Judgment:
M.K. Sharma, J.
(1) The Arbitrator filed the award Along with the proceedings on filing of which the present suit was registered and notices were issued to the parties directing the parties to file the objections within the statutory time limit. On service of notice the petitioner did not file any objection but the respondents filed their objections under Sections 30 & 33 of the Arbitration Act which was registered as I.A. No. 6320/1994. The petitioner filed his reply to the aforesaid objections filed by the respondents.
(2) In the objections filed by the respondents objections were taken with regard to the award passed by the Arbitrator in respect of Claim No. 2,3,4,8 & 9.
(3) I have heard the learned Counsel for the parties who have taken me through the grounds of objections, the award passed by the Arbitrator and also the records of the arbitration proceedings. On consideration of the materials on record and upon hearing the Counsel for the parties I propose to dispose of the present objections filed by the respondents dealing with each of the objections claim-wise as follows :
(4) Claim No. 2: The objections raised against the award of the Arbitrator in respect of claim No. 2 awarding a sum of Rs. 7,825.00 infavour of the petitioner relates to the non- disclosure of the mental process by the Arbitrator in arriving at an arbitrary amount of Rs. 7,825.00. Accord ing to the learned Counsel the reason to arrive at the aforesaid conclusion of awarding a sum of Rs. 7,825.00 in favor of the petitioner is not disclosed in the award. According to him the basis of the amount having not been disclosed and the fact that such a claim having been rejected by the Arbitrator against claim No. 7 on the ground that site was not available and thereforee, there was no necessity of bringing the material on the site, the claim in respect of claim No. 2 should have also been rejected on the same ground as the structural drawing was not given to the petitioner nor the site was made available and no work was started.
(5) In respect of the aforesaid submissions of the learned Counsel for the respondent it could be said that so far as the reasons given by the Arbitrator in respect of claim No. 7 rejecting the claim of the petitioner is concerned, it appears that the same was rejected on the ground that there was no necessity of bringing the materials mentioned therein at that stage since such materials were required for construction work above the plinth level. However, so far as the claim in respect of claim No. 2 is concerned the same is for the materials pilferred, damaged and due to loss in transportation etc. in respect of stone grit, bricks, Yamuna sand and Badarpur sand which were not similar materials as that of the materials of claim No. 7. It is also stated in the award that the claimant had brought at site 2,50,000 bricks, 500 cum. 40 mm. stone aggregate and 500 cum. 12 mm. stone aggregate. In view of the aforesaid admission and on considering the evidence on record the Arbitrator has come to a finding that the petitioner is entitled to a claim of Rs. 7,825.00.
(6) According to the learned Counsel for the respondents the aforesaid award is arbitrary and without any reason. However, it is well settled by the decisions of the Supreme Court that the Court cannot probe into the thought process of the Arbitrator. While giving the award against claim No. 2 the Arbitrator has stated categorically that 'on consideration of the submissions and facts placed before him', which means that he has considered the materials placed before him. Besides there is a clear admission of the respondents in the arbitration proceedings that the materials like bricks, stone aggregate to the site. Considering all those facts when the Arbitrator came to the conclusion that there was some loss of materials due to handling in transportation and storage. I do not find any illegality in respect of the aforesaid award made by the Arbitrator as against claim No. 2.
(7) Claim No. 3 : So far as the aforesaid claim is concerned the same relates to claim of the petitioner to the extent of Rs. 40,000.00 towards cartage of material while bringing to and taking it from the site of work for which the Arbitrator has awarded Rs. 32,100.00. The objection taken by the respondent against the aforesaid award is that the basis of the amount arrived at by the Arbitrator has not been disclosed in the award and the reason to arrive at the aforesaid conclusion has also not been stated in the award. According to the Counsel it also does not disclose the thought process of the Arbitrator in arriving at the aforesaid conclusion.
(8) The petitioner has produced in the arbitration proceedings vouchers in support of the aforesaid claim which arc Exs. C-15/1 to C-15/17. It further appears from the record and as stated in the award that the respondents have admitted during the arbitration proceedings that the claimant had brought to site certain materials for starting construction which was agreed upon to be started immediately. At page 11 of the agreement i.e. notice inviting tender, there is Clause 2(a) which states that the site of work is available and that the contractor is to start work at once. In view of the aforesaid condition it was necessary for the petitioner to bring certain materials to the site in order to enable him to start work at once as required under the agreement. In view of the admission of the respondent that the claimant had brought certain materials to the site and the claim for cartage having been supported by the vouchers, produced in the proceedings the Arbitrator was justified, after taking into consideration the aforesaid matter, in awarding Rs. 32.100.00 as already held hereinabove. This Court is not justified and/or has no jurisdiction to probe into thought process of the Arbitrator as has been held by the Supreme Court.
CLAIMNo. 4 : Similarly, so far as claim No. 4 is concerned the same relates to a claim of Rs. 6,600.00 towards advance given to Desu as security and expenditure incurred for installation of wires etc. as against which the Arbitrator has awarded a sum of Rs. 3,250.00. The aforesaid amount of Rs. 3,250.00 was awarded by the Arbitrator for. payment of cost of installation of wiring in the area. However, it appears on the record and as admitted by the Counsel for the petitioner that in support of the aforesaid claim no voucher could be produced by the petitioner before the Arbitrator. Since the aforesaid claim was not supported by any voucher and /or any other supporting document, I do not see any justification in awarding the aforesaid amount in favor of the petitioner and accordingly the aforesaid award of Rs. 3,250.00 awarded in favor of the petitioner as against claim No. 3 by the Arbitrator is set aside.
(9) Claim No. 8 : Under this claim the petitioner claimed Rs. 1 lac. towards damages, as against which the Arbitrator has awarded a sum of Rs. 20,250.00. On perusal of the award as against the aforesaid claim it is found that the aforesaid claim to the extent of Rs. 20,250.00 is supported by documentary evidence like the attendance register Ex. C-16.It further appears that the respondents also admitted during the arbitration proceedings that the claimant had kept Chowkidars at the site of work for watch and ward of the materials. In view of the admission on the part of the respondents and also in view of the fact that the claim to the extent of Rs. 20,250.00 is supported by documentary evidence, I do not see any illegality in the aforesaid award passed by the Arbitrator in respect of claim No. 8.
(10) Claim No. 9 : Claim No. 9 relates to the claim of the petitioner to the extent of Rs. 3,50,000.00 as loss of profit as against which the Arbitrator has awarded Rs. 1,25,152.00. Considering the contractor's rate of profit at 10% of the estimated cost of the present work being at Rs. 35,19,502.00 and 10% of the said amount being much less than Rs. 1,25,152.00 the learned Counsel for the petitioner submits that there is legal basis in awarding the aforesaid amount against claim No. 9.
(11) The agreement arrived at between the parties lays down that in respect of a work contract, claim of profit by the contractor at 10% of the estimated cost is justified. In this connection reference may be made to a decision of the Supreme Court in M/s. A.T. Brij Paul Singh & Bros. v. State of Gujarat; : AIR1984SC1703 , wherein the Supreme Court has held that the contractor is entitled to claim damages for the loss of profit which he is expected to earn by undertaking the work contract. It is further held that where there was breach of contract in respect of works contract for construction of a portion of the road by the State, it could not be said that the contractor would not be entitled to 15% of the balance price of the works contract as damages when in respect of the breach of works contract for another portion of the same road in the vicinity of the portion in question the High Court has granted to the same contractor, damages at the same rate. In M/S. Metro Electric Co. v. Delhi Development Authority; reported in Air 1980 Del 266, it has been held by this Court that the clause regarding payment of 10% extra price was applicable to the facts of the case and the award of damages was proper. In view of the aforesaid decision of this Court and also of the Supreme Court it could be held that a contractor is entitled to claim a profit at 10% of the estimated cost of construction in respect of a work contract. Since there was a loss of expected profit, the petitioner is entitled to be reimbursed atleast to the extent of 10% of the estimated cost in terms of Section 73 of the Contract Act. In that view of the matter, I do not find any illegality in the award of the Arbitrator passed in respect of the aforesaid claim.
(12) In the result, the objections filed in respect of Claims No. 2, 3, 8 & 9 are dismissed and the same stands allowed in respect of Claim No. 4 of the award.
In terms of the aforesaid findings that part of the award passed by the Arbitrator relating to Claims No. 2,3,8 & 9 is made a Rule of the Court. The award in respect of claim No. 4 stands set aside. Let a decree be drawn in terms of the above. In addition, the petitioner shall be entitled to interest @ 12% per annum from the date of the decree till realisation. The parties shall bear their own costs.