Brij Lal & Sons v. UOI

1. This first appeal is filed under Section 39 of the Arbitration Act, 1940 impugning the judgment of the court below dated 25.7.2012 by which the objections filed by the appellant under Sections 30 and 33 of the Act against the Award of the arbitrator dated 30.6.95 have been dismissed.

2. Shorn of the details I find that what the appellant objects so far as the Award deals with his claims no. 1, 3, 4 (partly), 5 and 7. The financial implication so far as the claim no. 1 {read with counter number 1(a) and 1(b) } is concerned the same is of Rs.4072. The financial implication is of 2014:DHC:2646 Rs.828.04 for claim no. 3. So far as claim no. 4 is concerned, the financial implication to the appellant is Rs.2,423/-. Claims no. 7 and 5 were claims towards extra work done and damages, and which have been dismissed as they were not substantiated by evidence.

3. I have heard the appellant’s partner who appears in person in all the cases of the appellant.

4. I must concede that there is a difficulty in understanding persons who are not legally trained. Courts have a particular procedure and a system whereby some sort of legal training is required for the persons who address the court so that the court can understand what is being argued, more so in technical matters of arbitration pertaining to calculation of the work done under the contract. This Court has therefore, endeavoured to understand the appellant’s submissions keeping in mind the scope of hearing an appeal against a judgment dismissing objections and which scope is limited.

5. At the outset it bears note that aspects of appreciation of evidence are not in the realm of objections under Sections 30 and 33 of the Arbitration Act, 1940 inasmuch as what is the conclusion to be arrived at in view of the facts and circumstances is to be decided by the arbitrator and not by the court hearing objection against an Award, much less a court hearing an appeal against an order dismissing the objections.

6. So far as the challenge to claim nos. 5 and 7, which have been dismissed are concerned, there is no illegality in the Award and the impugned judgment, because, the Award records that no evidence was filed to substantiate these claims once that is so, the objections to claim nos. 5 and 7 have to be dismissed because on mere pleadings claims cannot be allowed i.e without they being proved by filing of requisite evidence.

7. So far as claim no. 1 is concerned, I have already stated the dispute is really for an amount of Rs.4,722 and which amount the respondent/Union of India has been allowed to adjust from the claim no.1 which has been partly allowed, on account of excess payment having been made during the currency of the contract to the appellant. This being a matter of appreciation of evidence, more so because the amount in the respectful opinion of this Court is just an amount of Rs.4,722, and the court below and the arbitrator has examined this issue in detail, this Court is not inclined to go into aspects of re-appreciation of evidence. 8(i) That takes us to claim nos. 3 and 4, and which were with respect to claims on account of increase of labour and material charges during the performance of contract.

(ii) So far as claim no. 3 of higher labour rates is concerned, the arbitrator has awarded 90 per cent of the higher rates, as the contract provides for grant of 90 per cent of the higher rates, and I do not therefore find any illegality in the Award on the ground that the claimant had already given the claim by reducing 10 per cent because when I put a question to the appellant to show me from the arbitration record how the higher rates of labour rates are proved and that he had claimed 90 per cent only of the higher rates, nothing specific was pointed out to me from the record. The same position prevails so far as the claim no. 4 is concerned. As already stated above, issues of appreciation of evidence cannot be gone into by this Court.

9. I may also state that before the court below the appellant had sought to file fresh evidence in the form of fresh calculations, and the court below in para 6 of the impugned judgment has referred to this aspect that technical details filed for the first time before the Court in written arguments cannot be looked into. Para 6 of the impugned judgment in this regard reads as under:- “After remand back of the case, I have heard the arguments form both the sides and gone through the record. Counsel for the respondent Sh. Sanjay Diwan has not pressed the counter objections of the respondent and he laid emphasis on the judgment passed by Ld.Predecessor Sh. Lal Singh on 22.04.1997 by submitting his point of view. On the other hand, petitioner/objector has himself argued supporting the averments as made in his objection petition. He has also placed on record written arguments, wherein he has given the technical details of his case in support of his claims/objections. However, all these details are not mentioned in his objection petition. Moreover, in reply to the counter objections of the respondent, the petitioner has while taking objection on limitation replied on merits that Ld. Arbitrator had not misconducted the proceedings and had not gone beyond the terms of reference in the agreement executed between the parties and he had fully considered the evidence proved on record. He has gone to the extent by submitting in para No.3 of the reply on merits that Ld. Arbitrator being technical person holding the post if Superintending Engineer in the department has given the thoughtful consideration to this fact and acted judiciously. This was so stated in reference to the objection of the respondent. In response to all the objection put forth by the respondent, petitioner/objector has sought to justify the award by Ld. Arbitrator while categorically stating that he has not gone beyond the terms of reference nor misconducted the proceedings for himself. In the obtaining scenario, the scope of setting aside award is negligible U/s 34 of the Arbitration Act.”

10. In view of the above this appeal is without any merit, and is accordingly dismissed. Parties are left to bear their own costs. MAY 19, 2014 VALMIKI J. MEHTA, J. nk