OMP 397/2002 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP No. 397/2002 21st January, 2010 M/S BHARAT LAL . ...Petitioner Through: Mr. Vivekanand, Advocate VERSUS M.C.D. & Ors. ....Respondent Through: None. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? % JUDGMENT (ORAL) VALMIKI J.MEHTA, J 1. By means of this petition under Section 34, the petitioner challenges only one finding of the Arbitrator with regard to Claim No. 1 in the Award. 2. Claim No. 1 was the claim of the contractor for grant of escalation under Clause 10 CC for the entire period of performance of the contract from the year 1993 to 2002. The Arbitrator granted escalation from 1993 to 1997 relying upon a document Exhibit C-98 which was a letter of the Engineer of the respondent which showed that for the delay in the work, the OMP 397/2002 Page 2 petitioner was not responsible. This part of the finding of an Award is in favour of the petitioner. 3. What the counsel for the petitioner challenges is the refusal of the Arbitrator to Award escalation under Clause 10 CC was the period from 1998 to 2002. The only contention of the counsel for the petitioner is that even for this period from 1998 to 2002, the petitioner ought to have been granted escalation because the petitioner was not guilty of delay and the delay was because of the reason that the Municipal Corporation of Delhi (MCD) had no funds. To the query of the Court that how has the petitioner established lack of funds by a huge Government Organization being the Municipal Corporation of Delhi for no less than 5 years from 1998 to 2002 for doing of the work, the counsel for the petitioner only referred to me a paragraph, being para 12 of the Award, which reads as under:- “12. No work-no payment period As per agreement, the stipulated date of start was 5 May, 1993. The site was made available for execution of work on 12 May 1993, but the actual work was started on 19 August 1993 and completed on 11 February 2002. Between the date of start to the actual date of completion there was no work and no payment for the period of 4 years 9 months i.e. May 1993 to October 1993 , May 1996 to October 1996, May 1997 to July 1997, August 1998 to January 2002 (3 years & 6 months) except for a period of February 1999 to April 1999 for a negligible amount of Rs.6,735.34 only.” In my opinion, this paragraph does not in any manner help the petitioner because firstly this paragraph deals with the period up to the year 1997 for which admittedly the contractor has been granted escalation and OMP 397/2002 Page 3 secondly it nowhere in any manner states, and as contended by the counsel for the petitioner, that MCD had no funds from 1998 to 2002. 4. The Arbitrator has arrived at a finding of fact while dealing with this claim that it is the petitioner who was guilty of delay in execution of the work beyond 30th November, 1997 when no hindrances were found and the work remain suspended from the period three and a half years beyond April, 1997. An Arbitrator is entitled to arrive at a finding of fact. This finding of fact which the Arbitrator had arrived at, could have been challenged only if the petitioner would have shown ex facie that the respondent/MCD had no monies with it as long as five years argument and which in any case on the face of it appears to be improbable. Accordingly, in terms of the scope of hearing objections under Section 34, I do not find any illegality or any perversity in the Award for this court to interfere with the finding of non grant to the petitioner for escalation from 1998 to 2002. Merely because two views are possible. This court will not interfere with the finding as arrived at by the Arbitrator. 5. In this view of the matter, the objection petition is dismissed leaving the parties to bear their own costs inasmuch as the respondent has not appeared to contest the proceedings. VALMIKI J.MEHTA, J January 21, 2010 ib