M/S. Wianxximpex Pvt. Ltd. v. Modern (India) Architects (Pvt.) Ltd.

1. The appellant has challenged the order dated 3'^'^ March,2017 whereby the learned Single Judge dismissed the appellant's objections to the arbitral award dated 10^*^ November,2016 under Section 34(2) ofthe Arbitration and Conciliation Act, 1996.

2. On 3V^ July, 2004, the appellant appointed the respondent as consultant for architectural and allied services for their project to construct a multi-dimensional hotel and business centre-cum- FAO(OS) (COMM)112/2017 Page 1 of[6] 2017:DHC:9069-DB )' multiplex at Plot No.39, Industrial Area, Site No.4, Madan Mohan Malviya Nagar, Sahibabad,Industrial Area, District Ghaziabad, Uttar Pradesh. The terms of appointment are recorded in the agreement til dated 13 September, 2004. Disputes arose between the parties whereupon the respondert invoked the arbitration clause of the agreement by filing a petition under Section 11 ofthe Arbitration and Conciliation Act before this Court. Vide Order dated 25^*^ April,2007, this Court appointed Mr.Aiakh Kumar as Sole Arbitrator to adjudicate the disputes between the parlies. The respondent raised a claim of Rs.3,00,54,958/- and the appellant raised a counter-claim for Rs.154,56,00,000/-,

3. Vide award dated lO"^ November, 2016, the learned arbitrator held that the respondent completed the work upto Stage III and the appellant breached the agreement by not making payments within time. Learned arbitrator j-ejected the appellant's claim that the work performed by the respondent was deficient. The learned arbitrator held that the respondent was entitled to Rs.54 lakh upto Stage III out of which the respondents has already received Rs.11,70,000/-. The learned arbitrator awarded the balance amountofRs.42,30,000/- along with the interest@ 1 per annum to the appellant.

4. The learned Single Judge held that the finding of fact by the arbitrator thatihe respondenthad completed the work till Stage III are based on the evidence led and the material produced before the arbitrator. The leamed Single Judge further held that the arbitrator had relied upon the various documents to show that the work v/as completed upto Stage III and the arbitrator's finding was neither FAO(OS)(COMM)112/201? ^ perverse nor patently illegal. With respect to the minutes of meeting dated 16^^ December,2004,the learned Single Judge held thatthe said document cannot be held to be determinative of the controversy at hand. The learned Single Judge further held that they were sufficient material on record to indicate that the respondent had completed the work upto Stage III and the finding cannot be said to be based on no evidence at all. The relevant portion ofthe impugnedjudgementofthe Single Judge is reproduced hereunder:- "20.The arbitrator has found, as a fact, that Modern Architects had completed the work till Stage-Ill. The said finding being afinding offact cannot be interfered with by this Court by reappraisal ofthe evidence lead and material produced before the arbitrator. A bare perusal of the impugned award indicates that the arbitrator had accepted the evidenceproduced by Modern Architects to establish the extentofwork done.

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22. As mentioned above, a bare perusal of the impugned award indicates that the arbitrator had listed out various documents that were relied upon by Modern Architects to show that it had completed the work till Stage-Ill. It is not permissiblefor this Court to re-appreciate the evidence and to supplant its view over that ofthe arbiti'ator. This Court is also unable to accept that the arbitrator's finding that Modern Architects had completed the work till Stage-Ill is either perverse or unsupported by any evidence. Modern Architects had listed the documents indicating the work performed at each stage; the arbitrator had accepted the same. The minutes ofthe meeting dated 16.12.2004 referred to by Mr Garg is a disputed documentand in any event it is only one of the many documents placed on record and cannot be held to be determinative of the controversy at hand. As stated hereinbefore, it is not openfor this Court to re-examine and re-appreciate the evidence in these FAO(OS)(COMM)112/2017 Page3of[6] proceedings. This Court is satisfied that thefinding is not based on no evidence at all and. there is sufficient material on record to indicate that Modern Architects had completed works upto Stage-Ill. Therefore, thefinding ofthe arbitrator in this regard isfinal and warrants no interference in these proceedings.

23. There is no dispute that Wiaivcx had not paid the bills raised by Modern Architectsfor work done upto Stage-Ill. The arbitrator hadfound that thefailure of Wianxx to do so constitutes a breach ofthe Agreement between the parties. The contention that the work performed by Modern Architects was deficient and wanting has not been accepted by the arbitrator. Thefinding ofthe arbitrator in this regard isfinalandsince it is based on appreciation ofevidence and material on record, the same cannot be interfered with.

24. It is also not disputed that Wianxx had altered its projections several times. The arbitrator hadfound the same to constitute a breach ofthe Agreement. Although Wianxx was entitled to give inputs and Modern Architects was obliged to carry out the changes, the same does not. entitle Wianxx to change projections repeatedly. Thus, the arbitrator's finding that Wianxx had breached the Agreementcannot be held to.be perverse orpatently illegal.

25. In the aforesaid circumstances, the impugned award cannot be set aside on the grounds available under Section 34(2)ofthe Actand this Court declines to do so."

5. Learned counsel for the appellant urged at the time of hearing that the services rendered by the respondent were deficient and the respondent had not completed the work upto Stage III and respondent was not entitled to the amount awarded by the learned arbitrator. Reliance is placed on the minutes of meeting dated lb'*" December, 2004 to contend that the respondent had not submitted conceptual interior drawings till that date.It Avas further submitted thatthe interest of 18% awarded by the learned arbitrator is on a higher side and be FAO(OS)(COMM)112/2017 p„g^4^/6 reduced.

6. Learned counsel for the respondent submitted thatthe finding of fact by the learned arbitrator based on evidence cannot be interfered in objections under Section 34 of the Arbitration and Conciliation Act. With respect to the rate of interest of 18% awarded by the learned arbitrator, learned counsel for the respondent submitted that the appellant did not raise any challenge to the same before the learned Single Judge.

7. The findings of the learned arbitrator that the respondent completed the work upto Stage III; that there was no deficiency in the services ofthe respondent and that the appellant defaulted in making the payment to the respondent upto Stage III, are based on the evidence and cannot be said to be perverse or not supported by evidence. This Court agrees with the learned Single Judge that the findings of fact by the learned arbitrator cannot be re-appreciated under Section 34 ofthe Arbitration and Conciliation Act.

8. During the course ofthe hearing, it was put to learned counsel for the appellant whether the appellant appointed any other agency for completion ofwork upto Stage III and ifso,what amount was paid to the said agency and whether any evidence was led on this aspect. Learned counsel for the appellant fairly conceded that neither any pleadings were made nor any evidence was led to show that any agency was appointed to complete the work upto Stage III or any amount was incurred by the appellant for completion ofStage HI. In that view of the matter, there is no infirmity in the finding of the learned arbitrator and upheld by the learned Single Judge that the FAO(OS)(COMM)112/2017 p^ge5of[6] respondent completed the work upto Stage III. This Court is of the view that the interest awarded by the learned arbitrator does not warrant any reduction.

9. There is no merit in the appeal which is hereby dismissed. The pending applications are disposed of. MIDHA,J. JULY dk C.HARISHANKAR,J FAO(OS) (COMM)112/2017 Page6of[6]