The court upheld the consent order and affirmed the respondent's entitlement to the claimed amounts based on the completion of work at a different site and the final bill prepared by the appellant.

SANJAY KISHAN KAUL, J.

1. The appellant / MCD invited tenders for the work of providing and fixing reflective sign board on Hawaldar Abdul Hameed Marg, Shakurpur near F block Shakurpur in JJ Colony, C-29, Delhi. The work order was placed on the respondent on 31.03.2004 with the contractual amount being specified at Rs.3,16,899/-. The work was to be completed within three months and the earnest money of Rs.7550/-was deposited by the respondent with the appellant.

2. It appears that the respondent was awarded the work order for similar work in different areas including on Mah. Balmiki Marg near E Block, Shakarpur, which was in proximity to the place of the work order in question. It is the say of the respondent that at the insistence of the Local councillor, the official of the appellant directed the respondent to put both the sign boards at Maharishi Balmiki Marg near E Block itself, resulting in change of location and even the RCC foundation made at the original place being wasted. Both these work orders are stated to have been executed. While the respondent was paid for the other work order, the payment was not made for the work order in question. The aforesaid gave rise to disputes between the parties and in view of the arbitration clause, an arbitration application no.409/2007 was filed on the original side of this court, and Mr. S.M. Chopra, Retired Additional District & Sessions Judge was appointed as the Sole Arbitrator, who made and published his award on 17.12.2008.

3. It may be noticed that the appellant failed to file any reply and even the defence of the appellant was struck out. Despite this, the claim of the respondent was rejected by the Arbitrator on the ground that in various communications addressed by the respondent, the reference to the contract was as per its original description and that prudence required that the respondent ought to have insisted for a direction in writing from the signatory of the work order or its successor.

4. The respondent aggrieved by the award filed objections under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act), which was registered as OMP 179/2009. The proceedings of 23.09.2009, before the learned Single Judge shows that the Executive Engineer was present to assist the counsel for the appellant and it was stated that the bills have not been paid since the matter was not cleared from the CBI. This was as per instructions of the Engineer-in-charge of the appellant. The Executive Engineer also stated that the matter was pending before the CBI on account of sub standard work. Since the Executive Engineer was found to be ill-informed about the matter in issue, learned counsel for the appellant before the learned Single Judge stated that he would produce the concerned Assistant Engineer of the relevant period who had rejected the bill of the respondent on the next date of hearing. The Assistant Engineer was directed to bring the original contract showing where the work had been executed actually alongwith the photographs of the road where the work was stated to have been carried out.

5. On 23.03.2010, Mr. Kapil Kumar, Junior Engineer of the appellant was present in court and stated on the basis of the records that the respondent had executed the contract signed between the parties. Thus, there is a categorical admission of the work having been completed by the respondent; albeit at a different site. It is also important to note that the final bill was prepared by the appellant itself and the amounts payable to the respondent including refund of earnest money were reflected in the final bill. The two amounts were as claimed by the respondent towards the balance price amounting to Rs.2,93,081/- and Rs.7550/- vis-à-vis the refund of earnest money.

6. The learned Single Judge thereafter proceeded to set aside the award dated 17.12.2008, holding that the respondent was entitled to the said two amounts. This portion of the orde