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1996 DIGILAW 65 (HP)

H. K. SAREEN v. STATE OF H. P.

1996-04-25

SURINDER SARUP

body1996
JUDGMENT Surinder Sarup, J.—The facts giving rise to these proceedings are that the tenders, for the work of construction of Bus Terminus-cum-Parking Complex at Shimla (Construction of Ground Floor and Mazzanine Floor Building portion only), were invited. The claimant Shri H K. Sareen, Contractor having submitted the lowest tender, the said work was awarded to him by respondent No, 2—Executive Engineer, Shimla Division No. 1, H. P. PWD. In consequence of the same, Agreement No. 30 of 1987-88 was executed between the department and the said Contractor. 2. As per the terms of the agreement, the time allowed for completion of work by the Contractor was one year, which was reckoned from the 15th day of the issue of the award letter, i e., 21st October, 1987. The Con-tractor, however, completed his work on 3!st May, 1990 During the execution of the work by the Conti actor, as also after its completion, a dispute arose between the department and the contractor regarding disposal of earth, and on account of extra height for the centering and shuttering together with additional payment for deviated items. Thereupon the contractor, invoked arbitration clause, being clause No. 25 of the contract Agreement. In consequence thereof, an Arbitrator was appointed by the Chief Engineer (South) to adjudicate the claims of both the parties, 3. The claimant/contractor filed his claims with the arbitrator on 7th June, 1993, while the respondent Executive Engineer filed defence statement on 23rd June, 1993. Ultimately, the Arbitrator Shri S. S. Juneja, Superintending Engineer, Arbitrator, H. P. PWD, Solan announced his award dated 29th June, 1994 and thereby he awarded a sum of Rs. 4,87,827 in favour of the claimant/contractor to be paid by the Executive Engineer (respondent) in full and final settlement of the claims and counter-claims of both the parties in respect or the said work and under the said agreement. The original award was sent to this Court, to be made the rule of the Court under section 14 of the Arbitration Act, 1940 (hereinafter to be referred to as the Act’) 4. On behalf of respondent, objections have been filed under sections 30 and 33 of the Act. Reply to the said objections has been filed by the claimant/contractor. The original award was sent to this Court, to be made the rule of the Court under section 14 of the Arbitration Act, 1940 (hereinafter to be referred to as the Act’) 4. On behalf of respondent, objections have been filed under sections 30 and 33 of the Act. Reply to the said objections has been filed by the claimant/contractor. One of the points taken in this reply is that the objections of the respondent are barred by limitation, since they have not been filed within the statutory period of 30 days from the date of receipt of notice of filing of the award in this Court. Another point that has been raised in the reply is that no legal ground has been nude out to set aside the award and it would not be possible for this Court to re-appreciate and reappraise the evidence as Court of appeal. It may be mentioned here that on behalf of the objector, an application has beet filed under section 5 of the Limitation Act for condoning the delay in filing the objections. On the pleadings of the parties, the following issues have been framed : “1. Whether the Arbitrator misconducted himself and the proceedings, as alleged. If so, its effect ? O. P Objector 2. Whether the objections preferred for assailing the award have been filed within limitation ? O. P. Objector 3. Whether the award is without jurisdiction, as alleged ? O. P. Objector 4. Relief.” The learned Counsel for the parties have been heard and the record perused. The findings, issue-wise, are as under : Issues No 1 and 3 : 5. Both these issues are taken up together as they are inter-connected. In support of the objections of the respondent, the learned Assistant Advocate General has submitted that the Arbitrator has misconducted himself in awarding an amount of Rs. 2,69,600 for extra height for shuttering including brick pillars in addition to the rate already allowed in the final bill. He has wrongly worked out the rate of Rs. 160 per Square Metre on account of extra height, although he had to determine the rate as per main Clause J 2 of the agreement between the parties. In terms of that clause, the rate will factually work out to Rs. 9.38 per Square Metre. 6. He has wrongly worked out the rate of Rs. 160 per Square Metre on account of extra height, although he had to determine the rate as per main Clause J 2 of the agreement between the parties. In terms of that clause, the rate will factually work out to Rs. 9.38 per Square Metre. 6. The finding of the Arbitrator as regards claim No. 1 of the contractor, for payment in respect of extra height for centering and shuttering is reproduced hereinbelow for facility of reference : "Now coming to extra height ; from the various pleadings made by both the parties before me during hearings 1 am convinced that at the time of tenders no architectural or structural drawings were either appended with the tender documents or shown to the Contractor in Divisional office before tendering. So the same conclusions as drawn by me in case of extra lead for surplus earth also holds good in this case also because no contract can be uncertain or indefinite. So had the detail drawings been shown, the Contractor could have been certain about the maximum heights involved during execution In absence of the same Contractor can assume normal storey height given in Schedule that is four metres and 1, therefore, decide that Contractor is entitled for extra height from 4 to 7 metres. But I do not agree with his supporting analysis of rates as per his letter dated 6-3-1990 (C-10) I have carefully scrutinised the analysis for extra height of shuttering and also analysis of brick pillars. The Contractor could not prove through documents evidence or through photographs that any brick pillars were constructed, however, some type of arrangements must have been made by claimant to erect staging at a height of 7J2 metres. So keeping all these points in view I decide that a rate of Rs. 160 per Sq Mtr. is the justified rate for extra height including brick pillars in addition to the rate already allowed in the final bill against this item and for 1685 Sq. Mtr. the total amount admissible works out to Rs. 2,69,600." 7. It is clear from the above that not only has the Arbitrator given reasons in support of this finding of his, but he has also disallowed the analysis of rates, as submitted by the Contractor in respect of his claim before him. Mtr. the total amount admissible works out to Rs. 2,69,600." 7. It is clear from the above that not only has the Arbitrator given reasons in support of this finding of his, but he has also disallowed the analysis of rates, as submitted by the Contractor in respect of his claim before him. This goes to show that the Arbitrator has applied his mind and appears to have given cogent reasons in support of his finding in this respect. Not only that, a perusal of the entire award of the Arbitrator indicates that he has not allowed all the claims of the contractor. For example, in respect of claim No. 2, the contractor had claimed Rs. 77,696 towards payment of price escalation but this claim has not been accepted by the Arbitrator and no amount has been awarded in this behalf. It is thus crystal clear that the Arbitrator has neither misconducted himself nor the proceedings before him, as alleged by the objector-respondent, 8. The learned Counsel appearing on behalf of the claimant/contractor has referred to section 30 of the Act and has submitted that this Court has not to reappraise the evidence and the findings under various claims and counter-claims of the parties as a Court of appeal. In support of his submission, he has cited a number of reported decisions of the Honble Supreme Court in respect of the interpretation of section 30 of the Act. They are M/s. Tarapore and Company v. Cochin Shipyard Ltd. Cochin and another, AIR 1984 SC 1072 ; Trustees of the Port of Madras v. Engineering Constructions Corporation Limited, AIR 1995 SC 2423 ; M/s Hindustan Tea Co. v. M/s K. Sashikant and Co and another, AIR 1987 SC 81 ; Indian Oil Corporation Ltd. v. Indian Carbon Ltd, AIR 1988 SC 1340 ; M/s. Neelkantan and Bros. Construction v Superintending Engineer, National Highways, Salem and others, AIR 1988 SC 2045 ; State of Andhra Pradesh and another v. R. V. Rayanim etc , AIR 1990 SC 626 ; Puri Construction Pvt Ltd v Union of India, AIR 1989 SC 777 and M/s. Sudarsan Trading Co v. The Government of Kerala and another, AIR 1989 SC 890. 9. Construction v Superintending Engineer, National Highways, Salem and others, AIR 1988 SC 2045 ; State of Andhra Pradesh and another v. R. V. Rayanim etc , AIR 1990 SC 626 ; Puri Construction Pvt Ltd v Union of India, AIR 1989 SC 777 and M/s. Sudarsan Trading Co v. The Government of Kerala and another, AIR 1989 SC 890. 9. The law laid down by the apex Court in the authorities cited and referred to above is that the Court cannot substitute its own findings for those of the Arbitrator, when the Arbitrator has given reasons for arriving at those findings. It has even gone to the extent of holding that even in case no reasons have been given in the award by the Arbitrator, the same cannot be interfered with. Applying the ratio of the decisions rendered by the apex Court in the above cited rulings, it will be seen that in the present case, not only the claims and counter-claims of the parties have been considered in detail by the Arbitrator in his award, the same also contains reasons in support of the findings arrived at under each claim. In this view of the matter, no ground has been made out for interfering with the award of the Arbitrator in this case. Consequently, this Court holds that the Arbitrator has not misconducted himself or the proceedings and that his award is not without jurisdiction, as alleged by the objector. Both these issues are decided accordingly. Issue No. 2 : 10. In view of the conclusions arrived at under Issues No. 1 and 3 above, this Issue does not arise for decision and it is decided accordingly. Issue No. 4 ; 11. For the reasons and conclusions arrived at here above there is no merit in the objections of the respondent-department and the same are dismissed. The award of the Arbitrator dated 29th June, 1994 is made a rule of the Court and it is directed. that a decree-sheet be prepared accordingly. The parties are left to bear their own costs of these proceedings. Order accordingly.