TaxTMI 
TaxTMI 
2013 (4) TMI 475
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.... 3. Brief facts are that the petitioner is a registered Government Contractor executing works contracts with Government and other local bodies. The petitioner submits that it entered into a contract with the respondent vide agreement dated 20th January, 2006 for the work of E.O.S.R. to residential quarters under 3/H sub division, New Delhi SH: Repair/Replacement of damaged SW Gully trap and sewer line of Block No.1 to 37 (Type-1 quarters) and replacement of rusted/worn out G.I. pipes in type-III Quarters at P.K. Road to be completed within a duration of 6 months time, i.e. 21st January, 2006. 4. The case of the petitioner was that it had executed the work to the tune of Rs.25 lakhs against the contract value of Rs.22.43 lakhs still the work has been illegally terminated by the respondent on 7th May, 2008. Disputes arose out of the said contract due to illegal rescission and non-payment of dues by the respondent so they invoked the Arbitration Clause 25 of the Agreement. 5. The petitioner raised total 8 claims and 2 additional claims before Arbitral Tribunal i.e. Sh.Vinod Kumar Malik was appointed as a Sole Arbitrator on 20th December, 2011 by the respondent, who entered upo....
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....ck to the Arbitrator. 9. The claim No.1 was modified. The claim No.1 was raised by the petitioner on account of balance payment for the work executed under the contract including additional work and extra involvements but not paid/short paid in quantities/rates, made unjustified recoveries, withholding etc. in the bill - Rs.1200000/-. The claim is made in four parts Mark A to Mark D. 10. As stated earlier, the petitioner has challenged the award with regard to Mark A and B of Claim No.1. The details of the said Mark A and Mark B are given as under:- "1.a.1 Mark A: Work executed under agreement items but not paid/short paid. 1.a.1.1 (i) Agmt. Item No.5 (Rs.7451/-) - Brick work in foundation and plinth : 1.a.1.2 (ii) Agmt. Item No.7 (Rs.2598/-) - C.C. Pavement with 1:2:4 1.b.1 Mark B: Extra Items executed but not paid/short paid. 1.b.1.1 (i) Extra Item No.2.2.1 (Rs.31627/-) - Centering and Shuttering i/c strutting .... Edges of slab and break in floors and walls 1.b.1.3 (iii) Extra Item No.2/5 (Rs.34052/-) - Cement Concrete flooring 1:2:4. 1.b.1.4 (iv) Extra Item No.2/11 (Rs.44202/-) - Cement Plaster skirting.... 1.b.1.5 (v) Extra Item No.3.1.1 (Rs.600371/-....
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....lowing the provisions of agreement. The cash vouchers submitted by claimant do not establish beyond doubt that material was procured for this particular work and was actually brought at site. It is, however, true that respondent did not initiate strict action against claimant such as lodging FIR or getting the cement work dismantled which was executed without their knowledge and its quality could not be verified in absence of consumption of cement known to them. At the same time, it does not give liberty and right to the claimant to execute work at his will, ignoring the written instructions of Engineer-in-Charge and not following the provisions of agreement to first deposit the cement with Department and to be consumed after proper testing and receipt of satisfactory test reports. Respondent through their letter R-8 dated 8th January, 2008 had clearly informed the claimant that such work executed without depositing cement with department will not be paid. I agree with the submission of respondent that measurements recorded by Local Commissioner are for record purposes and it does not mean certifying the quality of work which, in fact, is to be decided by Engineer-in-charg....
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....g quantity of G.I pipe dismantled but respondent had affected recovery of 2672.89 kg quantity of G.I. pipe without any notice or justification. The said quantity was never received y them and they deserve refund of Rs.27338/-. Respondent submitted that under agreement item No. 17 claimant had been paid for dismantling of 929.78m pipe of dia. 15 to 40 mm (external work) and under agreement item 39 claimant had been paid for dismantling of 345.48 m pipe of dia. 15 to 40 mm (internal work) and weight of dismantled pipe works out to 2672.89 kg of G.I. which was retained by claimant and therefore recovery of 2672.89kg of G.I. pipe had rightly been made. My findings and AWARD: Claimant has not disputed the quantity of dismantling Gl pipe and fittings and as paid to them under agreement item No. 17 and agreement item No. 39. As per provisions of clause 10D, the dismantled material obtained during dismantling of structure shall be property of Government and such material shall be disposed of to the best advantage of the Government according to the instructions of Engineer-in-charge. The dismantled material is received first by the contractor working at site and he is supposed t....
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....ctional area of excavation actually done in the foul positions. As per provisions of CPWD Specification clause 2.20.2 (b), decision of Engineer-in-charge whether the work is in foul position or not, shall be final. The measurements cited by claimant had been multiplied by the average depth 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 and for gully traps no work was executed under foul position. Quantities had been rightly paid and nothing more is due to be paid. The exhibits C-44 and C-45 filed by claimant and R-29: 1/6 and 2/6 as filed by respondent are different, notwithstanding, both pertains to same pages 56 &60 of the same MB No. 2132. I agree with the submission made by respondent for making payment as per CPWD Specifications and reject the claim of claimant. I award „Nil‟ amount to the claimant against Extra Item No.2/2. OMP.No.34/2013 Page 11 of 18 (viii) Extra Item No.4.2 (Rs.19113) - Excavating holes..... Claimant submitted that they have executed quantity of 276 nos. of holes whereas nothing has been paid to them by the respondent. Notwithstandi....
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....u 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 changed, the new time taken up in lieu of it is an Extra item. "therefore, the item should be paid as an extra item and its rate would have been derived under the provisions of Clause 12.2 on the basis of market rate only. Respondent submitted that agreement item No. 21.1 pertaining to laying of 20 mm GI pipe (external work0 was substituted with (PE-AL-Petitioner) pipe and rate of the substituted item has been worked out under the provisions of Clause 12. The full quantity of the item was measured and paid in first RA bill @ Rs.80/- per metre measured on 24.8.2007 and the same was not per metre. objected by the claimant. In the final Bill, the rate has been approved as Rs.105.11 per metre. As such, the claim is not tenable. My findings and award:- I do not find any force in the argument made by the respondent that rate proposed in first RA bill was not objected by claimant as only provisional rate @Rs 80/- per metre was paid and claimant has objected the rate derived by the respondent through their letter dated 16.10.2007 (C-....
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..... (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 12.2 were not followed. I award „Nil‟ amount against the claim. In total I award Rs.80469/- (Rs.19113 + Rs.61356) to claimant under claim Mark B." 14. After having gone through the material placed before learned Arbitrator as well as findings given by him, this Court is not inclined to interfere with the findings arrived at by the sole Arbitrator who has very minutely considered each and every aspect of the matter. It is a well reasoned award. Claim of the petitioner has been discussed by the sole Arbitrator on the strength of the material produced before him. None of grounds mentioned in the present petition are covered under the scope of Section 34 of the Act. 15. The Supreme Court has repeatedly held that even if two interpretations are possible, if the interpretation given by the Arbitral Tribunal is a possible view, even though the Court may have a different view, the Award will not be interfered with by the Court under Section 34 of the Act. The Supreme Court in the case of M/s. Arosan Enter....
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....nder 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 out whether a different decision can be arrived at". 18. The petitioner has challenged the arbitral award on the grounds as set out in the petition and there is not even a single ground as to how his case falls under the limited and narrow mandate of Section 34 of the Act. Even if the additional grounds under Section 34, as laid down by the Supreme Court in the case of ONGC Vs. Saw Pipes Ltd., AIR 2003 SC 2629 are considered, which are patent illegality arising from statutory provisions or contract provisions or that the Award shocks the conscience of the Court, no such facts are narrated in the petition. The endeavor of the petitioner is thus to convert the challenge to the arbitral award into an appellate proceeding involving a total re-hearing of the matter and re-appreciation of evidence, and which endeavor as per the consistent dicta of the Supreme Court is impermissible in law. 19. It is settled law that the Award is not open to challenge on the ground that the Arbitral Tribunal has reached a....