2013 Supreme(HP) 19

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Dev Darshan Sud, J.
National Hydroelectric Power Corporation Ltd. - Petitioner
Versus
M/s Vijay Kumar Sharma, Contractor - Respondents
Arbitration Case No. 53 of 2008
Decided On : 3rdJanuary 2013.

Headnote:

The High Court dismissed the petition filed by the petitioner, NHPC, under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), against the award passed on 1.9.2008, Annexure P-7. The claim petition was instituted by M/s Vijay Kumar Sharma (the respondent) against the petitioner herein. The Arbitral Tribunal consisted of Hon’ble Mr. Justice P.K. Palli (Retd.) Presiding Arbitrator, Dr. T.S. Sethurathnam and Mr. Lal Singh Rana, Arbitrators. Ten claims were made by the respondent herein claiming a sum of Rs.1,83,67,496/-. The Tribunal notes that the parties did not lead any oral evidence, which consisted of only the documents filed on record by the parties. On the conclusion of the proceedings it is held:-

Fact of the Case:

Summary of the award Sr.No. Claim Items Amount Claimed Amount Awarded 1 Claim No.1(a) (amount withheld by NHPC) Rs. 11,72,599-00 Rs. 11,72,599.00 2. Claim No.1(b) (Release of security) Rs. 8,33,000.00 Rs. 8,30,000.00 3. Claim No. 2 (Refund of excess cost of detonators recovered in violation of the stipulate rate of agreement) Rs. 3,10,424.00 Rs. 2,61,931.00 4. Claim No. 3 cost of idle labour & machinery, due to Lapses on the part of NHPC) Rs. 7,84,000.00 Rs. 4,56,161.00 5. Claim No. 4 (given up) …… …… 6. Claim No. 5 (cost of crate work done/performed by the claimant.) Rs. 3,28,125.00 Rs. 2,79,795.00 7. Claim No. 6 (claim on account of cost of formation, cutting of the road done by the petitioner under the orders of the NHPC beyond the deviation limit) Rs.1,34,19,000.00 Rs.1,04,89,686.00 8. Claim No.7 (given up) …… …… 9. Claim No. 8(interest) Claim No. 8(a) given up Claim No. 8(b) (recovery of Rs. one crore held illegal & not recoverable from the claimant.) …… …… Total Rs.1,34,90,627.00 10. Claim No. 9 9(a) Interest @ 10% for 16 months w.e.f. 1.5.2007 to 31.8.2008 on amount excluding security i.e. on Rs.1,26,60,627.00 (1,34,90,627-8,30,000) 9(b) Interest @ 10% for 7 months w.e.f. 01.02.2008 to 31.08.2008 on amount of security i.e. on Rs. 8,30,000.00 Rs. 16,88,084.00 Rs. 48,417.00 Grant Total Rs.1,52,27,128.00

Finding of the Court:

2. In all, claim of Rs. 1,52,27,128/- was allowed by the learned Arbitral Tribunal. 3. It is these findings which are challenged before me on a number of grounds by the claimant stating that the award violates the mandate of the Act necessitating the invocation of Section 34. Primarily what has been urged before me is that Claim No. 6 being an excepted matter the Tribunal has been remiss in awarding a sum of Rs. 1,04,89,686/- as cost of formation cutting of the road done by them under the orders of the petitioner herein beyond the deviation limit of 30% of the contract document. The learned Tribunal held that it is undisputed that the respondent had ordered the claimants to execute work beyond 30% deviation limit. It was also undisputed that the claimant had executed the said deviated quantity and that he is entitled to special rates for deviated quantity exceeding 30% deviation. The learned Tribunal relying upon Annexure C-16 and C-17 which have been written by the respondent to the petitioner herein held that the entire portion exceeding 30% of the deviated quantity consisted of 100% hard rock and the site being not accessible, the approach path over vertical cliff had to be constructed. The Tribunal then continues that by virtue of Annexure C-22, C-23, C-37, C-38 and C-43 the petitioner has admitted that the said portion was a hard rock and vertical cliff. Annexure C-22 and C-23 were letters written by NHPC to the D.F.O. Banjar in which the portion involving quantity in excess of 30% deviation limit was admitted as hard rock in the shape of vertical cliff. Annexure C-37 was a copy of measurement book which corroborated this fact. On the basis of these documents and technical estimate framed by the petitioner herein, the quantity was fixed as 29757.13 cum which has been accepted by the claimants. On the rates applicable, the Tribunal notes that vide Annexure C-37 the petitioner herein had allowed rates of Rs. 154.89 Ps. per cum while the claimant had claimed the rate of Rs. 564.02 Ps. per cum. The Tribunal on the material concludes that rates of deviated work allowed by the Engineer-in-Charge were not agreed to between the parties nor fixed according to the procedure and within the time schedule contemplated by the contract. Allowing the claim of the respondent herein, the learned Tribunal notes that it was open to go into the fact with respect to the reasonability of the rates claimed and the various items of work executed by the claimant. The Tribunal holds that this must conform to some basic norms including those applicable to and adopted by the Central/State Governments on which reliance was placed by both the parties. On the detailed analysis, the award was made under the various heads claimed by the claimant.

Issues: None

Ratio Decidendi: 4. After a detailed analysis of the material on record, the Tribunal fixed and awarded Rs. 352.51 Ps per cum. An amount of Rs. 1,04,89,686/- was allowed accordingly. What has been submitted before me is that this is an excepted matter and in this eventuality, the learned Tribunal has acted beyond its jurisdiction in entertaining, adjudicating and allowing the aforesaid rate. In addition, it was urged that claim Nos. 1 and 3 also fall in this category. Learned counsel submits that in case these claims are excluded, the respondent-claimant would not be entitled to any claim whatsoever.

Final Decision: 22. Adverting to the judgments of the Supreme Court, the jurisdiction of this Court is limited and cannot be converted into an appellate jurisdiction. If the view taken by the Arbitrator is possible, it will not be open to this Court to change its view on the conclusion arrived at by the learned Tribunal. In these circumstances, I find that in this case no interference is called for. Therefore, the petition is dismissed. No order as to costs.