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2008(6) Supreme 350
Supreme Court of india
(From Delhi High Court)
P. Sathasivam and Aftab Alam, JJ.
Delhi Development Authority — Appellant (s)
versus
M/s R.S. Sharma & Co., New Delhi — Respondent(s)
Civil Appeal No. 2424 of 2002
Decided on : 26-08-2008
(2000) 9 SCC 552; (2002) 4 SCC 45; (2006) 1 SCC 86; (2006) 4 SCC 445 – Relied upon.
(b)Arbitration Act, 1940 – Section 34(2) – In the absence of specific clause with regard to payment of extra cartage and in view of clause 3.16, the respondent-claimant cannot claim extra cartage – Further, the cost of the work was irrespective of the source or lead from where the stone was brought – The relevant clause 3.16 of the Agreement which makes it clear that the contractor is wholly responsible for all the extra leads not adverted to by the Arbitrator or the Division Bench. (Paras 16 and 17)
Facts of the case :
1.On 18.4.1990, an Agreement was entered into between the appellant-Delhi Development Authority and the respondent - M/s R.S. Sharma & Co. for carrying out the work for development of the land at Pappankalan (Dwarka) Project in South-West Delhi, Phase I according to the terms and conditions mentioned in the contract.
2.On disputes having arisen during execution of the work, mainly with respect to the extra cartage, the same were referred to the Sole Arbitrator, for adjudication. During the pendency of the arbitration proceedings, the work was still being executed by the Company.
3.In the 13 claims raised before the arbitrator, claim Nos. 1 to 3 were on account of extra lead involved in procurement of stone aggregate specified in agreement Item No.2 i.e., supplying and stacking of graded stone aggregate of size range 90 mm to 40 mm at site. While additional Claim Nos. 1 to 3 pertain to extra lead involved in bringing stone specified in agreement Item Nos. 3 & 4 i.e., supplying and stacking of stone screenings/chipping at site 12.5 mm nominal size.
4.On 29.7.1992, the Arbitrator made the Award in favour of respondent-Company. Suit No.2981 of 1992 was filed by the respondent-Company for making the Award a rule of the Court.
5. Division Bench, vide order dated 10.8.2001, set aside the order of the learned single Judge to the extent by which the Award of the Arbitrator on Claim Nos. 1 to 3 and Additional Claim Nos. 1 to 3 were set aside and the Award made by the Arbitrator on aforesaid Claims were made a rule of the Court. The Respondent - Company was also awarded interest @ 12% p.a. from the date of decree till the date of payment on the entire amount as awarded by the Arbitrator.
Finding of the Court :
The impugned judgment not adverting to relevant clause 3.16 cannot be sustained.
Result : Appeal allowed.
Judgment
P. Sathasivam, J. —
1.This appeal, by special leave, is directed against the Judgment and final Order dated 10.8.2001 passed by the High Court of Delhi at New Delhi in FAO(OS) No. 104 of 1996, whereby the Division Bench of the High Court had set aside the Order passed by the learned single Judge in favour of the Delhi Development Authority - the appellant herein and directed that the Award passed by the Arbitrator be made a rule of the Court along with interest @ 12% p.a. from the date of the decree till the date of payment on the entire amount as awarded by the Arbitrator.
2.The facts, in a nutshell, are as under :
On 18.4.1990, an Agreement was entered into between the appellant-Delhi Development Authority (hereinafter referred to as “DDA”) and the respondent - M/s R.S. Sharma & Co. (hereinafter referred to as “the Company”) for carrying out the work for development of the land at Pappankalan (Dwarka) Project in South-West Delhi, Phase I according to the terms and conditions mentioned in the contract. On disputes having arisen during execution of the work, mainly with respect to the extra cartage, the same were referred to the Sole Arbitrator, Shri A.P. Paracer, Additional Director General (Retd.), C.P.W.D., for adjudication. During the pendency of the arbitration proceedings, the work was still being executed by the Company. 13 Claims (including additional claims) for a sum of Rs. 55.19 lacs approximately were raised by the Company before the Arbitrator. Claim Nos. 1 to 3 were on account of extra lead involved in procurement of stone aggregate specified in agreement Item No.2 i.e., supplying and stacking of graded stone aggregate of size range 90 mm to 40 mm at site. While additional Claim Nos. 1 to 3 pertain to extra lead involved in bringing stone specified in agreement Item Nos. 3 & 4 i.e., supplying and stacking of stone screenings/chipping at site 12.5 mm nominal size. Under Claim No.1, the respondent-Company claimed an extra amount of Rs.30/- per cubic meter over and above the rates mentioned in the Agreement Item No.2 on account of extra lead involved in the procurement of the stone aggregates from the quarries at Nooh in Haryana instead of quarries at Delhi. Under Claim No.3, the respondent-Company sought declaratory Award to the effect that for all quantities of aggregate to be brought from Nooh in future, they are entitled to additional lead @ Rs.30/- per cubic meter excluding the quantity already claimed under Claim No.2. Similarly, under Additional claim Nos. 1 to 3, the respondent-Company claimed the rate of Rs.30 per cubic meter for extra lead involved in bringing stone, specified in agreement item Nos. 3 & 4, from the quarries at Nooh (Haryana). On 29.7.1992, the Arbitrator made the Award in favour of respondent-Company. Suit No.2981 of 1992 was filed by the respondent-Company for making the Award a rule of the Court. Cross Objections were filed by DDA. On 25.9.1995, the learned single Judge of the Delhi High Court set aside the Award with respect to Claim Nos. 1 to 3 as well as Additional Claim Nos. 1 to 3 and made the remaining part of the Award a rule of the Court and awarded interest @ 12% p.a. from the date of the decree till the date of payment by DDA. Aggrieved by the Judgment of the learned single Judge, the Company filed FAO (OS) No.104 of 1996 before the Division Bench for setting aside the Order to the extent it deals with Claim Nos. 1-3 and for making the Award dated 27.9.1992 a rule of the Court. The Division Bench of the High Court of Delhi, vide Order dated 10.8.2001, set aside the Order of the learned single Judge to the extent by which the Award of the Arbitrator on Claim Nos. 1 to 3 and Additional Claim Nos. 1 to 3 were set aside and the Award made by the Arbitrator on aforesaid Claims were made a rule of the Court. The Respondent - Company was also awarded interest @ 12% p.a. from the date of decree till the date of payment on the entire amount as awarded by the Arbitrator. Aggrieved b
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