HARVINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has preferred this petition under Section 34 of the Arbitration and Conciliation Act, 1996, to assail the arbitral award dated 23.03.2007 made by Shri Prabhash Singh, the sole Arbitrator whereby the learned Arbitrator has rejected the claims of the petitioner contractor and has also rejected the sole counter claim made by the respondent for Rs.2iacs on account of cost of arbitration. The petitioner was awarded the work of supply and filling of good earth at the construction site of Keshav Mahavidyalaya at Pitampura. The estimated cost of the contract was Rs. 9,16,598/ -, The tendered amount was Rs. 8,24,938/ -. The date of start of the work was 04.09.2005 and one month's time was granted for execution of the work. Accordingly, the stipulated date of completion was 03.10.2005. The respondent rescinded the contract which gave rise to disputes between the parties. The petitioner invoked the arbitration and raised nine claims. The learned arbitrator has dealt with the aspect of recession of the contract. According to the petitioner, the recession was illegal whereas the respondent claimed that recession was justified. The learned arbitrator noticed that in Ex.C5, the petitioner had stated that a part of the site was handed over and the work could start after 03.09.2005. However, in the statement of facts, the petitioner claimed that the site was never handed over up to the date of termination of the contract. The Arbitrator also noticed that in Ex.C6, the petitioner had stated that the borrow pit from where the earth was to be brought was approved by the respondent and that they brought good earth to the extent of 2000 cubic meter to the site. The respondent stated in their statement of facts that major portion of the site was made available to the claimant for starting the work and full site was made available on 28.09.2005. The respondent vide Ex.R2, dated 14.09.2005 served notice under clause 16 to the petitioner that earth dumped at the site contained malba and directed the claimant to remove the malba as it was not good earth. The respondent, vide Ex.R5 dated 24.09.2005 denied that any borrow pit for supply of good earth was approved by the respondent as claimed by the claimant in Ex.C6. The respondent further stated that the claimant did not employ a site engineer as per clause 36 of the agreement. The respondent further stated that a show cause notice was issued vide Ex.R3 dated 22.09.2005 and Ex.R5 dated 24.09.2005 and thereafter the contract was rescinded under clause 3(a)(b) of the contract vide Ex.R7 dated 30.09.2005. The learned arbitrator observes that as per Ex.S1 submitted by the claimant, the earth had been brought from the excavation site at Saket Courtyard Project belonging to Hemkunt Earthmovers Pvt. Ltd. The learned arbitrator observes that this establishes that the earth brought to the site was not from a borrow pit or from agriculture field. He has also referred to Ex.R5 whereby the petitioner was informed that earth brought by them at the site was checked by AE(QC) and as per the test report submitted by AE(QC), it contained kanker of size more than 4.75 size ranging from 1.1% to 31.67%. As the earth earth even after being noticed under clause 16 by the respondent. Since the learned arbitrator has held that the petitioner breached the agreement by non -supply of good earth of the requisite specification, on that basis, the claims of the petitioner have been rejected. did not meet the required specifications, the respondent was entitled to reject the earth brought by the claimant. Notice was served on the petitioner under clause 16 vide Ex.R2 dated 19.09.2005 to remove the earth which contained malba.

(2.) IN respect of the petitioner's claim that no site was handed over by the respondent, the learned Arbitrator referred to the petitioner's own communication Ex.C5 wherein the petitioner stated that part site was made available. The learned Arbitrator holds that these are contradictory statements. He also observes that the respondent admitted that part site was made available to the claimant at the site of the work. The Arbitrator holds that the petitioner could have completed the work as per the specifications in the site made available. However, even that was not done since the earth brought to the site was not good earth of the requisite specifications. The learned arbitrator further observes that as per the agreement, the site was to be made available as per programme of execution submitted by the Engineer Incharge which shows that it was not essential that the entire site was required to be handed over to the petitioner in the beginning of the contract and part handing over of site was in accordance with the contractual provisions. The learned arbitrator observes that the respondent served notice to the petitioner to remove the substandard earth under clause 16 and also served the show cause notice upon the claimant vide Ex.R3 dated 22.09.2005 and again vide Ex.R5 but to no avail. On the aforesaid basis, the learned arbitrator has concluded that the recession of the contract under clause 3(a) and (b) by the respondent is justified due to breach of contract by the petitioner on account of non -supply of good

(3.) IN my view, the aforesaid cannot be a reason to set aside the impugned Award, since the view taken by the learned arbitrator is premised on the evidence led before him and is a plausible view. The fact that there was some malba already lying at the site or that the respondent had invited another tender for removal of malba/excess earth, has no corelation to the contract of the petitioner. These facts were, therefore, not relevant to be considered by the arbitral tribunal. The Arbitral Tribunal is the final judge of the facts and it is j for the Arbitral Tribunal to determine the admissibility, relevance, materiality and weight of any evidence under Section 19(4) of the Act. The Arbitral tribunal has taken into account the relevant evidence. Even according to the petitioner, the petitioner did remove some of the earth brought to the site as it contained malba. This itself shows that the claim of the petitioner that the petitioner only supplied good earth is doubtful and the objections raised by the respondent in respect of the quality of the earth brought to the site was not without substance. In these proceedings under Section 34 of the Act, it is not for this Court to re appreciate the evidence and to come to a different conclusion. It cannot be said that the view taken by the learned Arbitrator is not a plausible view. Consequently, I find no merit in this petition and dismiss the same.