HON’BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (Oral)
C.M. No.16518/2012
Issue Notice. Notice is accepted by learned counsel for the respondent. The delay of 30 days in filing the appeal is condoned subject to payment of Rs.5,000/- as costs to the respondent.
FAO (OS) No.457/2012 & C.M. No.16515/2012 (Stay)
1. The appellant has preferred the aforesaid appeal to assail the order dated 05.07.2012 passed by the learned Single Judge dismissing the appellants objections under section 30 and 33 of the Arbitration Act, 1940 (the Act) to the arbitral award dated 25.10.2000 made by the learned Umpire in respect of disputes that arose between the parties arising from eight different construction contracts in Libya.
2. As noticed by the learned Single Judge, the appellant Hindustan Steel Works Construction Ltd. (HSWCL) awarded the work of school buildings in Libya to the respondent Strength and Suppors Builders Pvt. Ltd. (SSBPL) under eight different contracts. Each of these contracts contained an arbitration agreement. Since disputes arose between the parties, the arbitration agreements were invoked. In respect of all the contracts, both parties appointed one arbitrator each, and the two arbitrators, in turn, appointed the Umpire. As the two arbitrators failed to reach an agreement, the matter was referred to the Umpire, who rendered the award in question.
3. A perusal of the impugned order shows that since the appellant/objector did not appear before the learned Single Judge, he took pains to go through and appreciate each of the objections raised by the appellant in the objection petition. The learned Single Judge then dealt with the objections one by one and finding no merit in either of them, disposed of the objection petition after modifying the award only to the extent that in respect of claim concerning construction of a 12 class room school at Derna, HSWCL would pay SSBPL LD 6836.00 and therefore the total sum awarded stood modified from LD 20580.31 to LD 20480.31. In all other respects the award stood confirmed.
4. Before us, learned counsel for the appellant has sought to urge two aspects. The first relates to the alleged double payment for the labour supplied at Gariyan. It is contended that the respondent was awarded an amount of LD 2302.284 on this account. The learned Single Judge observes that no such contention appears to have been raised before the learned Umpire. He further observes that from the impugned award it could be seen that the learned Umpire, on scrutinizing Measurement Book (MB) No.5 found as a matter of fact, that “no payment was made to the claimant”, though the first and final bill had been prepared. The learned Single Judge observes, and in our view rightly so, that the finding of the learned Umpire was a pure finding of fact arrived at upon examination of the relevant records and, therefore, the Court hearing the objections under section 30 and 33 of the Act could not interfere with the same.
5. Before us, learned counsel for the appellant has once again sought to advance the same arguments by placing reliance on MB No.5. We are not inclined to interfere with the impugned orders on this account as the learned Single Judge while hearing objections to the award was not dealing with an appeal on facts. Pertinently, it is not the appellants case that the said claim had been allowed without any basis or material. The material is contained in the form of MB No.5, which has been relied upon by the learned Umpire. The learned Umpire rejected the respondent’s claim for extra items and payment for labour supplied at Gariyan. However, while dealing with the said claim, he further observed that:
“As regards labour supplied at Gariyan, I have scrutinized the Xerox copy of MB No.5 and find that no payment was made to the claimant, though 1st & final bill was prepared. I award LP 2302.284 as recorded in MB and not paid”.
6. It is, therefore, clear that the award of LD 2302.284 was founded upon the recordings made in the MB No.5 and was not baseless. It was not for the learned Single Judge while hearing objections to the award, and is certainly not for us in appeal from the judgment of the learned Single Judge, to re-appreciate the evidence and to arrive at a different finding.
7. The next submission of learned counsel for the appellant is with regard to the award made by the learned Umpire directing refund of the security amount to the respondent. It is argued that during the arbitral proceedings held on 21/22.08.2000, it had been agreed that the security amount shall be retained by the appellant. In this regard, reliance placed on the following extract from the minutes/proceedings above referred to:
“Both parties agreed that the total security money for all works retained by the respondents is LD 5913.229 and income tax deducted was LD 2027.004”.
8. We do not find any merit in this submission for the reason that the aforesaid extract only shows the parties agreed with regard to the quantification of the amount of security, amount retained by the appellant, as also the income tax deducted by the appellant. One cannot read into the aforesaid extract a concession made by the respondent that the respondent shall not claim refund of security deposit or of the income tax deducted at source.
9. A perusal of the impugned award shows that the defence of the appellant before the learned Umpire to retain the security amount was that the respondent had left the work incomplete and, therefore, the security amount was liable to be forfeited and/or adjusted against liquidated damages. This argument of the appellant was rejected by the learned Umpire by accepting the respondents submission that the respondents primary obligation was to provide labour and that they had completed whatever works were allotted to them. He also observes that the appellant had not submitted any evidence of having incurred any extra expenditure to complete the work, if left incomplete. Once again, these are findings of fact with which neither the learned Single Judge, nor this Court could have interfered while hearing objection to the award, unless they were shown to be contrary to the evidence on record or to be completely unsupported by any evidence. The appellant has failed to make out such a case before us.
10. For the aforesaid reasons, we dismiss the appeal leaving the parties to bear their respective costs.
VIPIN SANGHI, J SANJAY KISHAN KAUL, J SEPTEMBER 21, 2012 sr