In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.4684 of 2010 (O&M) ..... Date of decision:5.8.2011 State of Haryana and another .....Appellants v. M/s Gawar Construction Company, Govt. Contractor .....Respondent .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ...... Present: Mr. Rajiv Kwatra, Additional Advocate General, Haryana for the appellants. Mr. Vikram Singh, Advocate for the respondent. ..... Mohinder Pal, J. The appellants have preferred this appeal against the judgment dated 27.4.2010 passed by the learned Additional District Judge, Sonepat, whereby the objection petition filed by the appellant (respondent herein) under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act') against the award dated 27.8.2009 passed by Mr. Suman Sorot, Arbitrator-cum-Superintending F.A.O. No.4684 of 2010 (O&M) [2] Engineer, Bhiwani Circle, PWD B&R Branch, Bhiwani was set aside. As per facts of the case, the appellants had entered into contract agreement with the respondent in pursuance whereof the respondent executed the work. However, a dispute arose between the appellants and the respondent. In view of the arbitration clause in the contract agreement, Mr. Suman Sorot, Superintending Engineer (appellant No.2) was appointed as the Arbitrator. The Arbitrator passed the award dated 27.8.2009 whereby he awarded nil amount in respect of the claims raised by the respondent and counter claims raised by the appellants by observing that as per Clause 25A(9) of the contract agreement, the respondent-claimant (contractor) had applied for appointment of Arbitrator after the expiry of period prescribed in the above referred clause and thus the claimant-respondent has failed to act within the prescribed time frame provided in the contract agreement and it is deemed to have forfeited his right and the claim is barred by time. Thus, the claim of the respondent was rejected. The appellant (respondent herein) filed objections under Section 34 of the Act before the learned Additional District Judge, Sonepat. Objection application has been allowed by the learned Additional District Judge vide judgment dated 27.4.2010 and the award of the Arbitrator has been set aside. The learned Additional District Judge, Sonepat has relied on the judgment of Delhi High Court in M/s Hindustan Construction Corporation v. Delhi Development Authority, 1999 (1) RCR (Civil) 477. In that case, it was held that the Clause 25A(9) could not override the substantive law i.e. Limitation Act. The right to claim arbitration ends after expiry of 90 days from date of intimation of final bill being ready for F.A.O. No.4684 of 2010 (O&M) [3] payment was set aside and Arbitrator was directed to decide the claim of the petitioner on merits. Relying on the above judgment, the Arbitrator was directed to decide the claim of the petitioner (respondent herein) on merits. Hence this appeal by the appellants. I have heard Mr. Rajiv Kwatra, Additional Advocate General, Haryana appearing for appellants-State and Mr. Vikram Singh, Advocate, appearing for the respondent and have gone through the records of the case. Learned counsel for the for the appellants-State argued before me that the learned Additional District Judge, Sonepat has gravely erred in not appreciating the fact that the respondent-claimant never objected for the recovery of bitumen made in the fourth bill rather objected for the fifth and final bill after a lapse of 20 months which is against the agreed terms of six months in the agreement clause 25A(9) and the claim of the respondent is time barred. On the other hand, learned counsel for the respondent contended that the learned Additional District Judge has rightly allowed its application under Section 34 of the Act and directed the Arbitrator to hear its claim on merits. He has also cited the judgment of this Court in Sunil Goyal v. Haryana State Agriculture Marketing Board and others, Arbitration Case No.124 of 2010 (decided on 6.4.2011). In the said case, it has been held that the rejection of the claim of the petitioner for the reason that the petitioner has sought appointment of an Arbitrator after 180 days from the date of payment of final bill cannot extinguish either the right or the remedy of the petitioner. Since the respondents had failed to appointment an Arbitrator, the disputes between the parties were required to be adjudicated F.A.O. No.4684 of 2010 (O&M) [4] upon by an Arbitrator. Accordingly, an Arbitrator to adjudicate upon the disputes between the parties was appointed in that case after the period of 180 days. The objection application was filed by the respondent before the learned Additional District Judge, inter alia, on the ground that the Arbitrator had illegally and arbitrarily dismissed his claim by observing that the respondent had failed to apply for the appointment of the Arbitrator within the prescribed time frame and thus, deemed to have forfeited his rights and claims. The Arbitrator has held that the respondent has also failed to act within the time frame prescribed in the contract agreement and the counter claims are thus barred by time and dismissed the claim of the respondent without hearing on merits. According to the appellants, the respondent never objected for the recovery of bitumen made in the fourth bill rather objected for the fifth and final bill after a lapse of 20 months against the agreed terms of six months in the agreement clause 25A(9). It is well-settled that while hearing objections against the award, the Court need not re-appreciate the evidence led by the parties before the Arbitrator in order to substitute its own opinion. A perusal of the record reveals that the Arbitrator had not heard the parties on merits of the case and did not afford reasonable opportunity to the parties to plead their case by producing the evidence they wanted to bring on record. Hence, the learned Additional District Judge has rightly set aside the award of the Arbitrator and directed to hear the claim of the respondent on merits. Apparently, there was no illegality or impropriety in the judgment of the learned Additional District Judge. In view of this, the F.A.O. No.4684 of 2010 (O&M) [5] learned Additional District Judge was justified in allowing the objection application filed by the respondent under Section 34 of the Act against the Award dated 27.8.2009 passed by Mr. Suman Sorot, Arbitrator-cum- Superintending Engineer, Bhiwani Circle, PWD B&R Branch, Bhiwani (appellant No.2). Consequently, this appeal is dismissed. August 5, 2011. (Mohinder Pal) Judge *hsp*