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2007 DAILYLAW 2476 (DEL)

CHIEF ENGINEER (DRAINAGE) v. MEHAR SINGH SAINI

2007-10-03

Sanjay Kishan Kaul

body2007
SANJAY KISHAN KAUL, J. (ORAL), J. ( 1 ) ALLOWED subject to just exceptions. IA No. 11354/2007 ( 2 ) THIS application has been filed for condonation of delay in filing the objections to the award dated 05. 05. 2007. The objections were filed on 20. 08. 2007 and as per the Registry, the petitioner has taken 92 days to file the objections from the date of receipt of the Award on 21. 05. 2007 and thus it is beyond the period of three months. ( 3 ) THE contention of the petitioner is that the time period stipulated in Section 34 (3) of the said Act of the Arbitration and Conciliation Act, 1996 ('the said act' for short) is three months and not ninety days and thus if the limitation is calculated from 22. 05. 2007, the same would expire on 21. 08. 2007. The objections filed on 20. 08. 2007 are thus stated to be within time. ( 4 ) I am in agreement with the submission of the learned counsel for the petitioner in view of the fact that the time period prescribed under Section 34 (3) of the said Act is three months and not ninety days, and thereafter, in terms of the proviso to Section 34 (3) of the said Act, on sufficient grounds being disclosed, the objector is entitled to seek condonation of delay for a further period of thirty days. ( 5 ) THE objections having been filed within time, the present application for condonation of delay does not require any orders to be passed on the same. ( 6 ) THE application stands disposed of. ( 7 ) AN office instruction be also issued to the Registry in terms of the aforesaid. IA No. 11351/2007 ( 8 ) THE application has been filed seeking condonation of 31 days delay in re-filing the petition. Other than saying that in between there were some holidays, there was no sufficient cause disclosed. Be that as it may, I deem it appropriate to consider the objections on merits and not to dismiss the same merely on account of there being delay in re-filing. ( 9 ) THE application stands disposed of. OMP No. 433/2007 ( 10 ) THE petitioner has filed the present objections to the award dated 05. 05. 2007 of the Sole Arbitrator Sh. J. D. Cruz. ( 9 ) THE application stands disposed of. OMP No. 433/2007 ( 10 ) THE petitioner has filed the present objections to the award dated 05. 05. 2007 of the Sole Arbitrator Sh. J. D. Cruz. There were certain calculation mistakes which were rectified by the Order dated 17. 05. 2007 of the arbitrator. ( 11 ) THE award has been made in favour of the respondent. The dispute pertains to a contract dated 24. 12. 2001 for the work of providing, laying and jointing internal sewer line in Harkesh Nagar (Gautam Nagar) Gamri Extension Zafrabad chauhan Bangar, Shahdra. The total value of the contract awarded was more than Rs. 2. 56 crore. The Work Order was issued on 23. 10. 2001 stipulating the date of commencement of work as 02. 11. 2001 and date of completion as 01. 11. 2003. There were delays in execution of the contract and the parties blamed each other. The contract was rescinded on 16. 02. 2004 and the respondent thus filed a claim petition. ( 12 ) BEFORE examining the contentions of the learned counsel for the petitioner, based on the grounds as urged in the petition, it must be re-emphasized that this Court does not sit as a court of appeal over the award of an arbitrator. It is not the function of this Court to re-appraise the evidence and to interfere with an award merely on the basis that the court would come to a different conclusion on the material available before the arbitrator. In order for the petitioner to succeed, the objections must strictly fall within the parameters of Section 34 (2) of the said Act as enunciated by the Apex Court in oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. , AIR 2003 SC 2629 . It may also be stated that a mere statement that something is contrary to the public Policy of India would not suffice unless a specific ground is made out in that behalf. ( 13 ) A perusal of the grounds as urged by the petitioner suggests that the petitioner is under some misconception that this Court sits as a Court of appeal. ( 13 ) A perusal of the grounds as urged by the petitioner suggests that the petitioner is under some misconception that this Court sits as a Court of appeal. ( 14 ) THESE objections raised in the petition are : i)The arbitrator failed to appreciate submissions of the petitioner; ii)The arguments of the petitioner have not been fully appreciated; iii)The conclusion arrived at by the arbitrator on the set of facts before him is not correct; iv)There was sufficient evidence on record to come to the conclusion in favour of the petitioner; and v)The rate of interest is high. ( 15 ) THE aforesaid objections do not fall within the parameters of Section 34 (2)of the said Act. ( 16 ) ON being specifically asked, learned counsel for the petitioner contends that the respondent did sub standard work and the petitioner was compelled to withhold the amount of Rs. 5,52,556/- for recovery and the said aspect could not have been gone into by the arbitrator and that the said ground falls within the parameters of Section 34 (2) of the said Act. ( 17 ) LEARNED counsel for the petitioner in this behalf has invited the attention of this Court to Clause 30. 3 of the CPWD Manual which deals with the question of acceptance of substandard work. The clause provides for the decision of the superintending Engineer/chief Engineer regarding the quantum of reduction as well as justification thereof in respect of rates for sub standard work which may be decided will be final and will not be open to arbitration under Clause 25 of the agreement. ( 18 ) IN order to appreciate the aforesaid, it is necessary to re-produce the relevant clause, which is as under: section 30 payment FOR SUB STANDARD WORK procedure FOR ACCEPTANCE OF SUB STANDARD WORK 30. 1 The Contractors are required to execute all works satisfactorily and according to the specifications. If certain items of work are below specifications, the Contractor should be asked to redo them according to the specifications. During the progress of the work, defects/deficiencies in the items of works are to be noted in time, recorded in site order book. It will be the duty of the Field Staff, viz. AEEs/aes/jes to point out such defects in the work in time during the progress of the work. During the progress of the work, defects/deficiencies in the items of works are to be noted in time, recorded in site order book. It will be the duty of the Field Staff, viz. AEEs/aes/jes to point out such defects in the work in time during the progress of the work. These defects should also be brought to the notice of Executive Engineer immediately, so that he may take timely action to issue notices to the contractor either to rectify the defects or even get the work dismantled and redone if necessary as per Clauses 3 and 16 of the agreement. Every attempt should be made to issue such notices regarding the defective items during the progress of the work. Where, however, this is not found feasible, the same should be issued within the prescribed maintenance period. Timely action alone can prevent occurrence of defects which will be difficult or impossible to rectify later on like hollow vertical joints in brick masonry and similar defective structural members. 30. 2 If the Contractor does not rectify the defect, the work should be got redone and rectified departmentally by employing skilled labourers at the contractor's cost in terms of Clause 16 of the Conditions of Contract Form PWD 7 and 8, Clause 5 of Form PWD 10 and similar condition in other forms. ACCEPTANCE OF SUB STANDARD WORK 30. 3 Acceptance of work below specifications and payment of reduced rates should be resorted to only for those items where it is structurally impossible to get the work re-done, with the approval of the competent authority. Sub standard work must be got rectified and if necessary may be redone. Acceptance of sub standard work at reduced rates should be done only under exceptional circumstances. Total value of items of agreement rate for which the superintending Engineer accepts sub standard work in a contract shall not exceed 5% of the contract value. Before a sub standard work is accepted by the department, the Engineer in Charge after getting prior approval of competent authority should write a letter to the contractor for and on behalf of the president of India regarding acceptance of the same and the provisional rates pending the decision of the competent authority with regard to final rates and in reply to this letter the contractor should send his consent for acceptance of the terms specified by the Department. For this purpose two forms as per annexure I and II may be used. The decision of the Superintending engineer/chief Engineer regarding the quantum of reduction as well as justification thereof in respect of rates for sub standard work which may be decided will be final and would not be open to arbitration under clause 25 of the agreement. The amount of compensation once levied by EE under Clause 16 of the General Conditions of Contract for CPWD Works, 2001 cannot also be waived or reduced by higher officers. ( 19 ) THE aforesaid aspect has been dealt with by the arbitrator in para (c) of claim no. 1. It has been pointed out that the notice for rectification of defects, recoveries to be made as a result of the third party inspection has to be issued by the Engineer in Charge during the progress of the work, to the contractor immediately on the defect/deficiency being brought to his notice and after satisfying himself in respect of the same. The contractor has to be given an opportunity to set right the defect or to avoid it in future. It is thus held that merely withholding the lumpsum amount for work done is not a notice pin-pointing and specifying the defect/deficiency in the sub standard work. Thus the pre-requisites for such deductions were not complied with and it is in view thereof that the arbitrator has come to the conclusion that the amount is liable to be paid. ( 20 ) THE aforesaid is a finding on fact arrived at by the arbitrator on the basis of the appraisal of evidence and the same is within the parameters of the clauses of the contract and thus does not call for any interference. ( 21 ) I see no merit in the petition. ( 22 ) DISMISSED. IA No. 11352/2007 ( 23 ) NO further directions are called for on this application in view of the objections being dismissed. ( 24 ) THE application stands disposed of.