$~7 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 17.05.2023 + FAO (COMM) 52/2023 and CM Nos. 9523/2023 &

9524/2023 M/S JOP INTERNATIONAL LIMITED ..... Appellant Through: Mr Rajesh Yadav, Senior Advocate.

versus M/S MULTIFOLD GROUP CONTRACTOR AND ENGINEERS ..... Respondent Through: Mr Abhimanyu Singla, Advocate. CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU HON'BLE MR. JUSTICE AMIT MAHAJAN VIBHU BAKHRU, J.(ORAL

1. The appellant has filed the present appeal under Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 (hereafter ‘the A&C Act’) impugning a judgement dated 18.11.2022 (hereafter ‘the impugned judgement’) passed by the learned Commercial Court in an application preferred by the respondent under Section 34 of the A&C Act.

2. The respondent had filed the said application seeking setting aside of the arbitral award dated 01.09.2018 (hereafter ‘the impugned award’). The impugned award was rendered in the context of the disputes that had arisen between the parties in connection with their agreement dated 22.03.2014 (hereafter ‘the Agreement’). In terms of Signature Not Verified the Agreement, the respondent had agreed to carry out construction and development of works in a project named ‘JOP Palms’, located at Sector 28, Rohtak, Haryana (hereafter ‘the project’)

3. The disputes were referred to an arbitral tribunal comprising of a sole arbitrator (hereafter ‘the Arbitral Tribunal’). The respondent had, inter alia, claimed a sum of ₹17,04,755/- (Claim no.1). The said amount comprised of a sum of ₹1,09,879/- due against the Running Account Bills and an amount of ₹15,94,876/- on account of refundable security deposit. The Arbitral Tribunal awarded a sum of ₹15,81,705/- being the security deposit that was retained by the appellant. Insofar as claim for payment due under the 39^th Running Bill is concerned, the Arbitral Tribunal rejected the same on the ground that the respondent (claimant in the impugned award) had failed to prove the acknowledgement of the said bill. The balance claims (Claim nos.2 to 6), relating to miscellaneous civil work, were disallowed. Claim nos.7 and 8, relating to interest, were partly allowed to the extent of the amount awarded under Claim no.1.

4. Claim nos.2 to 6, as summarized in the impugned judgement, are set out below:

“Claim No.2 Payment for Miscellaneous civil work

3BHK: Covered Area 98400 Sq.ft. @ Rs. 8/- Rs.

7,87,200/-

Balcony Area 15346 Sq.ft. @ 4/- Rs. 61,387/-

Total Rs. 8,48,587/- Signature Not Verified Claim No.3 Loss due to delay in casting of slab at 2BHK Casted on 20.03.2016 Rs. 2,00,000/-.

Claim No.4 Casting of columns at 2BHK & 3 BHK Manually /Hand mixing Rs. 10,22,230/-.

Claim No.5

2BHK pending column quantity at basement Rs. 2,38,122/-.

Claim No.6 Extra payment made to rigger for setting of pipeline from the concrete pump to the point of casting Rs.

1,38,000/-.”

5. The Arbitral Tribunal had rejected the said claims, principally, on the ground that the claimant (respondent) had failed to establish the same. The Arbitral Tribunal held that the respondent had failed to show any specific order or any specific bill in respect of the amounts claimed under Claim nos.2 to 6. The Arbitral Tribunal also rejected the emails relied upon by the respondent on the ground that such electronic evidence could not be relied upon in the absence of a necessary affidavit under Section 65B of the Indian Evidence Act, 1872. The relevant extract of the impugned award is set out below:

“while claim no 2 to 6 which are concerned with the payment for misc civil work carried out at the site, Loss due to delay in casting of slab and column at 2 BHK, pending column quantity at basement and extra payment made to rigger by the claimant, the claimant has explained the same in a detailed manner in his claim and also explained the same during the course of argument and succeed in proving the calculation so Signature Not Verified made by him for the purpose of the claim that the said work has been carried out by