Kalyan Jyoti Sengupta, J.@mdashThe appellants in this appeal impugned the judgment and order of the learned Trial Judge whereby the application of the respondent u/s 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act) has been disposed of modifying quantum of the award passed by the learned Arbitrator. The respondent also being aggrieved by the judgment and order of the learned Trial Judge has filed cross-objection as the learned Trial Judge did not interfere with the award of rejection of the counter-claim. Short facts leading to preferring the instant appeal is set out hereunder:
The respondent herein entered into a contract with the Hooghly River Bridge Commissioner (hereinafter in short HRBC) for construction of Gariahat Fly Over in Kolkata. In terms of this contract the respondent entered into a sub-contract with the appellant on 3rd September, 1999 for reallocation of sewers lines to the appellant. The works covered by the sub-contract are categorized, design, fabrication and laying of 1800 mm, 1600 mm and 1200 mm diameters of sewers lines. Thereafter the said sewers lines in terms of the sub-contract were to be laid with the method which is called jack-pushing. It appears after execution of substantial portion of the contract there arose dispute between the parties. The appellant approached the Hon''ble The Chief Justice of this Court for appointment of Arbitrator and the learned Arbitrator on being appointed entered upon the reference for adjudication of the dispute. The appellant claimed award before the learned Arbitrator for an aggregate sum of Rs. 1,17,05,062.94 or any other sum as may be deemed fit and proper by the learned Arbitrator. Payment of final bill to be prepared on issuance of certificate on completion by the respondent and interest at the rate of 24 per cent per annum with quarterly rest. The aforesaid aggregate claim was made on various heads as follows:
The respondent herein not only contested the claim of the appellant/claimant by filing counter-statement but also made counter-claim for a sum of Rs. 12424880. The said counter-claim was made on various heads as follows:2. After hearing the learned Counsel for the parties the learned sole Arbitrator has awarded a sum of Rs. 1,02,83,933.01 and awarded interest at the rate of 12 per cent per annum from 20th January 2003 upto the date of the award on the sum of Rs. 60,79,676.80 being the amount after adjustment against the aforesaid principal amount of award, of sum of Rs. 42,04,256.24 being the amount of fixed deposit or with the bank it was directed to be paid by the learned Arbitrator to the claimants. The learned Arbitrator awarded interest on the said sum of Rs. 60,79,676.08 at the rate of 12 per cent per annum from the date of the award till the payment. The claimant is awarded costs against the respondents amounting to Rs. 50,00,000.
3. It appears while passing aforesaid award the learned Arbitrator allowed a part of the counter-claim made by the respondent amounting to the counter-claim however has been rejected by the learned Arbitrator.
4. On application u/s 34 of the Act of 1996 the learned Trial Judge slightly interfered, with the impugned award as indicated above. The learned Counsel for the appellant submits that the learned Trial judge ought not to have interfered with the well reasoned award passed upon appreciation of the facts and evidence. He submits that if two letters are carefully read in its true spirit and purport actually there cannot be any admission as erroneously recorded by the learned Trial Judge. The learned Arbitrator correctly recorded that there has been no admission as regard quantum of the works done by the appellant. When the learned Arbitrator has taken into consideration all the documents particularly the said two letters it was not for the Court to re-read the said two letters differently. Thus the learned Trial Judge has exceeded his jurisdiction while re-appreciating the evidence ignoring the well settled principle of law as laid down in the following decisions of the Supreme Court:
5. The learned Counsel for the respondent while contesting the appeal submits that the appellant did not complete work and on 8th September, 2000 without completing the balance 10 per cent of the work left the site and submitted its final bill on 20th December, 2000 for a sum of Rs. 1,81,98,326. Out of this amount payments admittedly made to the appellant including TDS and work contract tax was Rs. 76,69,692 only and admitted deduction of Rs. 47,94,388 having been taken into consideration. Therefore, according to the appellant''s own saying the balance amount was Rs. 57,34,245 and this has been found on bare arithmetical calculation by the learned Trial Judge and there cannot be any dispute. The learned Arbitrator, erroneously took into account 10% of the value of the work which M/s. Michigan, admittedly had not executed. The learned Counsel further contends that the learned Trial Judge has correctly taken note of the admission of the appellant contained in two letters dated 8th October, 2001 and 22nd February, 2002 admitting they have done 90% of the work. The learned Trial Judge has taken note of the deductions which M/s. Michigan had agreed to in the said documents. The learned Trial Judge rightly modified the award as per chart Annexed A in the order of the learned Single Judge. The learned Arbitrator had completely misread the admission as noted by the learned Trial Judge. Therefore, there is no illegality and infirmity in the findings of the learned Trial Judge. It is not re-appreciation of evidence done by the learned Arbitrator rather he has taken note of the unequivocal admission which is conclusive proof unless it is explained away under the rule of evidence. The learned Arbitrator ignored the aforesaid legal position consequently passed an award contrary to the provisions of law and this finding of the learned Trial Judge is supported by the following decisions of the Supreme Court and High Court:
6. While placing the counter-claim and the cross-objection the learned Counsel for the respondent submits that the learned Trial Judge should have interfered with the findings of the learned Arbitrator with regard to the counter-claim for various heads,
7. He submits that the appellant herein agreed to pay cost for rectification of reallocation of sewer line between MC 3 and MC 2, of the sum of Rs. 3,68,028 and to pay 50 per cent of the said sum. When the learned Arbitrator on intelligence guess work assessed the cost of the words by Rs. 5 lacs, then this entire amount should have been awarded instead of awarding the same amount. This part of the award at least should have been modified by the learned Trial Judge. Both the learned Arbitrator and learned Trial Judge failed to take note of the cost of extra check pits. They have unjustly ignored admitted fact that the respondent had constructed three extra jack pits and it had incurred Costs of Rs. 15,95,275/-. He urges that both the learned Arbitrator and the Trial Judge ignored the claim of Rs. 8.62 lacs on account of repair to damaged building/shops during the course of execution of works.
The learned Arbitrator wrongfully rejected the claim on the ground that the respondent did not satisfactorily prove that the damages to the adjoining building were caused by negligence or default on the part of the claimant. This findings of the learned Arbitrator is perverse and it should have been held by the learned Trial Judge. There are material galore that the damage was done and so repair was incurred. Such fact was established by reason of the fact that the claim has been settled by the insurance company. The respondent was therefore, entitled to have the balance claim from the claimant on this head.
8. Having heard the respective learned Counsel for the parties and having gone through the papers placed before us the point which has fallen for our consideration to decide the appeals is as follows:
9. Whether the learned Trial Judge is justified in interfering with the findings of the learned Arbitrator, while modifying the award passed by the learned Arbitrator. As we read the impugned award and, the judgment and order of the learned Trial Judge in juxtaposition we find the learned Trial Judge found that on the given facts and materials there cannot be two possible views while accepting the claim of the claimant that the value of the work done by the appellant is Rs. 2,00,41,016.80 pasia. The learned Arbitrator has recorded and in our view correctly so that since the principal contractor Hooghly River Bridge Commission had not made any claim and entire bill amount has been paid by it to the respondent, it necessarily follows that whatever work has been entrusted by the respondent to the appellant has been performed and nothing was left and outstanding. This assumption is legitimately permissible. The learned Trial Judge While discarding these findings held that the above presumption of the learned Arbitrator is contrary to the admitted materials on record. The learned Trial Judge recorded in two documents being letter dated 8th October, 2001 followed by 22nd February, 2002 addressed by the appellant itself to the respondent that there was a plain admission that only work valued at Rs. 1,81,98,326.40 was done from which Rs. 47,94,388/- was to be deducted. According us the learned Trial Judge has correctly concluded that when there has been unchallenged material on record to clinch a particular issue and it is not permissible for the learned Arbitrator to apprise the fact ignoring unreserved admission in our view it is correctly held by the learned Trial Judge the award carries error apparent on the face of the record. We have ourselves minutely gone through two documents which unmistakably record that the value of the work done by the appellant was to Rs. 1,81,98,326.40, and it has already been admitted that a sum of Rs. 76,70,000/- has already been received. The learned Trial Judge has made arithmetic calculation accurately what was not done by the learned Arbitrator who has accepted entire claim of the appellant purely on the basis of presumption.
10. No doubt well settled principle of law as it has been laid down in various pronouncements of the law Courts cited at the bar including Apex Court that reappraisal of the evidence and fact made by the learned Arbitrator cannot be interfered with by the law Court u/s 34 of the said Act. But we are of the view these are general rules and there are exceptions in certain situation and the exception is where it is found that the learned Arbitrator has ignored conclusive evidence and in its place while appraising the fact and the evidence proceeded on the basis of assumption and/or inference. Inference is one thing conclusive proof is another thing. Inference cannot be substitute of poor of any degree. In a case of this nature the Court can exercise its jurisdiction, rather it is the duty of the Court to eliminate the assumption rather to accept the unimpeachable evidence. It is one of such rare cases the Court will certainly re-appreciate. In the case of
11. Now we shall deal with the cross-objection of the respondent, Senbo. After considering the submission of the learned counsel for the parties and going through the award and the judgment and order of the learned Trial Judge we are of the view that the learned Trial Judge has rightly did not interfere with the finding of award on this aspect. The learned Arbitrator has found on fact the respondent did not furnish details either of the, alleged damages to adjoining building and shops or the particulars of alleged liability of the claimant. No particulars were also given of the costs incurred by the respondent for effecting the repairs. At a very late stage, the respondent filed some papers relating to the said damages to the adjoining buildings and shops and also of payment received from New India Insurance Company for rectification of the said damages.
12. Learned Arbitrator also found on fact that the respondent had taken out an insurance policy from the New India Assurance Company Limited Rs. 3,80,73,685/- which covered, the total works to be executed by Senbo under HRBC.
13. The respondent had lodged claim with the said Insurance Company in respect of payment of damages demanded by the owners of the adjoining buildings and shop. The learned Arbitrator went on recording the fact finding that the respondent themselves had carried out repairs of these adjoining buildings etc. and had submitted bill to the Insurance Company. The Insurance Company settled the claim of the respondents for a sum of Rs. 3,71,500/- and paid the amount by cheque drawn on the Central Bank of India but Insurance Company disallowed a part of the respondent''s claim because the respondent had failed to prove the cost of materials etc.
14. Thus the respondent had already received compensation from the insurer, New India Insurance Company.
15. The learned Arbitrator recorded on fact that the respondent did not also satisfactorily prove these damages to the adjoining buildings were caused by negligence or default on the claimants'' part.
16. It is neither alleged before learned Trial Judge nor before us that the aforesaid fact finding is perverse and based on no evidence.
17. It seems to us that the learned Arbitrator has followed the established principle of law laid down not only by the Apex Court but also by the High Court in this country. That the learned Arbitrator is last fact finding authority. In absence of any allegation of perversity or the allegations of no evidence it is not the Court of Law cannot interfere the fact finding of the learned Arbitral Tribunal. Hence, we do not find any merit in his cross-objection. In the circumstances we do not find any infirmity and illegality in the judgment of the learned Trial Judge and we hold the learned Trial Judge has properly interfered with the award.
Joymalya Bagchi, J.
I agree.
