Kailash Nath & Associates vs New Delhi Municipal Committee

AWARD S. No. Description of Claim Claim Award Remarks Amount ...........................................................

Claims by the Claimants(KNA) Claim

1. on account of enhanced rates over the agreement rates @ 33.5% on all works to be executed beyond stipulated date of completion. N.A. Nil Please see the reasoning.

2. Claim for 24% interest on all due amounts from due dates. N.A. Nil

3. Cost of arbitration proceedings. 40,000 Nil

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Total N.A. Nil ------ ---

Note: Each party will bear its own cost on this arbitration.

Counter-Claims by Respondents (NDMC)

1. Loss by way of rent. 32,70,379 Nil

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Total. 32,70,379 Sd/- P. P. Dharwadker Sole Arbitrator"

11. Predicated on the Award itself, Mr Lakhanpal has submitted that once the Arbitrator had arrived at the conclusion that there was no worthwhile plan of action by the NDMC which could be implemented by the Contractor, the inevitable consequence that would ensue is that the latter should have been found to be entitled for compensation for the delay. What must be kept in mind is that penalty clauses are not legally enforceable in India and damages must be proved. If damages have been liquidated or preassessed in the contract itself, so long as they are realistically close to actual damages sustained, they can be given effect to. In India liquidated damages are indicative of the maximum damages awardable. In the present case the Arbitrator was not satisfied that this exercise had been completed by either of the parties. Therefore, regardless of whether Clauses 10C or 10CC or 1(a) of the Special Conditions of Contract envisage the damages claimed by the Contractor, they have been rejected by the Arbitrator as having not been proved. These are findings of fact which the Court would not interfere with. We feel that the Arbitrator has the experience and knowledge to record a finding on this complex issue, requiring not only engineering knowhow but also familiarity with prevailing prices. The Court would be ill-equipped and therefore sanguine to enter upon such technical issues; consequently jural interference is to be depricated. The following observation in Mediterraneam & Eastern Export Co. Ltd. v. Fortress Fabrics Limited (1948) 2 ALL ER 186 tested and followed for over fifty years immediately come to mind :-

"A man in the trade who is selected for his experience would be likely to know and indeed to be expected to know the fluctuations of the market and would have plenty of means of informing himself or refreshing his memory on any point on which he might find it necessary so to do. In this case according to the affidavit of sellers they did take the point before the Arbitrator that the Southern African market has slumped. Whether the buyers contested that statement does not appear but an experienced Arbitrator would know or have the means of knowing whether that was so or not and to what extent and I see no reason why in principle he should be required to have evidence on this point any more than on any other question relating to a particular trade. It must be taken I think that in fixing the amount that he has, he has acted on his own knowledge and experience. The day has long gone by when the Courts looked with jealousy on the jurisdiction of the Arbitrators. The modern tendency is in my opinion more especially in commercial arbitrations, to endeavor to uphold awards of the skilled persons that the parties themselves have selected to decide the questions at issue between them. If an arbitrator has acted within the terms of his submission and has not violated any rules of what is so often called natural justice the Courts should be slow indeed to set aside his award."

12. Apart from this ground, by the application of Section 55 of the Contract Act and Clause 5 of the General Conditions of Contract the claim for damages cannot be entertained also for the reason that the parties ought to have put each other to caution/notice that the contract would be performed subject to claims for damages. The stipulated date of completion of the project was 9-10-1992. The contract envisaged the construction of three blocks but the possession of the site was given in piecemeal from January 1991 till as late as September 1992. Obviously, the construction could not possibly have been completed within one month atleast in respect of one block. The Contractor should have, but did not, lodge a caveat or protest that the contract would be continued with subject to his claim for damages. The NDMC should have similarly recorded that whilst agreeing to grant an extension of time, it had reserved its rights to claim damages for delay which in its opinion was attributable to the Contractor. Notification of claims contemporaneously is salutary for very practical reasons, foremost amongst which is the certainty that at that point of time the parties would have come to an understanding on all controversial issues. Commercial pragmatism would prevail upon either side to adopt a realistic stance. Section 55 of the Contract Act, 1872 incorporates that "if, in case of a contract avoidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than agreed, the promisecannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of acceptance, he gives notice to the promisor of his intention to do so." Moreover, extension of time for completion of a project is essentially a novation in the contract, and by application of Section 62 and 63 of the Contract Act, relieves the opposite party from performing the obligations pertaining to time as contained in the original contract. Where the extension of time is unconditional, the original date is substituted by the extended date sans any liability.

13. The decision of the Privy Council in Muhammad Habidullah v. Bird and Company, AIR 1922 Privy Council 178, is topically illustrative. The parties had entered into a contract for the supply of 4000 sleepers of a special pattern at any station on the Bengal-Nagpur Railway by May 31, 1913. Only 1746 sleepers were delivered and passed inspection. The time for delivery was extended, but no more deliveries were made. The supplier raised on action for (1) the return of deposit and (2) damages in respect of his profit on the balance of sleepers not supplied. The Respondents counterclaimed for damages in respect of sleepers not delivered. Sections 55 and 63 of the Contract Act were considered and applied by the Privy Council. It opined that the promisewas not entitled to claim damages for non-performance at the original agreed time, but was not precluded from claiming damages for non-performance at the extended time. The Court further held that the effect of Section 55 is, "where the party having the option elects not to avoid, to put agreement after the original date on the same footing as an agreement just before the original date." A somewhat similar question arose in Chalisgaon Shri Laxmi Narayan Mills Co. Ltd. v. Amritlal Kalidas Kanji, , in which Section 55 of the Contract Act was applied. The following passage is self instructive:

"19... As the contract between the parties was for sale of goods, the time for delivery must be held to be essenceof the contract. The time for delivery in this case expired on July 31, 1951. The plaintiff accordingly was entitled to avoid the contract altogether and not accept delivery at any time subsequently in the correspondence the plaintiff stated that he would charge t he defendants the expenses incurred towards export duty as also damages that would ensue if late delivery was effected. The defendants refused to give delivery to the Plaintiff if he insisted upon the above conditions. In fact the export duty was imposed in April 1951. Even so and in spite of the defendants having informed the plaintiff that the defendants would not pay any amount of the export duty, the time for performance was by consent of parties extended to July 31, 1951. By agreeing to the above extension, the plaintiff, must be held to have given up and waived any right to payment of the export duty as damages. Upon extension of the due date to July 31, 1951, the parties proceeded on the footing that for all purposes the plaintiff would have to pay and bear the export duty for himself. The plaintiff cannot, therefore, be entitled to recovery the sum of Rs. 10,649-4-0 which he expended in connection with the export duty for consignment of the 49,693 yards that were delivered to the plaintiff in July 1952."

14. Ordinarily, the Court should assume that the correspondence between the parties has been perused by the Arbitrator. Letters emanating from the Respondents such as those dated 23.4.99, 6.5.1991, 10.3.1991, 19.6.1991, 14.6.1991 etc. are indicative of the position that the NDMC had partially performed its obligations and that some delay was also attributable to the Contractor. On 9.10.1992, i.e. the stipulated date of completion, the NDMC had the necessary cause of action to make a claim for damages on account of alleged delay by the Contractor. In permitting an extension of time it must be held to have waived its right to make any claim, since notice as contemplated by Section 55, had not been given. Conversely, the contractor also had the necessary cause of action to claim damages if the delay cold rightly be placed at the door of the NDMC. A notional breach of contract had therefore occurred. However, both the parties had unconditionally agreed to continue to perform their respective obligations. On the Contractor's part, this was to complete the project on the terms contained in the principal document. On the part of the NDMC, it was to make the payments as envisaged in this document. Having solicited and invited each other to perform their respective contractual obligations, even under the principle of estoppel, (which have in essence been articulated in Chapter IV of the Contract Act), the respective performances had been accepted. Section 62 of the Contract Act enunciates that "if the parties to a contract agree to substitute a new contract need not be performed." In the present scenario, the parties had agreed to set time at large by altering or rescinding the initially stipulated date of completion of 9.10.1992. Since this must be held, in the circumstances of the case, to have been by mutual consent, a new contract had come into effect making the original contract redundant in respect of the stipulated date of completion. Section 63 of the Contract Act states "that every promisemay dispense with or remit, wholly or in part, the performance of the promise made to him, or may extended the time for such performance, or may accept instead of it any satisfaction which he thinks fit." On a combined reading of these Sections, owing to the absence of any contemporaneous writing or evidence neither party would be entitled to claim damages on account of delay. In order to elucidate that this was the situation prevailing at the relevant time, reference to paragraph 4 of the Appeal would be of relevance. In this paragraph the Contractor has stated that the "work got spilled over the stipulated contract period and the appellants/claimants were made to incur additional expense on account of abnormal rise in price with reference to the quantum of work executed between the period 9/10/1992 till actual completion. Besides this, the appellants were subjected to additional expense on account of establishment during the prolonged period of execution of work beyond the stipulated contract period. The Appellants claimed the said additional expense by way of compensation which the Respondents did not agree to pay. Accordingly the disputes arose and the reference was made to the Arbitrator in terms of arbitration agreement." However, as has been discussed above, no claim was lodged by either party at the crucial and critical time, i.e. on 9.10.1992 when parties mutually agreed to enlarge the time for completion of the project. Therefore, the Arbitrator was justified in rejection the claims of both the parties.

15. Considerable argument has been generated before us on the interesting question of whether the sundry clauses of the Contract between the parties excluded the claim of Rs. 25 lakhs on account of loss of business and damages allegedly suffered by the Contractor for work executed during and beyond the stipulated date of completion. The stand of the NDMC is that such a claim is barred by the terms of the Contract. Reliance had been placed by Mr. Shah on the decision of a Division Bench of this Court in Delhi Development Authority v. U. Kashyap, 1999 (1) Arb. LR 88. In that case the net value of work done after the stipulated date of completion, after deducting the cost of materials supplied by the DDA, was Rs. 52,86,520/-. It was alleged that an effective increase of 18.3% over cost of construction during the stipulated period of completion had occurred. The Claimant claimed compensation of Rs. 4,82,010, after adjusting the amount allowed to him under Clause 10CC from the total damages computed as Rs. 9,67,433/-. The Award for the said sum of Rs. 4,82,010 was set aside. The Bench had considered the previous decisions of this Court in M/s. Metro Electric Co. New Delhi v. DDA, , Rawla Construction Co. v. Union of India, 1982 RLR 20, Hyderabad Municipal Corporation v. M. Krishnaswami Mudaliar and Anr., , P.M. Puri v.

Union of India 1989 (2) Arb. LR 215, Uttam Singh Duggal and Co. v. Union of India, 1988 (2) Arb. LR 225, Villayati Ram Mittal v. Union of India 1986 (1) Arb. LR 328, Himachal Pradesh Nagar Vikas Pradhikaran v. Aggarwal and Co. 1997 (1) Arb. LR 275, Suresh Chander v. DDA. 1997 (1) Arb. LR 536 and also an unreported decision in M/s. Express Engineering & Construction Co. v. Delhi Development Authority, Suit No. 843/91, 2613/91, dated 4.10.1994. It was ultimately poignantly pointed out that "since Clause 10CC extracted above of the agreement provides for the escalation in the price of material and labour during the extended period of work as per the formula set out therein, none of the aforementioned decisions have any applicability." In Kashyap's case (supra) the Bench was primarily concerned with the propriety of the Arbitrator formulating his own formulae for computing damages, and not following the method and manner laid down in Clause 10CC. For this reason Kashyap's case (supra) is not an authority for the proposition that Clause 10CC covers each and every claim that may result from a delay in the completion of the project.

16. Kashyap's case (supra) came up for consideration by another Division Bench of this Court in Delhi Development Authority v. S.S. Jetley 2001 (1) Arb. LR 289 (Delhi) in which the Bench observed that "the respondent had preferred separate claim namely, Claim No. 19 under Clause 10CC of the agreement and there is no dispute that the said claim was entertained and adjudicated upon, keeping in view the provisions of Clause 10CC of the agreement between the parties. The Claim No. 17 is in fact founded on different premise altogether. It was the case of the respondent that because of prolongation of the Contract due to the fault on the part of the appellant, the respondent was made to incur the expenditure on idle labour, staff, machinery centring, shuttering and other ancillary requirements like electricity, water, petroleum, etc. It was the case of the respondent that it was necessary for the respondent to keep regular establishment including graduate engineer at site till the work is completed as required under Clause 36 of the agreement. The Arbitrator found that the respondent had in fact incurred expenditure on the aforesaid grounds and awarded the claim @ 5,000 per month for the period of delay which was 44 months and on this basis a sum of Rs. 2,20,000 was awarded. It was clear, therefore, that Claim No. 17 was for damages on account of prolongation of Contract inasmuch as respondent was made to incur unnecessary expenditure due to the fault of the appellant in prolonging the contract. This claim is, therefore, maintainable as per Sections 73 and 74 of the Contract Act which gave entitlement to the respondent to claim damages/loss suffered due to breach of contract by the appellant. The award of Claim No. 17 was, therefore, justified and we see no merit in the aforesaid contention raised by the appellant." We are in respectful agreement with the views of the Division Bench in Both Kashyap's case as well as Jetley's case (supra).

17. It is now firmly entrenched in arbitral jurisprudence that standard form agreement, and in particular exclusion clauses contained therein, must be strictly construed against the party responsible for its drafting. This is the principle of contra preferentem, and has been given statutory recognition by the Unfair Contract Terms Act 1977 in the U.K. In Schroeder Publishing Co. Ltd. v. Macauly (1974) 1 W.L.R. 1308 it has been opined thus - "The terms of this kind of standard form contract have not been the subject of negotiation between the parties to it, or approved by any organisation representing the interests of the weaker party. They have been dictated by that party whose bargaining power, either exercised alone or in conjunction with others providing similar goods or services, enables him to say: 'If you want these goods or services at all, these are the only terms on which they are obtainable. Take it or leave it.' To be in a position to adopt this attitude towards a party desirous of entering into a contract to obtain goods or services provides a classic instance of superior bargaining power..... The fact that the appellants' bargaining power vis-a-vis the respondent was strong enough to enable them to adopt this take-it-or-leave-it attitude raises no presumption that they used it to drive an unconscionable bargain with him, but in the field of restraint of trade it calls for vigilance on the part of the court to see that they did not." If the intention of the NDMC was that no claim whatsoever could be allowed on account of the delay attributable to it, it should have clearly stated so. Clause 10CC only deals with the eventuality of increase of 'prices of materials and wages of labour'. It cannot be stretched to such an extremity as to exhaust all claims, irrespective whether they are confined to increase in prices of material or wages of labour, or beyond them. However, even this view does not advance the case of the Contractor before us, for the reason that there is a clear finding of fact by the Arbitrator that damages had not been proved. It is so also because notice for a claim for damages had not been reserved at the time when the completion period was agreed to be enlarged.

18. Before venturing to the next point, we would like to observe that foreign judgments and authorities cannot be extrapolated upon every case which falls to be decided in this country. Mr. Lakhanpal has relied on the following observation in Hudson's 492 9th Edition that -

"where the cause of delay is due to breach of contract by the employer, and there is also an applicable power to extend the time, the exercise of that power will not, in the absence of the clearest possible language, deprive the Contractor of his right to damages for his breach." Since this exposition of law runs counter to the provisions of the Section 55 of Indian Contract Act dealt with above, we are of the view that it is too widely stated for ubiquitous application.

19. Clause I of the Special Conditions of Contract came up for interpretation before a Single Bench in Shri Sunder Lal Khatri v. Delhi Development Authority, 1994 (2) Arb. LR 479. The learned Single Judge had found no impropriety with the grant of damages on account of overhead expenses incurred on establishment for the execution of the award during the prolonging period. The provisions of the Contract Act however, were not placed before the learned Single Judge.

20. The controversy cannot be allowed to rest only on the above discussion. Between the period March 1991 and the preparation of the Final Bill in March 1995 a total sum of Rs. 2,64,98,812/- was paid in the running account against the work done and the sum of Rs. 34,07,302.50 paise was paid under Clause 10CC. Not satisfied with these payments the Contractor had raised a demand for arbitration which was referred to Shri V.K. Sharma, as already detailed above. By this time the first Arbitration had come to its culmination in terms of the Award of Shri Dharwadker dated 5.11.1993 which had also been approved and the Learned Single Judge by his impugned judgment dated 25.2.1996. The Award passed by Shri Sharma compromised between the parties for the sum of Rs. 17 lakhs. Mr. Shah, learned Counsel for the respondent has contended that with this payment, all the Contractor's claims were extinguished/satisfied, including those which had been turned down by Shri Dharwadker in the first Award. Mr. Lakhanpal, however, contends that the two claims are totally distinct and for this reason, while offering the compromise for a settlement at Rs. 17 lakhs, no reference was made to the first Claim/Award. In order to ascertain whether there is any difference between the Claims in the two Arbitrations, it would be necessary to compare the wordings of Claim 19 in the second Reference with the first and third Claims raised in the Contractor's first demand for arbitration. It should also be recalled that the Administrator had declined to include Claim No. 3 in the Reference made to Shri Dharwadker. Claim No. 19, before Shri V.K. Sharma, reads as follows:

"Claim No. 19 On account of loss of profit.

The Claimants could state that the aforesaid work was awarded to them with stipulated date of commencement as 11/01/1991 and contract period being 21 months, the stipulated date of completion was 10/10/1992. The contract value for the work awarded was Rs. 2,77,53,295/-. The work was actually recorded to be completed on 30/10/1993. The execution of work was got delayed on account of miserable failures on the part of the respondents in fulfillling their obligations at the relevant time in such a manner so that claimants could execute the work smoothly and speedily so as to achieve completion within the stipulated contract period. The said failures on the part of the Respondents in not making available complete site free of hindrances, handing over the required design/drawings and releasing payments etc. at the relevant time is borne out from the documents placed on record.

0.2 Taking into consideration the contract value and the contract period, the quantum of work which was expected to be executed per month was Rs. 13,21,585/-. The claimants on its part on award of contract had made all the arrangements immediately so as to take up the execution of work in right earnest and proceed with the execution of the same smoothly, speedily with a view to complete the work within the stipulated contract period. The claimants on their part while tendering had taken into consideration the element of profit to be 10% of the value according to the norms prevailing in the trade. It is pertinent to put in on record that even the Respondents while preparing the estimate for the invitation of tenders had taken the element of contractors' profit to be 10%.

0.3. Since the execution of work got prolonged beyond the stipulated contract period because of respondents having committed breach of contract, the claimants were made to stay at site of work for a period of 12.53 months longer than the stipulated contract period.

For the prolonged period the claimants have been deprived of the expected profit they would have earned on execution of work. The respondents are liable to and the claimants are entitled to compensation towards deprivation of profit i.e. loss to which they have been subjected to during the period of prolonged stay at site. However, the respondents failed to appreciate the complete facts and circumstances in its true perspective which made them liable to compensate the claimants according to settled principles in the trade and that of law.

It is therefore, most respectfully prayed that considering the complete facts and circumstances in its true perspective, the learned Arbitrator be pleased to allow the amount found due and payable on the basis of settled principles as per details enclosed in annexure 'I'.

21. We are unable to find any distinguishing feature between the above claim and Claim No. 3 for a sum of Rs. 25,00,000/- which had not been referred for arbitration to Shri Dharwadker by the Administrator, NDMC. That Claim was in the following words - "the Claimant claims loss of business and damages suffered during stipulated period due to non-handing of full site." It is remarkable that although Claim No. 3 had not been referred to arbitration vide the letter dated 17th December, 1992 of the Administrator, NDMC, the same claim was subsequently referred to arbitration before Shri V.K. Sharma in 1998. We can only speculate that this was because of oversight. The principle of res judicata prohibits a fresh consideration of the same claim since the refusal to refer the aforementioned Claim No. 3 had not been assailed by the Contractor in 1992. The subject matter of the second arbitral Award has been settled between the parties at the lump-sum figure of Rs. 17 lakhs which is inclusive of Claim No. 19. Thus, large sum of Rs. 11,18,588/- was awarded against Claim No. 19 on account of loss of profit. Since the gravamen of the argument of Mr. Lakhanpal raised before us was that claims under Clause 10CC are necessarily restricted only to an increase in the price of material and wages, and not loss of profits, Claim No. 19 was essentially and intrinsically in the nature of loss of profits, which had not been referred for arbitration to the first Arbitrator, despite the Contractor's demand. It has not been argued before us that this Claim was subsequently referred due to a change the circumstances or in the thinking of the parties. Its adjudication before Shri Sharma, arguably, was legally impermissible.

22. Be that as it may, when Claim No. 1 before Shri Dharwadker is considered, it would clearly fall within the observations of the previous Division Benches in Kashyap's case as well as in Jetley's case (supra). What is sought to be claimed by the Contractor in Claim 1 before Shri Dharwadker is enhancement of rates at a percentage different to that as envisaged under Clause 10CC, it is clearly legally untenable. Mindful of this impediment in his path, the Claimant has now given the colour of damages to Claim No. 1 before Shir Dharwadker. We find merit in the submission of Mr. Shah that the effort of the Contractor is to change the nature of Claim No. 1 from an increase in percentage to a claim for damages. In either case, we find no error in the impugned Award and reject the appeal.

23. It has also been contended by Mr. Lakhanpal that the approach of Shri Dharwadker was legally faulty inasmuch as it has been observed by him in the impugned Award that there is no explanation of the material on the basis of which the Arbitrator has returned the finding that "it could not also be ruled out that part of the delay is attributable to the Claimants themselves. I, therefore, in the absence of information on the exact contribution by the two sides, hold them both equally responsible for the delay and the consequent award/damages." The Hon'ble Supreme Court has time and again observed that the Court is expected to adopt an approach which would affirm the legal propriety of an Award. Equally-well settled is the preposition that the Arbitrator, not having the benefit of legal training, is not expected to writ an Award with the meticulous detail and reasoning to which lawyers are accustomed. Semantic consideration must not thwart implementation of Awards. As we see it, after referring to the evidence placed before him both the adversaries the Arbitrator returned a finding of fact that neither side had proved the fault of the other or the extent of damages. The Award must not be read in a pedantic manner; if not so done the Arbitrator's conclusion cannot be faulted.

24. Mr. Lakhanpal has sought to press in his favor the decision in K.P. Poulose v. State of Kerala and Another, in support of his contention that the Arbitrator should have himself gathered evidence in connection with the Claim for damages. We are unable to read this decision as an authority for the extreme proposition put forward by Mr. Lakhanpal. Firstly, it cannot be understood how an arbitrator can possibly collect evidence which is non-existence. Secondly, the duty to prove the case cannot possibly rest on the Arbitrator but must lie on the parties themselves. In Poulose's case (supra) two very material documents, Ext. P-11 and P-16 were ignored by the Arbitrator. The counter argument was that these documents were not even marked before the Arbitrator; but that they were marked only before the Subordinate Judge. The Hon'ble Supreme Court was of the opinion, on being taken through Exts. P-11 and P-16 that they were the material documents to arrive at a just and fair decision to resolve the controversy between the department and the contractor. It, therefore, held that "in the background of the controversy in this case even if the department did not produce the documents before the Arbitrator it would be incumbent upon him to pursue the relevant documents including Ext.P-11 and P-16 for the purpose of justice." The Apex Court had restricted its observations to the facts of that case as is evident from the words emphasised above. Furthermore, both the documents were available on the arbitral record, and since they were relevant, ought not to have been ignored merely because they had not been formally exhibited. Strict and punctilious adherence to rules of evidence are not expected in arbitration proceedings. This is all that the Hon'ble Supreme Court was emphasising in Poulose's case (supra). It is too far fetched to cite this case as obligate the Arbitrator to gather evidence not placed before him, or beyond his ken.

25. We feel constrained to observe that the Contractor had failed to inform this Court about the receipt of the payment of Rs. 17 lakhs against the second Award. This has been brought to our notice by learned counsel for the Respondent. It is also significant that in arriving at the compromise of Rs. 17 lakhs the Contractor had sagaciously not made any reference or drawn attention to the first Award. This must have been deliberately done since otherwise the second Award may have also been assailed, for the reasons mentioned above, namely that they could not be adjudicated since they had already been declined to be preferred in 1992; and that Claim No. 1 would be barred by the operation of Clause 10CC. This case exemplifies the vulnerability of Governmental authorities in preparing a proper defense to claims levelled against them; or to allow inadmissible and legally untenable claims for reasons which every one suspects. This is a fit case, and we recommend so, for the Administrator to institute an inquiry to fix the responsibility of the negligence and inaptitudes of its officers in defending the NDMC. While the application of principle of res judicata may be of some legal intricacy calling for it to be overlooked, the failure of the officials of the NDMC to link the Dharwadkar Award with the subsequent Sharma Award, prima facie, indicates a drastic dereliction of duty. But for the diligence and the assiduous preparation of the case by Mr. Shah, learned Counsel for the Respondent, the overlapping of the claim of the first and second set of claims might may have gone unnoticed.

26. The appeal is dismissed with exemplary costs of Rs. 25,000/- payable by the appellant to the Prime Minister's Relief Fund. These costs have been imposed because of the male fide conduct of the Claimant not only before Shri V.K. Sharma, Arbitrator and the NDMC, but also before us inasmuch as it had failed, of its own, to clarify the factum of the receipt of Rs. 17 lakhs. This fact ought to have been disclosed in writing, before hearings in the Appeal had commenced, even if the Appellant was of the opinion that the scope of two Arbitrations were totally distinct.