Full Text
FAO(OS) 256/2013, CM APPL. 8241-43/2013
UNION OF INDIA .....Appellant
Through: Mr. Anuj Aggarwal and Mr. Gaurav Khanna, Advocate.
Through: Mr. Pradeep Chinadra and Ms. Aditi Sharma, Advocates.
UNION OF INDIA Appellant
Through: Mr. Anuj Aggarwal and Mr. Gaurav Khanna, Advocate. '
Through: Mr. Pradeep Chinadra and Ms. Aditi Shaima, Advocates.
HON'BLE MR. JUSTICE NAJMIWAZIRI
14.08.2013 The present appeals are directed against a common
ORDER
383/2011 and O.M.P. 534/2011 by which objections were preferred by the appellant—Union ofIndia—against the awards made by ArbitralTribunal.
't 2013:DHC:7376-DB At the outset, the counsel for the parties submitted that the grounds urged in the present proceedings, to question the irnpugned order pertained to two issues which were covered by a previous order of the Court in
FAO(OS) Nos. 238/2012 and 239/2012 between the same parties i.e. Union ofIndia and Varindera Constructions Ltd.
The first issue pertained to the interpretation ofClauses 19 and 20 of the special conditions of the contract—^the works contract, which has identical terms with the present agreement in question which is the subject matter ofthese proceedings. The Division Bench had observed at para 6and
7 while rejecting the grounds of appeal against the order of the learned
Single Judge which are as follows:
"6. Suffice would it be to state that Clause 19 and 25 have to be readharmoniously. Whereas Clause 19 prohibits escalation to bepaidwith respect to the wages oflabour, Clause 25 requires minimum wage increase to be reimbursed to the contractor upon there being an impact thereon by a law declared by the
State Government. The minimum wages, as we all know, are statutorily notified under The, Minimum Wages Act, 1948. We note that the learned arbitrator has granted benefits under the said head, but not fully recompensing the contractor the
37.46% increase in minimum wages. The reasoning given by the learned arbitrator is that the contractor could have envisaged that there would be some increase in wages during theperiod ofcontract
7. The interpretation by the learnedarbitrator, ifatallisfaulty, is to the detriment ofthe contractor, for the reason Clause 25, which commences with the expression "however" is required to ' be readas an exception to Clause 19 and, ifso read, the entire increase in minimum wages which was the result of a government notification was required to be recompensed. " The second question sought to be urged by the Union pertains to Clause 9 (c) which was interpreted and in respect of which too the constructionplaced by Union ofIndia was rejected. ThisCourt is of the opinion thatthere is no meritin the contentions of the Union so far as claim Nos. 1 and 18 in the present case-which were two among four grounds urged, inthepresent appeals are concerned. Apropos two other grounds sought to be urged bythe learned counsel pertaining to Clause No. 2 and Clause 3.2.[2] (b)(iv), it was sought to be urged that the conclusion of the learned Judge that the award contains adequatereasons,has no foundation. This Courthas carefully considered the awardwhich in para 15.2-15.[3] notices and deals with the conditions. The Arbitrator observed that: "The Deptt adopted a different method in that they did not reduce the quantity by 50%. This was non-contractual as^ opposed to equity since if payment is being made for the reduced quantity, the recovery should also have been made on the same basis. " This, to the Court's mind is sufficient reason in support of conclusion for the grant of Rs.3,54,051/- which is the sum in question. The arguments ofthe Union are accordingly rejected as insubstantial. The last ground urged in respect of the award was 12% interest for various periods i.e. pendente-lite and post award till realisation. This Court notices thatalthough grounds appear to have been made outintheobjection but no contentions were made before the learned Single Judge; even the appeal does not state that the point has been urged and the learned Single Judge did not consider the same. Furthermore, it is pointed out that in the. written submissions filed before the learned Single Judge this grievance had not been articulated. Even otherwise the Court is of the opinion that the v_ grant of interest at 12% per annum can hardly be a ground for interfering ' with the award under Section 34 of the Arbitration and Conciliation Act,
1996. At the outset, the Court notices that there is substantial delay in presentation of the appeals. Learned counsel for the respondent had relied upon the decision of this Court in FAO(OS) 176/2013 and FAO(OS) 178/2013 where appeals of the Union of India against the very same respondent were dismissed. This Court is of the opinion that the reasons given in support of the application for condonation of delay is inadequate and the appeal has to sufferthe same fate as the other appeals i.e. FAO(OS) No. 176/2013 and FAO(OS) No. 178/2013. Having regard to the above and in view of the above previous decisions of the Division Bench in FAO(OS) 238/2012 and FAO (OS) 239/2012 decided on 28.5.2012, the Court holds that the present appeals are without merit and they are accordingly dismissed.
S.RAVINDI^BHAT,J NAJMIWAZIRI, J AUGUST 14,2013 mv