Tilak Raj Gogia v. BSNL

1. I have heard the appellant who is appearing in person and who appears in person in various cases before this Court as well as in other courts.

2. This first appeal is filed under Section 37 of the Arbitration and Conciliation Act, 1996 impugning the judgment of the court below dated 8.8.2013 by which the objections filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 were dismissed.

3. The appellant as a contractor was awarded the work of Recarpeting of damaged bituminous road in Telecom Staff Quarters at 2014:DHC:1087 Vivek Vihar, Delhi-95. After completion of work disputes and differences arose with respect to payments of the work done and, therefore, arbitration proceedings took place. Arbitration proceedings resulted in the Award by the arbitrator dated 1.3.2007. Arbitrator with respect to claim no.1 for an amount of Rs.2,82,000/- for giving of a thicker coat of carpeting awarded not the entire amount claimed but only an amount of Rs.1,27,908/- which pursuant to the Award stands paid to the appellant. There were other claims which were dismissed including for the reason that claimant himself was guilty in not giving details as of his relatives in the department resulting in delay of the work. The claimant had also made a claim with respect to idle labour on account of alleged hindrance in the work and this was also not proved and the arbitrator notes that neither the hindrance register recorded any hindrance nor could the claimant produce any such written instruction for stopping of the work.

4. Before me, it is argued that the Award of the arbitrator is bound to be set aside because appellant had filed an application under Section 33 for enhancing the awarded amount with respect to claim no.1, however, the same has been wrongly dismissed by the order dated 12.6.2009. This order which has been passed by the arbitrator on the application of the appellant under Section 33 of the Act is dated 12.6.2009 and the relevant portion of which reads as under:- “As per Hon’ble Court order No.126/07, dated 03.05.2008 hearing was held on 2.06.2008 in the chamber of Sole Arbitrator at New Delhi. The following persons attended the hearing;.

1. Sh. Tilak Raj Gogia Claimant.

2. Sh. Rajiv Sharma Respondent This hearing is being conducted after request of Claimant dated 28.3.2007 under Section 33 of the Arbitration Act. and Court Judgment of Hon’ble Additional District and session Court, Delhi on application of the claimant No.126.07 under section 33. No new facts have been given by the claimant. Further it is noticed that the application cited above under section 33 is a request for review of award in disguise. It is tenable as per law. Hence rejected. Earlier published award stands. Both the parties were intimated of this decision in the hearing itself in person. (S.K.BABBAR) SOLE ARBITRATOR”

5. The provision of Section 33 of the Arbitration Act is not an application in the nature of a review as per Section 114 and Order 47 CPC. Application under Section 33 is in sum and substance an application similar to Section 152 CPC for correction of clerical mistakes in the Award. Arbitrator has therefore rightly dismissed the application observing that the provision of Section 33 cannot be used for filing of a review petition.

6. Even though appellant has not argued, I mention that the issues of appreciation of evidence and what is the amount to be consequently awarded as a result of particular amount of work, does not pertain to realm of violations of contract or perversity or public policy for a court hearing objections under Section 34 of the Act to interfere. In fact, I am constrained to note that possibly even claim no.1 could not have been awarded in favour of the appellant herein because actually the Award does not show as to how any instructions were given to the appellant to do a thicker carpeting and for which this claim has been allowed. If the appellant did a particular type of carpeting, and without any instructions of the department, really even claim no.1 also could not have been awarded in favour of the claimant/appellant.

7. In view of the above, there is no merit in the appeal, and the same is therefore dismissed with costs of Rs.20,000/-. Costs shall be paid within a period of six weeks from today. In case costs are not paid, Respondent is at liberty to recover the cost in accordance with law.

FEBRUARY 26, 2014 VALMIKI J. MEHTA, J. ib