State of Bihar v. Hardeo Singh — 1996 DIGILAW 481 (PAT)

JUDGMENT Dr. J.N. Dubey, J. - This appeal is directed against the order dated 8.9.1992 of the Sub Judge I, Supaul. 2. It appears that the appellant no. 1 and the respondent entered into an agreement under which the latter undertook construction of Silt Ejector at 0.35 Km. of Western Kosi Canal for Rs. 3,35,11,086.90. Accordingly, a formal agreement no. 10-F2 of 1983-84 was executed by them on 3.9.1983. On completion of the project, some dispute about payment arose between the parties which was referred to the sole arbitrator, the Superintending Engineer, Western Kosi Canal Circle, Nirmali, in terms of clause 23 of the agreement and the letter no. 2587, dated 25.8.1972 of the Deputy Secretary, River Valley Project, Government of Bihar. 3. The parties appeared before the arbitrator and led evidence in support of their case on merit. No objection about absence of arbitration clause or jurisdiction of the Superintending Engineer to act as arbitrator was raised by the appellants. The arbitrator after considering the case of the parties, finally made his award for Rs. 16,65,000.00 on 7.4.1990. The award was filed in the Court of Sub Judge I, Supaul through Bishwambhar Prasad Sinha, Assistant Government Pleader on 16.6.1990. In the meantime, C.K.P. Singh, Executive Engineer, Western Kosi Canal project vide his letter no. 256, dated 18.4.1990, also informed the Sub Judge I that the appellants were agree with the award and requested that the same be made rule of the Court. On receiving the award, the Sub Judge issued notice to the parties informing them of the filing of the award and requiring them to file objection, if any, against it within 30 days from the receipt thereof. Both the parties appeared before the Sub Judge through their counsel. While the appellants did not file any objection, a detailed objection was filed by the respondent claiming that the arbitrator has not decided the entire dispute between the parties. Considering the entire facts and circumstances of the case, the Sub Judge allowed the objection of the respondent on 20.9.1990 and remitted back the award to the arbitrator for reconsideration. The relevant portion of the order reads thus : "In pursuance of the notices issued both the parties appeared through their respective lawyers. The Executive Engineer, Western Kosi Canal Division No.1, Kunoli did not raise any objection. The relevant portion of the order reads thus : "In pursuance of the notices issued both the parties appeared through their respective lawyers. The Executive Engineer, Western Kosi Canal Division No.1, Kunoli did not raise any objection. The other party M/s Hardeo Singh of Bathnaha, District Purnea, however, has filed an objection under Section 16 of the Arbitration Act. In his objection he has stated that his total claim was to the tune of Rs. 1,88,90,638.85 P. on different heads which were furnished before the Arbitrator alongwith the statement of claim as also before the Engineer in Chief of the work in question. That in the course of hearing the claim of objector petitioner towards dewatering, labour, escalation charges as well as payment for escalation and price of P.O.L. as per actual use was virtually accepted by the Department before the Arbitrator but the Arbitrator has allowed only Rs. 16.65 Lacks without mentioning the amount allowed on a particular head and has left undetermined many matters referred to him. This has caused much monetary loss. I have already heard the learned counsels of both parties and have gone through the award submitted by the Arbitrator. After perusing the objection filed by the objector petitioner as well as the award, I find that the award is not a speaking award. The basis of the conclusion arrived at by the Arbitrator is not mentioned. It appears that the Arbitrator has left much portion of the claim of the objector petitioner undetermined. In such circumstances it is desirable that the Award should be remitted back to the Arbitrator for further consideration in the light of the objection raised by the objector petitioner. Accordingly the objection petition filed on behalf of M/s Hardeo Singh is hereby allowed. The Award is remitted back to the learned Arbitrator for reconsideration and determination of the claim in the light of the objections raised in the objection petition. The Arbitrator is required to submit his decision to this court within six months." 4. The order dated 20.9.1990 of the Sub Judge, not having been challenged by any party, became final. Accordingly, the matter was reconsidered by the arbitrator and a final award of Rs.31,45,000.00 in favour of the respondent was made on 19.4.1991. 5. The Arbitrator is required to submit his decision to this court within six months." 4. The order dated 20.9.1990 of the Sub Judge, not having been challenged by any party, became final. Accordingly, the matter was reconsidered by the arbitrator and a final award of Rs.31,45,000.00 in favour of the respondent was made on 19.4.1991. 5. The arbitrator vide his letter no.633, dated 19.4.1991 submitted the award to the Court of Sub Judge through the Assistant Government Pleader, Supaul for making it the rule of the Court. On receiving the award, the Sub Judge issued notice to the parties calling upon them to file their objection against it, if any. Both the parties appeared before him through their counsel. The appellants filed objection, which runs as under : "That the arbitrator has misconducted the proceeding. That the award is a procured award. It is, therefore, humbly prayed that the award be sent back to the arbitrator for reconsideration." 6. Although the respondent did not file any objection against the award, they filed a detailed counter objection. In the meantime, I.N. Singh, Executive Engineer, vide his letter no. 775, dated 30.8.1992 intimated the Sub Judge that the appellants had no objection against the award. When the case was taken up for hearing, the Assistant Government Pleader stated before the Sub Judge that in view of the no objection certificate given by the Executive Engineer, he had also nothing to say against the award. The Sub Judge, after considering the entire material on record, came to the conclusion that the arbitrator has not misconducted himself in any manner and accordingly, vide his order dated 8.9.1992, made the award rule of the Court. Feeling aggrieved, the appellants have filed this appeal. 7. Heard the learned counsel for the parties and perused the record. 8. Learned counsel for the appellants contended that the appellant no. 2, the Executive Engineer was not legally competent to give no objection certificate against the award and as such, the court below was not legally justified in making the award rule of the court on that basis. He further contended that the agreement did not contain any arbitration clause and as such, the Superintending Engineer was not legally competent to act as arbitrator. 9. He further contended that the agreement did not contain any arbitration clause and as such, the Superintending Engineer was not legally competent to act as arbitrator. 9. On the other hand, learned counsel for the respondent contended that the appellant no.2 the Executive Engineer, was quite competent to give no objection certificate against the award and therefore, the court below has committed no mistake in making the award rule of the court. He further contended that the matter was referred to the Superintending Engineer in terms of clause 23 of the agreement and letter no. 2587 dated 25.8.1972 of the Deputy Secretary, River Valley Project, Government of Bihar and, therefore, it could not be legally claimed that the Superintending Engineer was not legally competent to act as an arbitrator. 10. Having considered the arguments of the learned counsel, I find no merit in this appeal. The agreement in question was signed by the appellant no. 2, the Executive Engineer on behalf of the appellants and he has been representing the appellants before the arbitrator as well as the court and, therefore, it cannot be legally claimed that he was not competent to give no objection certificate against the award. The claim of the appellants that the appellant no. 2, the Executive Engineer acted against their interest by giving no objection certificate in the court below does not find support from the material on record. The no objection certificate was given by the Executive Engineer, Indranand Singh, who has been representing the appellants both before the arbitrator as well as the court. No ingredient of fraud, collusion etc. of the Executive Engineer Indranand Singh, or the Assistant Government Pleader, J.N. Pandey, has been specified by the appellants and, therefore, it cannot be claimed that they have acted against the interest of the appellants in the court below. 11. It is relevant to point out here that the Executive Engineer, Indranand Singh, himself is the appellant no. 2 in this appeal. The affidavit in support of this appeal has also been sworn by the Executive Engineer, Indranand Singh, on 27.1.1994. It is strange that the appellant no. 2 the Executive Engineer, having himself given the no objection certificate in the court below, is claiming that he had no authority to give such certificate and that he acted against the interest of the appellants. 12. It is strange that the appellant no. 2 the Executive Engineer, having himself given the no objection certificate in the court below, is claiming that he had no authority to give such certificate and that he acted against the interest of the appellants. 12. From the record, it appears that the no objection certificate given by the Executive Engineer, Indranand Singh, who has been representing the appellants both before the arbitrator and the court, was bona fide and the claim of the appellant that either he had no authority to do so or he did it against their interest, is clearly an afterthought. It was prayed that the award be remitted back to the arbitrator for reconsideration. The claim of the appellants that there was no arbitration clause in the agreement and, therefore, the Superintending Engineer was not legally competent to act as arbitrator is disproved from the very fact that in their objection they wanted the award to be remitted back to the arbitrator for reconsideration. If their claim that there was no arbitration clause in the agreement and, as such, the Superintending Engineer was not competent to act as arbitrator, was correct, there was no occasion for them to request the court for remitting back the award to him for reconsideration. 15. The appellants were represented in the court below by J.N. Pandey, Assistant Government Pleader, who also did not raise any objection against the award during argument, on the other hand, made specific statement before the court below that in view of the no objection certificate given by the Executive Engineer, he had nothing to say against the award. 16. In my opinion, the court below was perfectly justified in making the award rule of the court on the basis of no objection certificate of the appellant no.2 and the statement of the Assistant Government Pleader that he had nothing to say against the award. The order of the court, having been passed with the consent of the appellants, cannot be legally set aside at their instance. In this view of the matter, it is not necessary for me to record detailed finding on the second argument advanced by the learned counsel for the appellants. 17. In the result, the appeal fails and is, accordingly, dismissed with costs.