I have heard the learned counsel for the parties, appraised
the paper book and of the view that there is no merit and force in the
submission of Ms.Pathak, for, the Arbitrator categorically recorded a
finding with regard to tendering of documents at the behest of the
respondent-contractor. The officials of the Corporation should not have
been right in calling upon the contractor to sign the agreement as he was
in custody and, therefore, had executed GPOA and assignment of right of
a principal to the agent is recognised in law and once the Corporation
failed to honour the contract and insisted upon the presence of the
contractor for signing the agreement, there was no occasion for them to
cancel the contract. The intention of the contractor is evident from the
deposit of the security deposit. It is the conceded position on record that
respondent No.1 was in judicial custody w.e.f. 1.9.2002 and on
6.11.2002, the appellant issued notice to respondent No.1 to sign the
agreement in person by 17.11.2002, failing which the contract shall be
rescinded at his risk and cost and earnest money shall also be forfeited.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O.No.6853 of 2010 (O&M)
Dated: August 01, 2016
Central Ware Housing Corporation, Panchkula
V
M/s Jaswinder Singh,
CORAM: AMIT RAWAL, JUDGE
Citation:AIR 2016(NOC)675 P&H
Appellant-Central Ware Housing Corporation (hereinafter
referred as “the Corporation”) is aggrieved of the dismissal of the
objections filed under Section 34 of the Arbitration and Conciliation Act,
1996 for setting-aside of the award dated 25.5.2008.
Ms.Ritu Pathak, learned counsel for the appellantCorporation
submits that vide tender dated 9.8.2002, handling and
transport contract was awarded to respondent No.1 for a period of two
years. Respondent No.1 was required to execute an agreement by visiting
the Regional Office at Panchkula within a period of one week from the
allotment of the tender, but he did not appear for execution of the
agreement and, thus, failed to carry out handling and transport contract.
Numerous letters/reminders were issued to him but yielded no result. The
contract awarded was, therefore, rescinded and temporary contract was
awarded to another contractor, therefore, in view of the arbitration
clause, the matter was referred to the arbitration.
The claimant preferred a claim petition before the Arbitrator
and the Arbitrator erroneously allowed the claim by awarding
compensation to the tune of `2,46,750/- and the counter claim of the
respondent to the extent of `2,57,170/- has erroneously been rejected.
The Arbitrator failed to notice that the respondent failed to carry out the
handling and transport contract by providing vehicles, labour and other
required equipments. It also failed to notice that respondent No.1 was in
judicial custody w.e.f. 1.9.2002 to mid March, 2003. No such application
at the behest of respondent No.1 for taking him to the Stamp Vendor for
execution of the GPA moved before the Sessions Court at Kurukshetra
has been placed on record. Clause 5(A) of the contents of tender
specifically provides that the successful tenderer, within a week of
acceptance of his/their tender, will execute an agreement at the Regional
Office in the form annexed at Appendix-VIII and in the event of failure
of the successful tenderer to execute the contract within the
aforementioned period, the contract was liable to be rescinded at the risk
and cost of the tenderer and the earnest money forfeited, therefore, Court
ought not to have ordered for refund of the earnest money. The Objecting
Court also failed to even mention the aforesaid facts, though the
objections were falling with the realm of Section 34 of 1996 Act. The
respondent failed to lead any evidence with regard to the actual loss
suffered by him and in the absence of the same, the compensation
awarded is without basis or reasoning.
As regards the rejection of the counter claim, it has been
proved on record that the appellant suffered a loss due to the nonfulfillment
of the conditions by respondent No.1 and not doing the work
in time and the work had to be awarded to another contractor at higher
rate. The award is not reasoned one and based upon the surmises and
conjectures. The Arbitrator failed to frame the issues and, thus, urges this
Court for setting-aside of the impugned order.
Mr.Yogesh Chaudhary, learned counsel for respondent
No.1-Contractor submits that the Arbitrator, on the preponderance of the
evidence, found that the agreement was signed by the contractor on
21.8.2002 itself and handed over to Corporation's officials. Since the
GPOA holder legally represented the successful tenderer, he should have
been allowed to sign the contract, but in case the Corporation avoided
signing of the same, no fault can be attributed to the contractor. The
claimant has also deposited a sum of `90,000/- on 21.8.2002 as part of
the security deposit. Since the claimant was in judicial custody, the
appellants could not have cancelled the contract and, thus, urges this
Court for affirming the order under challenge, much less award.
I have heard the learned counsel for the parties, appraised
the paper book and of the view that there is no merit and force in the
submission of Ms.Pathak, for, the Arbitrator categorically recorded a
finding with regard to tendering of documents at the behest of the
respondent-contractor. The officials of the Corporation should not have
been right in calling upon the contractor to sign the agreement as he was
in custody and, therefore, had executed GPOA and assignment of right of
a principal to the agent is recognised in law and once the Corporation
failed to honour the contract and insisted upon the presence of the
contractor for signing the agreement, there was no occasion for them to
cancel the contract. The intention of the contractor is evident from the
deposit of the security deposit. It is the conceded position on record that
respondent No.1 was in judicial custody w.e.f. 1.9.2002 and on
6.11.2002, the appellant issued notice to respondent No.1 to sign the
agreement in person by 17.11.2002, failing which the contract shall be
rescinded at his risk and cost and earnest money shall also be forfeited.
It is now a settled law that in what circumstances, the award
has to be interfered with. The question, which is now raised in the
aforementioned appeal, has already been answered by the Hon'ble
Supreme Court in catena of judgments, wherein it has been laid down
that until and unless the award suffers from illegality as statutorily
prescribed under Section 34 of the Act, the same cannot be interfered
with. In this context, I intend to refer the judgments of Hon'ble Supreme
Court in Associate Builders Vs. Delhi Development Authority (2015)
3 SCC 49 and Navodaya Mass Entertainment Ltd. Vs. J. M.
Combines (2015) 5 SCC 698. In the aforementioned judgments, the
Hon'ble Supreme Court had culled out the ratio decidendi by holding that
until and unless there is error apparent on the face of record or the
arbitrator has not followed statutory legal position, it is only in these
circumstances, it would be justified interfering with the award. The High
Court should not act as a Court of appeal and reappraise the
material/evidence and embark on a path by substituting its own view in
support of the Arbitrator's view. It is not the case of the appellant that the
award is against the public policy or has violated the principles of
judicial approach, much less against the statute and other provisions of
Section 34 of the Act. The Arbitrator has dealt with the dispute, which
was contemplated and was within its scope. The parties to the lis had
participated in the proceedings and were given proper notice not only
with regard to the appointment of the Arbitrator but vis-a-vis
proceedings. In my view, the award of the Arbitrator does not suffer from
any illegality in as much as the Arbitrator, who is expert, has dealt with
the matter and decided the claims of respective parties to the lis.
In my view, the award read as a whole is just, fair and
reasonable. It is now a settled law that the Arbitrator is the sole judge of
quality and quantity of the evidence before him and decide on the basis
of the available evidence.
I am of the view that the award of the arbitrator is perfect,
legal and justice and based upon the appreciation of the evidence.
There is no merit in the appeal. The same is accordingly
dismissed.
August 01, 2016
Print Page
the paper book and of the view that there is no merit and force in the
submission of Ms.Pathak, for, the Arbitrator categorically recorded a
finding with regard to tendering of documents at the behest of the
respondent-contractor. The officials of the Corporation should not have
been right in calling upon the contractor to sign the agreement as he was
in custody and, therefore, had executed GPOA and assignment of right of
a principal to the agent is recognised in law and once the Corporation
failed to honour the contract and insisted upon the presence of the
contractor for signing the agreement, there was no occasion for them to
cancel the contract. The intention of the contractor is evident from the
deposit of the security deposit. It is the conceded position on record that
respondent No.1 was in judicial custody w.e.f. 1.9.2002 and on
6.11.2002, the appellant issued notice to respondent No.1 to sign the
agreement in person by 17.11.2002, failing which the contract shall be
rescinded at his risk and cost and earnest money shall also be forfeited.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O.No.6853 of 2010 (O&M)
Dated: August 01, 2016
Central Ware Housing Corporation, Panchkula
V
M/s Jaswinder Singh,
CORAM: AMIT RAWAL, JUDGE
Citation:AIR 2016(NOC)675 P&H
Appellant-Central Ware Housing Corporation (hereinafter
referred as “the Corporation”) is aggrieved of the dismissal of the
objections filed under Section 34 of the Arbitration and Conciliation Act,
1996 for setting-aside of the award dated 25.5.2008.
Ms.Ritu Pathak, learned counsel for the appellantCorporation
submits that vide tender dated 9.8.2002, handling and
transport contract was awarded to respondent No.1 for a period of two
years. Respondent No.1 was required to execute an agreement by visiting
the Regional Office at Panchkula within a period of one week from the
allotment of the tender, but he did not appear for execution of the
agreement and, thus, failed to carry out handling and transport contract.
Numerous letters/reminders were issued to him but yielded no result. The
contract awarded was, therefore, rescinded and temporary contract was
awarded to another contractor, therefore, in view of the arbitration
clause, the matter was referred to the arbitration.
The claimant preferred a claim petition before the Arbitrator
and the Arbitrator erroneously allowed the claim by awarding
compensation to the tune of `2,46,750/- and the counter claim of the
respondent to the extent of `2,57,170/- has erroneously been rejected.
The Arbitrator failed to notice that the respondent failed to carry out the
handling and transport contract by providing vehicles, labour and other
required equipments. It also failed to notice that respondent No.1 was in
judicial custody w.e.f. 1.9.2002 to mid March, 2003. No such application
at the behest of respondent No.1 for taking him to the Stamp Vendor for
execution of the GPA moved before the Sessions Court at Kurukshetra
has been placed on record. Clause 5(A) of the contents of tender
specifically provides that the successful tenderer, within a week of
acceptance of his/their tender, will execute an agreement at the Regional
Office in the form annexed at Appendix-VIII and in the event of failure
of the successful tenderer to execute the contract within the
aforementioned period, the contract was liable to be rescinded at the risk
and cost of the tenderer and the earnest money forfeited, therefore, Court
ought not to have ordered for refund of the earnest money. The Objecting
Court also failed to even mention the aforesaid facts, though the
objections were falling with the realm of Section 34 of 1996 Act. The
respondent failed to lead any evidence with regard to the actual loss
suffered by him and in the absence of the same, the compensation
awarded is without basis or reasoning.
As regards the rejection of the counter claim, it has been
proved on record that the appellant suffered a loss due to the nonfulfillment
of the conditions by respondent No.1 and not doing the work
in time and the work had to be awarded to another contractor at higher
rate. The award is not reasoned one and based upon the surmises and
conjectures. The Arbitrator failed to frame the issues and, thus, urges this
Court for setting-aside of the impugned order.
Mr.Yogesh Chaudhary, learned counsel for respondent
No.1-Contractor submits that the Arbitrator, on the preponderance of the
evidence, found that the agreement was signed by the contractor on
21.8.2002 itself and handed over to Corporation's officials. Since the
GPOA holder legally represented the successful tenderer, he should have
been allowed to sign the contract, but in case the Corporation avoided
signing of the same, no fault can be attributed to the contractor. The
claimant has also deposited a sum of `90,000/- on 21.8.2002 as part of
the security deposit. Since the claimant was in judicial custody, the
appellants could not have cancelled the contract and, thus, urges this
Court for affirming the order under challenge, much less award.
I have heard the learned counsel for the parties, appraised
the paper book and of the view that there is no merit and force in the
submission of Ms.Pathak, for, the Arbitrator categorically recorded a
finding with regard to tendering of documents at the behest of the
respondent-contractor. The officials of the Corporation should not have
been right in calling upon the contractor to sign the agreement as he was
in custody and, therefore, had executed GPOA and assignment of right of
a principal to the agent is recognised in law and once the Corporation
failed to honour the contract and insisted upon the presence of the
contractor for signing the agreement, there was no occasion for them to
cancel the contract. The intention of the contractor is evident from the
deposit of the security deposit. It is the conceded position on record that
respondent No.1 was in judicial custody w.e.f. 1.9.2002 and on
6.11.2002, the appellant issued notice to respondent No.1 to sign the
agreement in person by 17.11.2002, failing which the contract shall be
rescinded at his risk and cost and earnest money shall also be forfeited.
It is now a settled law that in what circumstances, the award
has to be interfered with. The question, which is now raised in the
aforementioned appeal, has already been answered by the Hon'ble
Supreme Court in catena of judgments, wherein it has been laid down
that until and unless the award suffers from illegality as statutorily
prescribed under Section 34 of the Act, the same cannot be interfered
with. In this context, I intend to refer the judgments of Hon'ble Supreme
Court in Associate Builders Vs. Delhi Development Authority (2015)
3 SCC 49 and Navodaya Mass Entertainment Ltd. Vs. J. M.
Combines (2015) 5 SCC 698. In the aforementioned judgments, the
Hon'ble Supreme Court had culled out the ratio decidendi by holding that
until and unless there is error apparent on the face of record or the
arbitrator has not followed statutory legal position, it is only in these
circumstances, it would be justified interfering with the award. The High
Court should not act as a Court of appeal and reappraise the
material/evidence and embark on a path by substituting its own view in
support of the Arbitrator's view. It is not the case of the appellant that the
award is against the public policy or has violated the principles of
judicial approach, much less against the statute and other provisions of
Section 34 of the Act. The Arbitrator has dealt with the dispute, which
was contemplated and was within its scope. The parties to the lis had
participated in the proceedings and were given proper notice not only
with regard to the appointment of the Arbitrator but vis-a-vis
proceedings. In my view, the award of the Arbitrator does not suffer from
any illegality in as much as the Arbitrator, who is expert, has dealt with
the matter and decided the claims of respective parties to the lis.
In my view, the award read as a whole is just, fair and
reasonable. It is now a settled law that the Arbitrator is the sole judge of
quality and quantity of the evidence before him and decide on the basis
of the available evidence.
I am of the view that the award of the arbitrator is perfect,
legal and justice and based upon the appreciation of the evidence.
There is no merit in the appeal. The same is accordingly
dismissed.
August 01, 2016
No comments:
Post a Comment