The court emphasized that time being the essence of a contract must be determined based on the contract terms and other provisions, and that the court cannot sit in appeal over the arbitrator's findings.

REVA KHETRAPAL, J.

( 1 ) BY this petition under Section 34 of the Arbitration and Conciliation act, 1996, the Petitioner Delhi Development Authority seeks to challenge the award made and published on 10th January, 2005 by the learned Arbitrator, justice Avadh Behari Rohatgi (Retired ).

( 2 ) THE arbitration case, as noticed by the learned Arbitrator, had a long and chequered history. The contract in question related to construction of storm Water Drain in Zones E-8 to E-12 in Vikas Marg and Rajdhani Enclave, New delhi. In response to the notification of the Petitioner inviting tenders, the respondent submitted its tender, which after deliberations was accepted by the petitioner vide letter dated 11th January, 1983. Consequently, an Agreement no. 56/dd-7/1982-83 was executed between the parties, wherein the date of the start of the work was stated as 21st January, 1983 and the date of completion of work was set out as 20th January, 1984. Thus, the time allowed for the period of completion of work was twelve months. The estimated cost of the work contract was Rs. 35,03,088/- with an enhancement of Rs. 127. 50% above the estimated cost. The total value of the work was fixed at Rs. 79,69,521/- being the tender amount.

( 3 ) THE work remained incomplete. The Delhi Development Authority rescinded the contract on 6th January, 1987 alleging slow progress on the part of the contractor and inability to complete the work. After the contract was rescinded, the contractor made a petition under Section 8 and 20 of the arbitration Act of 1940 for appointment of an arbitrator, which was registered as a suit, being Suit No. 1062/1987. The High Court appointed Shri V. R. Vaish, retd. Director General of Works, CPWD. His appointment was revoked. Shri G. S. Rao, Retd. Director General of Works, CPWD was then appointed in his place. Unfortunately, Shri Rao died. Thereafter another application was made to the high Court by the contractor for appointment of an arbitrator, resulting in the appointment of Justice R. L. Gupta (Retired) on 27th September, 2002 in Suit no. 1062/1987. The learned Arbitrator, Justice Gupta held a number of sittings in 2003. By his order dated 12th March, 2003 he held that the arbitral proceedings in this case will be governed by the Arbitration and Conciliation act, 1996 and not by the old Act of 1940. However, on 12th May, 2003 Justice r. L. Gupta (Retd.) resigned. By order dated 25th September, 2003 in I. A. No. 7483 of 2003 in Suit No. 1062/1987, Justice Avadh Behari Rohatgi (Retired) was appointed as the sole Arbitrator and it fell to his lot to decide the dispute between the parties. However, the counter claim of Rs. 40,781. 91 dated 13th july, 2003, which was filed before the previous Arbitrator Justice R. L. Gupta (Retired), was not pressed by the D. D. A. before the present Arbitrator and a statement to this effect was recorded by the learned Arbitrator on 8th september, 2002. The counter claim was accordingly dismissed as not pressed.

( 4 ) THE learned Arbitrator after considering the entire documentary evidence on record and hearing the parties made and published his award on 10th january, 2005 for Rs. 20,32,358/- in favour of the claimant/respondent M/s Anand and Associates (contractors) and against the respondent No. 1 (Petitioner herein)with interest @ 18% p. a. from 25th April, 1987 till realization. The following amounts were awarded:-

. . Claim No. A Claimant claims Rs. One lakh being the refund of Security Deposit which has been wrongfully and unjustifiably denied. Claim No. B Claimant claims a sum of Rs. 1,85,809 /- for additional work executed at the bidding of the respondent vide clause 12 of the Agreement. Claim Nos. Candd Claimant claims balance sum of Rs. 10,42,136 /- for the work done but not paid. Claim Nos. Eandf Claimant claims payment under clause 10-C of the Agreement and also payable as damages due to execution of the work during prolongation from date of stipulated completion til