FAO(OS)--229/2010. Case: UNIBROS Vs. ALL INDIA RADIO & ANR.. High Court of Delhi (India)

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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 22^nd November, 2019

Judgment pronounced on: 9 December, 2019

+ FAO(OS) 229/2010

UNIBROS ..... Appellant Through: Mr. Chetan Sharma, Senior Advocate with Mr. Jagdish Vatsa, Advocate

Versus

ALL INDIA RADIO & ANR. ..... Respondents Through: Mr. Vikrant Yadav, Mr. Rajeev

Chhetri and Ms. Meenakshi Rawat, Advocates for respondent no.1 Advocates.

CORAM:

HON'BLE MR. JUSTICE G.S. SISTANI HON'BLE MS. JUSTICE JYOTI SINGH

G.S. SISTANI, J.

1. The present appeal filed under Section 37 of the Arbitration Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) against the judgment dated 25.02.2010 passed by a learned Judge of this Court by which objections filed by respondent the Award dated 15.07.2002 have been allowed, and also cost Rs.50,000/- have been granted in favour of respondent No.1.

2. Some necessary facts required to be noticed for the disposal appeal are that the parties entered into an agreement for of Doordarshan Bhawan, Mandi House, Phase-II SH: Sub upto plinth level including RCC foundation and double basement per the agreement, the stipulated date for commencement of

   12.04.1990 with the stipulated date of completion as 11.04.1991. actual completion of work was done by the appellant on 3 Some disputes arose between the parties. The matter was referred an Arbitrator, who vide Award dated 11.02.1999 (hereinafter to as ‘First Award’), decided Claim No.12 in favour of the by which Rs.1,44,83,830/- was awarded to the appellant on account of the loss of profit. It is the case of the appellant that the reasons were given by the learned Arbitrator while deciding No.12:

   i) It is an admitted position that the complete site and were not handed over by respondent No.1 due to which work could not be completed on time;

   ii) Non-availability of funds with respondent No.1;

   iii) Non laying of electric conduits caused hindrance in execution of work;

   iv) A reading of documents available on record shows delay was caused by respondent No.1.

3. Aggrieved by the aforesaid findings, a petition was filed by No.1 bearing OMP No.162/2019 under Section 34 of the Act the learned Single Judge of this Court. The learned Single Judge order dated 20.05.2002, remanded the matter back to the Arbitrator for reconsideration. The Arbitrator vide Award dated 15.0 (hereinafter referred to as ‘Second Award’) reiterated the First and held that the material available on record is sufficient to the loss of profit.

4. Respondent No.1 again approached the Single Judge of this Co filed a petition being OMP No.331/2002 under Section 34 of the wherein the learned Single Judge vide judgment dated 25.02.2010 aside the Second Award with respect to Claim No.12 and imposed a cost of Rs.50,000/- upon the appellant.

5. Mr. Chetan Sharma, learned Senior Counsel appearing for appellant, submits that the impugned judgment is contrary to well as material available on record. The counsel for the submits that the learned Single Judge has failed to appreciate is no infirmity in the findings returned by the Arbitrator vide Second Award by which it held that the appellant has placed evidence on record to enable assessment of the loss of profit,

   other hand, respondent No.1 has led no evidence to rebut the loss of profit before the Arbitrator. Mr. Sharma contends appellant is an established contractor and is capable of earning but could not complete the work for the reason that all the were blocked by respondent No.1 due to work being prolonged also the case of the appellant that though, it was held by the Single Judge that there is no dispute with regard to respondent being guilty of causing delay, however, the Court did not ap the material available on record as well as the findings rendered by the Arbitrator.

6. Mr. Sharma further submits that the learned Single Judge has wrongly relied upon the judgment in the case of Bharat Engg. Ente Delhi Development Authority reported at 2006 SCC OnLine Del as the facts of the present case are different from those of the

   relied upon. It is further submitted that identical issues relating of profit and the scope of interference have been dealt with in th of Delhi State Industrial and Infrastructure Corporation Limited v. M/s Rama Construction Limited reported 2014 SCC OnLine Del 3470 , more particularly paras 3, 4, 5, 7 wherein a Division Bench of this Court in the absence of pro of profit upheld the damages awarded to the...