Ram Prakash v. North Delhi Municipal Corporation

1. This first appeal is filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter ‘the Act’) impugning the judgment of the court below dated 12.2.2013 by which the objections filed by the appellant/objector under Section 34 of the Act against the Award dated 8.6.2010 have been dismissed.

2. Appellant was awarded the work of “Improvement and Stg. of BBM Road from Mall Road to Mukherjee Nagar Bandh” on 1.4.2004, Work 2014:DHC:1503 commenced on 15.4.2004 and was completed on 8.6.2004. As per the appellant, he did extra work, but was not paid, and an amount of Rs. 46,498/- was wrongly withheld by the respondent.

3. The case of the appellant/claimant was that having executed extra work he was liable to be paid for the same. This claim has been dismissed by the arbitrator and also objections were dismissed by the court below. The relevant observations of the court below are contained in paras 9 & 10 of the impugned judgment and which read as under: “9. Keeping the basic postulate of the Act in mind, when the case in hand is adverted to, it is found that both the parties had duly put in an appearance before the arbitrator, put forward their pleadings, produced the documents on which they were relying upon respectively, led their evidence and extended the arguments. To prove this case, it was the sole responsibility of the petitioner to establish that he had done the extra work, he was emphasizing upon and that this work was done by him with the consent and permission/order of the respondent. Whenever, any construction work is undertaken to be done, while executing the work order certain works do get done which are ancillary to the work order, but which cannot be segregated. The payments are always made by the employer as per the work order which was placed upon the contractor and not as per any whimsical work done by him without the consent of the authority. As far as the contractual amount is concerned, there is no dispute that the work was commenced and completed within the stipulated period and necessary payment has been made and the delay in the payment has been amply compensated by awarding reasonable interest to be paid by the respondent to the petitioner.

10. In the petition itself, the petitioner has narrated, in isolation, the observation made by the Arbitrator in the award regarding the acknowledgment by the MCD that certain extra work was done, but if the observations are read in conjunction with other observations made, what transpires is that certain extra work, if any was done without the overt permission and consent of MCD. Therefore if some work was not ordered to be done, obviously MCD would not be paying for that work. However, it was for the petitioner to prove the extent and details of work so done by him, which he failed to do so despite opportunity having been granted to him by arbitrator. Therefore, the arbitrator has rightly held that the petitioner failed to prove that he was entitled to the claimed amount of Rs. 46,498/- for any extra work done by him.” (underlining added)

4. I completely agree with the aforesaid observations because it was for the appellant to show that the work executed by him, was an extra work beyond the scope of the original contract and also assuming the work was extra work beyond the contract then to show who ordered him to do the extra work. On these aspects the appellant miserably failed, and therefore, the objections were dismissed.

5. The scope of hearing objections under Section 34 of the Act is limited. If the scope for hearing objections is limited then the scope of an appeal against the order dismissing objections has to be further limited. Courts do not reappraise findings of facts and conclusions arrived at by the arbitrator unless the findings are totally perverse or beyond contract/ agreement. In the present case, the appellant has failed to prove that the extra work done is beyond the scope of the original work and even if the extra work done is beyond the scope of the original work then who ordered him to do that extra work or that there was a contract entered into for extra work.

6. In view of the above, there is no merit in the appeal, which is accordingly dismissed, leaving the parties to bear their own costs.

MARCH 19, 2014 VALMIKI J. MEHTA, J godara