc pctitioncr ncxt submits that the arbitrator has failed to appreciate thc lact that it is an adrnitted case of the respondent that thc work donc by thc pctitiorlcr was satisfactory but cven then tho security deposit was llot rclcascd to the pctitioncr moaning thereby responclent never wanted to rclcase the rightful and lawlul dues of thc petitioncr. Scnior Counsel for

¶5\i o.tw.P.426/201t I\ryc j oj'l7 "^,J.\ thc pctitioncr also submits that the Sole Arbitrator has also failed to apprcciatc the fact that if, as pcr thc respondent, the quantum of work was cxcavation of 30, 000 cubic rneters of earth rnatcrial then therc wbs no neccssity of the tneasuretnent book, there was no rcason why the lncasurcrllell book was not closed nor possession of the sitc was taken by thc responclent when in the first vcry running bill pctitioncr had charged cxcavation of 30, 000 cubic mctcrs of carlh material. 'fhere is also a failurc on thc part on thc Lcarncd Arbitrator to apprcciatc thc fact that the Mcasurcment book was cvcn not closcd aflcr thc rccciving of sccond and final bill <lated 15.12.2004 which was maintaincd by rcspondcnt. L,earned Scnior Counscl for the petitioncr contcnds that thc Arbitrator has failcd to appreciate the fact that Mr. V.K. Nehru, one of thc ernployees of thc rcspondcnt and incharge, who entertained the final bill and did not objcct to the said bill. It is ncxt subrnitted by the Learned Senior Counsel for the pctitioner that therc is also a failure on the part of thc Lcarncd Arbitrator to apprcciate the fact that rcsponclcnt thcrnsclvcs sought lbr Ievel slrects vidc letter dated 02.02.2005 liorn the pctitioncr and altcr dtrc ctiligencc and survey, respondent passed thc bill of Ii.s. 23.08 lakhs rncaning thcrcby that even respondent arc in agreclnent of the fact that a substantial amount is duc after the payment of thc first running bill. It is ncxt contcnded the Learned Arbitrator has also errcd in not appreciating thc fact that if thc scopc of thc work awardcd was only 30,000 cubic rnctcrs, thcn why no objcction was raiscd qua placing thc first bill in the catcgory of running bill. Learncd Cottnscl for the petitioncr further submits that there is a grave failure on the part of thc Learned Arbitrator in dischalging thc dutics cast upon him by allowing the respondent to file approximatcly 187 pagcs of docurncnts parlicularly afler the conclusion of final argumcnts b1,the petitioner (Clairnant in the irnpugned award), by

¶6t o.M.P. 426/20t I I'oge4ofl7 { which thc Lcarncd Arbitrator has transgressed the principles of natural justicc. It is ncxt contcndcd that thcrc is also a failurc on the part of the Lcarlcd Arbitrator to apprcciatc thc fact that if thc employees of the respondent responsible for site are charge shectcd by thc deparlrncnt qua the sitc then it is the rcsponsibility of thc rcspondcnt to inform thc pctitioncr but thc salne was not done neither any crirninal proceedings wcrc initiatcd against thcm by thc dcparlmcnt. Mr. Malhotra submits that there is a grave errol' on the palt of the Lsarned Sole Arbitlator in placing rcliance on IrSL rcport filcd by respondent as the sarne was not proved. Scnior Counsel fior thc pctitioncr fuflher subrnits that the Sole Arbilrator has failed to apprcciatc thc fact that the mcasurcmcnt books maintained, when in thc posscssion of the I)cpaftrncnt, was not produccd bcfore the tribunal on the basis of which runling bills wcrc raiscd: Lcarned Senior Counsel for the petitioner next subrnits that no cogcnt and valid reason has bccn givcn by the Arbitrator for rcjccting thc claims of the petitioncr (that is, thc Clairnant in the irnpugncd award). Mr Amitabh Marwah, learned Counsel for thc rcspondcnl, has opposcd the prcsent pctition and refuted the subrnissions made by Learned Senior Counscl for-the pctitioner. Learned Counsel fior the respondent submits thal the work of Developmcnt of Quila Rai Pithora liortification Wall (Sanjay Van) - Ilarlh Wor[< (II I?hasc) was awardcd to Mis lJansal Iintcrpriscs that is, the Pctitioncr, vide Work Ordcr No. Iingg/QRP/ Earth 2104 clated23.9.04 fior I{s.12,30,000/-. The Work Ordcr was dul,v acccpted by the petitioner in tcrms of which the work was to commencc fr'om the 7tr' <lay of issuc of thc said Work Ordcr that is, by 28.12.2004 or handing ovcr of thc sitc wlrichevcr is later. It is ncxt subrnitted that thc work cxccntcd by the pctitioncr starlcd from 29.9.2004 aflcr thc layout for thc t

¶8o.M.P. 426/201I I'oge 5 of 17 J I -U.N9.-

¶01Deqerrqes-- I-larlh work in excavation over areas for all lcad & lift by rncchanical mcans. The carth cotn pflscs oI vcgetation, malba stones kanker, etc ctc.'lhc u'ork also includes siacking of serviceablc matcrial likc stonc ctc. at sitc and disposal oI carth by agency at his own destination. 'fhc work to be compictcd as pcr direction of el8]I199I-4

0.M.1'. 42(t/201I ___t_ I\rye 6 oJ'17 work has becn identilied and pointcd out. Cor-rnscl for thc rcspondent has clrawn thc attcntion of thc Court to thc Work Order which is reproduced as undcr:- "SUI]: Devcloprnsnt of Quila l{ai I'ithora liortification Wall (Sanjay Van) Iiarlh Work-2"d phasc Io glA,e-q Cum 30000 amount of Its. 12,30,0001-which was unclcrcstimatcd and the pctitioncr signed thc work undcr thc contract. It is riext contended I{s.41.00 (Rripces forty Onc only)

¶9Attcntion of the Courl was also drawn to Clause 9 of the Notice inviting tcncler which forms a parl of the agreelnent between the parlies, and thc samc is reproduced as undcr:- "'fcpclcrcrs alc adviscd to inspcct and cxaninc the site and its sumoundings and satisfy themsclves before subrnitting their tenders as to the nature of the ground and sub-soil, thc form and nature of thc sitc, tho means of acccss to the site, thc accommodation they may requirc and in general shall thcmselves obtain all necessary inforrnation as to risks, contingcncics and other circumstanccs which rnay influence or effect their tender. A tendercr shall be deernecl to havc full knowledge of the sitc, whcthcr no inspccts it or not and no cxtra charges consequent on any rnisunderstanding ol otherwisc shall bc allowed." Mr. Arlitabh Marwah, lcarncd Counscl for thc rcspondent submits that tlrc pctitioncr vidc cornmunication datcd 22.09.2004 confirtncd that it hact visitcd thc site bcforc tcndcring. It is furthcr sr,rbmittcd that at thc tirne of tendering and inspection of the site the pctitioner was awarc of the tender J I

¶10not disputcd as being contract and execute the that the petitioner is now cstopped in law fi'om claiming that the quantity of work was grossly under-estirnated ancl that the petitioner had to executc thrcc tirncs thc work issgcd un<icr the work Ordcr. Counsel for thc respondcnt ncxt subrnits tlrat thc Curtract was for a oonsolidatcd amount I{s. 12,30,0001-and thcre Rs.12,30,000/-Rs.12,30,000/-

0.M.P. 42(r/201I PugeT oflT

¶11was no rate fixed per cubic mtr. as rvould be evidcnt from a pcrusai of thc Work Ordcr. I,earlccl counsel for thc responclent submits tlJat as pcr Ofllcc Order No. VP(lingg)/O.Ordcr/03 datcd 26't'I)ecc.r:aber, 03 issued by then VP(Engg), Shri Vinocl Ma,Can, thcn DGM(E&M) and Shri V.K. Nchru, then Malager(Civil) wcl'c thc officials responsiblc for the project works at eujla Rai Pithora. I-Ic ncxt submits that the cntirc work was cxccuted nndcr the supervision of Mr. V. K. Nehru and no work was cxecnted thcrcaftcr. It is catcgorically statcd that during the tenure of Shri Sanjcev Gupta, thc pctitioncr.dicl not exccnte any work whalsoever and as such he had no knowledge of'the work executed. It is also subrnitted that Shri Neluu was affested by thc Central IJureau of Invcstigation in thc evcning of 28. 12.04 altegedly while acccpting a bribc liom a contractor and was suspendecl fi'orn service irnmediately and in his placc Shri Sanjccv Gupta, Sr. Managcr (Civil) was appointed on 05.01.05, whcrcas the work alrcady stood complcted on 28.12.2004. Lcarncd counscl for thc rcspondcnt furthcr subrnits that thc Petitioner submirtccl its first ItA llill for lts. 12.30 Lakhs on23.11.04 which was rccomurcnded I paidby Shri V. K. Nehru to the cxtent of Rs. 12,14,4401-' 'l'he total rn'ork executed at the time of subrnission of thc first ILA lSill was 29,643 cubic tneter. l-Ie next submitsthat an amount of lts. 10.40 Lakhs was paid to the Pctitioncr which was accepted by the Petitioner withottt any protcst or dcmur. It is furthcr submitted that thc extra items claimed by the Pelitioner in the Final Bill were not claimed in thc liirst I{A Ilill. If the clairns for thc cxtra itcms wcrc gcnuinc thcy wor:ld havc bccn claimed in the First RA Ilill itsclf as thc extra itcms clairnsd arc rccluircd to bc exccuted at fic initial stagc attcl not subsecprently. ,? {l

¶12o.M.P. 426/20t I I\tge 8 of 17 [> !-- ,Ji

¶13It is submittcd by Mr.Marwah that the cxecution of the work was compJctcd on 20.12.04.I'Iowever, for sorne strange reason, the Petitioner furnished thc Iiinal llill on I5.I2.04. It is further subrnitted that in the Irinal Ilill, thc Petitioncr clairned that it had cxccutcd work fiom 2I.1I.04 to thc tunc of 90,000 cubic mctcrs and accordingly claimcd an amount of Its. 36,90,000/-. No dctails had been ftirnished by thc Pctitioncr in support of thc claim along with thc Final llill. The Petitioncr also raiscd a dcmand fulthe extra iterns. I{owcver, it is submitted that it is cvident that thc extra itcrn No. I .claimed on account of carriage of tnaterial and earlh by rncchanical transporl including loading and unloading and stacking is covcrccl undcr thc scheduled itcrn. Jlxtra Item No. 2 claimed was not rcquircd to bc exccutcd undel the contract and the said itcm has not been cxccutcd by thc Pctitioncr. Iixtra item No. 3 is includcd in thc Agreetnent itcm as per CPWD's specifications. It rnay be rncntioned hcrc that the final bill discloscs no dctails as to horv thc Respondent cxcavated 90,000 cubic rnctcrs. In fact, thcrc is no docurnentaticln on rccclrd to show that the Petitioner has executed any work whatsoever.

¶14Mr.Marwah, learncd counscl for the respondent, submits that in Ilxtra itern No. 3,'the details of rneasurernents shown by the Pctitionet'are fbr 23,954 cubic meters whereas in the bill the Petitioncr has clairncd for 29,954 cubic meters. l'his shows that thc clairn is fraudulcnt. Iior extra items 1 & 2 no dctails havc bccn furnishcd by thc Pctitioner along with thc Final llill which again shows that thc Clainrs are fabricated and the Lcarncd Arbitrator was justificd in disallowing thc same.

¶15It is furthcr subrnitted that it is signifrcant that at thc timc of oollmcncernent of thc work on 29.09.2004 till thc datc of the l]irst Running IliIl i.c. 22.11.2004, tircro is a diffcrcncc of 55 days wherein the Pctitioncr clairncd that it had cxecuted work to the tune of 30.000 cubic I o.hlI'. 426/20t I I'nge 9 o!'l / tg <1i: meters which was corrected to 29,643 cubic rnetcrs and paymcnt made . accordingly, whereas in thc sccond Itunning*llill for a pcriod starling fiorn

23.I1.2004 Lo 20.12.2004 which is a period of only 27 days, the Petitioner clairncd that it had cxecuted work to the tunc of 90,000 cubic rteters which was allcgcdly corucctcd by Shri Sanjccv Gupta to 89,981.85 cubic metcrs. I'hc estirnated quantity at the tirne of issuance of work order was 30,000 cubic meters which was rnore or less cxecutcd at thc tirne of thc llilst Rnnning Bill. It is inconceivable that such a largc deviation would occur i.c. to thc tunc of l99.4Yo of the original estimated cluantities and that a contractor cor-rld took nearly two months to excavate nearly 30,000 cubic meters suddenly, in a very efficicnt rnanllcr, cxcavatcs nearly 90,000 cubic mctcrs in lcss than a month cspccially in vicw of the fact that thc Pctitioncr had inspcctcd thc sitc. 'l'his clcarly shows that the claim is fabricated. Learnecl counsel for the respondcnt further subrnits that the mcasurcments entcred into the Measurement Book by Shri Sanjeev Gupta wcrc cntercd by him on thc basis of some documents i.c. f,evel Sheet submittcd by thc Pctitioncr vide letter dated 02.02.2005 which contained a forgcd signature of Shri V. K. Nchru thc cnginecr at site who had supcrviscd thc work, whcrcas Shri Sanjeev Gupta had not supervised any cxecution of the work. It is significant that not only Shri V. K. Nchru has dcnicd his signatures on the aforesaid purported Lcvcl Shcct but an inclcpcndent body, narnely Govetnment lixamincr of Qucstioncd I)ocumcnts, I)ircctoratc of liorensic Science, Ministry of IIorne Affairs, (iovcmment of India has also stated that the signature is forgcd.

¶16Mr.Arnitabh Marwah, lcarned counsel for thc respclndent subrnits that aflcr the snspension of Shri V. K. Nehru, Shri Sanjccv Gupta, recorded the rneasurements in respect of 2"d and Iiinal Ilill on thc basis of ccftain documcnts / drawings prcparcd by the quantity survcyor thc services of o.M.P. 426/2011 I'agc l0 of I 7 I tV whom were not hirccl by I l'DC and accordingly rccolnmcndcd a paymcnt to thc tune of Rs.23.08 lakhs (approx.) in favour of \zVs. IJansal Iinterprises, ContractoL, the I'}etitioner herein. 'l'hesc documcnts / drawings werc not part of the inventory of filcs (in the charge of Shri Nehru) that was madc by a duly constituted Cornmittce, after the arrest of Shri Nehru ancl were brought on record by Shri Sanjeev Gupta. TJnder these circutnstances, it was thc boundcn duty of Shri Gupta to get the aforcmcntionccl clocurnents / drawings authenticatcd fiom Shri Nehru as Shri S. Gupta hact not supervised thc work and thc contractor had subrnittc<1 a final bill including disproportionately high quantity of wotk cxccutcd viz-a-viz Lhe cluantily awarded (199.4% deviation). F-utlher, though thc initial levels were not brought on record by Shri Nehru and ' were unverifiable, final lcvels could have bcen vcrified / chccked by Shri Gupta. 'Ihe signaturcs of Shri V. K. Nehru had becn forged on the aforesaid documents / drawings which formed the basis of rccotnmcnding payrnent. I-Ience, Shri Sanjcev Gupta indulgcd in conspiracy to unduly bcncfit the contractor (thc Petitioncr herein) monetarily at the cost of the ltcspondcnt. It is significant that none of the documents / drawings on the basis of which Shri Sanjccv Gupta recordcd the measurements and rccommcndcd payrncnts wcrc in the custody of Slrri V. K. Nehru and in lact containcd forgccl signaturcs of Shri V. K' Nchru' Ii. It is ncxt subrnilted that Shri Gupta deliberately and with an intent to favour thc contractor (the Petitioner herein) brought on record lettcr datcd 2j .03.2007 of thc contractor (the Petitioner herein) addressed to the Arbitrator lodging his claim. The afore-citcd letter was not markcd to Shri Gupta but hc proccsscd thc rnatter and forwardcd thc said letler to Sr. VP (lingg.) vic1c his rtotc clatccl 07.04.2007. Accordingly Shri Sanjeev Gupta was chargc sheetccl, an encluiry was helcl rvhich nclw stands concludcd. o.tv.P.426/201 I I'age I I of 17 Shri Sanjcer, (iupta has been rbrnoved li'orn scrvicc. It is subrnittcd that Shri Ncliru ncver receivccl the Iiinal Bill dated 15.12.04 and as such, the question of him raising any objection to the same cannot and does not arisc. IB. It is furthcr argucd by lcarncd counsel for the rcspondent that the Pctitioncl has failcd to providc any cogcnt cvidencc in supporl of his clairn. Ihcrc is no cvidcncc on record to show that thc Petitioner had cxccuted thc work as olairncd. No details have been given as to how after inspcction of thc sitc and cvcrl after the subrnission of the Irirst ItA Bill, thc Pctitioncr ncvcr madc any objection regarding the quantity of work. It is only afler Mr. Nehru who was the Site lingincer having full knowledge of thc sitc was removcd that the Pctitioncr in connivance with Shri Sanjeev Gupta triecl to fabricate thc. record and makc illcgal gain at the cost of the Itcsponclent. The whole claim is based upoll the fraudulent 4ocuments. As such, the Award passed by thc Lcarncd Arbitrator is liable to bc uphcld. t9. Mr.Mar-wah subrnits that a pcrusal of the rccord wcluld detnonstrate that thc Lcarnccl Arbitratclr had correctly corrle to thc conclusion that there is no supporting <locumcnt furnished by thc Pctitioncr that hc was asked to clo the total quantity of thc schedulcd item to thc cxtcnt of 90,000 cubic mtr. and also cxtra work against cxtra item Nos. I,2 & 3. 'l'herc is no cvidcncc on rccord to show that the Petitioncr was l'ecluired by the I{csponclent to exccute thc extra itcms. It is fuilher sr-rbmitted that the respondent has paid to the petitioner the awarded atnount and thc salne has bcen acccptcd within thc stipulated timc as prcscribccl by the learned Arbitrator. Accorclingly, thc lcarncd counscl for thc rcspondcnt prays for thc clisrnissal o[thc prescnl objcctions as the sarnc are barrcd by larw of cstoppcl. t

0.M.1" 426/201I I'qe l2 of I7 tL :t

¶20Lcarned Counsel for the rcspondent submits that the award of an arbitrator can be set aside by a Courl only on the grounds indicatcd in scction 34 of the Arbitration and Conciliation Act, 1996 (for shoft "the saicl Act") and as suoh the present objections assailing thc impugned awarcl arc not rnaintainablc undcr law as thcy do not satisfy the ingredients o1'thc said scction in any lnanncr what-so-cvcr neither any proof has becn fui'nished in this rcgard by thc pctitioncr. It is furlher subrnittcd that a barc rcfcrcncc to thc cxisting law on this aspect, and the {indings of the learned arbitrator, as is apparent -&orn a sirr.plc reading of the award, without r.veighing various possibilities or invcstigating further facts, will cogcntly cstablish that the said award is in perfect harrnony with thc law and the learnecl arbitrator has conducted hirnself judiciously ancl honourably. Mr Marwah further submits that learned senior Counsel for the pctitioner has argued thc mattcr as if this is a Court of Appeal whcrcas thc law with regarcl to Section 34 ofthc saicl Act is wcll scttlcd that thc jurisdiction of the Court to interfcrc with an award of an Arbitrator is a lirnited one and this Court is not cntitlcd to hear the arguments as a Court of Appcal as the same has been held in a nunber of clccisions. In support of his argumcnts Lcarncd Counsel for the respondent placcs rcliancc on Iliiendra Nath Srivastava '(Dcad) throueh LRS' Versus Mayank Srivastava and Others rcportccl in (1994)- 6 SUPREME COURT CASES 117 the relevant por'tion of paragraph 20 is reproduccd as under:- . "'fhc arbitrator is thc solc judgc of thc cluality as well as the cpantity of evidencc and it will not bc for thc Court to take uporl iisctf thc task of bcing a judgc on thc cvidcncc bcfore the arbitrator."

¶21In suppofl of his arguments I-satned Counsel for thc rcspondent also placcs rcliancc on National Hydro electric I'ower Corporation Ltd o.!v.P. 426/20t I I'agc I3 qf l7 Vcrsus IWs. Karam Chand Thapar and Bros (CS) Ltd. & Anr. reportcd in 2011 (1) R.A.J. 131 (Del) wherein it has bccn held that "Whcre the rcasons have been givcn by thc Arbitrator in making thc award, the Court cannot cxaminc thc rcasonablcncss of the 'rcasons".

¶22F'urlhcr elaborating his arguments reliance is also placcd on Mc Dcrmott Intcrnational Inc. Vcrsus Ilum standard Co. Ltd and Others reporled in

(2006) 1 I Suprerne Couri Cases 181, rrorc particularly in paras 55 and 56, --v-which are rcproduced bclow:

¶55A cluestion may invariably arisc as to what woulcl be mcant by a reasoncd award.

¶56In Bachawat's Law of Arbitration and Conciliation, Fourth Edition, pagcs 855-856, it is statcd: "... 'Itcason' is a ground or motivc for a belief or a course of action, a statemcnt in justification or cxplanation of bclicJ: or action. It is in this sense that the award must statc fcasons for the atnount awardcd. The rationale of the rcquircmcnt of rcasons is that reasons assurc that the arbitrator has not acted capriciously. Rcasons rcveal thc grounds on which the albitrator reached the conclusion which adversely affects the interests of a party. Thc contractual stipulation of rcasons mcans, as hcld in Poyscr and Mills' fubitration In Itc, "proper, adequatc reasons". Such reasons shall not only bc intelligible but shall bc a reason connected with the case which thc court can sec is propcr. Contradictory reasons arc cclual to lack of rcasons. 'I'hc meaning of thc word " rcason" was cxplaincd by the Kcrala Iligh Court in the contest of a reasoned award. . . 'Reasons are thc links bctwcen the materials on which ceftain conclusi<lns al'e based and thc actual conclusions...'

0.tv.P. 426/201I I'uge 14 of I 7 @ -"/ I ara A mcrc statcrncnl of rcasons docs not satisfy the rccluiremcnts of s.31(3) I{easons tnust be bascd upon the rnatcrials submitted befiore the arbitral tribunal. fhe tribunal has to give its reasons on considcration of thc rcicvant nratcrials while thc irrelevant matclial rnay bc ignorcd... Statement of reasons is mandatory recluiretnent unless dispensed with by the parlies or by a statutory provision." On thc mcrits of thc rnattcr, lcamcd Counscl for thc rcspondcnt subrnits that Lcarned Arbitrator has passcd a rcasoncd award taking into consideration thc facts of the case and the evidencc placed on record. It is furthcr strbrnittcd that a barc pcrusal of the said award will establish that this is indccd a casc whcrc thc learncd Arbitrator has passcd a properly reasoncd award aflcr considering all aspects in the matter, including the contract betwcen the parties, the evidence on record and the pleadings/subrnissions of the parlies. I have heard the Counsel for the parties and considered their rival contentions. In thc case of Mc I)ermott International Inc. (supra) the Apcx Court has held as under: "52. I'hc 1996 Act rnakcs provision for the supervisory role of Courts, lbr the revicw o[ thc arbitral award only 1o cnsurc fairncss. Intcrvention of thc Court is cnvisagcd in fcw circumstances only, likc, in casc of tiaud or bias by the arbitralors, violation of natural .justice, ctc."

¶25Further reliance is also placed on l)elhi developmcnt Authority versus ll. S. Sharma and Company. Ncw l)elhi rcportcd in (2008) L3 Supreme Court Cases 80 thc rclcvant portion of paragrdph 21 is rcproduced as ltndcr:-

¶24o.M.P. 426/201I l'age l5 oflT 'f "thc principles for the intcrference with an arbitral award under Scction 34 (2) of the 1996 Act arc as follows:-

(a) An Awarcl, which is

(i) Contrary to substantivc provisions of law; or

(ii) thc provisions of the Arbitration and Conciliation Act, 1996 ; or

(iii) against the terms of thc respcctivc contract ; or

(iv) patcntly illcgal, or

(iv) prejudicial to the rights of the patlics, is opcn to intcrfcrcnce by the Court under Section 3aQ) oI' thc Act.

(b) thc Award could be set aside if it is contrary to :

(a) fundamental policy of Indian Law; or

(b) the interest of India; or

(c) justice or moralilY;

(c) Ihc Award could also bc sct asidc if it is so unfair and unreasonable that it shocks thc conscience of the Court.

(cl) It is opcn to thc Coutl to consider whelher the Awarcl is against the specific tcrms of contract and if so, intcr.fcrc with it on thc ground that it is patently illcgal and opposcd to thc public policy of India".

¶26I havc hcard counscl for the partics and carcftilly examined the award and considcrccl rival contcntions of both the parties. The dispute between the partics ariscs out of thc work order by which the petitioner was to cat'ry out ths earth work in excavation ovcr arcas lbr all lcad & lift by mechanical rneans. Thc earth com priscs of vcgctation, malba stoncs o.w.P. 426/201I I'agc I6 of I7 i: kankcr, ctc e1c. 'I'he work also includcs stacking of sct'viccablc matcrial lit<c stonc etc. aL site and disposal o[ earth by agcncy at his own dcstination. Thc work was to bc cornpletcd as per thc dircctions of cngineer-in-charge. The work order also limits the arca which was 30000 cb. rntrs. 'l'he work ordcr has also spccificd the ratc and the total amount payable. It has becn clcarly established on record that prior to the comlncnccmcnt of thc wotk,. thc contractor, petitioncr hercin, had inspcctc<l the site. Accordingly, thc contractor tnust havc cstirnated the arca which was to bc excavated. 'fhe work order does not lcavc any scopc fur incrcasc in thc unit arca on account of the fact that the rate and the . total amount hxccl was I{s.12.30lacs. 'llhe rcliance of learned counsel lbr thc petitioncr on thc mcasurcrnent book can bc of no hclp to the pctitioner for the 1eason that the petitioner ncver clairncd for any cxtra itcm in thc first bill wlrich was subrnitted by thc petitioncr. J'hc stand takcn by the pctitioncr that Mr.sanjecv Gupta had however supcrvised the work is factgally incorrect as no work was calried ottt by thc pctitioncr during the tenure of Mr.Sanjecv Gupta. The Arbitrator has also factually disagreed with thc pctitioncr. 'l hcrc is also a finding that thc signaturos of Sh.V.K.Nehru wcrc forgcd on thc docntncnt which lonncd the basis of fecoruncncling paymcnt. Ilaving rcgard to thc work orcler, in fact no payrncnts could have been rccomlncnded in lavour clf thc pctitioner- 'fhc lcamccl Arbitrator has rendered a well reasoned award based on the rnatcrial placecl bcforo hirn and it cannot bc said that the award is pcrversc. 'I'hcrc arc no grounds to interfcre in the award passed by tire lcarnecl Arbitrator. Accordingly, objcctions arc disrnisscd. .IANUAI{Y 25,2012 msr /)f

0.M.P. 426/20t r I F-s -<*/--- '- (;.s.sIS:rtANt, r-I'uge 17 of I7