Judgment:
K. Ramamoorthy, J.
(1) The Petitioner has filed the petition under Sections 30 and 33 of the Arbitration Act objecting to the Award paused by the Arbitrator in so far as it is against him.
(2) 2. The Union of India granted contract to the Petitioner to remove melba material from the area between Guru Nanak Eyes Centre and G.P. Pant Hospital (Pocket C, D and E). This area was occupied by Jhuggi dwellers unauthorisd and the melba constructed of broken floor, walls, roofs and other things. The Union of India insisted that the work shall be done on war footing within 15 to 20 days. Tenders were invited on 7.12.1983. Level to work out the exact quantity of melba to be removed were taken on 17.12.1983. The work was awarded on 24.12.1983. The work was commenced on 25.12.1983 that as per the record the work was started on 3.1.1984. The work was completed and the amount was paid by the Union of India which was received by the Petitioner under protest.
(3) The Petitioner made five claims before the Arbitrator. The Arbitrator rejected the Claim No.1. On Claim No. 2 a portion was a warded. In Claim No. 3 also a portion was awarded. The Claims 4 and 5 were totally rejected. The Claim No 7 also was rejected. Finally the Arbitrator passed the award for Rs. 33,887.22 with interest @ 18% per annum from the date of award til I the 'date of payment or decree whichever is earlier.
(4) Claim No. 1. Is for Rs. 1,42,872.00 towards the actual work done but not paid by the Union of India. According to the Petitioner the total quantity of melba removed was 16,000cum. The Union of India made a pa) mentonlyfor4097.70cum. For the balance 11,902.30 cum the Respondent failed to pay. The rate @ Rs. 12.00 per cum is not disputed. The Petitioner relied upon Exhibits C-7 and C-8, copies of the letter dated 10.1.1984 and 26.12.1983 about the quantities removed by him which was admitted by the respondent and those letters were written by Shri K.S. Mathur, who was in the employment of the Union of India. According to the Respondents that Shri K.S. Mathur was on casual leave on 26.12.1983 and subsequently was retired and C-7and C-8 had been procured by the Petitioner from Mr.K.S. Mathur.
(5) It was not disputed by the Union of India before the Arbitrator that Exhibits C-7 and C-8 were true the claim of the Petitioner has to be accepted. The Union of India filed an affidavit through Shri V.K. Sharma, employ of the Union of India- he has not been examined- Shri K.S. Mathur who is still aliv has not been examined by the Union of India. The affidavit of Shri V.K. Sharma cannot at all be accepted without Shri V.K. Sharma being made available of cross examination.
(6) The Respondent (UOI) has also not produced the relevant registers showing the quantities of the work done by the Petitioner and also the number of trucks employed for the purpose of removing the melba. It is not 'he case of Respondent that no register in this behalf had been maintained. As a public authority, when contract is awarded, the Respondent is bound to maintain records and the Respondent cannot seek to defend the claim of the Petitioner .without producing an materials. The reasons given by the Arbitrator on Claim No. 1 are wholly perverse.
(7) The Arbitrator ought to have drawn adverse infers' ice against the Respondent for the non-production of material documents in its posession. The Arbitrator ought to have accepted C-7 and C-8 in the absence of elimination of Shri K.S. Mathur and Mr. V.K. Sharma. The Arbitrator has assumed that final level had been recorded with the respondent and they cannot be proved to be wrong and that is really begging the question. thereforee, I find that the Petitioner had removed 16,000 cum and the Arbitrator ought to have awarded the entire claim made by the Petitioner. I, thereforee, direct the respondent to pay (11902 30 x 12 ) Rs. 1,42,872.60.
(8) Claim No. 2. The Petitioner made a claim for Rs. 12,284.00 on account of deduction in quantity due to voids alleged to have been wrongly made in the final bill. The case of the Petitioner is that as per Cpwd specification 1977, Vol. I page34 Para 1.5(c) no voids are to be deducted for the building rubbish for the purpose of carriage. The case of the Respondent is that melba remade was loose earth. In the agreement itself the description is in the following terns : 'Removal of melba (building rubbish) by mechanica transportation...........' The Petitioner's claim is 1023.67 cum and not a money claim for Rs. 1,023.67 there has been according to the Petitioner typographical error and it is mentioned as Rs. 1,023.67. In the final bill deduction is made only for 1023.67 cum. The Arbitrator has given a find ing that the description in the agreement is to be accepted. What the Arbitrator assumed what the claim was the money of the tune of Rs 1023.67 than Rs. 1,027.67. A serious error had been committed by the Arbitrator. It is not disputed that if 1,023.67 is the quantity in, cum, is accepted the claimed for Rs. 12,284.00 is sustainable.
(9) thereforee, on Claim No. 2, I find that the Petite ner is entitled to Rs. 12,284.00.
(10) Claim No. 3. The Petitioner claimed a sum of Rs. 18,480.00on account of alleged disposal of melba at a lead of 16 Km as against the stipulated lead of 5 KM. The Arbitrator has observed as follows : 'This claim is for disposal of melba at a lead of 16 KM. As per the Claimant the place of; disposal was near Wazirabad Road Bridge. The defense in brief was that place of disposal was near 1.P. Depot. On this point, no written instructions were given about the place of disposal. Normally such instructions should have been given in writing to avoid controversy. The Claimant side however also furnished a certifficate from Mod Exhibit C9, to establish that no melba was disposed off near the I.P. Depot. It was also contended that disposal of melbanear the I.P. Depot was banned by the MCD. The affidavit filed by Respondent side cannot be accepted in the face of this. In the circumstances, C-9 is believable. The place of disposal as pleaded by the Claimant is proved. On the facts and circumstances and material on record. He is entitled to extra lead for the quantity of 4097.70 cum. The amount payab!ecomesto4097.70x8.02mz.,Rs.32,863.55.This amount is accordingly awarded for Claim No, 3'.
(11) Accepting the case of the Petitioner that melba , disposed of by a lead of 16 Km the Arbitrator awarded a sum of Rs. 32,863.55 for the quantity of 4097.70 cum. This is consistent with his finding on Claim No. 1 that the Petitioner removed only4097.70cum.OnClaimNo.1,I have come to a different conclusion holding that the Petitioner had removed 16,000 cum. If that decision : accepted the Petitioner's Claim No. 3 for a sum ofRs. 1,28,480.00 hastobeaccepted. Accordingly, I direct the 1st Respondent to pay a sum of Rs. 1,28,480.00 to the Petitioner.
(12) Claim Nos 4 and 5. The Arbitrator has rejected the claim of the Petitioner claimed in Claim Nos. 4 and 5. I do not find any infirmity in view taken by the Arbitrator on these two claims.
(13) Claim No. 6. This claim is towards the interst. The Arbitrator had awarded interest @ 12% per annum on the amount awarded by him.
(14) Claim No. 7. The Petitioner has made Claim No. 7 for costs of the proceedings for Rs. 5,000.00 that was rejected. I do not find any reason to interfere with this part of the award.
(15) For the foregoing reasons, there shall be a decreed directing the Respondent to pay to the Petitioner a sum ofRs. 2,83,636.60 with interest 12% from 30.11.1988 up to the date of payment. There shall be no order as to costs.