FAO 499 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 12.1.2010. State of Haryana through Executive Engineer, Jagadhri, --Appellant vs. Satish Kumar Gupta,Contractor --Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Anjum Ahmed,Addl.A.G,Haryana, for the appellant Mr.Chetan Mittal,Sr.Advocate,with Mr.Parminder Singh,Advocate,for the respondents Rakesh Kumar Jain, J: This appeal is directed against order dated 08.4.2006 passed by learned District Judge, Yamuna Nagar, at Jagadhri, dismissing objection filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 ( for short,'the Act') against the award of Arbitrator dated 25.3.2005. Vide agreement No.26 of 1999-2000, work of construction of P.W.D. Rest House, Jagadhri was allotted to the respondent by the appellant on 29.9.1999. The construction work continued till 4.11.1999 till it was unilaterally suspended by the appellant. As the work was suspended and neither withdrawn nor terminated, the respondent was forced to maintain labour and deploy a Chowkidar on 4.11.1999 for keeping watch over the material lying at the site. Since there was a dispute between the parties, therefore, in pursuance of the order dated FAO 499 of 2007 2 06.12.2004, the learned District Judge, Yamuna Nagar, at Jagadhri, appointed Superintending Engineer, Ambala Circle, Haryana, PWD (B &R), as the Arbitrator in view of clause 25 (a) of the contract agreement. The respondent put up the following claim:- Rs. P. Claim No.1: Payment on account of consideration of work done 15000.00 Claim No.2: On account of refund of security including earnest money lying with the deptt. 35000.00 Claim No.3: On account of undue expenditure caused and borne for deployment of chowkidar for watch and ward at site w.e.f. 4.11.99 20000.00 Claim No.4: On account of recoupment of loss of profitability on balance work not got done worth Rs.14.06 lac @ 15% 211000.00 Claim No.5: On account of cause of damages to goodwill due to sudden midway forced suspension of on going work 110000.00 Claim No.6: On account of recoupment of amount advanced to workmen engaged for execution of work left uncovered. 40000.00 Claim No.7: On account of cost of litigation / arbitration expenses etc. 25000.00 Claim No.8: On account of interest on above amount right from date of its cause i.e. 4.11.99 onwards till its payment @ 18% P.A. No counter claim was set up by the department. Reply was filed on 2.3.2005. It is recorded by the Arbitrator that during the course of proceedings, no irregularity or fraud was pointed out despite giving full opportunities to both the parties. Thus, the FAO 499 of 2007 3 following claim was allowed. Rs. P. Claim No.1: Payment on account of work already done and admitted by the respondent I, therefore, award Rs.14429/- (Rs. Fourteen Thousand Four Hundred Twenty Nine Only) 14429.00 Claim No.2. Payment on account of release of security and admitted by respondent, I award Rs.35,100/-(Rs. Thirty Five Thousand one hundred only) 35,100-.00 Claim No.3 The claimant submitted that he employed chowkidar for the watch and ward of material at site of work, procured by him till the material was returned to the stores i.e. from 4.11.99 to 6.4.2004, but the respondent stated that no chowkidar was kept by the claimant. After assumption of the work and keeping in view the circumstances I award Rs.20,000/- (Rs.Twenty thousand only) 20,000-00 Claim No.4 The claimant submitted that the agreement amount was Rs.17.56 Lac but the work was suspended by the department at Rs.3.50 lacs. So the loss of profitability @ 15% on balance work not got done worth Rs.14.06 Lac=Rs.2,11,000/- but the respondent stated that the work was suspended as per Govt.decision dt. 26.10,99 and the claimant was informed under clause 13 of conditions of contract well in time. However, keeping in view the circumstances, I award Rs.1,00,000/- (Rs.One Lac only). Rs.1,00,000/- FAO 499 of 2007 4 Claim No.7 The claimant stated that he has claimed Rs.25,000/- on account of cost of litigation/arbitration expenses etc. forced upon him. He has produced two receipts of Rs.5500/- each on this account. The respondent stated that the claimant has filed litigation and gone in arbitration at his own level and there is no fault of the deptt. Keeping in view the circumstances and receipts produced by the claimant, I award Rs.11,000/- only (Rs. Eleven Thousand only). Rs.11,000-00 Claim No.8 The claimant has claimed interest @ 18% on the claims submitted by him but the respondent stated that nothing is due to the claimant on account of work done and security. Keeping in view the circumstances, I award interest @ 12% P.A. only from 4.11.99 till the amount of award paid to the claimant. Aggrieved against the award of the Arbitrator dated 25.3.2005, the State had filed objection under Section 34 of the Act in which it was alleged that the Arbitrator had erred in awarding Rs. 1,80,529/-along-with interest @ 12% per annum w.e.f 4.11.1999 till its realization without any reason whatsoever, in violation of sub clause 3 of Arbitration Clause 25 and Section 31 (3) of the Act and, therefore, it deserves to be set aside. Learned District Judge, Yamuna Nagar found that it was maintained in the agreement that where the aggregated amount awarded exceeds Rs.25,000/-, the Arbitrator shall invariably give reason in his award in respect of each claim and counter claim separately. However, it was found that none of the provisions of Section 34 of the Act, in which the objections were filed, have been violated by the Arbitrator. The grievance raised by the learned counsel for the appellant in respect of award of FAO 499 of 2007 5 compensation for claim Nos. 1 to 4 and 7 was considered and it was held that the same have been decided by giving adequate reasons . The findings recorded by the learned District Judge, in this regard are as under:- “Therefore, I proceed to examine whether the award is vitiated for non furnishing detailed reasons. In so far as the claim no 1 is concerned, the arbitrator has awarded Rs.14429/- for the work already done and admitted by the petitioner. Against claim No.2 no objection has been raised because it relates to the release of security deposited by the respondent. Insofar as claim No.3 is concerned, the arbitrator has awarded Rs.20000/- to the respondent for employing Chowkidar for the watch and ward of the material at the site w.e.f. 4.11.1999 to 16.4.2004”. Still aggrieved, the State filed the present appeal in which learned counsel for the appellant has vehemently argued that in respect of claim Nos. 3 and 4, the Arbitrator has not given any reason. In this regard, while deciding claim Nos. 3 and 4, the Arbitrator had recorded the following reasons:- Rs. P. Claim No.3: The claimant submitted that he employed Chowkidar for the watch and ward of material at site of work, procured by him till the material was returned to the stores i.e. from 4.11.99 to 6.4.2004, but the respondent stated that no chowkidar was kept by the claimant. After assumption of the work and keeping in view the circumstances I award Rs.20000/- (Twenty Thousand only) 20000.00 FAO 499 of 2007 6 Claim No.4 The claimant submitted that the agreement amount was 17.56 lac but the work was suspended by the Deptt at Rs.3.50 lac so the loss of profitability @ 15% on balance work not got done worth Rs.14.06 lac =Rs.2,11,000/- but the respondent stated that work was suspended as per Govt. decision dated 26.10.1999 and the claimant was informed under clase 13 of conditions of contract well in time. However, keeping in view the circumstances I award Rs.1,00,000/- ( Rs. One lac only) 10000.00 The reasons have been looked into by the learned Court below which had observed as under:- “The award of Rs.20000/- towards employment of labour seems to be just and reasonable because the labour in this part of the country earns approximately Rs.2000/- to Rs.2500 per month. Though the award in this regard seems to be on the lower side yet the same has been awarded by the Arbitrator keeping in view the claim set up by the respondent asking for Rs.20000/- on this account. Similarly, against claim No.4, the Arbitrator has given reasons and has granted the loss of profitability at the rate of 15% on the balance payment and has awarded Rs.100000/- against Rs.211000/- claimed for by the respondent. This clearly shows that the Arbitrator has applied his mind to the various claims and did not grant the entire claim sought by the respondent but had awarded the claim to the extent of 40% only”. Besides the above, no other argument has been raised before this Court by the learned counsel for the appellant. The learned District Judge, has rightly held that the Arbitrator is the sole Judge of the quality as well as quantity of evidence and it is FAO 499 of 2007 7 not open for the Court to take upon itself the task of being a Judge of the evidence before the Arbitrator. The reasons have been duly assigned and as nothing has been challenged for the violation of provisions of Section 34 of the Act. Thus, I do not find any reason to tinker with the order of learned District Judge, dated 08.4.2006 and hence, the present appeal is found to be without any merit and the same is hereby dismissed. 12.1.2010 (Rakesh Kumar Jain) RR Judge