Excelsior Correspondent
SRINAGAR, Apr 15: High Court has dismissed the application of Tourism Development Corporation seeking fresh arbitration with regard to the awarded amount given to the contractor for construction of Tourist Bungalow Sanasar and said that there is no clearance as to whether the board had accepted the claim of the contractor or not.
The application was filed under Arbitration & Conciliation Act, 1997 for setting aside the award dated 01.09.2006 passed by the then retired District & Sessions Judge, as arbitrator into the matter awarding an award on account of escalation costs along with 9% per annum interest from 27.04.2002 till its realization in favour of the contractor.
In the year 1991, the petitioner was awarded the contract for construction work of Tourist Bungalow Sanasar. Justice Sanjeev Kumar while rejecting the application of Corporation seeking fresh arbitration into the matter said the decision of the Board of Directors is not very clear on the point as to whether the Board had, in principal, accepted the claim of the contractor and directed the parties to negotiate on the modes operandi of releasing the payment or the parties were relegated to negotiations even with respect to admissibility of the claim.
The Arbitrator, court said, has bonafidely interpreted the decision of the Board of Directors and has come to the conclusion that the Board of Directors has, in principal, accepted the claim of escalation lodged by the contractor.
“I see no reason to sit in appeal over this finding of fact returned by the Arbitrator by entering into the process of reasoning of the Arbitrator, for that is not the scope of limited inquiry envisaged under Section 34 of the Act of 1997. 19. For the foregoing reasons, I find no merit in this application and the same is, accordingly, dismissed”, Justice Kumar concluded
Court after examining the instant award and the grounds of challenge urged by Corporation (TDC) in the light of legal position it is difficult to say that the impugned award could be placed in the category of the awards which suffer from perversity or patent illegality and, therefore, against the public policy of India.
“It is true that the reasoning of the Arbitrator to support his findings, that there was delay in execution of the work not attributed to the contractor but attributable to the petitioners, is not very sound but, looking to the totality of the circumstances and un-assailed observations by the Engineer in-charge that there was delay of one year and three months in execution of the work and that the delay was due to no fault of the contractor, there was no reason or justification to deny compensation to the contractor on account of escalation in terms of Clause 43 of the agreement”, reads the judgment.
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