Full Text
Through: Mr. Mukesh GuPta, Advocate
Through: Mr. AnkitJain, Advocate
MUNICIPAL CORPORATION oF DELHI ""' Petitioner
Through: versu s ASHOK KUMAR RESPONdENT
Through:
O.M.P.364|2OLL MUNICIPAL CORPORATION OF DELHI ..'., Petitioner
Through:
Through:
O.M.P.365|2OLL MUNICIPAL CORPORATION OF DELHI '...' Petitioner
Through:
Through:
2011:DHC:19177
24.O5.20LL Allowed, subject to all just exceptions. lssue notice. Counsel for the respondent accepts notice'
I have heard learned counsels for the parties' The respondent does not wish to file a rePlY.
By this application, the petitioner seeks condonation of 14 days delay in filing the objections to the award under Section 34 of the
Arbitration and Conciliation Act, 1996.
The delay is within the period of 30 days for which the Court can condone the delay provided sufficient cause is shown. lt is stated by the petitioner that after obtaining the award in the concerned department/office, i.e. City Zone on 04'0L'201-L, steps were initiated for obtaining necessary permission/approval from the competent authority for challenging the impugned award' The award was examined in the legal department and legal opinion was also obtained from the panel lawyer for preparing the present petition' In this process, there has been a delay of L4 days beyond the period of three months permitted under the Act for filing of objections'
I am satisfied that the petitioner has been able to disclose sufficient cause for condonation of delay of 14 days' Accordingly, these applications are allowed.
O.M.P. Nos.362-365/2011
ORDER
1. These petitions have been filed by the petitioner, MCD to assail the common arbitral award dated 07.t[2].20L0 passed by Mr' Justice R.C. Chopra (retired) in Arbitration Case Nos.5, 6, 7 & 8/2008 in relation to claims preferred by Mr. Sant Kumar Gupta (Arb' Case no.5/2008), Mr. Ashok Kumar (Arb. Case No.6/2008), M/s' Honey Construction Co. (Arb. Case No,7/2008), and Nitty Construction Co (Arb. Case No.8/2008) against the petitioner herein'
2. By the impugned award, the learned arbitrator has allowed the said claims preferred by the respondents/contractors alongwith interest.
3. The petitioner had published a notice inviting tender, inviting contractors to give their bids for de-silting of various Nallahs in Delhi. The works pertained to the Nallahs in City Zone. While, according to the respondenvcontractors, the contractual work was performed and the silt was dumped into two parks, namely, Indraprastha Udyan and Shahidi Park as per the directions' of the petitioner corporation, according to the petitioner, the respondents did not dump the silt at the aforesaid two sites, as there was nothing to show the execution of the work.
4. According to the petitioner, upon dumping of the silt, a slip is issued to the contractors by the officials of the MCD. However, the respondent/contractors did not produce any such receipts. On this basis, the case of the petitioner before the arbitral tribunal was that the contractors, in collusion with some of the officials of the petitioner, were responsible for defrauding the MCD.
5. A perusal of the award shows that the learned arbitrator has examined the factual position in great detail and depth. He takes note of the contractual clauses, namely, special conditions 4 and 5' Clause 4 provides that the contractor will produce receipt from Sanitary Land Fills (SLF) site for that quantity of silt and other material which he will dump at SLF site for making payments to him. Clause 5 of the special conditions provides that the department may ask the contractor to deposit the silt at any other site other than SLF also as per direction of engineer in charge.
6. Admittedly, the contractors were required to dump the silt at the aforesaid two parks which are not SLF sites. The petitioner did not produce any material or evidence before the learned arbitrator to show that any receipts/slips whatsoever ever issued to any contractor of any zone in relation to the silt dumped at the aforesaid two parks. At the same time, it was brought on record that the said two parks were,/' indeed developed and inaugurated by the Prime Minister. From where the silt of development of these two parks came was not explained by the petitioner. Though the petitioner contended that there was a vigilance inquiry, no satisfactory evidence was produced to establish the said fact.
7. lt is well settled that the arbitral tribunal is the final fact finding authority. This Court, while entertaining objections to the award, does not sit in appeal against the findings of fact of the learned arbitrator. Unless the said findings can be said to be perverse or contrary to the evidence led by the parties, or in ignorance of the evidence led by the parties, the same cannot be interfered with by the Court. The power of the arbitral tribunal includes the power to determine the admissibility, relevance. materiality and weight of any evidence (see Section 19(4) of the Act). L The learned arbitrator has, not believed the stand of the petitioner that no silt was dumped by the respondent/contractors in the said two parks. He has held that the petitioner could not establish that any slips were issued to any of the contractors for the silt dumped in the parks. On this basis, he has concluded that the respondent could not be denied payment for the silt that they had dumped in the two parks. There is no error in the reasoning adopted by the learned arbitrator and the award of the learned arbitrator appears to be reasonable.
9. I find that the learned arbitrator has awarded interest @ L2% p.a. In my view, the rate of interest awarded by the learned arbitrator' in the facts of these cases. appear to be on the higher side' consideringthattherateofinf|ationovertheyears,atthere|evant time,hadfalIenconsiderab|y.According|y,therateofinterestis reducedfromL2o/oto6%p'a.fromthedateindicatedintheaward'
10. Subject to disposed of. the aforesaid modification, these petitions are MAY 24, 2011 5r GHI, J