The legal provisions of Section 34 of the Arbitration & Conciliation Act, 1996 and the interpretation of the findings by the Arbitrator influenced the court's decision to dismiss the petition.

V.KAMESWAR RAO, J. (Oral)

IA 2096/2016

This is an application filed by the petitioner seeking condonation of four days delay in filing the instant petition. The delay of four days is beyond the period of three months but before the expiry of 30 days thereafter.

For the reasons stated in the application, the delay stands condoned.

Application is disposed of.

O.M.P. 10/2016

1. The challenge in this petition under Section 34 of the Arbitration & Conciliation Act, 1996 is to the Award dated October 14, 2015, passed by the learned Sole Arbitrator, whereby, the learned Arbitrator has granted the following reliefs to the petitioner herein:-

(i) for execution of work for Rs.96,643/- allowed.

(ii) for PVC bill for Rs. 2,00,000/- allowed.

(iii) refund of Earnest Money Rs.1,10,000/- allowed.

(iv) refund of Performance Guarantee Rs.2,94,200/- allowed.

(v) refund of Security Deposit Rs. 1,84,056/- allowed.

Further, interest @ 9% per annum is allowed on the aforesaid amounts from the date of the award till realisation.

2. The challenge in this petition, as urged by the learned counsel for the petitioner, is limited to the item no.2 above; rejection of the plea of cost and to the denial of interest pendente lite.

3. Insofar as the claim of the petitioner to the PVC bill over and above Rs.2 Lacs is concerned, I note that the learned Arbitrator has granted the said amount to the petitioner herein i.e claim No.3 on the following finding:-

“And that being so a sum of Rs.2,15,373/- is payable to the claimant on account of price variation under the contract dated 02.08.2010. However, as the claimant has claimed Rs. 2 lacs on account of PVC in his statement of claim and also in his affidavit, he is entitled to Rs. 2 lac only. Accordingly the claim is allowed for Rs. 2,00,000/- only.

4. Suffice to state, the Award of Rs.2 Lacs is on the basis of the claim made by the petitioner in his claim petition. The plea of the learned counsel for the petitioner that the finding of the learned Arbitrator is utter disregard to evidence on record, which is reflected by the admission of the respondent that an amount of Rs.2,15,373/- was paid and forfeited would not hold good in view of the claim itself. Nothing precluded the petitioner to amend the claim accordingly. Given the reasoning of the learned Arbitrator, the same cannot be held to be illegal. I do not see any merit in this regard. The same is dismissed.

5. On the issue of payment of cost is concerned, the learned Arbitrator has rejected the claim of the claimant for cost, which is akin to one of the claims of the claimant under claim No.8 as cost of litigation. The learned Arbitrator has, under claim 7 & 8 referred to the fact that the petitioner in his affidavit has detailed the various amounts paid as professional charges and miscellaneous expenses, however no such details have been given in the statement of claim. The learned Arbitrator also held that the claim on account of litigation cost, the statement of claim and the affidavit do not match. It may be highlighted here, the claimant in his statement of claim had made a claim of Rs.2 Lacs as cost, whereas, in the affidavit, the petitioner had made a claim for Rs.35,000/-.

6. The learned Arbitrator was right in noting the difference in the claim statement and the affidavit. The plea of the learned counsel for the petitioner that the petitioner had to incur cost of the litigation before the appointment of the learned Arbitrator, inasmuch as despite directions, the respondent had not appointed Arbitrator and the stand of the petitioner having been accepted and the learned Arbitrator has granted the claims to the petitioner, the learned Arbitrator should have granted the cost is concerned, suffice to state, grant of claim of cost by the learned Arbitrator need to be adjudicated keeping in view the finding of the learned Arbitrator against issue No.1, which is as under:-

Issue No.1 Whether the respondent was responsible for not completion of th