I.A. No.768/1997 in CS(OS) No.292/2002

1. These objections have been filed to the first Award dated 11.11.1996 passed by the sole Arbitrator.

2. The brief history with regard to what has transpired during the hearing of the objections is necessary before I deal with these objections on merits. The Arbitrator, in this case, had given a third Award dated 4/28.7.1997 and objections of IRCON to which award were dismissed by me alongwith objections of M/s. CEC Ltd. by my order dated 29.10.2009.

3. It has indeed been difficult to go through the record of this case because the complete arbitration record is not available in the Court. In view of the aforesaid position this Court had, way back on 12.9.2006, specifically by order stated that since the arbitration record is not available, to facilitate the hearing of the matter both the parties were directed to give a compilation of their respective arbitral record which they would be relying upon.

4. For the first time, I heard the counsel for the non-objector in this case on 29.10.2009 when the objections with respect to third Award were dismissed on 29.10.2009. On that date, the present objections were adjourned subject to payment of costs of Rs.25,000/- in view of the fact that counsel for the objector was not ready. This case was also called out yesterday when out of the maze of the documents and the record filed it was endeavoured to dispose of the present objections. Since the electronic display board of this Court was not working and the counsel for the non-objector was not present, this case was adjourned for today. Today firstly the objector in person, namely, Mr. S.K. Chopra, started arguing this case in the absence of Mr. Shiv Khorana. Thereafter, Mr. Shiv Khorana came and was allowed to continue with the arguments. During the course of the arguments, Mr. Shiv Khorana said that so far as the factual aspects are concerned since he was not present before the Arbitrator and since Mr. Chopra has argued his case Mr. Chopra should be allowed to address the arguments limited to the factual issues. This prayer was declined because the Court cannot hear different persons, that is, first the Advocate and thereafter his client on different issues which are sought to be urged in this matter.

5. Ultimately, on account of whatever record is available and the serious limitation of the incomplete record this Court has endeavoured its best to hear and dispose of the objections.

6. The basic objections are two in number to the Award dated 11.11.1996. The first objection pertains to claimNo.3 forming part of issue No.1 as decided by the Arbitrator. This claim pertains to the claim of the objector for repair charges of the machinery which was damaged and which machinery belonged to IRCON and which was repaired by the objector/contractor. Though Mr. Singla has referred to clauses 21 of the G.C.C. and 8 of the SCC as also clause 10B to contend that the responsibility was of the contractor/objector to maintain the machinery and to return it in good condition to IRCON, I do not propose to go into the merits of the matter because qua this claim the Arbitrator has held that such a claim falls outside the purview of the contract and therefore outside the purview of the arbitration clause.

7. Let us examine what has been held by the Arbitrator with respect to this claim. The Arbitrator has given basically two findings. The first finding is that the insurance policy for the plant and equipment/machinery is only for the damage to the machinery within the project area and not for every other area. The second finding is that the accident which caused damage to the machinery fell outside the project area. These are pure findings of facts based on the arbitration record, and which is not a complete record before me. In any case, the onus was on the objector to show as to why these factual findings are incorrect because sitting as a court hearing objections under Sections 30 and 33 of the Arbi