Madras High CourtOP/635/2011dismissed

M/S.Prime Habitats Pvt Ltd v. The General Manager

2019-07-22Honourable Mr Justice N. Sathish Kumar8 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.07.2019

CORAM

THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR Original Petition No.635 of 2011 M/s.Prime Habitats Pvt Ltd., Rep.by its Director, Mr.Ravi Gupta, having Office at TV 28/270, V.K.Complex, Fort Road, Kannur-670 001.

Kerala State.

... Petitioner Vs.

1. The General Manager, Southern Railways, Chennai.

2. Chief Engineer, construction West, Office of the Chief Administrative Officer, PH Road, Egmore, Chennai-8.

3. The Deputy Chief Engineer (Construction) Kozhikode, Kerala.

4. M.J.J.Jayaraj Deputy Financial Adviser & Chief Accounts Officer, Southern Railways, Head Quarters, George Town, Chennai - 600 003.

5. P.Jayakumar, Deputy Chief Engineer, (Arbitration) Construction Organization, Southern Railway, Egmore, Chennai -8.

6. R.Selvanayagan, Deputy Chief Mechanical Engineer (Planning) Headquarters, Park Town, Chennai - 600 003.

... Respondents Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the Award dated 09.02.2011 passed by the Arbitral Tribunal in the Arbitration Proceedings in relation to the agreement No.303/CN/99 dated 02.08.1999.

For Petitioner :

Mr.S.Kalyana Raman For Respondents :

Mr.C.V.Ramachandra Moorthy for R1

ORDER

This petition has been filed challenging the arbitration award dated 09.02.2011 allowing the claim of the petitioner contending that the award passed by the learned Arbitrators is very minimum and therefore, to enhance the compensation.

2. The brief facts of the case of the petitioner are as follows: The respondent floated tender for construction of Road Over Bridge and also dismantling of existing Road Over Bridge No.1083, earth work in forming Bank for road vehicle and construction of superstructure as per the design. The Letter of Acceptance was issued on 15.04.1999 and the agreement relating to works was executed on 02.08.1999. The period of completion of work as per the aforesaid agreement was six months i.e., on or before 14.10.1999. The actual completion of work happened in September 2004. As the dispute arose, the matter has been referred to the Arbitral Tribunal. The learned Arbitrators perused the various claims which have been referred to by the petitioner. The learned Arbitrators allowed the claim to the tune of Rs.6,21,227/- only. Aggrieved over the same, the claimant preferred the present petition under Section Section 34 of the Arbitration and Conciliation Act, 1996.

3. The main contention of the learned counsel appearing for the petitioner is that the learned Arbitrator having found that the delay is on the part of both sides, allowed the claim only to a minimum extent and none of the documents were considered by the learned Arbitrators and also relevant materials have not been taken into consideration while passing the award. Hence, it is contended that the learned Arbitrators ought to have taken into consideration the price variation and the delay was not on the part of the petitioner and allowed the entire claim.

4. Whereas the learned counsel for the respondents submitted that the learned Arbitrators being the technical persons considered the entire aspects and passed the award. Therefore such award cannot be interfered with merely on the ground that other view is possible and prayed for dismissal of this petition.

5. It is well settled that the arbitrators being ultimate masters of quantity and quality of evidence while drawing arbitral award, award based on little evidence or on evidence which does not measure up in quality to a trained legal mind cannot be held invalid as held by the Apex Court in 2015 SCC 49 (Associated Builders Vs Delhi Development Authority). Similarly, it is

well settled that when merely another view is possible on the said ground the award cannot be interfered with.

6. The learned Arbitrators have factually found that only at the instance of the claimant, time was extended for more than 18 months and also found that the respondents are also not keen in timely completion of the work and taking into consideration the submissions found that both the parties are equally responsible for delay in completion of the work. The learned Arbitrators, being the technical persons, found that the claims made by the petitioner are excessive and allowed the claim at 20% in respect of claim No.4 and 25% in respect of claim No.5. Similarly, the balance amount payable by the respondent to the petitioner in respect of Claim No.6, the learned arbitrators allowed at Rs.43,765/- and thus, finally allowed the claim Nos.4, 5 and 6 to the tune of Rs.6,21,227/- and other claims have been rejected by the learned arbitrators.

7. This Court cannot be considered as an Appellate Court to re appreciate the finding. Similarly extension was granted originally as per terms under the General Conditions of the Contract. Such being the position, the challenge with respect to other items cannot be sustained. Thus the award

cannot be interfered with, having been passed taking into consideration all the relevant materials.

8. In the result, this original petition is dismissed. No costs. 22.07.2019 Index:Yes/No Internet:Yes/No vv