Tilak Raj Gogia v. Union of India & Ors.

1. This appeal is directed against the order of the learned Single Judge dated 18th February, 2013 whereby the arbitral award granting the appellant only Rs. 33,569/- with interest at the rate of 9% per annum from 30th November, 2010 till date of payment towards EMD Rs.13,069/- + PG Rs.20,500/- was upheld. The appellant / claimant, however, had claimed in excess of Rs. 13.[3] lakh, plus damages with interest, which were declined.

2. The facts are that the appellant was awarded a contract for annual repair and maintenance of the Government of India office building and other allied buildings at NH-4, Faridabad. The work was scheduled to commence on 15th August, 2009 and be completed by 14th December, 2009. However, as things turned out, vide letter of 1st February, 2010, the contract was 2013:DHC:4714-DB FAO(OS) No.304 /2013 Page 2 rescinded and the performance bank guarantee (“PG”) forfeited. In proceedings under Section 9 of the Arbitration and Conciliation Act, 1996, (“Act”) by the petitioner before the ASJ, New Delhi, a direction was issued for measurement of the work claimed to have been accomplished by him. The inspection was carried on 16th September, 2011. Ever since the arbitration clause was invoked, two sole Arbitrators, i.e. Shri Diwakar Garg and Shri Rajiv Kumar were nominated / appointed but resigned and eventually, the third sole Arbitrator Shri V. K. Malik pronounced the award on 30th July, 2012 with a corrigendum thereto dated 16th August, 2012. The petitioner had claimed a payment of Rs.13.[3] lakhs against a bill he had raised for such amount. The substance of the award has been discussed hereinabove pursuant to which the Section 34 petition was filed before the learned Single Judge. The appellant appears in person and has reiterated the same contentions as he did before the learned Single Judge. In addition, he states that no independent witness was called upon to ascertain and verify the measurement recorded by the CPWD.

3. Having heard the petitioner and considering the materials on record, this Court is of the view that the learned Single Judge has dealt with all the contentions raised by the appellant herein. The only factor to be considered FAO(OS) No.304 /2013 Page 3 was whether the appellant had executed the work as claimed by him and whether the bills submitted by him were admissible on the basis of works claimed to have been completed.

4. The learned Single Judge noted on the basis of the award that despite various letters having been sent to the claimant/appellant, he failed to start the work. Accordingly the contract was rescinded on 1st February, 2010. He was asked to attend the site on 16th September, 2011 to verify the work as claimed to have been executed by him. During the inspection of the site, three officers of the department along with eight other officers having their offices in the premises were present along with the appellant. All of them confirmed that no external paint work had been executed in the building for the last three years. Thus, it was rightly concluded, on the basis of obvious evidence, that the appellant’s claim for work done was totally false and the document purporting to be a bill was in fact only an abstract of bill without any details of measurement. Furthermore, the said document bore no signatures of the appellant; it could accordingly not be treated as a bill. The Arbitrator found no reason to disbelieve the statement of the other eight officers of various offices housed in the same building. He found no reason or motive for them to make any false statement with respect to the joint FAO(OS) No.304 /2013 Page 4 inspection report which was filed by the CPWD. He concluded that the claim of the appellant with respect to claim No.1 for Rs.13.30 lakhs was bogus and accordingly rejected the claim on this count.

5. As a corollary, claim No. 2 also which sought damages towards extra item works such as “1.[5] mm thick putty over exterior plaster surface” was also rejected.

6. With respect to claim Nos. 3 & 4, the Arbitrator found that the forfeiture of Earnest Money Deposit (“EMD”) and PG was permissible under clause 5 of the Contract (which pertains to non commencement of work) whereas the Executive Engineer had taken action under clause 3 of the Contract (which pertains to delay of work.

7. Under the latter clause, this amount could not have been forfeited in the instant case. This, the arbitrator reasoned, was in view of the fact that the cause for forfeiture of EMD and PG would not arise under clause 3 of the Contract, i.e., on account of delay, when the term of the contract has itself elapsed. Accordingly, he awarded Rs. 33,569/- to the claimant with 9% interest with effect from 30th November, 2010.

8. During the course of arguments, upon query by this Court, the appellant – appearing in person – was unable to show any document which FAO(OS) No.304 /2013 Page 5 could prove that he had actually executed the work or that he had made the claims with respect to such execution of work on the basis of verifiable or verified records. The appellant was unable to show from the records any such documents.

9. For the reasons aforesaid, and given the limited jurisdiction that this court exercises – especially as to issues of fact, which the appellant herein seeks this court to interfere with – under section 34 as well as section 37 of the Act, we find that the appeal is without any merit and we find no reason to interfere with the reasoning or finding of the learned Single Judge.

10. The appeal is without merit and is accordingly dismissed.

S. RAVINDRA BHAT, J

(JUDGE) NAJMI WAZIRI, J (JUDGE) SEPTEMBER 17, 2013 ‘sn’