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IN THE HIGH COURT OF DELHI AT NEW DELHI

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O.M.P. 10/2016, IA 2096/2016

B. KAPOOR

..... Petitioner

Through:

Mr. Amit Dubey, Adv.

versus

UNION OF INDIA THROUGH: SR.DEN/C/NORTHERN

RAILWAY

..... Respondent

Through:

Mr. J.K. Singh, Standing

Counsel for Railway

CORAM:

HON'BLE MR. JUSTICE V.KAMESWAR RAO

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:-

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 pendentelite.

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:-

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:-

The finding of the learned Arbitrator on issue No.1 was that “the

Contract by the extended date”. In other words, the learned Arbitrator

held, even if certain claims of the petitioner have been granted, the same

have been granted not on a finding that the respondents were responsible

for non completion of work under the Contract by the extended date,

which means, the petitioner was responsible for n