Full Judgment Text
$~OS-28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 02.05.2017
+ O.M.P. (COMM) 218/2017 and I.A. No. 5351-52/2017
CHIEF ELECTORAL OFFICE & ANR. ..... Petitioners
Through Ms.Iram Majid, Adv.
versus
MAHALAKSHMI LIGHT ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. These objections are filed by the petitioners under Section 34 of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act)
seeking to challenge the Award of the Sole Arbitrator Justice Jaspal Singh
(Retd.) dated 07.01.2017.
2. Some of the basic facts are that the petitioners invited tenders for
supply of tentage and furniture items on hire basis in connection with the
General Elections to the Lok Sabha in 1999. The tender of the respondent
was accepted on 09.08.1999 with regard to the Karol Bagh and Outer Delhi
Parliamentary Constituencies. The parties consequently entered into an
agreement which contained an arbitration clause. As disputes arose, the
matter was referred to the learned Arbitrator.
3. It is the case of the respondent that it supplied all the required supplies
and facilities. Bills/challans pertaining to the Karol Bagh Parliamentary
Constituency amounting to Rs.19,98,426.24/- were raised while the bills
relating to the Outer Delhi Parliamentary Constituency were to the tune of
O.M.P. (COMM) 218/2017 Page 1 of 5
Rs.80,30,362/-. It is the case of the respondent that though the aforesaid
bills/challans have been duly verified by the concerned Returning Officer
and recommended for payment, no payment has been made despite
numerous reminders and service of a legal notice. A claim of
Rs.1,00,28,788.24/- has been raised with interest.
4. The learned Arbitrator rejected the submissions of the petitioners and
passed an Award in favour of the claimant/respondent for
Rs.1,00,28,788.24/- plus interest as stated. Costs of Rs.2 lakhs were also
awarded.
5. I have heard learned counsel for the petitioners.
6. She has referred to ground 9(e) of the petition to point that two of the
bills raised by the respondent were bogus and no amount was recommended
by the concerned Returning Officer while the rest of the bills were found to
be highly inflated. It is stated that after taking a detail examination of the
bills preferred by the respondent amounting to Rs.80,30,362, only an amount
of Rs.8,19,567/- could be recommended by the concerned Returning Officer.
It is further stated that bogus, fraudulent and highly inflated claims have
been raised by the respondent and deductions have also been recommended.
It is further submitted by the learned counsel for the petitioners that against
two Electoral Officers an enquiry committee was constituted which came to
the conclusion that the officers in question were guilty of having passed
fraudulent and bogus bills and hence she submits that the Award is liable to
be set aside on account of the fraud played by the respondent.
7. A perusal of the Award would show that the learned Arbitrator relied
upon Clause 19 of the Tender Form which reads as follows:-
O.M.P. (COMM) 218/2017 Page 2 of 5
“Payment shall be made to the approved tent contractor after
due scrutiny and approval of the competent authority on the
bills submitted by the contractor after approval by the
Returning Officer concerned. The contractor shall deposit the
copy of the challans of the supplied items in the office of the
Chief Electoral Officer, Kashmere Gate, Delhi on day to day
basis for proper records and scrutiny. No payment shall be
considered if the tentage items etc. are not actually physically
got verified through the Returning Officer and another
representative of the Chief Electoral Officer if so & ordered by
C.E.O. in writing before dismantling of the structures etc.”
8. Based on this, the Award concludes that no payment could be made to
the claimant if tentage items were not actually physically verified through
the Returning Officer and another representative of the Chief Electoral
Officer, if so ordered in writing before dismantling of the structures. In this
case as the Returning Officer had not appointed any other representative of
the Chief Electoral Officer, the actual physical verification was liable to be
done by the Returning Officer. Hence, the Award poses a question, as to
whether the tentage items were actually got verified through the Returning
Officer? The Award further notes that it is an admitted case that the time was
short and therefore all orders were orally given. None of the parties
suggested that the orders were placed in writing. The Award further notes
that the two Returning Officers, namely, Sh. Dharam Pal for the Karol Bagh
Parliamentary Constituency while Sh. Raajiv Yaduvanshi for the Outer Delhi
Parliamentary Constituency have been examined by the claimant and both
have confirmed having physically verified the tentage. The Award notes
certain reports prepared by the petitioners which seem to indicate anomalies
in the bills. However, the Award concludes that it was the Returning Officer
who was at the spot and who was supervising the entire matter. All the bills
O.M.P. (COMM) 218/2017 Page 3 of 5
have been scrutinized and verified by them. They have also given their
evidence about their correctness. The verification was as per the terms of
Clause 19 of the Agreement. Accordingly, the claim of the respondent was
allowed.
9. Coming to the submission of the learned counsel for the petitioners,
she has relied heavily on two enquiry reports. The first enquiry dated
24.01.2006 is conducted by one Sh.Mukesh Prasad on account of the
disciplinary proceedings initiated against Sh. H.K.Mann, Superintendent.
The allegation against Mr.Mann while functioning as a Superintendent in the
office of the Returning Officer of the Outer Delhi Parliamentary
Constituency during Lok Sabha Elections of 1999, he verified bogus,
inflated and undated challans/bills submitted by the respondent. However,
the conclusion of the enquiry shows that the enquiry officer concluded that
the charges have not been proved. The second enquiry dated 15.02.2006 is
conducted by Sh.Mukesh Prasad against Sh. J.S. Jolly who was said to be
functioning as Ex.-SDM(Elections) in the office of the Returning Officer of
the Outer Delhi Parliamentary Constituency. The charge against him was
that he had verified bogus, inflated and undated challans/bills submitted by
the respondent for the said elections of Lok Sabha for 1999. In this case, the
enquiry officer has held that the charge stands proved.
10. I may notice that as far as first report is concerned, as the charged
official was exonerated, it cannot and does not help the petitioners in any
manner. The second report was not placed before the Arbitral Tribunal. In
the absence of any such report, the Award does not deal with the same.
11. Apart from not producing the said document before the learned
Arbitrator, it is noteworthy that the second enquiry report pertains to an
O.M.P. (COMM) 218/2017 Page 4 of 5
enquiry against Sh. J.S. Jolly who is SDM (Elections). In the light of the
fact that the two Returning Officers of the said two Constituencies of Karol
Bagh and Outer Delhi, namely, Sh. Dharam Pal and Sh. Rajiv Yadhvanshi
were the concerned officials as per the agreement who had to verify the
reports and the fact that they have verified the reports and given evidence in
favour of the claimant would show that the enquiry against Sh. J.S. Jolly has
not relevance.
12. In any case, in my opinion, these are findings of fact which the
petitioners seek to impugn by the present petition. This is not permissible
legally.
13. The Division Bench of this court in Union of India vs. Nidhi Builders
(FAO(OS)365/2015 in its judgment dated 10.12.2015 held as follows:-
“8. These are factual findings based upon the evidence on
the record and on interpretation of the relevant provisions
of the contract. It is well settled that the interpretation of
clauses of the relevant contract falls within the domain of
the Arbitrator and the factual findings are also not liable
to be disturbed in a petition under Section 34 until and
unless some clear cut perversity is pointed out. This is not
the case here.”
14. In the present case there are no reasons to interfere in the
interpretation of the terms of the contract and the findings of fact recorded by
the learned Arbitrator.
15. There is no merit in the present petition and same is dismissed. All
pending applications also stand dismissed.
(JAYANT NATH)
JUDGE
MAY 02, 2017/rb
O.M.P. (COMM) 218/2017 Page 5 of 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 02.05.2017
+ O.M.P. (COMM) 218/2017 and I.A. No. 5351-52/2017
CHIEF ELECTORAL OFFICE & ANR. ..... Petitioners
Through Ms.Iram Majid, Adv.
versus
MAHALAKSHMI LIGHT ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. These objections are filed by the petitioners under Section 34 of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act)
seeking to challenge the Award of the Sole Arbitrator Justice Jaspal Singh
(Retd.) dated 07.01.2017.
2. Some of the basic facts are that the petitioners invited tenders for
supply of tentage and furniture items on hire basis in connection with the
General Elections to the Lok Sabha in 1999. The tender of the respondent
was accepted on 09.08.1999 with regard to the Karol Bagh and Outer Delhi
Parliamentary Constituencies. The parties consequently entered into an
agreement which contained an arbitration clause. As disputes arose, the
matter was referred to the learned Arbitrator.
3. It is the case of the respondent that it supplied all the required supplies
and facilities. Bills/challans pertaining to the Karol Bagh Parliamentary
Constituency amounting to Rs.19,98,426.24/- were raised while the bills
relating to the Outer Delhi Parliamentary Constituency were to the tune of
O.M.P. (COMM) 218/2017 Page 1 of 5
Rs.80,30,362/-. It is the case of the respondent that though the aforesaid
bills/challans have been duly verified by the concerned Returning Officer
and recommended for payment, no payment has been made despite
numerous reminders and service of a legal notice. A claim of
Rs.1,00,28,788.24/- has been raised with interest.
4. The learned Arbitrator rejected the submissions of the petitioners and
passed an Award in favour of the claimant/respondent for
Rs.1,00,28,788.24/- plus interest as stated. Costs of Rs.2 lakhs were also
awarded.
5. I have heard learned counsel for the petitioners.
6. She has referred to ground 9(e) of the petition to point that two of the
bills raised by the respondent were bogus and no amount was recommended
by the concerned Returning Officer while the rest of the bills were found to
be highly inflated. It is stated that after taking a detail examination of the
bills preferred by the respondent amounting to Rs.80,30,362, only an amount
of Rs.8,19,567/- could be recommended by the concerned Returning Officer.
It is further stated that bogus, fraudulent and highly inflated claims have
been raised by the respondent and deductions have also been recommended.
It is further submitted by the learned counsel for the petitioners that against
two Electoral Officers an enquiry committee was constituted which came to
the conclusion that the officers in question were guilty of having passed
fraudulent and bogus bills and hence she submits that the Award is liable to
be set aside on account of the fraud played by the respondent.
7. A perusal of the Award would show that the learned Arbitrator relied
upon Clause 19 of the Tender Form which reads as follows:-
O.M.P. (COMM) 218/2017 Page 2 of 5
“Payment shall be made to the approved tent contractor after
due scrutiny and approval of the competent authority on the
bills submitted by the contractor after approval by the
Returning Officer concerned. The contractor shall deposit the
copy of the challans of the supplied items in the office of the
Chief Electoral Officer, Kashmere Gate, Delhi on day to day
basis for proper records and scrutiny. No payment shall be
considered if the tentage items etc. are not actually physically
got verified through the Returning Officer and another
representative of the Chief Electoral Officer if so & ordered by
C.E.O. in writing before dismantling of the structures etc.”
8. Based on this, the Award concludes that no payment could be made to
the claimant if tentage items were not actually physically verified through
the Returning Officer and another representative of the Chief Electoral
Officer, if so ordered in writing before dismantling of the structures. In this
case as the Returning Officer had not appointed any other representative of
the Chief Electoral Officer, the actual physical verification was liable to be
done by the Returning Officer. Hence, the Award poses a question, as to
whether the tentage items were actually got verified through the Returning
Officer? The Award further notes that it is an admitted case that the time was
short and therefore all orders were orally given. None of the parties
suggested that the orders were placed in writing. The Award further notes
that the two Returning Officers, namely, Sh. Dharam Pal for the Karol Bagh
Parliamentary Constituency while Sh. Raajiv Yaduvanshi for the Outer Delhi
Parliamentary Constituency have been examined by the claimant and both
have confirmed having physically verified the tentage. The Award notes
certain reports prepared by the petitioners which seem to indicate anomalies
in the bills. However, the Award concludes that it was the Returning Officer
who was at the spot and who was supervising the entire matter. All the bills
O.M.P. (COMM) 218/2017 Page 3 of 5
have been scrutinized and verified by them. They have also given their
evidence about their correctness. The verification was as per the terms of
Clause 19 of the Agreement. Accordingly, the claim of the respondent was
allowed.
9. Coming to the submission of the learned counsel for the petitioners,
she has relied heavily on two enquiry reports. The first enquiry dated
24.01.2006 is conducted by one Sh.Mukesh Prasad on account of the
disciplinary proceedings initiated against Sh. H.K.Mann, Superintendent.
The allegation against Mr.Mann while functioning as a Superintendent in the
office of the Returning Officer of the Outer Delhi Parliamentary
Constituency during Lok Sabha Elections of 1999, he verified bogus,
inflated and undated challans/bills submitted by the respondent. However,
the conclusion of the enquiry shows that the enquiry officer concluded that
the charges have not been proved. The second enquiry dated 15.02.2006 is
conducted by Sh.Mukesh Prasad against Sh. J.S. Jolly who was said to be
functioning as Ex.-SDM(Elections) in the office of the Returning Officer of
the Outer Delhi Parliamentary Constituency. The charge against him was
that he had verified bogus, inflated and undated challans/bills submitted by
the respondent for the said elections of Lok Sabha for 1999. In this case, the
enquiry officer has held that the charge stands proved.
10. I may notice that as far as first report is concerned, as the charged
official was exonerated, it cannot and does not help the petitioners in any
manner. The second report was not placed before the Arbitral Tribunal. In
the absence of any such report, the Award does not deal with the same.
11. Apart from not producing the said document before the learned
Arbitrator, it is noteworthy that the second enquiry report pertains to an
O.M.P. (COMM) 218/2017 Page 4 of 5
enquiry against Sh. J.S. Jolly who is SDM (Elections). In the light of the
fact that the two Returning Officers of the said two Constituencies of Karol
Bagh and Outer Delhi, namely, Sh. Dharam Pal and Sh. Rajiv Yadhvanshi
were the concerned officials as per the agreement who had to verify the
reports and the fact that they have verified the reports and given evidence in
favour of the claimant would show that the enquiry against Sh. J.S. Jolly has
not relevance.
12. In any case, in my opinion, these are findings of fact which the
petitioners seek to impugn by the present petition. This is not permissible
legally.
13. The Division Bench of this court in Union of India vs. Nidhi Builders
(FAO(OS)365/2015 in its judgment dated 10.12.2015 held as follows:-
“8. These are factual findings based upon the evidence on
the record and on interpretation of the relevant provisions
of the contract. It is well settled that the interpretation of
clauses of the relevant contract falls within the domain of
the Arbitrator and the factual findings are also not liable
to be disturbed in a petition under Section 34 until and
unless some clear cut perversity is pointed out. This is not
the case here.”
14. In the present case there are no reasons to interfere in the
interpretation of the terms of the contract and the findings of fact recorded by
the learned Arbitrator.
15. There is no merit in the present petition and same is dismissed. All
pending applications also stand dismissed.
(JAYANT NATH)
JUDGE
MAY 02, 2017/rb
O.M.P. (COMM) 218/2017 Page 5 of 5