FAO No. 3975 of 2016(O&M) [1]

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

FAO No. 3975 of 2016 (O&M)

Date of decision: 17^th January, 2023

Punjab Mandi Board

Appellant

Versus

M/s Jaswant Rai Verma and another

Respondents

CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN

Present:

Mr. A. K. Goel, Advocate for the appellant.

Mr. Mukand Gupta, Advocate for respondent No. 1.

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AVNEESH JHINGAN, J (Oral):

Aggrieved of award dated 2.2.2012 passed by Superintending

Engineer-cum-Arbitrator and of dismissal of objections under Section 34 of

the Arbitration and Conciliation Act, 1996 (for short, 'the Act') on 9.3.2016,

the appellant is before this court under Section 37 of the Act.

Respondent No. 1 was allotted work by the Executive

Engineer, Punjab Mandi Board, Nawanshehar for construction of New Link

Road from Tibba Nangal to Kular Rattawal in District Ropar. Clause 8 of

the contract provided for dispute resolution through arbitration.

Dispute arose between the parties and the appellant appointed

Superintending Engineer as the Arbitrator. Respondent No. 1 submitted

claim for payment of Rs.25,45,384/-. The dispute mainly was with regard to

measurement of the earth work executed for levelling and for refund of

security.

The bone of contention was that respondent No. 1 had entered

the levels in the measurement book by calculating the work done with use

of software. On the other hand, the department quantified the work done

based upon the actual work done and calculating it by using average

MANOJ KUMAR

2023.01.19 16:56

I attest to the accuracy and

integrity of this document.

FAO No. 3975 of 2016(O&M) [2]

method. The award was passed in favour of respondent No. 1. He was

found entitled to quantified amount.

Learned counsel for the appellant submits that the

Superintending Engineer of the Mandi Board should not have been

appointed as an arbitrator. It is argued that the software used by respondent

No. 1 for maintaining the measurement book was not reliable and not

proved before the arbitrator.

Learned counsel for respondent No. 1 opposes the contentions

and submits that no such objections were raised before the arbitrator. It is

argued that the department had filed a counter claim before the arbitrator

and not challenged his appointment.

Heard learned counsel for the parties and perused the

pleadings.

N Haryana Tourism Limited v. M/s Kandhari Beverages

Limited, 2022(3) SCC 237, the Supreme Court held as under:

“ 8. As per settled position of law laid down by this Court in a

catena of decisions, an award can be set aside only if the

award is against the public policy of India. The award can be

set aside under Sections 34/37 of the Arbitration Act, if the

award is found to be contrary to, (a) fundamental policy of

Indian Law; or (b) the interest of India; or (c) justice or

morality; or (d) if it is patently illegal. None of the aforesaid

exceptions shall be applicable to the facts of the case on hand.

The High Court has entered into the merits of the claim and

has decided the appeal under Section 37 of the Arbitration Act

as if the High Court was deciding the appeal against the

judgment and decree passed by the learned trial court. Thus,

the High Court has exercised the jurisdiction not vested in it

under Section 37 of the Arbitration Act. The impugned

judgment and order passed by the High Court is hence not

sustainable.”

It is not disputed that the appellant had appointed the

arbitrator, he was their official and they had chosen to file a counter claim

before him. Be that as it may, no such objection was raised during the

MANOJ KUMAR

2023.01.19 16:56

I attest to the accuracy and

integrity of this document.

FAO No. 3975 of 2016(O&M) [3]

arbitration proceedings, the appellant participated in proceedings and award

was passe