The High Court dismissed a Section 34 petition challenging an arbitral award. The Court held it could not re-appreciate evidence since the Arbitrator rightly found the petitioner failed to prove material sourcing with authentic vouchers.
Section 34 petition dismissed; costs of Rs. 35,000 imposed on the petitioner; no interest on costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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M/S MOHATA CONSTRUCTION CO. ..... Petitioner Through: Ms. Madhurima Tatia, Advocate. (M:9810719337)
versus
UNION OF INDIA ..... Respondent Through: Mr. Jaswinder Singh, Advocate. (M:9811232066)
CORAM: JUSTICE PRATHIBA M. SINGH
O R D E R
% 06.09.2018
Page 1 of 6
O.M.P. 37/2008
procured the coarse aggregate from Chandigarh and sand for RCC work from Ghaggar, Punjab near Dera Bassi. According to the Petitioner, Conditions 21.3 and 21.4 of the Special Conditions of Contract required them to produce the original vouchers in respect of all the materials, which were sourced by them. However, in contrast with the material mentioned in Condition 21.4, in respect of materials mentioned in Condition 21.3, the verification of the Engineer-in-Charge was required. However, according to the learned counsel for Petitioner, insofar as the material not covered by Condition 21.4, there is no requirement to provide the original vouchers, unless there is a demand to that effect by the Engineer-in-Charge.
Page 2 of 6
no proper vouchers were produced. He further submits that the suppliers mentioned in the vouchers produced by the Petitioners were found to be non-existent. Learned counsel for the Respondent specifically relies upon paragraphs 18.8 and 18.9 of the award.
“.................
18.6 The claimants submitted copies of audited cheques payment for the material procured in support of the vouchers already submitted by them. They also contended that it is difficult to exactly locate, when the works at various stages were executed at site and in view of non-availability of the stage passing register, they are unable to comment further.
Page 3 of 6
O.M.P. 37/2008
18.7......
18.8 UOI confirmed that the building materials viz coarse sand from Ghaggar and aggregate from Chandigarh were never produced by the contractor for testing and approved by the UOI for incorporation into the work. Work diary records, which are authentic documents signed by both the parties show that only Badarpur sand was brought to the site for the entire period of work.
18.9 UOI highlighted that the claimants for the first time informed the UOI in Feb 2003 regarding bringing Ghaggar sand for work but no vouchers were produced at that time and records in the work diaries also show only Badarpur sand. The so called audited documents and vouchers produced by the claimants, during herein, are not authenticated and are for material prior to Feb 2003 and quantities contained in the vouchers do not match with the records of the quantities mentioned in the work diaries which is signed by the contractor as an authentic record. Even the rates are varying in the vouchers from Rs.22.00 per cu ft to Rs.20.00 per cu ft, whereas claimants have taken a rate of Rs.22.00 per cu ft to work out their claim. A BOO was ordered by UOI to verify the addresses of suppliers for the aggregate and sand as per the details given in the vouchers by the claimants and all were found to be false/non-existent. 18.10......
18.11 In view of the aforesaid, I am convinced that there has been total lack of effort from the claimants in maintaining a meticulous authentic record of material deemed to have been brought by them from Ghaggar River or Chandigarh to the site of work, subsequent to the issue of ban on quarrying by the Hon’ble Supreme Court in May 2002 and subsequent clarification in Oct 2002. No authentic vouchers were submitted by the claimants to the UOI, during currency of contract from Oct 2002 to Aug 2003, when the material was said to
Page 4 of 6
O.M.P. 37/2008
have been brought by them from the changed source to the site of work, to support their claim. The claimants have not been able to produce any document showing approval of the Accepting Officer for change in source of materials as required vide Note (b) to Appendix ‘C’ on Page 172 of the CA. Records showing tests of materials from the new source also could not be produced in support of the claim. Authentic record, signed by both the parties viz work-dairy, was produced by the UOI, to substantiate that no quantum of ‘material from changed source’ was brought to the site of work and incorporated into the work. Claimants could not reconcile the data from the vouchers produced by them now at the time of hearing, with that given in the work diary signed by them. Thus the Claimants could not prove that any of the materials from Ghaggar/Chandigarh, purchased by them as per vouchers, had actually been brought to the site of work of CA No.CEWAC-02/2001-02 and incorporated into the construction of Married Accommodation for Airmen at Camero Complex, Subroto Park Delhi Cantt, after complying with the provisions of the CA. I therefore conclude that the claim is NOT sustained and award an amount of Rs. NIL to the claimants. ................. ”
O.M.P. 37/2008
Page 5 of 6
documents, which are supposedly filed on record on behalf of the Petitioner. Thus, no interference with the award of the Sole Arbitrator is called for.
PRATHIBA M. SINGH, J.
SEPTEMBER 06, 2018/ dk
Page 6 of 6
O.M.P. 37/2008
3 issues framed by the court
Whether the High Court can re-appreciate evidence to set aside an arbitral award under Section 34 when the award was based on lack of authentic documentary evidence.
Whether costs imposed by the Sole Arbitrator should be upheld and adjusted due to the rejection of the petitioner's claims.
Whether courts should interfere with factual findings of an arbitrator regarding breaches and delays by both parties.
1 provisions across 1 enactments
M/S MOHATA CONSTRUCTION CO.
UNION OF INDIA
PRATHIBA M. SINGH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
